In the case of J.A. and Others v. Italy (21329/18, 30.3.2023), the ECtHR for the first time assessed the compatibility with the Convention of the “hotspot approach”. The four applicants in this case were migrants who had to stay ten days at the Lampedusa hotspot, following which they were forcibly removed from Italy to Tunisia. The ECtHR found violations of the Convention on the ground that the conditions at the hotspot were inhuman and degrading (Article 3), that the presence of the applicants there amounted to an unlawful detention (Article 5 §§ 1, 2 and 4) and that they had been the victims of a collective expulsion (Article 4 of Protocol No 4).
According to Regulation (EU) 2019/1896, “hotspot area means an area created at the request of the host Member State in which the host Member State, the Commission, relevant Union agencies and participating Member States cooperate, with the aim of managing an existing or potential disproportionate migratory challenge characterised by a significant increase in the number of migrants arriving at the external borders” (Art. 2 § 23). Examples are Sicily and Lampedusa in Italy or Lesbos and Kos in Greece. The “hotspot approach” was part of the so-called European Agenda on Migration initiated by the European Commission in 2015 with a view to helping frontline Member States cope with massive migrant arrivals.
What is noteworthy about this judgment, in terms of the interplay between EU law and the Convention, is that it criticises the lack of appropriate safeguards protecting migrants against violations of their fundamental rights in Lampedusa but, at the same time, leaves open whether Italy or the EU is responsible for it. While the Italian Government did not refer to any piece of EU law being relevant in this context (§§ 70-72), the judgment nonetheless reproduces extensive EU law sources in the field of migration (§§ 27-37), thus suggesting that EU law may be relevant in this area, if only because of the cooperation taking place in hotspots between domestic and EU entities.
This is in particular the case with the unlawful detention of the applicants. On this issue, the ECtHR indeed noted that the Government had not shown that the “Italian regulatory framework, including EU rules that may be applicable,” provided clear instructions concerning the detention of migrants in these facilities (§ 90). A similar reference to the nature and function of hotspots being determined by “domestic law and the EU regulatory framework” is to be found in paragraph 95 of the judgment.
De lege lata, the EU not being a Contracting Party to the Convention, Italy is the sole respondent liable for the violations found by the ECtHR in this case, notably those which stem from the impugned lack of a clear legal basis for – and of safeguards relating to – the detention of applicants, regardless of whether that lack has its origin in domestic or EU law and whether the regulatory intervention needed was for Italy or the EU to perform. In the latter case, Italy might face a problem in executing the judgment.
De lege ferenda, however, should the EU become a Contracting Party under the revised Draft Agreement for the Accession of the EU to the Convention, this kind of scenario, characterised by issues as to the competent law-maker in the area concerned, might lend itself to the application of the co-respondent mechanism laid down in Article 3 of the Agreement. Under this mechanism, the EU could indeed become a co-respondent in the proceedings before the ECtHR, next to the respondent Member State, on condition that, first, the alleged violation(s) are due to the lack of adequate regulations rather than to a failure to correctly apply existing regulations and, secondly, that the EU takes the view that at least part of the missing regulations are within its own competence.
In such proceedings, the ECtHR would, just as in the present case, leave open whether and to what extent the Member State concerned, the EU or both are responsible for the violation(s) found. The difference would be, however, that rather than having only the possibility to declare the Member State responsible for the violations found and for the execution of the judgment, regardless of whether it is competent or not, the ECtHR would hold both the EU and the Member State jointly responsible, thus ensuring that the competent law-maker is on board in case the execution of the judgment requires a regulatory intervention. Securing the mandatory participation of the EU, according to its competence, in the execution of Strasbourg judgments is indeed the main benefit of the co-respondent mechanism.