FIRST SECTION
Application no. 53852/11
Nasib HALIMI
against Austria and Italy
lodged on 26 August 2011
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Nasib Halimi, is an Afghan national who was born in 1994 and lives in Vienna. He was represented before the Court by Mr S. Klammer, a lawyer practising in Vienna.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  The first set of asylum proceedings in Austria
The applicant lodged his first asylum request in Austria on 20 September 2010. He claimed to be 17 years old and to have left Afghanistan two and a half years before. He had stayed in Turkey for two years and finally had left for Italy. In Italy, he had been taken to a police station, interviewed without an interpreter, held without food or water for 24 hours. After his release, they had handed him an order to leave the country, which the applicant had thrown away. He had gone to Rome then, slept in a railway station, gotten food from a church and finally, after five days in Italy, he had travelled on to Austria. He had left Afghanistan because, when the Taliban had come to his village, they had asked his father to cooperate, which his father had refused. Thereupon, the Taliban had kidnapped his father and brother and the applicant was afraid to suffer the same destiny had he stayed in Afghanistan.
With regard to his age, the applicant claimed to be born on 5 December 1372 pursuant to the Afghan calendar. He stated that in Turkey he was told to say that he was born on 24 February 1993, whereas a translation of his birth date into the Gregorian calendar would mean that he was born on 24 February 1994. The applicant mentioned that he had a birth certificate showing that he was 17 years old. However, he was not entirely certain about his date of birth.
On 21 February 2011, the Federal Asylum Office (Bundesasylamt) rejected the applicant’s asylum request under section 5 of the 2005 Asylum Act and declared that Italy had jurisdiction regarding the asylum proceedings pursuant to Articles 10 § 1 in conjunction with 18 § 7 of the Council Regulation (EC) No 343/2003 (“Dublin II Regulation”, hereinafter the “Dublin Regulation”). It also ordered the applicant’s expulsion to Italy. It stated that a forensic examination result had found the applicant to be at least 19 years old. With reference to a number of country reports concerning asylum proceedings in Italy, the Federal Asylum Office found that asylum requests could be lodged in Italy in any police station or in the local Questura. An asylum seeker had to present himself personally to lodge a request. At first, the Italian authority would examine the applicability of the Dublin Regulation and would then forward the request to one of ten territorial commissions for treatment. With regard to access to subsistence in Italy, the Federal Asylum Office referred to legislature awarding asylum seekers shelter or financial support and access to medical treatment in accordance with relevant European Union Directives. It further stated that problems had been reported concerning immigration centres in the south of the country due to refugees arriving by boat. Upon request by the authority, the Austrian embassy in Rome explained in February 2011 that every asylum seeker could request an interpreter for the interviews, but that an interpreter had to be asked for specifically, which was sometimes difficult and depended often of the good-will of the officials dealing with the case. As concerned the order to leave the country, the embassy explained that an illegal immigrant received an order to leave the country within fifteen days. If the recipient of the note did not leave the country, his illegal presence would become a criminal act which could lead to the foreigner being detained. It happened that the order to leave the country would be handed over in a language the foreigner could not understand so that he would slip into a criminal illegal presence in Italy without knowledge or intent.
The applicant appealed against that decision.
On 21 March 2011, the Asylum Court (Asylgerichtshof) dismissed the applicant’s appeal as unfounded. Referring to country reports about Italy, it found that there was no systematic real risk for the applicant to be subjected to ill-treatment due to lack of access to asylum proceedings, due to refoulement or to lack of subsistence upon a return to Italy. Furthermore, it found the applicant’s story about his stay in Italy contradictory and not to be credible. With a reference to the effet utile-principle of Community law, it concluded that the applicant had thus not sufficiently substantiated his fear of a real risk under Article 3 of the Convention to allow for the authority to engage the sovereignty clause under the Dublin Regulation. Furthermore, any possible criticism with regard to the treatment of refugees arriving by boat in the south of Italy would not concern the applicant’s situation as a Dublin-returner to the north of Italy.
On 7 April 2011, the applicant was expelled to Italy.
2.  The second set of asylum proceedings in Austria and application of Rule 39 of the Rules of the Court
The applicant returned to Austria after twelve days and lodged a fresh asylum request in Austria on 19 April 2011. In the first interview at the Baden police station, the applicant stated that the conditions for asylum seekers in Italy had been inhuman and that the Italian police had treated the applicant badly. In subsequent statements, the applicant explained that he had been taken in by police at the airport in Milan upon his return to Italy and had been served a paper telling him to leave the country. There had again been no interpreter available. He had slept at the railway station “Roma Ostiense”. When he had tried to enter the refugees’ camp in Rome, he had been chased away by police. He had received food from a church, but not on the weekends. He had had troubles with his stomach and kidneys, but no access to medical support.
The domestic proceedings concerning the applicant’s fresh asylum request are still pending. Those proceedings do not have suspensive effect.
On 4 January 2012, the applicant was heard by the Federal Asylum Office in presence of his legal representative. In respect of his medical condition he submitted that he suffered from a post-traumatic stress disorder and asked that a further psychiatric examination be carried out. It follows from the minutes that the applicant interrupted the interview claiming that he could no longer participate in it due to an acute head-ache. A number of reports on the reception conditions for asylum seekers in Italy were handed over to his representative who was given a two-weeks time-limit to comment. The applicant was taken in detention with a view to expulsion.
On 6 January 2012, the Court applied an interim measure under Rule 39 and requested the Austrian Government to stay the applicant’s expulsion to Italy until further notice.
3.  Medical information
A doctor’s note of the free clinic Amber-Med in Vienna dated 17 August 2011 stated that the applicant suffers from gastritis and lumbordorsalgie and recommended further examinations.
The applicant submitted a psychiatric report dated 29 December 2011 according to which he suffered from a post-traumatic stress disorder causing a latent suicide risk which could rapidly become an acute one. Moreover, the applicant would also suffer from an acute stress syndrome and a somatoform pain disorder. According to the report the applicant needed stable living conditions as any deterioration of his situation would lead to an acute risk of suicide.
B.  Relevant domestic law
1.  Council Regulation (EC) No 343/2003 (Dublin Regulation)
Under the Regulation, the Member States must determine, based on a hierarchy of objective criteria (Articles 5 to 14), which Member State bears responsibility for examining an asylum application lodged on their territory. The aim is to avoid multiple applications and to guarantee that each asylum seeker’s case is dealt with by a single Member State.
Where it is established that an asylum seeker has irregularly crossed the border into a Member State having come from a third country, the Member State thus entered is responsible for examining the application for asylum (Article 10 § 1). This responsibility ceases twelve months after the date on which the irregular border crossing took place.
Where the criteria in the regulation indicate that another Member State is responsible, that State is requested to take charge of the asylum seeker and examine the application for asylum. The requested State must answer the request within two months from the date of receipt of that request. Failure to reply within two months is stipulated to mean that the request to take charge of the person has been accepted (Articles 17 and 18 §§ 1 and 7).
By way of derogation from the general rule, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in the Regulation (Article 3 § 2). This is called the “sovereignty” clause. In such cases the State concerned becomes the Member State responsible and assumes the obligations associated with that responsibility.
2.  2005 Asylum Act
Section 5 of the 2005 Asylum Act provides that an asylum request shall be rejected as inadmissible if, under treaty provisions or pursuant to the Dublin Regulation, another country has jurisdiction for examining the application for asylum or the application for international protection. When rendering the rejecting decision, the authority shall also specify which country has jurisdiction in the matter.
Section 12a of the 2005 Asylum Act provides that a person, whose asylum request was rejected pursuant to lack of jurisdiction because of the Dublin Regulation (section 5 of the Asylum Act), is not entitled to protection against expulsion (Abschiebeschutz), when he or she lodges a subsequent asylum request.
COMPLAINTS
1.  The applicant complains under Article 3 of the Convention in respect of Austria that a return to Italy under the Dublin Regulation would subject him to a real risk of ill-treatment within the meaning of that provision in that he would not have access to accommodation, subsistence and medical treatment – circumstances that were aggravated by the applicant’s precarious physiological and psychological health status.
2.  The applicant also complains of ill-treatment under Article 3 of the Convention in respect to Italy in that he did not have access to accommodation, subsistence and medical treatment whilst he had been there in April 2011.
QUESTION TO THE PARTIES
In the light of the applicant’s claims regarding his previous experiences in Italy, his age and his precarious psychological health status, could the applicant be considered a vulnerable person and would his expulsion to Italy amount to treatment in breach of Article 3 of the Convention?