FIRST SECTION
DECISION
Application no. 6198/12
Khalisat DAYTBEGOVA and Mariat MAGOMEDOVA
against Austria
The European Court of Human Rights (First Section), sitting on 4 June 2013
as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 30 January
2012,
Having regard to the interim measure indicated to the
respondent Government under Rule 39 of the Rules of Court,
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicants,
Having regard to the comments submitted by the Italian
Government,
Having regard to the information of 7 June 2012 that the
Russian Government did not wish to exercise their right to intervene in the
present proceedings,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Khalisat Daytbegova and
Ms Mariat Magomedova, are Russian nationals who were born in 1967 and 1997
respectively and live in Semriach. They are mother and daughter and are
represented before the Court by Mrs N. Lorenz, a lawyer practising in Vienna.
The Austrian Government were represented by their
Agent, Ambassador H. Tichy, Head of the International Law Department at
the Federal Ministry of European and International Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the
parties, may be summarised as follows.
1. The asylum proceedings in Austria
The applicants travelled to Austria via Italy,
with the first applicant’s son, born in 2002, and lodged an asylum request
there on 23 June 2011. The applicants had not lodged an asylum request in
Italy, but they had held a visa for entry into the country, which was valid
from 18 to 25 June 2011.
At the request of the Austrian authorities Italy
accepted jurisdiction with regard to the applicants’ asylum proceedings, pursuant
to Council Regulation (EC) No 343/2003 (hereinafter “the Dublin Regulation”).
In the course of the Austrian proceedings the
first applicant claimed to fear refoulement from Italy to Dagestan and
lack of access to medical treatment in Italy. Her whole family, with the
exception of the youngest boy, was suffering from depression. The second
applicant in particular was very ill, uncommunicative, and suffered from
headaches. The first applicant claimed that her husband was registered as a
suspect with the Russian military services. As a result, he had gone into
hiding in the mountains. The first applicant and her family had been repeatedly
threatened, to induce them to disclose the whereabouts of her husband’s hiding
place.
On 26 August 2011 the Federal Asylum Office (Bundesasylamt)
rejected the asylum requests in line with section 5 of the 2005 Asylum Act (Asylgesetz
2005) in conjunction with Article 9 § 2 of the Dublin Regulation, and
ordered the applicants’ transfer to Italy.
On 26 September 2011 the Asylum Court (Asylgerichtshof)
quashed those decisions and noted that the statements made by the Federal
Asylum Office regarding the health of the second applicant were insufficient
and that the authority had failed to establish that the second applicant was
fit to be transferred to Italy (Überstellungsfähigkeit). Furthermore,
the authority had failed to evaluate information regarding access to medical
treatment in Italy. Finally, since the applicants must be considered vulnerable
persons, the authority needed to get assurances from the Italian authorities
regarding housing, related support and access to medical treatment.
On 16 November 2011 the Italian Ministry of
Internal Affairs responded to the Austrian request for information concerning
the reception conditions by stating in general terms that the reception and
lodging of asylum seekers in Italy was guaranteed in governmental asylum
centres (CARA or SPRAR). It was further especially referred to the fact that
Italy paid particular attention to vulnerable asylum seekers. Therefore, to
ensure appropriate medical and welfare support for such vulnerable groups, the
Austrian authorities were requested to submit detailed information for each
individual case.
On 1 December 2011 the Federal Asylum Office
again rejected the applicants’ asylum request pursuant to the 2005 Asylum Act
and the Dublin Regulation, and ordered their expulsion to Italy. Referring to
relevant country reports, it found that asylum seekers had access to medical
treatment in Italy after initial registration with the welfare unit. Vulnerable
persons also had special access to lodgings with the “Sistema di Protezione
per Richiedenti Asilo e Rifugiati” (Protection System for Asylum Seekers
and Refugees, hereinafter “SPRAR”). With reference to the medical documents
concerning the second applicant’s health, it found that the fact that the
applicants had access to Italian medical services meant that they could count
on the necessary support if transferred to Italy. To complement this
information, the authority also referred to the fact that at the time of the
actual transfer the immigration police (Fremdenpolizei) was called upon
to decide whether a transfer was possible or not for medical or psychological
reasons.
On 26 January 2012 the Asylum Court rendered one
decision with regard to the two applicants and the first applicant’s younger
son, dismissing the applicants’ appeal against those decisions as unfounded.
The decision featured the three file numbers of all parties concerned and the
three separate operative parts referred to the different file numbers by
reference number.
In substance it found that the applicants had
not sufficiently proved that they would not have access to medical treatment in
Italy. Furthermore, the applicants had not even lodged an asylum request in
Italy, which weakened their criticism of the Italian asylum system. The general
information available to the authority would not warrant the opinion that the
applicants would be subjected to treatment contrary to Article 3 if they were
returned to Italy. Acknowledging the fact that the second applicant, and also
the first applicant, who had less serious symptoms, was suffering from
psychological impairments, the Asylum Court found that they had to accept the
possibility that their health would deteriorate and that their opportunities to
receive medical treatment would be reduced if they were transferred, which was
in line with the Court’s case-law. Furthermore, the Austrian authorities would
treat the transfer as “problematic” and thus provide medical assistance during
the removal attempt. Finally, the Austrian authorities had also declared that
they would inform the Italian authorities of the planned transfer in due time,
to enable them to prepare the reception of the applicants in Italy.
On 31 January 2012 the first applicant applied
for legal aid to lodge a complaint with the Constitutional Court. In the
application she referred only to the file number of her proceedings before the
Asylum Court. Thereupon, on 3 February 2012, the Constitutional Court (Verfassungsgerichtshof)
granted legal aid to the first applicant to lodge a complaint against that last
decision. By a decision of 3 April 2012 the first applicant’s complaint was not
granted suspensive effect by the Constitutional Court. The complaint
proceedings are pending.
2. The preparation of the transfer
The transfer of the applicants and the youngest
son was originally planned to take place on 25 January 2012.
In preparation for the transfer the Austrian
authorities submitted a quantity of medical information to the Italian
authorities on 16 January 2012, including a statement from the Sigmund
Freud Hospital dated 9 December 2011 (see paragraph 20 below).
On 23 January 2012 the Italian authorities again
requested information regarding the applicants’ medical status. The Austrian
authorities responded on 24 January 2012 that there was no new medical
information and that all relevant information had already been submitted.
However, on the same day the Austrian
authorities had to cancel the applicants’ transfer to Italy because the first
applicant’s younger son had disappeared and could not be found by the
authorities. Thereupon, the Austrian authorities informed the Italian
authorities of the expansion of the transfer period to eighteen months because
of the disappearance of the first applicant’s son.
3. The second applicant’s health issues
On 24 January 2012 the second applicant was
admitted to the secure ward of the Sigmund Freud Psychiatric Hospital in Graz (Landesnervenklinik
Sigmund Freud Graz). That admission to the secure ward was approved by the
competent court by a decision based on an expert’s diagnosis of acute
post-traumatic stress disorder with serious suicidal tendencies and specific
thoughts of putting those tendencies into practice. The second applicant was
treated in the secure ward until 12 February 2012 and remained in the
hospital until 17 February 2012, in the open ward.
Two older psychological statements, commissioned
by the Federal Asylum Office and dated 27 July 2011 and 10 October 2011
respectively, diagnosed an adjustment disorder in respect of the second
applicant, but no acute suicidal tendencies.
A first psychological statement of the Sigmund
Freud Psychiatric Hospital of 9 December 2011 confirmed that the second
applicant had been in regular treatment at the hospital since 23 September 2011
and diagnosed post-traumatic stress disorder with distinct symptoms and a
traumatic neurosis. In the course of the treatment, a sleep activating
anti-depressive therapy had been initiated. However, since the start of the
therapy only a slight improvement in the second applicant’s condition had been
noticed. The statement recommended a stable environment; cessation of the
treatment could lead to aggravation of the symptoms. Furthermore, the second
applicant showed suicidal tendencies with some impulses to put them into
practice. From a psychiatric point of view it was recommended that the second applicant
stay in an environment that she considered safe.
A second statement of the Sigmund Freud
Psychiatric Hospital of 19 January 2012 confirmed that pharmacological
treatment and psychotherapy had begun; however, no improvement in the second
applicant’s condition was yet noticeable. The insecure status of the second
applicant’s stay in Austria had led to depression, sleep disorder and
continuing weight loss. It further stated that continuing and long-term
treatment of the second applicant was essential, and that disruption of the
second applicant’s environment could mean a worsening of the symptoms,
including the suicidal tendencies. The applicant was treated with Mirtabene,
Seroquel and Dominal forte and was in regular psychotherapeutic treatment.
In the course of the proceedings before the
Court the applicants provided further medical documentation of 12 July 2012
from the Neuro-Psychiatric Department for children and young persons at the
Sigmund Freud Psychiatric Hospital; this indicated that the second applicant
remained in outpatient treatment after her release from the hospital in
February 2012, and that she was still suffering from post-traumatic stress
disorder, manifesting itself with insomnia and a depressed state of mind
including suicidal tendencies and weariness. She was continuing to lose weight.
The statement continued that on-going and long-term psychotherapeutic treatment
was essential, and that security and a sense of safety were important factors
that would provide a prospect of improvement. The next steps recommended were
drug therapy, regular medical checks, preferably in a familiar environment,
continuing trauma-specific psychotherapy, and educational support.
4. Rule 39 of the Rules of Court
On 10 February 2012 the Court applied the
interim measure under Rule 39 and requested the Austrian Government to
stay the applicants’ transfer to Italy until further notice.
5. Further developments
The first applicant’s husband and elder son
entered Austria illegally and lodged asylum requests on 23 January 2012. To
secure the union of the family, the Italian authorities agreed on 9 February
2012 to also accept jurisdiction regarding their asylum proceedings. The
Federal Asylum Office thereupon rejected the asylum requests; however, an
appeal lodged with the Asylum Court against those decisions was awarded
suspensive effect on 30 April 2012.
B. Relevant European, Austrian and Italian law and
practice
The relevant European and Italian law,
instruments, principles and practice have only recently been exhaustively
summarised, in Mohammed Hussein v. the Netherlands and Italy (dec.), no.
27725/10, §§ 25-28 and 33-50, 2 April 2013. In the following, only
information that is particularly relevant to the present case will be repeated.
1. Council Regulation (EC) No 343/2003 (the Dublin
Regulation)
Under the
Regulation, the member States must determine, on the basis of 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
responsibility for the asylum seeker and examine the application for asylum
(Article 17).
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 an 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. Austrian Asylum Act
Section 5 of the Asylum Act 2005 (Asylgesetz)
provides that an asylum application shall be rejected as inadmissible if, under
treaty provisions or pursuant to the Dublin Regulation, another State has
jurisdiction to examine the application for asylum. When rendering a decision
rejecting an application, the authority shall specify which State has
jurisdiction in the matter.
According to Section 36, an appeal lodged with
the Asylum Court against a decision of the Federal Asylum Office rejecting an
asylum request has no suspensive effect. A complaint against a removal order
connected with such a decision to reject may be awarded suspensive effect by
the Asylum Court within one week (see Section 37).
3. Asylum proceedings in Italy
Reference is made to the extensive description
of the Italian asylum procedure and domestic law in Mohammed Hussein,
cited above, §§ 33-41.
In particular, paragraphs 33-36 explain that
“33. A person wishing to apply for asylum in Italy
should do so with the border police or, if already in Italy, with the police (questura)
immigration department. As soon as an asylum request has been filed, the
petitioner is granted access to Italy as well as to the asylum procedure, and
is authorised to remain in Italy pending the determination of the asylum
request by the Territorial Commission for the Recognition of International
Protection.
34. For petitioners who do not hold a valid entry
visa, an identification procedure (fotosegnalamento) is carried out by
the police - if need be - with the assistance of an interpreter. This procedure
comprises the taking of passport photographs and fingerprints. The fingerprints
are checked for matches in EURODAC and the domestic AFIS (Automated Fingerprint
Identification System) database. At the end of this procedure, the petitioner
is given a notice confirming the first registration (cedolino), on which
future appointments are noted, in particular the appointment for the formal
registration of the request.
35. The formal asylum request will be made in
writing. On the basis of an interview held with the petitioner in a language
which he or she understands, the police will fill out the ‘Standard form C/3
for the recognition of refugee status according to the Geneva Convention’ (Modello
C/3 per il riconoscimento dello status di rifugiato ai sensi della Convenzione
di Ginevra), which contains questions on the petitioner’s personal data
(name, surname, date of birth, citizenship, name and surname of
parents/spouse/children and their whereabouts) as well as the details of the
journey to Italy and reasons for fleeing the country of origin and for seeking
asylum in Italy. The petitioner will be asked to provide a written paper, which
will be appended to the form, containing his or her asylum account and written
in his or her own language. The police will retain the original form and
provide the petitioner with a stamped copy.
36. The petitioner will then be invited by a
notification served in writing by the police for a hearing before the competent
Territorial Commission for the Recognition of International Protection. During
this hearing, the petitioner will be assisted by an interpreter.”
The ‘Dublin II Regulation National Report’ on
Italy of December 2012 states additionally to the above-mentioned
information with regard to access to the asylum procedure for Dublin-returners
(pages 18 and 19 of the report):
“At the arrival in the main airports, the applicant finds
NGOs/associations which may help him/her to find an accommodation centre and
provide him/her with further information on the asylum procedure. At the
airport, the Border Police carry out the fotosegnalamento and verify the
person’s identity in the EURODAC database. After having undertaken these
procedures, the applicant will receive a letter (called “verbale di invito”)
saying that s/he has to go to the Questura competent to continue the
asylum procedure. The asylum seeker may be addressed to the office of the Questura
where s/he was fingerprinted and photographed or to the office where s/he
lodged the asylum application or where the documents related to his/her case
are kept. The law does not foresee any support for reaching the competent Questura.
In the practice the NGOs working at the border points can provide the train
ticket for that destination on the basis of a specific agreement with the
competent Prefecture. However, this support is not always guaranteed and often
it happens that the NGO does not have information on the real arrival of the
asylum seekers and on whether s/he has found an accommodation there.
Once the person is at the Questura, s/he may face
different outcomes according to whether s/he did not apply or s/he did apply
for asylum when s/he was in Italy previously.
If the person had never applied for international protection
before, s/he is able to ask for protection now and is entitled to the same
rights as the other asylum seekers. ...”
Both the UNHCR in its “Recommendations on Important
Aspects of Refugee Protection in Italy” of July 2012 (page 7) and the Swiss
Refugee Council and the Norwegian NGO Juss-Buss in their report ‘Asylum
procedure and reception conditions in Italy’ of May 2011 (page 10) inform on
incidents in which asylum seekers have had difficulties lodging a formal asylum
application with the Questura, or only got an appointment with the Questura
several months after their arrival in Italy. In this period of time however,
asylum seekers have no access to lodging or subsistence.
4. Reception conditions in Italy
The reception scheme and the reception
conditions in Italy are summarised again in Mohammed Hussein, cited
above, §§ 42-50.
In particular, it is noted in respect of
vulnerable asylum seekers that pursuant to Legislative Decree no. 140/2005,
implementing Council Directive 2003/9/EC of 27 January 2003 on laying down
minimum standards for the reception of asylum seekers, asylum seekers in Italy
are entitled to reception facilities. According to Article 8 of this Decree,
reception arrangements are to be made on the basis of the specific needs of
asylum seekers and their families, in particular the needs of vulnerable
persons, namely unaccompanied minors, disabled persons, pregnant women, single
parents with minor children, and persons who have been subjected to torture,
rape or other forms of serious psychological, physical or sexual violence.
Italian domestic law provides for special guarantees for such vulnerable
persons, including a reserved quota of places in the SPRAR reception scheme
(see ibid., § 42). The Italian authorities specified in their comments on the
report by the Council of Europe Commissioner for Human Rights dated 18
September 2012 that the system of reception in the CARA centres, which
accommodate asylum seekers, envisaged that a range of services must be provided
to migrants, including, inter alia, socio-psychological support, with
special attention for persons belonging to vulnerable categories and medical
assistance appointments with consultants. Those reception conditions were also
guaranteed to Dublin-returners. This category received a preliminary form of
reception upon arrival when the services present in the
main airports were activated; subsequently they were accommodated in government
reception centres. When the transferring country reported an asylum seeker as
belonging to a vulnerable category, appropriate medical measures were taken in
the centres, intended to provide appropriate reception. Special attention was
paid to migrants with physical or [psychological] trauma and to victims of
torture, who were entrusted to the medical stations of the reception centres or
at a local level to receive treatment and support of a professional and
appropriate nature (see ibid., § 45).
As regards medical assistance, the Italian
comments established (ibid.) that
“in Italy, foreign citizens, even those not complying with the
provisions regulating their presence, are entitled to ordinary and/or urgent
treatment through the National Health Service.
In the government centres for migrants the psychic/physical
health of guests is recognized as an unalienable right of the individual, which
is safeguarded by art. 32 of the Italian Constitution and it has always been
put at the forefront when the regulatory and management system of the centres
is being prepared.
More specifically, the medical assistance service provided for
in the centres for migrants must grant guests the following:
a) Visit upon entry and medical first aid, carried
out in a consulting room set up within the facility with medical staff and
nurses, whose shifts must be based on the ratio guests/staff as indicated in
the tables of the tender specifications;
b) When the need arises, possible transfer of guests
to hospitals outside the centres, in compliance with art. 35 of Legislative
Decree 286/98 as migrants hosted in CARA centres can benefit from the services
of the National Health Service by showing their STP cards (Temporarily Present
Alien), issued by the Local Health Service Unit, whereby they can enjoy
treatment in the consulting room or in hospitals, when it is urgent or
essential in case life is in peril;
c) Administering of medicines and medical devices
necessary for first aid and for ordinary medical assistance, including for
generic conditions of psychological type;
d) Recording of a personal medical file, a copy of
which must be handed over to the guest. In this connection it is worth
mentioning that doctors, when screening the guests upon entry must also
evaluate their psychic-social situation as well as the presence of
vulnerability factors (serious psychic-psychological conditions, including
previous ones, victims of mistreatment/torture, substance addiction, etc.) in
order to prescribe possible drug treatment or psychological counselling.
It is further specified that as provided for by the above
mentioned art. 35 of Legislative Decree No. 286/98 (Consolidated Text on
Immigration), foreign citizens who are on the national territory but do not
comply with provisions regulating their presence are anyway entitled to
treatment in public health care facilities either in consultation rooms and/or
in hospital (both urgent and continuing treatment) because of illness or
accident and they also benefit from the programmes of preventive medical
treatment aimed at safeguarding individual and collective health.
Regardless of the possession of a residence permit, the Italian
legislation provides for the social protection and medical assistance to
expectant mothers and to mothers, the protection of the psychic-physical health
of minors (as a result of the Convention on the Rights of the Child of 1989),
interventions of prevention, diagnosis and treatment of infectious diseases and
the decontamination of the related centres of infection.
Finally, when aliens not complying with provisions regulating
their presence visit public medical facilities, they are not reported to the
Police Authorities.
As far as social services are concerned, the principle
enshrined in art. 24 of the 1951 Geneva Convention - according to which the
status of a refugee is equal to that of a national - is embodied in the Italian
legislation also as a consequence of art. 27 of the above mentioned Legislative
Decree No. 251 of 19 November 2007, which lays down that individuals benefiting
from refugee status and from subsidiary protection have the same status as
Italian citizens and thus they have access to all services and benefits,
including economic ones, covered by the social and medical assistance system.
Furthermore, the projects funded through resources of the ERF
include measures to ease the access to social security, particularly on the
part of vulnerable groups.”
And finally, with regard to the reception of
Dublin-returners, the “Dublin II Regulation National Report” on Italy stated in
particular that (ibid., § 49)
“Within this broader category, another distinction is deemed
necessary according to whether the returnee had already enjoyed the reception
system while s/he was in Italy.
If returnees (international protection seekers, beneficiaries
of international protection or of a permit of stay for humanitarian reasons)
had not been placed in reception facilities while they were in Italy, they may
still enter reception centres. Due to the lack of available places in reception
structures and to the fragmentation of the reception system, the length of time
necessary to find again availability in the centres is - in most of the cases -
too long. Since, there is no general practice, it is not possible to make a
quantification of the time necessary to access to an accommodation. However, in
the last years, temporary reception systems have been established to house
persons transferred to Italy on the basis of the Dublin II Regulation.
However, it concerns a form of temporary reception that lasts until their
juridical situation is defined or, in case they belong to vulnerable
categories, an alternative facility is found.
Such temporary reception has been set up thanks to targeted
projects funded by the European Fund for Refugees. For instance, in Rome, there
are currently projects providing assistance to 200 persons - within this
broader category 60 places are for vulnerable categories.
However, it happens that Dublin returnees are not accommodated
and find alternative forms of accommodation such as self-organized settlements....”
COMPLAINTS
The applicants complained under Article 3 of the
Convention that in view of the applicants’ state of health, and especially of
the second applicant’s mental health, a transfer to Italy would subject them to
treatment contrary to that provision.
THE LAW
The applicants, who complained of a real risk of
ill-treatment upon a return to Italy under the Dublin Regulation, relied on
Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. The parties’ submissions
1. The Government
The Government firstly contended that the first
applicant had only requested legal aid for a complaint to be lodged with the
Constitutional Court with regard to the decision of the Asylum Court dismissing
her own appeal. Subsequently, the first applicant had lodged a complaint with
the Constitutional Court, which is pending. Under these circumstances, the
Government proposed that the complaints of both the first and the second
applicant were inadmissible for non-exhaustion of domestic remedies: the first
applicant’s complaint proceedings were still pending in Austria and the second
applicant had not lodged a complaint with the Constitutional Court. The
Government emphasised that the first applicant’s complaint would not
automatically include a complaint on behalf of her minor daughter.
On the substance of the applicants’ complaint
the Government stated that the Federal Asylum Office and the Asylum Court had
carefully examined the general situation of asylum seekers in Italy and the
specific situation of the applicants in view of their health in the context of
a transfer to Italy and their rights under Article 3 of the Convention. The
Government referred in particular to the extensive statements made in the
domestic decisions concerning access for asylum seekers to health care and special
support for psychologically impaired persons. Against the background of the
Court’s own jurisprudence concerning a potential deterioration of a person’s
physical or mental health if removed, and the domestic authorities’ principal
findings that the applicants would have access to adequate opportunities for
medical treatment, the Government asserted that the applicants would not be
subjected to ill-treatment if transferred to Italy.
The Government further observed that on the
basis of the medical documents available to the authorities in the course of
the domestic proceedings it had not been obvious that the applicants were
suffering from severe illnesses that could only be treated in Austria. The
second applicant’s admission to the psychiatric hospital in January 2012 had
obviously not been known to the Austrian authorities at the time of their
decision-making. Finally, the immigration police would in any event have the
duty to ensure that a transfer to Italy would not violate Article 3 of the
Convention. Before such an actual transfer took place the applicants would also
be again examined by a medical officer (Amtsarzt).
As regards preparation for a potential transfer
to Italy, the Government stated that because of the first applicant’s son’s
disappearance and the application of Rule 39 of the Rules of Court, updated
medical information in respect to the applicants has not been procured ex
officio nor submitted to the Italian authorities, nor have the applicants
provided updated information to the domestic authorities. In the event of a
transfer of the applicants to Italy, an examination of the applicants by a
medical officer would take place to ensure that the applicants were fit to be
transferred and that there would be adequate medical treatment upon arrival.
2. The applicants
The applicants contested the Government’s
argument that the application was inadmissible for non-exhaustion of domestic
remedies, claiming that the first applicant successfully represented the second
applicant when lodging her request for legal aid, and later the complaint, with
the Constitutional Court.
The applicants also asserted that they had
communicated their concerns to the Austrian authorities and provided
information regarding the second applicant’s mental health issues. The
applicants referred to a report by the Swiss Refugee Council and the Norwegian
NGO Juss-Buss dated May 2011 on the asylum procedure and reception
conditions in Italy, and in particular to the closing remarks of that report,
which claimed that member states should refrain from sending vulnerable persons
back to Italy under the Dublin Regulation.
As regards the asylum proceedings and the
reception conditions in Italy, the applicants firstly observed that the
European Commission had initiated infringement proceedings against Italy
concerning Council Directive 2005/85/EC of 1 December 2005 on minimum standards
on procedures in Member States for granting and withdrawing refugee status,
Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards
for the reception of asylum seekers, Council Directive 2004/83/EC of 29 April
2004 on minimum standards for the qualification and status of third country
nationals or stateless persons as refugees or as persons who otherwise need international
protection and the content of the protection granted, and Council Regulation
343/2003 of 18 February 2003 establishing the criteria and mechanisms for
determining the Member State responsible for examining an asylum application
lodged in one of the Member States by a third-country national (2012/2189, 24
October 2012).
They further stated that the major problem
related to a return to Italy was the expected homelessness, which also meant a
severe obstacle staying in contact with the asylum authorities to pursue the
asylum proceedings there. They further referred at length to jurisprudence of a
number of German administrative courts (such as the Frankfurt am Main
Administrative Court, the Stuttgart Administrative Court and the Düsseldorf Administrative
Court) which had ruled in decisions in 2012 that claimants did not have
adequate access to asylum proceedings in Italy, that claimants returned to
Italy could face homelessness, lack of subsistence and food, and that the
conditions for Dublin-returners in Italy might not meet European standards.
In their observations to the Court the
applicants also formulated a new complaint under Article 13 of the Convention
with respect to Austria, claiming that the lack of suspensive effect of the
applicants’ appeal with the Asylum Court violated that provision of the
Convention.
3. The Italian Government
The Italian Government asserted that the
applicants may, on arrival in Italy, lodge an application for asylum there,
which will be considered by the competent Territorial Commission. The Italian
law expressly provided that a reception service was to be arranged to give
information and assistance to arriving asylum seekers. When an asylum claim has
been lodged, aliens returning to Italy under the Dublin Regulation are entitled
to stay temporarily on the territory until the procedure had been concluded on
the basis of temporary asylum-seeker status (“status provvisorio di
“richiedenti asilo””). After a favourable decision of the Territorial
Commission, the Questura issued a residence permit, valid for five years
if the person was awarded asylum, or for three years if the person was awarded
subsidiary protection. Both permits allowed the holder to work in Italy. In the
event that the asylum request was dismissed and no subsidiary protection
awarded, the Territorial Commission could bring the application to the
attention of the Questore (Chief Constable), who would decide whether to
award the person concerned a residence permit on humanitarian grounds, valid
for three years and renewable. If a claim for international protection was
dismissed, the person concerned could lodge an appeal with the civil courts.
As regards the reception conditions for
vulnerable persons, the Italian Government explained that within the SPRAR
system for housing and assistance of asylum seekers a quota of accommodation
places was reserved for vulnerable groups, who were given shelter in
appropriate facilities. Health care in Italy was enshrined in Article 32 of the
Italian Constitution and granted to anyone staying in the national territory.
Taking the second applicant’s specific mental health issues into account, the
Italian Government reiterated that in the course of the current practice the
Italian Dublin Unit requested the sending country to promptly transmit relevant
medical records in order to enable them to arrange for any medical measure
which might be necessary. They referred to the European Refugee Fund 2011-12
Annual Programme projects in place inside the transit terminals at Rome
Fiumicino, Milan Malpensa and Bari airports for reception, assistance, support
and orientation, particularly to those belonging to normal and/or vulnerable
groups being transferred to Italy under the Dublin Regulation. The applicants
could therefore avail themselves of the services offered by those projects upon
their arrival in Italy, also with regard to the lodging of an asylum request
and the provision of adequate accommodation.
B. The Court’s assessment
1. The Government’s contention of non-exhaustion of
domestic remedies
The Court notes that the Austrian Government and
the applicants do not agree as to whether the first applicant lodged a request
for legal aid - and subsequently a complaint - with the Constitutional Court
only in her own name or whether it included the second applicant and the
negative decision on her asylum claim made by the Asylum Court.
The Court observes that the documents submitted
seem to indicate that the first applicant indeed only lodged an application for
legal aid for herself, which is corroborated by the fact that she included only
her own file number in the form. On the other hand, a certain ambiguity in the
procedure cannot be excluded, considering that the contested decision of the
Asylum Court combined all three then applicants - the two applicants before the
Court and the first applicant’s younger son.
While the Court tends to agree with the
Government that the second applicant’s complaint might be inadmissible for
non-exhaustion of domestic remedies in accordance with Article 35 § 1 of the
Convention, it does not need to finally decide on this contention, since the
applicants’ complaint is in any event manifestly ill-founded for the reasons
set out below.
For the sake of completeness the Court also
takes note of the fact that the first applicant’s complaint proceedings before
the Constitutional Court have not been awarded suspensive effect (see paragraph
13 above). In relation to a complaint under Article 3 of the Convention
concerning a pending transfer to Italy, the fact that the proceedings before
the Constitutional Court are still pending, albeit without providing the first
applicant with protection from removal, cannot lead to inadmissibility of her
complaint for non-exhaustion of domestic remedies.
The Court will therefore now turn to an
examination of the complaint in substance, after providing a summary of its
relevant case-law.
2. The general principles
According to the Court’s established case-law,
Contracting States have the right, as a matter of well-established
international law and subject to their treaty obligations, including the
Convention, to control the entry, residence and expulsion of aliens (see, among
many other authorities, Abdulaziz, Cabales and Balkandali v. the United
Kingdom, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France,
21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). The
Court also notes that a right to political asylum is not contained in either
the Convention or its Protocols (see Vilvarajah and Others v. the United
Kingdom, 30 October 1991, § 102, Series A no. 215, and Ahmed v.
Austria, 17 December 1996, § 38, Reports 1996-VI).
However, deportation, extradition or any other
measure to remove an alien may give rise to an issue under Article 3, and hence
engage the responsibility of the Contracting State under the Convention, where
substantial grounds have been shown for believing that the person in question,
if removed, would face a real risk of being subjected to treatment contrary to
Article 3 in the receiving country. In such circumstances, Article 3
implies an obligation not to remove the individual to that country (see Soering
v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161; Vilvarajah
and Others, cited above, § 103; Ahmed, cited above, § 39; H.L.R.
v. France, 29 April 1997, § 34, Reports 1997-III; Jabari
v. Turkey, no. 40035/98, § 38, ECHR 2000-VIII; Salah
Sheekh v. the Netherlands, no. 1948/04, § 135, 11 January 2007; and Hirsi
Jamaa and Others v. Italy [GC], no. 27765/09, § 114, ECHR 2012).
The assessment of whether there are substantial
grounds for believing that the applicant faces a real risk inevitably requires
that the Court assess the conditions in the receiving country against the
standards of Article 3 of the Convention (see Mamatkulov and Askarov v.
Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I).
These standards imply that the ill-treatment the applicants allege they will
face if returned must attain a minimum level of severity if it is to fall
within the scope of Article 3. The assessment of this is relative,
depending on all the circumstances of the case (see Hilal v. the United
Kingdom, no. 45276/99, § 60, ECHR 2001-II). The Court reiterates
that it is in principle for the applicant to adduce evidence capable of proving
that there are substantial grounds for believing that, if the measure
complained of were to be implemented, he or she would be exposed to a real risk
of being subjected to treatment contrary to Article 3 (see N. v.
Finland, no. 38885/02, § 167, 26 July 2005).
In order to determine whether there is a real
risk of ill-treatment in the present case, the Court must examine the
foreseeable consequences of sending the applicants to Italy, bearing in mind
the general situation there and their personal circumstances (see Vilvarajah
and Others, cited above, § 108 in fine). It will do so by
assessing the issue in the light of all material placed before it, or, if
necessary, obtained proprio motu (see H.L.R. v. France,
cited above, § 37, and Hirsi Jamaa and Others, cited above, § 116).
The Court
further reiterates that the mere fact of return to a country where one’s
economic position will be worse than in the expelling Contracting State is not
sufficient to meet the threshold of ill-treatment proscribed by Article 3 (see Miah
v. the United Kingdom (dec.), no. 53080/07, § 14, 27 April 2010, and, mutatis
mutandis, N. v. the United Kingdom [GC], no. 26565/05,
§ 42, ECHR 2008), that Article 3 cannot be
interpreted as obliging the High Contracting Parties to provide everyone within
their jurisdiction with a home, and that this provision does not entail any
general obligation to give refugees financial assistance to enable them to
maintain a certain standard of living (see M.S.S. v. Belgium and
Greece [GC], no. 30696/09, § 249, ECHR 2011).
Aliens who are subject to removal cannot in
principle claim any entitlement to remain in the territory of a Contracting
State in order to continue to benefit from medical, social or other forms of
assistance and services provided by the removing State. In the absence of
exceptionally compelling humanitarian grounds against removal, the fact that
the applicant’s material and social living conditions would be significantly
reduced if he or she were to be removed from the Contracting State is not
sufficient in itself to give rise to a breach of Article 3 (see, mutatis
mutandis, N. v. the United Kingdom, cited above, § 42; Sufi
and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 281-292, 28 June 2011; and Mohammed Hussein,
cited above, § 71).
If the
applicant has not yet been removed when the Court examines the case, the
relevant time will be that of the proceedings before the Court (see Saadi
v. Italy [GC], no. 37201/06, § 133, ECHR 2008, and A.L. v. Austria,
no. 7788/11, § 58, 10 May 2012). A full assessment is called for, as
the situation in a country of destination may change over the course of time
(see Salah Sheekh, cited above, § 136).
3. The application of those principles to the present
case
The Court will now consider the question whether
the situation in which the applicants, if removed to Italy, are likely to find
themselves, can be regarded as incompatible with Article 3, taking into account
their situation as asylum seekers and, as such, members of a particularly
underprivileged and vulnerable population group in need of special protection
(see Mohammed Hussein, cited above, § 76, with a reference to M.S.S. v.
Belgium and Greece, cited above, § 251).
The Court firstly notes that the applicants
never applied for asylum in Italy. They therefore do not have any first-hand
experience of being hindered in lodging an asylum request or of finding any
other obstacles to access thorough asylum proceedings on the merits of their
claims. The Court therefore turns to the general information available to it on
the legal and practical situation of the asylum procedure in Italy, and refers
first and foremost to the Italian Government’s observation that the applicants
will be able to lodge formal asylum applications with the competent authorities
in Italy on their return there (see paragraph 51 and additional information on
the Italian asylum procedure in paragraphs 33 and 34 above). While not
disregarding the criticism raised in various reports concerning factual
obstacles to the lodging of asylum applications in Italy (see paragraph 35
above), the Court finds that the information available does not point to the
conclusion that those singular incidents amount to such a systemic failure as
was the case in M.S.S. v Belgium and Greece (cited above, § 300). The
same applies as regards the reports concerning the shortcomings of the general
situation and living conditions for asylum seekers in Italy (see for the
reports Mohammed Hussein, cited above, §§ 43-44, 46 and 49). Therefore,
the Court establishes that there is no indication in the applicants’
submissions or deriving from the general information available that the
applicants would not be able to access sufficiently thorough asylum proceedings
upon their arrival in Italy or that the reception schemes failed in such a way
to provide support or facilities for asylum seekers as members of a
particularly vulnerable group of people (see also ibid., § 78).
Turning to the undoubtedly severe psychological
health issues of the second applicant, the Court notes that a particularly well
planned reception might be necessary upon the second applicant’s return to
Italy, including access to adequate housing and medical and psychological care.
The Court observes that in general the Italian
reception system provides access to health care, including psychological care,
for all aliens, whether they have leave to remain or not (see paragraphs 37 and
38 above). The Italian Government’s observations also indicate that the Italian
authorities are aware of the second applicant’s considerable mental health
problems. The Court therefore concludes that the Italian authorities consider
that the applicants, as a group of vulnerable persons within the meaning of
Article 8 of Legislative Decree no. 140/2005 (see paragraph 37 above),
will be eligible for special consideration as regards access to housing and
psychological and medical care. Furthermore, the Italian authorities emphasised
in their comments on the report of the Council of Europe Commissioner for Human
Rights that, when the transferring country reported a particular vulnerability
of a Dublin-returner, appropriate medical measures were taken. Special
attention was paid to aliens with physical and psychological trauma, who were entrusted
to the medical stations of the reception centres or at local level to receive
treatment and support in a professional and appropriate way (ibid.).
The Court thus considers that the Italian
authorities are already aware of the applicants’ particular vulnerability and
need for special assistance. It further trusts that the Austrian authorities
will, in the event the applicants are removed to Italy, provide the Italian
authorities with all the most recent medical and psychological documentation available
to them, to ensure that the applicants are adequately and appropriately
received there. Under these circumstances, the Court finds that there is no
basis on which it can be assumed that the applicants will not be able to
benefit from the available resources in Italy or that, if they encounter
difficulties, the Italian authorities will not respond in an appropriate manner
to any request for further assistance (see for comparison Mohammed Hussein, cited
above, § 78).
Finally, the Court also notes the applicants’
information that the European Commission had initiated infringement proceedings
against Italy on 24 October 2012. It observes that at the time of the present
application’s examination before the Court, the European Commission has given
formal notice of the proceedings to the Italian Government to enable it to
submit its comments on the alleged problem areas. The Court however finds that
the initiation of infringement proceedings alone cannot overturn the above
conclusion.
It follows that, at the time of the examination
of the application before the Court, and assuming a comprehensive handover of
relevant information on the applicants from the Austrian authorities to the
Italian authorities in the event of their removal to Italy, the applicants’
complaint under Article 3 is manifestly ill-founded and therefore inadmissible
in accordance with Article 35 § 3 (a) and § 4 of the Convention.
As concerns the applicants’ later complaint
under Article 13 of the Convention, the Court reiterates that Article 13
guarantees the availability at national level of a remedy to enforce the
substance of the Convention rights and freedoms, in whatever form they may
happen to be secured in the legal order. The effect of Article 13 is thus to
require the provision of a domestic remedy to deal with the substance of an
“arguable complaint” under the Convention and to grant appropriate relief (see,
for example, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR
2000-XI; M.S.S. v. Belgium and Greece, cited above, § 288; and I.M.
v. France, no. 9152/09, § 128, 2 February
2012). However, referring to the
foregoing considerations under Article 3, the Court notes that in the
present case the applicants have no “arguable complaint” under that provision.
It follows that this complaint is also manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
In view of the above, it is appropriate to
discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren
Nielsen Isabelle
Berro-Lefèvre
Registrar President
