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Case of A.S. et al. – 3042/2017

Country Italy
Status FINAL
Relevant Law Article 2 (3), 6 and 7 of the International Covenant on Civil and Political Rights. Article 1, 5 (2) (b) of the Optional Protocol.
Year 2020
Found for Applicant

The applicants in this case are Syrian nationals. They were on a vessel in the Mediterranean Sea carrying more than 400 people. The vessel shipwrecked 113 kilometers south of Lampedusa, which caused the death of over half of those on board as Italian and Maltese rescue vessels only arrived after the vessel had capsized.

The Italian rescue center was contacted when the vessel started to sink. Several hours later, the rescue center replied to the request stating that the applicants were in the Maltese search and rescue zone, and provided them with a phone number for the Maltese rescue center. In the following hours, no assistance was provided to the people in distress even though Malta had accepted responsibility for the coordination of the rescue operation and an Italian navy vessel had been in close proximity while the vessel was sinking. The Italian navy vessel only arrived after the vessel had already capsized. The applicants claimed a violation of Article 6 (1) of the Covenant, a violation of Article 6 (1) read in conjunction with Article 2(3) of the Covenant, and a violation of Article 7 in conjunction with Article 2 (3) of the Covenant.

Italy claimed that the communication was inadmissible as the events had occurred outside Italian waters and hence they had no jurisdiction over the applicants at the time of the alleged violation. The Committee confirmed that the shipwreck occurred outside of Italian territory and that the alleged violations did not take place on board a vessel flying the Italian flag. However, the Committee then underlined that State parties are required to respect and ensure the Covenant rights to all persons who might be within their territory and to all persons subject to their power or effective control outside of its territory. The Committee also specifically recalled paragraph 63 of its general comment No. 36 (2018) on the right to life, in which it observed that a State party has an obligation to respect and ensure the rights under Article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control. The Committee then proceeded to decide if the applicants could have been under the effective control of Italy at the time of the incident, bringing them under its jurisdiction.

Applying the jurisdiction threshold to the facts of the case, the Committee came up with a notion of ‘a special relationship of dependency’ between the vessel in distress and the Italian rescue center. The Committee held that four factual elements had created this relationship in the present case. First of all, the vessel in distress had initially contacted the Italian rescue center. Secondly, the Italian navy vessel had been in close proximity throughout the period in which the events unfolded. Thirdly the Italian rescue center remained involved in the rescue operation even after Malta accepted responsibility, and finally, Italy was bound by international obligations to rescue the individuals. The Committee concluded that because of this relationship of dependency, the individuals on board the shipwrecked vessel were directly affected by the decisions taken by Italy in a manner that was directly foreseeable in the light of the relevant legal obligations of Italy, and therefore, the people on board the vessel had been subject to Italy’s jurisdiction with regard to the Covenant. Consequently, the Committee held that Italy had violated the applicant’s right to life and the right to life in conjunction with the right to an effective remedy.