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
1. 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.
2. 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
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The asylum proceedings in Austria
4. 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.
5. 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”).
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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
14. The transfer of the applicants and the youngest son was originally planned to take place on 25 January 2012.
15. 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).
16. 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.
17. 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
18. 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.
19. 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.
20. 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.
21. 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.
22. 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
23. 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
24. 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
25. 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)
26. 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.
27. 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.
28. 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).
29. 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
30. 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.
31. 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
32. Reference is made to the extensive description of the Italian asylum procedure and domestic law in Mohammed Hussein, cited above, §§ 33-41.
33. 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.”
34. 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. ...”
35. 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
36. The reception scheme and the reception conditions in Italy are summarised again in Mohammed Hussein, cited above, §§ 42-50.
37. 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).
38. 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.”
39. 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
40. 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
41. 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
42. 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.
43. 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.
44. 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).
45. 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
46. 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.
47. 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.
48. 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).
49. 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.
50. 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
51. 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.
52. 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
53. 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.
54. 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.
55. 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.
56. 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.
57. 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
58. 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).
59. 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).
60. 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).
61. 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).
62. 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).
63. 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).
64. 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
65. 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).
66. 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).
67. 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.
68. 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.).
69. 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).
70. 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.
71. 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.
72. 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.
73. 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 NielsenIsabelle Berro-Lefèvre
RegistrarPresident
Full & Egal Universal Law Academy