CEDH · CASELAW;DECISIONS;DECGRANDCHAMBER;ENG — 29 avril 2025

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ITALY (Application no.   63386/16)             DECISION   STRASBOURG 29   April 2025       Table of Contents PROCEDURE THE FACTS The circumstances of the case A.   Conditions on board the ship as alleged by the applicant B.   Information provided by the shipping company C.   Steps taken by the applicant RELEVANT LEGAL FRAMEWORK AND PRACTICE I.   DOMESTIC LEGAL FRAMEWORK A.   Relevant domestic law 1.   The Constitution 2.   The Code of Civil Procedure 3.   The Civil Code 4.   The Navigation Code 5.   Legislative Decree no.   286 of 1998 B.   Domestic practice 1.   Court of Cassation case-law on the status of ship’s captain 2.   Report of the National Guarantor of rights for persons in custody or deprived of personal liberty II.   RELEVANT INTERNATIONAL MATERIAL A.   United Nations 1.   Draft Articles on Responsibility of States for Internationally Wrongful Acts 2.   The United Nations Convention on the Law of the Sea 3.   The International Maritime Organization Convention on Facilitation of International Maritime Traffic 4.   The Convention on International Civil Aviation B.   European Union (EU) 1.   The Charter of Fundamental Rights of the European Union 2.   The Convention implementing the Schengen Agreement of 14   June 1985 3.   Regulation (EC) 562/2006 of the European Parliament and of the Council of 15   March 2006 establishing a Community Code on the rules governing the movement of persons across borders (“the Schengen Borders Code”), replaced by Regulation (EU) 2016/399 of the European Parliament and of the Council of 9   March 2016 (codification) 4.   European Parliament Resolution of 12   April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration (2015/2095(INI)) COMPLAINTS THE LAW I.   PRELIMINARY ISSUES A.   Jurisdiction 1.   The parties’ submissions 2.   The Court’s assessment B.   Incompatibility ratione personae 1.   The parties’ submissions 2.   The Court’s assessment II.   ALLEGED VIOLATIONS OF ARTICLE   5 A.   Article   5 of the Convention The Government’s preliminary objections (a)   Whether Article   5 is applicable (i)   The parties’ submissions (ii)   The Court’s assessment (b)   Exhaustion of domestic remedies (i)   The Government’s submissions (ii)   The applicant’s submissions (iii)   The Court’s assessment (α)   General principles (β)   Application of the above principles to the present case ‒   Nature of the remedies that should have been available to the applicant in the present case ‒   The remedies proposed by the Government B.   Article   5 §   4 of the Convention C.   Article   5 §   5 of the Convention III.   ALLEGED VIOLATIONS OF ARTICLES   3 AND 13 OF THE CONVENTION A.   The parties’ submissions B.   The Court’s assessment     The European Court of Human Rights, sitting as a Grand Chamber composed of:   Marko Bošnjak, President,   Arnfinn Bårdsen,   Mattias Guyomar,   Ivana Jelić,   Gabriele Kucsko-Stadlmayer,   Pere Pastor Vilanova,   Krzysztof Wojtyczek,   Alena Poláčková,   Tim Eicke,   Péter Paczolay,   Darian Pavli,   Raffaele Sabato,   Peeter Roosma,   Ana Maria Guerra Martins,   Andreas Zünd,   Diana Sârcu,   Sebastian Răduleţu, judges , and Søren Prebensen, Deputy Grand Chamber Registrar , Having regard to the above application lodged on 28 October 2016, Having deliberated on 18   September 2024 and 5   March 2025, decides as follows: PROCEDURE 1.     The case originated in an application (no.   63368/16) against the Italian Republic lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Tunisian national, Mr   Habib Mansouri (“the applicant”), on 28   October 2016. 2.     The applicant was represented by Mr   M.   Cipolla, a lawyer practising in Ferrara, and by Mr   L.   Masera, a lawyer practising in Brescia. The Italian Government (“the Government”) were represented by their Agent, Mr   L.   D’Ascia. 3.     The applicant alleged that during his removal to Tunisia by ship following the issuance of an order refusing him entry to Italy he had been unlawfully deprived of his liberty in a cabin, under constant supervision by security officers. He complained of violations of Article   5 §§   1, 2, 4 and 5,   and of Articles   3 and   13 of the Convention. 4.     On 20   November 2018 the Government were given notice of the application. 5.     On 20   February 2024 the Chamber decided to relinquish jurisdiction in favour of the Grand Chamber (Article   30 of the Convention). 6.     The composition of the Grand Chamber was determined in accordance with to the provisions of Article   26 §§   4 and 5 of the Convention and Rule   24 of the Rules of Court. 7.     The applicant and the respondent Government each filed observations on the admissibility and merits of the case. 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 18   September 2024. There appeared before the Court: –     for the Government:   Mr   L. D’Ascia,         Agent ,   Mr   D. G. Pintus ,   Mr   M. Di Benedetto ,   Ms   A. Berti Suman ,         Advisers , –     for the applicant:   Mr   M. Cipolla ,   Mr   L. Masera,         Counsel ,   Ms   A. Annoni ,   Ms   F. De Vittor,   Ms   I. Carnat ,         Advisers .   The Court heard addresses by Mr   D’Ascia, Mr   Cipolla and Mr   Masera and their replies to questions from the Court. THE FACTS The circumstances of the case 9.     The applicant, Mr   Habib Mansouri, is a Tunisian national who was born in 1976 and currently lives in Tunis. 10.     From 2014 to 2016 he lawfully resided in Italy on the basis of a temporary residence permit with authorisation to work, which was valid until 3   April 2016. On 20   January 2016 he travelled to Tunisia. 11.     On 1   May 2016 the applicant was subjected to an identity check at the Palermo maritime border while on board the Italian cruiseferry Splendid , owned by the Italian company Grandi Navi Veloci (“GNV”), which had arrived from Tunis. He was in possession of his passport, his expired residence permit and a copy of an application for a long-term residence permit dated 16   October 2015. 12.     During the identity check, the border police noted that the application for a residence permit dated 16   October 2015 had been rejected on 24   March 2016 by decision of the Ferrara Chief of Police ( questore ) and that the applicant did not have an entry visa. They informed the applicant of the Chief of Police’s decision and issued him with a refusal-of-entry order ( respingimento alla frontiera ), pursuant to Article   10 §   1 of Legislative Decree no.   286 of 1998. It was specified in the order that an appeal could be lodged with the Administrative Court of competent jurisdiction ratione loci within a period of sixty days. 13 .     Accordingly, the applicant was not allowed to leave the ship and the border police instructed the captain of the Splendid to assume responsibility for him and return him to Tunis in accordance with Article   10 §   3 of Legislative Decree no.   286 of 1998. The “Request to immediately take charge of a foreign national refused entry to Italy and to convey him or her to another State” ( Richiesta di immediata assunzione in carico e di riconduzione in altro Stato di straniero non ammesso in territorio nazionale ) read as follows (translation by the Registry): “In accordance with Article   10   §   3 of Legislative Decree no.   286 of 1998, the captain is requested to cover all expenses incurred during the time spent in Italy by the third-country national, pending the return of the latter to Tunis by the same means of transport. In view of the above, the person concerned may not disembark from the ship in the enforcement of his return and is therefore placed under [the captain’s] responsibility, it being specified that, should the person concerned manage to escape the captain’s control owing to any negligence of the latter in the implementation of the requisite measures, [the captain would be] brought before the judicial authorities to answer for a violation of Article   12 §   1 of the above-mentioned Legislative Decree (an offence punishable by a maximum of 3 years’ imprisonment and a fine of up to 15,000   euros).” 14 .     The Splendid arrived in Tunisia on 7   May, after serving the Italian ports of Civitavecchia and Termini Imerese in accordance with its sailing schedule. A.    Conditions on board the ship as alleged by the applicant 15.     The applicant described the conditions of his stay on board the Splendid as follows: “For seven days, until the ship returned to Tunis, Mr   Mansouri was confined to a cabin manifestly designed as a holding cell, located in a part of the ship that was off-limits to passengers. Prior to his confinement, his luggage was searched by a person who, judging from his clothes and the insignia on the shoulder of his jacket, must have been a ship’s officer. Neither at the time he entered the cabin, nor at any subsequent time did anyone ask Mr   Mansouri whether he had any food allergies, whether he suffered from any illnesses, what his state of health was, or whether he required medication. Access to Mr   Mansouri’s cabin was gained via a long corridor. The cabin door consisted of a gate with vertical metal bars. It was thus possible, through the gap between the bars, for those passing in the corridor to have a full and complete view of the cabin’s interior. The bathroom, which measured approximately one metre thirty centimetres by one metre twenty centimetres, was accessed by a sliding door. The cabin’s metal door was locked from the outside and it was therefore impossible for Mr   Mansouri to exit. The cabin also had a porthole, but it was smaller than those of the ordinary cabins. Inside the cabin, the detainee had no mechanism by which to call for help and no one had informed him of any other means of obtaining help in case of need or of how to evacuate in the event that the ship had an accident. While at sea, he asked to be allowed to leave the cramped space to which he was confined, but his requests were always refused. Not once throughout the entire trip was Mr   Mansouri allowed to leave the cabin. During his stay, he kept his cell tidy, even though he was not provided with the necessary equipment to clean it. The towels were changed twice. The sheets were also changed twice. In the second case, one person came into the cell while another locked the door from the outside and waited until the person responsible for changing the sheets had finished the task. Mr   Mansouri used his own hygiene products because he had them in his suitcase. His meals were delivered three times a day and consisted of a breakfast, a lunch and a dinner. The tableware was entirely made of plastic. Mr   Mansouri was free to use his own mobile phone which, provided he could get a signal, was his only means of communication. His phone credit was regularly topped up by his family.” B.    Information provided by the shipping company 16 .     In their observations before the Chamber, the Government produced a note from GNV dated 11   July 2019. That note reads as follows: “... passengers who are refused entry at the border, once such refusal has been formalised by the border police, are entrusted to the ship’s captain in accordance with a refusal-of-entry record. In accordance with the relevant provisions pertaining to passengers refused entry, the ship’s captain is ordered to assume immediate responsibility for the individual concerned on board the ship until disembarkation, and is advised that, throughout the entire period of confinement to the ship, he or she is to ensure custody ( custodia ) of that individual by means of constant and careful supervision. In accordance with long-standing practice, the passenger refused entry is taken to a cabin specially arranged to accommodate him or her appropriately. In particular, the cabin entrance is equipped with a door to allow the staff responsible for his or her supervision to keep watch over him or her during calls at ports and at sea, in compliance with security standards, and to ensure his or her safety. We confirm that passengers who have been refused entry are monitored during meals and are regularly accompanied to the deck to go for walks or to smoke. In addition, the cabins reserved for such passengers are equipped with doors fitted with locks that can be opened from the inside and the passengers refused entry who occupy them, although subject to round-the-clock supervision by security staff, may freely go out to smoke or to go for a stroll.” 17 .     Before the Grand Chamber, the Government produced an additional note from the shipowner, dated 2   May 2024, which reads as follows: “On 30   April 2016 the ship Splendid , owned by the Grandi Navi Veloci SPA company, transported the passenger Habib Mansouri from the port of La Goulette (Tunisia) to the port of Palermo. Upon disembarkation, the border police at the Palermo passenger port refused entry to Mr   Mansouri and, by a refusal-of-entry order, entrusted him to the captain of the Splendid for his return. Every decision as to Mr   Mansouri’s custody was taken by the captain in the exercise of his general powers under Article   186 of the Navigation Code, since the border police had not given any guidance or orders in that regard. At that time, the Splendid ensured a regular service on an international route connecting La Goulette and Palermo-Civitavecchia from Saturday to Sunday/Monday and Civitavecchia and Termini Imerese from Monday to Friday. Accordingly, Mr   Mansouri remained on board the Splendid from Sunday 1   May 2016 until Saturday 7   May 2016, the date of the ship’s arrival at the port of La Goulette. On board the ship Mr   Mansouri was accommodated in cabin no.   8430, which is equipped with a bathroom, current photos of which are attached, it being specified that conditions have not changed since the relevant time. The cabin was furnished taking the necessary precautions to avoid any risk of self-harm (for example, all electric cables, knives, shower tubes were removed; the bathroom mirror was protected). The cabin door was never locked from the outside. Mr   Mansouri could freely choose either to remain in the cabin or to frequent the ship’s public spaces whenever he wished, and even for the entire duration of the crossing. During his time on board Mr   Mansouri was constantly in the custody and under the protection of the ship’s captain and security staff to prevent acts of self-harm, both in his cabin and during visits to various places on the ship (self-service restaurant, public areas, outer decks), [which] Mr   Mansouri visited freely and regularly, several times a day, accompanied only at a distance by security staff. Furthermore, Mr   Mansouri enjoyed free and full access to the phone and internet networks for the purpose of personal communication.” C.    Steps taken by the applicant 18.     On 2   May 2016 the applicant contacted his lawyer by mobile phone. The following day, his lawyer sent the border police a request for internal reconsideration ( autotutela ), seeking to have the refusal-of-entry order that had been issued in respect of the applicant revoked. The lawyer explained, in particular, that the applicant was confined to a cabin that was locked from the outside. The relevant part of that request reads as follows: “As a subsidiary consideration, your office is asked to consider whether it would not be appropriate to verify that the police officers had the right to take the decision to refuse entry to Mr   Mansouri, having regard to the fact that such a decision would result, in particular, in his confinement to a cabin locked from the outside by the ship’s crew.” 19.     The border police rejected the request for internal reconsideration. They considered that the refusal-of-entry measure had been lawfully ordered pursuant to Article   10 of Legislative Decree no.   286 of 1998 since the applicant had not been in possession of a valid residence permit or an entry visa when he had arrived at the border. As to the applicant’s having been kept on board the Splendid , they further clarified as follows: “In accordance with the aforementioned Article   10, a carrier that has brought to the border an alien who is not in possession of valid travel documents or is refused entry for any other reason is obliged immediately to assume responsibility for him or her again and to return him or her to the country from which he or she was transported.” 20.     On 18   May 2016 the applicant’s lawyer wrote to the Minister of the Interior. He pointed out that his client submitted that he had been confined to a cabin that was locked from the outside throughout the entire trip, without being allowed to leave, and asked the Minister to comment on the truth of those submissions and on whether the circumstances under which the return had been effected were compatible with the principles of domestic law. 21 .     In a note of 20   September 2016 the Minister of the Interior replied to the lawyer as follows: “I refer to your letter of 18   May 2016 concerning the refusal-of-entry order issued by the Palermo border police in respect of Mr   Mansouri on 1   May 2016. In this connection, I would call your attention to the applicable provisions of European Union law and national law, in particular those of Article   10 §   3 of Legislative Decree no.   286/98, pursuant to which the carrier is under the obligation to transport ( ricondurre ) foreign nationals who have been refused entry to the national territory back to their place of departure, and I note that the border police acted appropriately in entrusting Mr   Mansouri to the captain of the ship Splendid , owned by the Grimaldi – Grandi Navi Veloci shipping company, with a view to his return ( rimpatrio ) to Tunis. In this context, in accordance with the ship’s sailing schedule, before returning to Tunisia, it sailed onward to the port of Civitavecchia, and from there to Termini Imerese. It should further be noted that, during his stay on board, the foreign national was accommodated in a private cabin that was equipped with a bathroom, suitably furnished and devoid of any object posing a threat to his or others’ safety. Lastly, Mr   Mansouri’s supervision was ensured by staff specialised in security on board the ship.” RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LEGAL FRAMEWORK A.    Relevant domestic law 1.      The Constitution 22.     Article   13 of the Italian Constitution reads as follows: “Personal liberty is inviolable. No one may be detained, inspected, or searched, or otherwise subjected to any restriction of personal liberty, except by a reasoned order of a judicial authority and only in such cases and in such manner as provided by law. In exceptional circumstances and under such conditions of necessity and urgency as shall be precisely defined by law, the law-enforcement authorities may take provisional measures that shall be referred within 48   hours to a judicial authority and which, if not validated by the latter in the following 48 hours, shall be deemed withdrawn and ineffective. Any act of physical or mental violence against persons subjected to a restriction of personal liberty shall be punished. The law shall establish the maximum duration of any provisional measure of detention.” 2.      The Code of Civil Procedure 23 .     Article   700 of the Code of Civil Procedure provides that anyone who has cause to fear imminent and irreparable damage to a given right during the time necessary to assert that right in ordinary proceedings may ask the court of competent jurisdiction to order such urgent measures as are deemed, in the light of the circumstances, most appropriate to preserve, on an interim basis, the possibility of enforcing the decision on the merits. Under Article   669   sexies , the court dealing with an application for interim relief may decide to give its ruling without hearing the parties beforehand so as not to jeopardise the measure’s enforcement. 3.      The Civil Code 24.     Article   2043 of the Civil Code provides: “Any unlawful act which causes damage to another shall oblige the person having committed it to make good such damage.” 4.      The Navigation Code 25 .       The relevant provisions of the Navigation Code of 30   March 1942, as amended in 2020, read as follows: Article 4 “Italian ships on the high seas and aircraft in airspace not subject to the sovereignty of a State are considered to be Italian territory.” Article 5 “Acts and events occurring on board a ship or aircraft during navigation in waters or airspace subject to the sovereignty of a foreign State shall be governed by the national law of that ship or aircraft in all cases where, under the provisions governing the application of laws in general, the applicable laws should be those of the place where the act or event occurred.” Article 8 “The powers, duties and remit of the captain of the ship or aircraft shall be governed by the national law of the ship or aircraft.” Article 186 “Everyone on board the ship shall be subject to the authority of the ship’s captain.” Article 1154 “Where a ship’s captain or officer or the captain of an aircraft has subjected an employee, a passenger, or an individual under arrest or in detention who has been placed under his or her responsibility for custody or transport, or an individual placed under his or her responsibility in execution of a measure taken by an authority of competent jurisdiction, to coercive measures that are prohibited by law, he or she shall be punished by up to thirty months’ imprisonment, provided his or her actions do not constitute a more serious offence. The same punishment shall apply to anyone to whom the individual in question has been or handed over or under whose responsibility he or she has been placed.” Article 1249 “During maritime or coastal navigation, disciplinary power shall be exercised as follows: (1) by the ship’s captain over the crew members and passengers, even if the persons concerned are not Italian citizens ...” Article 1256 “In addition to the cases provided for by special laws or regulations the following shall constitute disciplinary offences when committed by passengers: (1) disrespect towards the captain or officers of the ship or aircraft; (2) causing a nuisance to other passengers or to the crew; (3) causing disorder of any kind on the ship or aircraft; (4) failure to comply with the regulations of the ship or aircraft.” Article 1257 “The disciplinary penalties for passengers shall be as follows: (1) ordinary warning; (2) public warning; (3) exclusion from the dining hall for one to five days; (4) for passengers on a ship, prohibition to remain on deck for more than two hours a day for a maximum period of five days; (5) in the case of coastal navigation, disembarkation at the next port of call on national soil. These penalties shall be enforced by the captain of the ship or aircraft.” 5.      Legislative Decree no.   286 of 1998 26 .     Legislative Decree ( decreto legislativo ) no.   286 of 1998 (“Consolidated text of provisions concerning immigration regulations and rules on the status of aliens”) was issued on 25   July 1998 and subsequently amended on a number of occasions, in particular by Legislative Decrees nos.   150 of 2011 and 13 of 2017. The relevant provisions thereof, as in force at the material time, read as follows: Article 10 Refusal of entry ( respingimento ) “1. The border police shall refuse entry to the national territory ( respinge ) to aliens who seek to cross the border without meeting the conditions laid down in the present consolidated text governing entry into the territory of the State. 2. Refusal of entry combined with removal shall, moreover, be ordered by the Chief of Police ( questore ) in respect of aliens: (a) who have entered the territory of the State by evading border controls, when they are arrested on entry or immediately afterwards; (b) who ... have been temporarily allowed to remain for purposes of public assistance. 3. A carrier which has brought to the border an alien who is not in possession of valid travel documents or who is refused entry for any other reason pursuant to the present Article shall be obliged immediately to assume responsibility for him or her again and to return him or her to the country from which he or she was transported or in which his or her travel document was issued ... 4. The provisions of paragraphs   1, 2 and 3 ... do not apply to the cases provided for in the applicable provisions governing political asylum, the grant of refugee status or the adoption of temporary protection measures on humanitarian grounds. ... ” Article 14 Execution of removal measures “1. Where ... it is impossible to ensure the prompt execution of the deportation measure ( espulsione ) by escorting the person to the border or of the refusal-of-entry measure ( respingimento ), the Chief of Police shall order that the alien be held for such time as is strictly necessary at the nearest Identification and Removal Centre, among those designated or created by order of the Minister of the Interior in collaboration ( di concerto ) with the Minister for the Economy and Finance. To this end, he or she shall request that a place be assigned by the Central Directorate for Immigration and Border Police of the Public Safety Department at the Ministry of the Interior. In addition to [the risk of fleeing], the grounds justifying such placement include the need to provide the alien with assistance, perform additional identity or nationality checks, or obtain travel documents, and the unavailability of a carrier. 2. The alien shall be placed in an establishment that guarantees appropriate living and sanitary conditions and has procedures in place to ensure that he or she is able to receive the necessary information about his or her status, the assistance he or she requires and full respect for his or her dignity. ... 3. The Chief of Police for the place where the centre is located shall, without delay and, in any event, no later than forty-eight hours after taking the decision, forward a copy of the documents to the competent Justice of the Peace for validation. 4. The validation hearing shall take place before the Justice of the Peace, sitting in camera , with the mandatory assistance of a lawyer, who shall be informed of the hearing in a timely manner. The alien must also be informed thereof without delay and brought to the place where the hearing is held. ... The Justice of the Peace shall rule on the validity of the detention measure within forty-eight hours, in a reasoned decision, once he or she is satisfied that the time-limits have been complied with, that the conditions laid down in Article   13 and in the present Article have been met ... and after hearing the person concerned, if he or she has appeared at the hearing. The measure shall cease to have effect if the decision is not delivered within the allotted time. ...” B.    Domestic practice 1.      Court of Cassation case-law on the status of ship’s captain 27 .     The Italian Court of Cassation has repeatedly emphasised that, along with obligations of a private nature, the Navigation Code confers duties on the ship’s captain that are performed in the public interest. Sometimes, therefore, he or she will perform duties specific to public officials ( pubblici ufficiali ) and, at others, tasks of an exclusively private nature (see, for example, judgment no.   2881 of 19   December 1966). The Court of Cassation has thus held that a ship’s captain is a private individual, and that he or she is vested with public functions and acts as a public official whenever he or she exercises the public-authority powers ( potestà pubblicistiche ) conferred on him or her by law, in particular those of law enforcement under Article   1235 of the Navigation Code, those inherent in the role of commander of persons on board a ship under Articles   296 and 888 of the Navigation Code and those of a disciplinary nature referred to in Article 1249 of that same Code (see judgment no.   179 of 21   January 1963). In general, the captain of a private ship must be recognised as acting as a public official where he or she exercises the public-authority powers directly conferred on him or her by law for the purpose of ensuring the proper and lawful conduct of navigation (see judgment no.   2881 of 19   December 1966; see also judgment no.   4557 of 12   October 2023 concerning the rescue of migrants in international waters). 2.      Report of the National Guarantor of rights for persons in custody or deprived of personal liberty 28 .     In June   2019 the National Guarantor of rights for persons in custody or deprived of personal liberty ( Garante Nazionale dei diritti delle persone detenute o private della libertà personale ) submitted a report to the Italian Parliament on the activities of police forces at certain border checkpoints, namely Rome-Fiumicino airport, Milan-Malpensa airport and the port of Civitavecchia. With regard to the port of Civitavecchia in particular, the report read as follows: “Based on an examination of the register of persons refused entry, the office of the border police at the Civitavecchia passenger port issued 51   immediate refusal-of-entry orders in 2017, and 18 in 2018. In most cases, those orders were issued in respect of Tunisian citizens who lacked travel documents, were in possession of forged documents, or lacked means of subsistence. Based on the data received by the National Guarantor, foreign citizens who are not authorised to enter Italian territory following border checks and are refused entry are immediately placed under the responsibility of the shipping company with which they were travelling and remain on board the ship pending departure. ...   3.1.2. Impact on the right to liberty of foreign nationals refused entry in certain refusal-of-entry scenarios (Article   10 §   1 of the consolidated text on immigration) Civitavecchia has two weekly connections with Tunis that are operated by two shipping companies using Italian ships: one docks at Civitavecchia on Mondays and the other on Tuesdays. Foreign nationals who arrive at Civitavecchia and are refused entry are confined to a cabin and wait on board for the ship to sail back to Tunis. Their stay on board the ship obviously lasts until docking in Tunis, but in some cases lasts far longer than the length of a direct Civitavecchia-Tunis connection. In practice, it can thus happen that they are not returned immediately, as the return voyage to Tunis is not direct and comprises several intermediate stops ... For the entire duration of the return journey, aliens who have been refused entry to Italy remain on the ship, without permission to disembark or any freedom of movement beyond the confines of the ship. According to the information received by the Guarantor from the border police, during calls at foreign ports, the individuals concerned are confined to their cabins, under the supervision of security officers employed by the shipping company, but they allegedly enjoy greater freedom of movement about the ship when at sea. According to the registers, eleven individuals who were refused entry received such treatment in 2017, and three in 2018. The case of those confined on board a ship sailing under the Italian flag, within Italian territorial waters, for a prolonged period of time and in a state of complete subordination to the carrier responsible for their return transportation, which should in theory be immediate, would appear to constitute a deprivation of liberty that is de   facto incompatible with the Constitution and with [the Convention]. ...” II.       RELEVANT INTERNATIONAL MATERIAL A.    United Nations 1.      Draft Articles on Responsibility of States for Internationally Wrongful Acts 29 .     The draft Articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission provide as follows: Article 5 Conduct of persons or entities exercising elements of governmental authority “The conduct of a person or entity which is not an organ of the State under article   4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.” Article 8 Conduct directed or controlled by a State “The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.” 2.      The United Nations Convention on the Law of the Sea 30 .     The relevant Articles of the 1982 United Nations Convention on the Law of the Sea (“the Montego Bay Convention”) provide: Article 27 Criminal jurisdiction on board a foreign ship “1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases: (a) if the consequences of the crime extend to the coastal State; (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. ...” Article 28 Civil jurisdiction in relation to foreign ships “1. The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. 2. The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State. ...” Article 92 Status of ships “1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. ... ...” Article 94 Duties of the flag State “1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. ...” 3.      The International Maritime Organization Convention on Facilitation of International Maritime Traffic 31.     The relevant parts of the Annex to the International Maritime Organization Convention on Facilitation of International Maritime Traffic, which was adopted in London in 1965 and has been amended on several occasions, read as follows at the relevant time: “3.14 Standard. Public authorities shall, without unreasonable delay, accept passengers and crew for examination as to their admission into the State when such examination is required. 3.15 Standard. Public authorities shall not impose any penalty upon shipowners in the event that any control document in possession of a passenger is found by public authorities to be inadequate, or if, for that reason, the passenger is found to be inadmissible to the State. 3.15.1 Standard. Public authorities should invite shipowners to take all reasonable precautions to the end that passengers hold any control documents required by Contracting Governments.” 4.      The Convention on International Civil Aviation 32 .     The relevant parts of Chapter   5 of Annex   9 to the 1944 Convention on International Civil Aviation, (“the Chicago Convention” – fourteenth edition, October 2015), headed “Inadmissible persons and deportees”, provide as follows: “5.2     Contracting States shall facilitate the transit of persons being removed from another State pursuant to the provisions of this Chapter, and extend necessary cooperation to the aircraft operator(s) and escort(s) carrying out such removal. 5.2.1     During the period when an inadmissible passenger or a person to be deported is under their custody, the state Officers shall preserve the dignity of such persons and take no action likely to infringe such dignity. ... 5.5     Contracting States shall ensure that a removal order is issued to the aircraft operator in respect of a person found inadmissible. The removal order shall include information regarding the inbound (arriving) flight carrying such person and, if known, the name, age, gender and citizenship of the person in question. ... 5.8     Contracting States that have reason to believe that an inadmissible person might offer resistance to his removal shall inform the aircraft operator concerned as far in advance as possible of scheduled departure so that the aircraft operator can take precautions to ensure the security of the flight. 5.9     The aircraft operator shall be responsible for the cost of custody and care of an improperly documented person from the moment that person is found inadmissible and returned to the aircraft operator for removal from the State. ... 5.11     The aircraft operator shall remove the inadmissible person to: (a)     the point where he commenced his journey; or (b)     to any place where he is admissible.” B.    European Union (EU) 1.      The Charter of Fundamental Rights of the European Union 33.     Article   6 of the Ch