Blog post by Hannah Katz, a PhD candidate at the Bloom Graduate School, University of Haifa
The Grand Chamber of the European Court of Human Rights (ECtHR) operates within a framework of exceptionalism, as demonstrated by its infrequent adjudication of cases: of the 1,014 judgments delivered in 2023, it adjudicated only 13. This exclusivity arises from the fact that no case is ever sent directly to the Grand Chamber; instead, most cases are adjudicated by a 3-judge Committee or a 7-judge Chamber. After a Chamber judgment, parties have three months to appeal. Only exceptional cases reach a 17-judge Grand Chamber, whose judgments are final and cannot be appealed. Grand Chamber cases may traverse two distinct procedural routes: relinquishment of jurisdiction or request for referral. The former pathway, characterized by even greater rarity, saw only 2 cases directly relinquished to the Grand Chamber in 2023. However, on 22 February 2024, a significant instance of this exceptional phenomenon materialized as the Chamber announced the relinquishment of jurisdiction in the case Mansouri v. Italy, propelling it to ‘pass go’ directly to the Grand Chamber.
The case concerns the lawfulness and conditions of a Tunisian national’s confinement aboard an Italian cruise ship used to return him to Tunisia based on a refusal-of-entry order issued by the Italian border police. Yet, the decision to relinquish jurisdiction, offers no explicit rationale, adding a layer of opacity to the proceedings (Rule 72(4), Rules of the Court). Against this backdrop, the Mansouri case presents a timely opportunity to delve into the legal mechanisms activating the Grand Chamber’s jurisdiction, as well as to scrutinize the material aspects of previous judgments within the context of migration and border controls. By navigating the procedural and material background, this analysis seeks to uncover potential reasons for the jurisdictional relinquishment in the Mansouri case and to offer informed predictions regarding its outcome.
Exceptional Pathways to the Grand Chamber
There are two ways in which a case may proceed to the Grand Chamber: via relinquishment of jurisdiction or via a request for referral. In the former pathway, the allocated Chamber to a case decides to relinquish its jurisdiction in favour of the Grand Chamber immediately, without issuing a judgment or decision. Codified in Article 30 of the Convention, a Chamber may relinquish jurisdiction to the Grand Chamber when, one, a case pending before a Chamber raises a serious question potentially affecting the interpretation of the Convention or the Protocols thereto, or two, the resolution of a question raised in a case before the Chamber may turn out to be inconsistent with the Court’s case-law.
In a request for referral, any party to a case may exceptionally, within a period of three months from the date of delivery of the judgment of a Chamber, file a request that the case be referred to the Grand Chamber (Article 43). The party shall specify in its request the serious question affecting the interpretation or application of the Convention or the Protocols thereto, or the serious issue of general importance, which in its view warrants consideration by the Grand Chamber (Rule 73(1), Rules of the Court).
The Grand Chamber’s Jurisprudence on Migration and Border Control
Despite its exceptional use, the Grand Chamber has issued three high profile judgments in the context of migration and border controls in the post-2015 context. In contrast to the Mansouri case, all these cases were first adjudicated by their allocated Chambers and only reached the Grand Chamber following requests for referrals by the respondent Governments. The first case, Khlaifia and Others v. Italy, concerned the issue of collective expulsions of migrants, when the events surrounding the “Arab Spring” led to a mass influx of migrants and heightened tension in the host states. In a reversal of the Chamber’s rights-affirming judgment, in December 2016 the Grand Chamber judgment realigned the ECtHR’s case law case law in favour of states’ interests to control territorial access. InIlias and Ahmed v. Hungary, the Grand Chamber had the opportunity to develop its case-law on the question whether the confinement of asylum-seekers in a transit zone at the land border between two member states of the Council of Europe could be regarded as deprivation of liberty. In a reversal of the allocated Chamber’s findings, the Grand Chamber judgment in November 2019 legitimized detention in transit zones. Lastly, in N.D. and N.T. v. Spain, the Grand Chamber for the first time had an opportunity to address the issue of the immediate and forcible return of foreign nationals from a land border. In its February 2020 judgment, the Grand Chamber once again reversed the first Chamber’s findings and aligned its case law with state interests to control territorial access. With this, the Grand Chamber effectively legalized pushbacks by land causing a shocking blow to human rights protection in Europe and leaving a hole of unclear dimensions in the prohibition of non-refoulement.
The Mansouri case
Given the concerning trend observed in recent Grand Chamber case law, one might anticipate a continuation of deference to state interests regarding migration and border control. However, crucial factors could sway the judgment in favour of human rights. Foremost among these is the pathway to the Grand Chamber. In prior instances, where respondent governments contested judgments by the allocated Chamber, resulting Grand Chamber rulings retreated from human rights principles. In stark contrast, in the Mansouri case, the allocated Chamber relinquished jurisdiction directly to the Grand Chamber. The same procedural trajectory was witnessed in the pre-2015 context with the Hirsi Jamaa and others v. Italy case. Notably, in its rights-affirming judgment, the Grand Chamber broadened states’ obligations towards foreign nationals at sea, establishing extraterritorial jurisdiction over maritime search-and-rescue operations. This distinction, where the Grand Chamber’s jurisdiction was activated directly by the allocated Chamber rather than indirectly by a respondent state, is likely to influence the forthcoming Mansouri judgment.
The second factor delves into the unique legal nuances of the Mansouri case, setting it apart from prior legal precedents. Unlike the previously discussed cases, Mansouri had lawfully resided in Europe for two years. Upon his forced return to Tunisia, his permit had expired by only a month, and he possessed a copy of his long-term residency application submitted in 2015. Consider this hypothetical scenario: if Mansouri had held a Western passport and returned to Italy with a visa expired by just one month, would the Italian authorities have reacted in the same manner? It is plausible that this aspect is among the reasons prompting the allocated Chamber to directly relinquish its jurisdiction over the case. Therefore, I maintain cautious optimism that the Grand Chamber will render a judgment favouring the applicant and upholding human rights principles.
Concluding Remarks
The Grand Chamber of the European Court of Human Rights is exclusive, as demonstrated by its limited adjudication of cases. Despite the opacity of proceedings, the pathway to the Grand Chamber, whether through relinquishment of jurisdiction or request for referral, may significantly impact the outcome of cases, particularly in contentious areas such as migration and border control. Recent judgments have showcased a tendency towards deference to state interests, prompting concerns about the erosion of human rights protections. However, the Mansouri case presents a unique opportunity for a potential departure from this trend. The decision by the allocated Chamber to relinquish jurisdiction directly to the Grand Chamber, coupled with the distinctive legal nuances of the case, suggests a shift towards a more rights-affirming outcome. The Grand Chamber has already set a hearing date for 18 September 2024.
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