The complaint to the court concerned Italy´s push-back operations to Libya in 2009. Then, before the Arab Spring had begun, a group of migrants (mainly Somalis and Eritreans) tried to make the crossing from Libya to Italy. But they were intercepted by Italian customs and coast-guard ships on the high seas (outside Italian and Libyan waters) and taken onto those ships. Telling the passengers they were taking them to Italy, the ships took them instead to Libya. When the migrants saw they were approaching Libya, they protested, but to no avail. The Italian forces handed them over to the Libyan authorities. A group of Eritrean and Somali victims managed—from Libya—to instruct the Italian lawyers of UFTDU to make a complaint to the Court. The United Nations High Commissioner for Refugees and human rights organizations intervened to support the case, arguing that the migrants had not been given the chance to seek refugee status as required by international humanitarian law.

The Court’s judgment deals with four important areas.

The European Convention on Human Rights could only be relied on if Italy had ‘jurisdiction’ over the migrants aboard the boats under article 1 of the convention. The Italian government argued that they did not because its vessels were in international waters and, supposedly, on a ‘search and rescue’ mission. But under international law, a state has exclusive jurisdiction over a boat flying its flag on the high seas. This led the court to rule that, even though outside Italian territory, the people on the boat were subject to the jurisdiction of Italy under the convention. The claimed ‘search and rescue’ mission was irrelevant to jurisdiction.

The court decided that Italy had violated the prohibition on torture and ill-treatment in article 3 of the convention. The evidence available to Italy had showed that Libya was systematically violating the human rights of irregular migrants by inflicting torture and inhuman treatment. Following its MSS v. Greece judgment, the court said Italy had a duty to ‘find out about the treatment to which the applicants would be exposed on return’. Second, by sending them to Libya, the migrants were in fact exposed to a real risk of being arbitrarily repatriated by the Libyan authorities to Somalia and Eritrea, contrary to Italy’s obligation ‘to ensure that the intermediary country offers sufficient guarantees’. Italy’s defence that it was acting under the international law of the sea was rejected because those rules also prohibited Italy from returning a person to face a serious risk of ill-treatment.

The court then found a violation of the convention's prohibition on collective expulsion of aliens in Article 4 of Protocol 4 to the Convention. This is the first case where the court considered whether interception outside territorial waters can be ‘expulsion’. The language and history of the convention allow such a reading and the reality of 21^st century maritime migration requires that reading. The court held that the concept of expulsion runs with the state’s ‘jurisdiction’ under the convention. The court upheld the complaint of collective expulsion for only the second time (the first having been in Čonka v Belgium).

The last violation found by the court was denial of the right to a remedy. Article 13 of the convention gave the migrants the right to challenge before the Italian authorities the safety of Libya and the nature of the expulsion. The court ruled that they were entitled ‘to obtain a thorough and rigorous assessment of their requests before the removal measure was enforced’. Italy had a duty to provide the remedy before the passengers were handed to the Libyan authorities. The court singled out for criticism the lack of interpreters and legal advisers on board the ships.

The court ordered Italy to compensate the migrants with €15,000 each. In his powerful concurring opinion, Judge Pinto de Albuquerque called for Italy also to be ordered to ensure their right to return to Italian jurisdiction, and to have their requests for refugee status properly considered. Disappointingly, the other judges refused this, requiring Italy only to try its best to stop Libya harming or deporting the migrants arbitrarily.

Nevertheless, this important judgment ought to dissuade European immigration officials from attempting any more maritime push-back operations. To be lawful, such actions would have to ensure individualized access to a proper asylum procedure from the ship (including interpreters and legal advisors) and, in any event, there could be no forced disembarkation in a state where it was clear irregular migrants are at risk of ill-treatment. Rather than establish asylum courts at sea, Europe should use its resources to end the deaths at sea resulting from migrants' desperate attempts to reach its shores in often inadequate boats, and instead secure safe and humane treatment for all.

The clear and far-reaching opinion of Judge Pinto de Albuquerque shows the stark contrast between this result in Strasbourg and the much criticized ruling of the US Supreme Court in Sale v. Haitian Centers Council, which upheld the action of US coast-guard vessels in intercepting and repatriating Haitian migrant boats. The judgment is already being cited in Australia's debate over migrant boats, as the country's opposition coalition argues for the adoption of a similar "push-back" policy. By requiring states to guarantee human rights beyond their state´s territorial boundaries, Europe´s human rights court has upheld the primacy of fundamental rights and the rule of law.

Voices across Europe are calling for humane and long-lasting measures to fix Europe’s unfair asylum system, which has turned Greece into a human warehouse for asylum seekers. The governments of other European countries have refused to act to resolve the crisis in Greece, despite condemnation by Europe’s human rights watchdogs, and court rulings that international law is being broken.

In January 2011, the European Committee for the Prevention of Torture condemned the Greek Government for detaining asylum-seekers and other migrants in inhuman and degrading conditions. The Committee—part of the Council of Europe system of protection of human rights—took the unusual step of accusing the Greek Government of doing so as an apparently ‘deliberate policy’ to deter migrants without identity papers from entering Greece. The committee reported cases in which people detained were punched and kicked. It found that unrelated adults and children are detained together in cells that are grossly overcrowded. Those held are denied access to soap and hot water and sometimes to their personal effects and clothes. In one center, the Committee found 83 boys crammed into a cell of 100 cubic meters, into which sewage was flooding. Thirty-three of these boys were aged 12-14. Most had been held there for two months.

Asylum-seekers who get released in Greece, sometimes after eighteen months in detention, are unlikely to get a fair or speedy decision on their asylum claim. They join thousands of other migrants who lack the papers they need to find work, yet the Greek government denies their rights to basic food and shelter. In June 2011, the European Court of Human Rights held in its MSS v Belgium and Greece judgment that Greece’s handling of asylum-seekers constitutes inhuman and degrading treatment. Supported by Thomas Hammarberg, the Council of Europe human rights commissioner, the Court ruled that human rights law prohibits other European countries from sending asylum-seekers to Greece under European Union procedures, because of the poor conditions there. At the end of December 2011, the Court of Justice of the European Union followed the human rights court, deciding in its its NS and ME judgment that EU law does not allow EU countries to send asylum-seekers to Greece.

This shocking treatment does not arise from a lack of funds. The EU provides the Greek Government with millions of Euros to deal with irregular migrants arriving there. The European Asylum Support Office also supports Greece. Individual Greek citizens and Greek NGOs try to help the people affected.

Despite this EU money and support, which has been provided for years, the Greek Government has completely failed to ensure a humane reception for migrants. Some of the EU’s assistance to Greece has even worsened the position for some migrants. The EU‘s joint border agency ‘Frontex’ detains asylum-seekers crossing Greece’s border so forcing them into a lengthy, inhumane detention.

The situation in Greece arises from an EU-wide agreement that each member state has responsibility for asylum-seekers who entered the Union at its borders. As member states in the North of Europe made it increasingly difficult for asylum-seekers to reach their airports, so Greece’s land borders became the entrance to the EU for 90 percent of irregular migrants. With only 3 percent of the EU’s land area, Greece cannot be expected to accommodate all these migrants until a proper decision has been made on their asylum applications. Greece is not alone in this situation; the island of Malta is also faced with applications wholly disproportionate to its size.

The solution is for all EU states to go beyond offering Greece money. They must also start accepting into their own countries their fair share of the asylum-seekers and other migrants who have entered Greece. Those EU countries would decide the cases under the same laws as in Greece—the common EU standards. As the EU Court of Justice held in NS and ME, article 80 of the Treaty on the Functioning of the European Union means “asylum policy is governed by the principle of solidarity and fair sharing of responsibility between the Member States”.

The response of the northern states has been shameful. Last year, only a few hundreds of migrants were re-located from Malta. Formal proposals from the European Commission to share responsibility have been blocked.

Meanwhile, the EU’s failure to act does not stop those migrants who can from leaving Greece for another EU country. They do so by again hiding in lorries or boats or paying more money to human smugglers for false papers. In this way, the EU’s failures only encourage more danger and illegality inside its own borders.

There are growing demands for the whole EU to act in solidarity. In June 2011, the Council of Europe Parliamentary Assembly called for Member States to relocate asylum-seekers from Greece to other European Union countries for their claims to be decided. Last week, Cecilia Malmström, the EU home affairs commissioner, strongly criticised the EU's failure to provide asylum protection. Hugo Brady, of the Centre for European Reform, has argued that the crisis has led to Greece facing possible expulsion from the Schengen Area, the group of EU members that allow mutual free passage across their borders without passport controls.

The abuse of migrants shames not just Greece, but the whole EU. Despite sustained international criticism by international courts and human rights actors, the situation in Greece is worsening. The threat to the lives of the migrants concerned and their desperate attempts to leave Greece harm them and the rule of law. Only by a Europe-wide approach based on taking responsibility for people, not just moving money around, can the members of the European Union comply with their duties under international law to refugees, and meet the standards of common humanity to which the Union aspires.

On January 17 the European Court of Human Rights ruled in Zontul v Greece that Greece had violated the prohibition on torture in the case of a gay asylum-seeker who was raped with a truncheon by a Greek coastguard. The Greek courts had refused to treat the crime as torture, ignored Mr Zontul’s requests to take part in the proceedings and punished the coastguard responsible with a fine of only €800 Euros ($1000).

This is the latest of a series of judgments from Europe’s supreme courts condemning Greek official treatment of asylum-seekers. At the end of December 2011, the Court of Justice of the European Union decided in its NS and ME judgment that the fundamental rights of asylum-seekers prevented them being sent by European Union countries to Greece because of conditions for them there. This followed the European Court of Human Rights judgment in MSS v Belgium and Greece that conditions for asylum-seekers in Greece are inhuman and degrading.

In 2001, Mr Zontul, a Turkish man, was travelling on a  boat intercepted by Greek coastguards. It seems that – like many asylum-seekers – the passengers had no wish to claim asylum in Greece but were trying to get to a safe European country. The coastguards stopped the passengers from travelling and then detained the passengers in  a disused school in Crete. Thirty men and one child were forcibly held in a room 2 by 2 metres large. A week into this detention, Mr Zontul was trapped by coastguard Dandoulakis and raped with a truncheon - while another guard kept lookout. Mr Zontul testified that he had been attacked because the coastguards believed him to be gay.

The detained migrants protested with a hunger strike. The coastguards responded by attacking the migrants en masse with two hours of truncheon beatings, leaving some with broken bones and hospital stays of five hours. An investigation was immediately begun, but the official interpreter deliberately falsified Mr Zontul’s evidence, downgrading his case of rape to ‘a slap’ and claiming he did not want the coastguards punished. Nevertheless, the coastguards were prosecuted and the Greek court accepted Mr Zontul’s account of the rape. Five years after the attack, the Greek courts ended the proceedings, imposing on Dandoulakis a 6 month prison sentence commuted to a daily fine of €4.40 and on his fellow coastguard an even smaller fine.

The European Court of Human Rights found three reasons why the Greek courts’ treatment of the rape case breached the prohibition on torture in article 3 of the European Convention on Human Rights.

The first violation found by the European Court was that, while the Greek court accepted the rape had been criminal, it denied that it counted as torture. The European Court held that the rape was torture—following the case law of other international courts, including the Inter-American Court of Human Rights and the International Criminal Tribunal for Former Yugoslavia. The European Court did not suggest that rape of a man is different in law from rape of a woman. The Court set out the argument of the Center for Justice and Accountability that a crime is aggravated if motivated by the sexuality of the victim, but did not rule on it.

The European Court also decided that the Greek court’s fine was too weak to count as a proper deterrent to the serious crime of rape. Lastly, the Greek court had ignored the repeated requests of Mr Zontul, by then living in England, to be informed of progress in the criminal case so that he could take part. This too was a violation of article 3. The European Court referred to its case law that a victim of torture has the right to be able to claim compensation. The court decided that this includes a right to be allowed to take part in the proceedings, and therefore also to be kept informed of the case. More than ten years after the attack, Mr Zontul was awarded €50,000 compensation by the European court.