EHRM, 04-11-2014, nr. 29217/12

The applicants submitted that asylum seekers' entitlement to accommodation in the CARAs or in the facilities belonging to the SPRAR network (Sistema di protezione per richiedenti asilo e rifugiati) ‘[took] effect only after’ formal registration by the police of the asylum application (verbalizzazione). They contended that, in practice, there was sometimes a time lag of several weeks or even several months between the time when the persons concerned reported to the immigration department of the competent police headquarters and the registration of the application. In the meantime, the persons concerned were homeless. In the applicants' submission, a formal finding to that effect had been made by the Frankfurt Administrative Court in a judgment of 9 July 2013 (see paragraph 51 above), on the basis of information supplied by the SFH-OSAR and by the organisation Borderline-europe. Hence, in their view, there were shortcomings in the implementation of the administrative procedure laid down by law. They acknowledged, however, that the situation was somewhat different with regard to asylum seekers returned to Italy under the Dublin Regulation, who in theory had immediate access not just to the CARAs and the facilities belonging to the SPRAR, but also to the facilities provided by the municipal authorities and those set up under the projects financed by the 2008–2013 European Refugee Fund (ERF).

The applicants acknowledged that the facilities financed by the ERF were intended for persons transferred under the Dublin Regulation, but submitted that the number of places available was insufficient in relation to the number of transferees. Citing the SFH-OSAR report, they contended that in 2012 there had been only 220 places available in total for 3,551 transferees, of whom 2,981 had come from Switzerland.

As to availability in the CARAs and in the facilities belonging to the SPRAR, the applicants maintained that it was difficult for ‘Dublin’ returnees to gain access to those facilities.

With regard to the facilities belonging to the SPRAR network, the applicants — again citing the SFH-OSAR report — maintained that only 5% of the persons housed there in 2012 had been transferred under the Dublin Regulation and that, of those, only 6.5% had come from Switzerland, although transfers from that country accounted for 85% of the total number of ‘Dublin’ transfers to Italy. The applicants inferred from this that large numbers of people returned under the ‘Dublin’ procedure were left without accommodation. They added that, according to the SFH-OSAR, there had been numerous cases in which families transferred to Italy had not been housed together.

The applicants also supplied data concerning the accommodation of asylum seekers in general, irrespective of whether or not they were ‘Dublin’ returnees. In that connection they submitted that 34,115 asylum applications had been made in Italy in 2011 and 15,715 in 2012, with a rise in the figures in 2013. According to the SFH-OSAR report there had been 64,000 refugees living in Italy in 2012. According to the same source, there had been only 8,000 places in the CARAs in 2012, with waiting lists so long that the majority of applicants had no realistic prospect of gaining access.

As to the facilities belonging to the SPRAR, the SFH-OSAR report stated that the number of places was 4,800 and that 5,000 people were on the waiting list. The same report noted that, according to two other organisations (Caritas and the JRS), only 6% of the persons housed in the SPRAR facilities — where, moreover, the maximum stay was six months — managed to find work and integrate professionally into Italian society.

With regard to the accommodation centres run by the municipal authorities, which were open to any person suffering hardship and not just to asylum seekers, the number of places also fell far short of what was needed. According to the SFH-OSAR report there were 1,300 places in Rome, with a waiting list of 1,000 and an average waiting time of three months. In Milan, there were only 400 places and families were systematically split up. The applicants added that, while it was true that some municipal authorities made social housing available to families, the number of places was clearly insufficient and the waiting list was around ten years. The accommodation offered by religious institutions and NGOs was also insufficient to meet demand. Lastly, asylum seekers had no access to private accommodation, as the economic situation in Italy, with rising unemployment, meant that they were unable to find work.

In conclusion, the applicants argued that, owing to the shortage of places in the various types of reception facilities, large numbers of asylum seekers, including families with small children, were forced to live in insalubrious squats and other makeshift accommodation, or simply on the streets. By way of example, according to the SFH-OSAR report there were between 1,200 and 1,700 people housed in precarious conditions in Rome, and between 2,300 and 2,800 people sleeping on the streets in Italy as a whole.

The applicants contended that conditions in the CARAs in particular were contrary to the provisions of the Reception Directive. They referred to the findings of the organisation Borderline-europe, according to which, in the CARAs in Trapani (Sicily), five or six people shared a space of 15 sq m. and were obliged to sleep on mattresses on the floor. These centres also had inadequate sanitation facilities and lacked privacy. The latter was even a recurring problem in the CARAs and had particularly negative consequences for children, especially when the family unit was broken up as happened systematically in Milan, for instance. In the CARA in Mineo (Sicily), the occupants reportedly received no spending money, the sanitation facilities were poor, there was inadequate access to health care and criminal activity and prostitution were rife.

In their observations the applicants referred in particular to the 2012 UNHCR Recommendations and the Human Rights Commissioner's 2012 report. They also attached considerable importance to the fact that the Frankfurt Administrative Court, in its judgment of 9 July 2013 (see paragraph 51 above), had held that 50% of asylum seekers risked being subjected to ill-treatment if returned to Italy, owing to reception conditions that did not comply with the European directives.

Lastly, the applicants submitted that the Swiss Government had not produced any document certifying that attempts had been made to find a specific solution for taking charge of the applicants. According to them, no request for minimum guarantees appeared to have been addressed to the Italian authorities, who had not provided any assurances that the applicants would be housed in decent conditions and not separated. They also submitted that the living conditions in the CARA in Bari, where they had spent two days during their stay in Italy, had been unacceptable, particularly owing to the lack of privacy and the violence this caused.

The Government did not comment on the difficulties referred to by the applicants with regard to the slowness of the identification procedure.

As to the capacity of the reception facilities, the Government submitted that 235 places were reserved in the ERF-financed facilities for asylum seekers facing return under the Dublin Regulation. The Government further stated that the capacity of the SPRAR network would be increased to 16,000 places over the period 2014–2016. They referred mainly to the 2012 UNHCR Recommendations and the Human Rights Commissioner's 2012 report, and to the Court's findings in Mohammed Hussein, cited above, and the follow-up decisions in the same vein (Daytbegova and Magomedova v. Austria (dec.), no. 6198/12, 4 June 2013; Abubeker v. Austria and Italy (dec.), no. 73874/11, 18 June 2013; Halimi v. Austria and Italy (dec.), no. 53852/11, 18 June 2013; Miruts Hagos v. the Netherlands and Italy (dec.), no. 9053/10, 27 August 2013; Mohammed Hassan and Others v. the Netherlands and Italy (dec.), no. 40524/10, 27 August 2013; and Hussein Diirshi and Others v. the Netherlands and Italy (dec.), no. 2314/10, 10 September 2013).

With regard to living conditions in the available facilities, the Government referred again to the 2012 UNHCR Recommendations and the Human Rights Commissioner's 2012 report, submitting that there were no grounds for finding that the Reception Directive was being systematically violated in Italy. They added that they were unaware of any ‘Dublin’ States which refused returns to Italy as a general rule and that neither UNHCR nor the Human Rights Commissioner had sought leave to intervene in the present proceedings, unlike in the case of M.S.S.

With reference to the applicants' specific case the Government stated that on 22 November 2011 the FMO had submitted a request to the Italian authorities to take charge of the applicants in accordance with Article 17 of the Dublin Regulation. No explicit reply had been received within the two months provided for by Article 18(1) of the Regulation; in the Government's submission, this was regarded as implicit acceptance and had been customary at the time between Switzerland and Italy.

The practice had since changed and Italy now replied explicitly to requests to take charge emanating from Switzerland.

In general, a transfer under the ‘Dublin’ procedure was a measure prepared a long time in advance and not one used to deal with an emergency situation, so that it was possible to take account of the situation of persons requiring special protection, such as families with young children, before their arrival on Italian territory. Cooperation with the Italian authorities in this area worked well, owing in particular to the presence of a Swiss liaison officer in the Dublin department of the Italian Ministry of the Interior. Since the beginning of 2013 the Italian authorities had adopted a new practice consisting of indicating, at the same time as agreeing to take charge of the asylum seeker, the airport and reception facility of destination.

In any event, at the hearing of 12 February 2014 the Government stated that they had been informed by the Italian authorities that, if returned to Italy, the applicants would be accommodated in an ERF-financed centre in Bologna. They did not provide any further details concerning the arrangements for transfer and the physical reception conditions envisaged by the Italian authorities.

According to the observations of the Italian Government, under Article 20 of Legislative Decree no. 25/2008 of 28 January 2008, individuals seeking international protection could be provided with accommodation in the CARAs for the time necessary for their identification, that is to say, prior to the registration of their asylum application (for a period not exceeding twenty days), and while the territorial commission examined their application (for a period not exceeding thirty-five days). If their application was granted they had access to the SPRAR centres. That being said, Article 6 of Legislative Decree no. 140/2005 of 30 May 2005 provided that, where it had been established that there was a lack of space in the SPRAR centres, asylum seekers who could demonstrate that they lacked any means of subsistence were entitled to remain in the CARAs. The Italian Government did not provide information on any cases where asylum seekers had been forced to wait several weeks or even months before gaining access to a CARA, either before or after they had been identified. They submitted, however, that the average time taken to examine asylum applications had been 72 days in 2012 and 92 days in 2013. The length of time taken was due to the fact that, since each asylum seeker's interview with the territorial commission had to last at least one hour, each of the ten commissions could not, in practice, process more than ten applications a day. A law that had entered into force on 4 September 2013 (no. 97/2013) had enabled some additional sections to be created within the territorial commissions in order to speed up the examination of asylum applications.

In common with the Swiss Government, the remaining third-party interveners did not comment on the practical aspects of this matter.

In their observations the Italian Government explained that, by a decree of 17 September 2013, the Ministry of the Interior had decided to double the total capacity of the SPRAR network to 16,000 places by the end of the period 2014–2016. The network currently comprised 9,630 places, of which 1,230 had been created since the enactment of the decree. In addition, the prefects of the Sicily region had been requested in a circular of 7 October 2013 to identify additional accommodation facilities for refugees, including in the private sector. To date, approximately forty such facilities had been identified, offering a total of 1,834 places, and a further six were ready to be brought into service in the event of an increase in the influx of refugees. In the first six months of 2013, 14,184 asylum applications had been made (situation at 15 June 2013). Lastly, at the hearing of 12 February 2014, the representative of the Italian Government described the surge in the number of asylum requests registered over the previous two years as ‘a catastrophic situation’.

The Dutch, Swedish, Norwegian and United Kingdom Governments endorsed in substance the position of the Swiss Government. Like the latter they observed that, in contrast to the case of Greece, UNHCR had not called for transfers of certain vulnerable groups to Italy to be halted.

The Swedish Government observed that Italy and the European Asylum Support Office (EASO) had signed a Special Support Plan on 4 June 2013 aimed at improving reception conditions for asylum seekers. Furthermore, ‘Dublin’ returns to Italy were the subject of a systematic exchange of information between the authorities of the two countries, which was particularly thorough in the case of vulnerable persons and especially unaccompanied children.

The United Kingdom Government submitted that the reports to which the applicants referred in their assessment of the situation on the ground, and in particular the PRO ASYL report, often failed to make a distinction between ‘asylum seekers’, ‘recognised refugees’ and ‘failed asylum seekers'. This distinction was critical, however, since the Reception Directive applied only to asylum seekers, whose status was inherently temporary, while the Qualification Directive, which applied to refugees, placed the latter on an equal footing with nationals in terms of access to employment, education and social welfare. The data contained in those reports therefore gave a false picture. By way of example, the United Kingdom Government pointed out that the SFH-OSAR report criticised conditions in the Tor Marancia shelter in Rome, while acknowledging that the shelter accommodated Afghan men with recognised refugee status.

The organisation Defence for Children shared the applicants' view that the capacity to accommodate asylum seekers in Italy was clearly insufficient, arguing that this had particularly serious consequences for children, some of whom were forced to live in squats and other insalubrious accommodation. The NGO referred to the information published in the SFH-OSAR report.

Like the applicants, the organisation Defence for Children, citing the SFH-OSAR report, contended that several families sent back to Italy under the Dublin Regulation had been separated on their arrival in the reception facilities, particularly in the CARAs. In Milan, this practice was even systematic. In their observations, Defence for Children stressed the concept of the ‘best interests of the child’ as defined by the Convention on the Rights of the Child of 20 November 1989, and submitted that in ‘Dublin’ return cases the social and emotional development of children should be a decisive factor in assessing their ‘best interests’. The NGO referred in particular to Article 6 of the Dublin III Regulation, which came into force on 1 January 2014 (see paragraph 35 above).

Defence for Children stressed, in particular, the importance attached by the United Nations Committee on the Rights of the Child to protecting the family environment, and referred to the Court's case-law on the detention of children, particularly migrants, with regard to living conditions. In conclusion, they requested the Court to prohibit the return of children to Italy on account of the precarious conditions in which asylum seekers were housed there.

The AIRE Centre, ECRE and Amnesty International also referred to the concept of the ‘child's best interests’ and submitted that children should only be transferred to other Member States of the European Union if this was in their best interests.

The Italian Government confirmed at the hearing of 12 February 2014 that there had been some episodes of violence at the CARA in Bari shortly before the applicants' arrival. However, they denied that families of asylum seekers were systematically split up; this occurred only in a few cases and for very short periods during the first few days when asylum seekers were being taken charge of and identified. In their observations they also stated that asylum seekers belonging to a category considered by the Italian authorities to be vulnerable — which was the case of the applicants, as a family with children — were taken charge of within the SPRAR system, which guaranteed them accommodation, food, health care, Italian classes, referral to social services, legal advice, vocational training, apprenticeships and help in finding their own accommodation.

The Court reiterates that according to its well-established case-law the expulsion of an asylum seeker by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country (see Saadi v. Italy [GC], no. 37201/06, § 152, ECHR 2008; M.S.S., cited above, § 365; Soering v. the United Kingdom, 7 July 1989, §§ 90–91, Series A no. 161; Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 103, Series A no. 125; H.L.R. v. France, 29 April 1997, § 34, Reports 1997-III; Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000-VIII; and Salah Sheekh v. the Netherlands, no. 1948/04, § 135, ECHR 2007-I).

The Court has held on numerous occasions that to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see, inter alia, Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI, and M.S.S., cited above, § 219).

The Court has also ruled that Article 3 cannot be interpreted as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home (see Chapman v. the United Kingdom [GC], no. 27238/95, § 99, ECHR 2001-I). Nor does Article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living (see Müslim v. Turkey, no. 53566/99, § 85, 26 April 2005, and M.S.S., cited above, § 249).

In the M.S.S. judgment (§ 250), the Court nevertheless took the view that what was at issue in that case could not be considered in those terms. Unlike in the Müslim case (cited above, §§ 83 and 84), the obligation to provide accommodation and decent material conditions to impoverished asylum seekers had entered into positive law and the Greek authorities were bound to comply with their own legislation transposing European Union law, namely the Reception Directive. What the applicant held against the Greek authorities in that case was that, because of their deliberate actions or omissions, it had been impossible in practice for him to avail himself of those rights and provide for his essential needs.

In the same judgment (§ 251), the Court attached considerable importance to the applicant's status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection. It noted the existence of a broad consensus at the international and European level concerning this need for special protection, as evidenced by the Geneva Convention, the remit and the activities of the UNHCR and the standards set out in the European Union Reception Directive.

Still in M.S.S. (§§ 252 and 253), having to determine whether a situation of extreme material poverty could raise an issue under Article 3, the Court reiterated that it had not excluded ‘the possibility that the responsibility of the State [might] be engaged [under Article 3] in respect of treatment where an applicant, who was wholly dependent on State support, found herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity’ (see Budina v. Russia (dec.), no. 45603/05, 18 June 2009).

With more specific reference to minors, the Court has established that it is important to bear in mind that the child's extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant (see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 55, ECHR 2006-XI, and Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012). Children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status. The Court has also observed that the Convention on the Rights of the Child encourages States to take the appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether the child is alone or accompanied by his or her parents (see to this effect Popov, cited above, § 91).

The applicants argued in substance that if they were returned to Italy ‘in the absence of individual guarantees concerning their care’ they would be subjected to inhuman and degrading treatment linked to the existence of ‘systemic deficiencies’ in the reception arrangements for asylum seekers.

In order to examine this complaint the Court considers it necessary to follow an approach similar to that which it adopted in the M.S.S. judgment, cited above, in which it examined the applicant's individual situation in the light of the overall situation prevailing in Greece at the relevant time.

It first reiterates its well-established case-law according to which the expulsion of an asylum seeker by a Contracting State may give rise to an issue under Article 3 where ‘substantial grounds have been shown for believing’ that the person concerned faces a ‘real risk’ of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country (see paragraph 93 above).

It is also clear from the M.S.S. judgment that the presumption that a State participating in the ‘Dublin’ system will respect the fundamental rights laid down by the Convention is not irrebuttable. For its part, the Court of Justice of the European Union has ruled that the presumption that a Dublin State complies with its obligations under Article 4 of the Charter of Fundamental Rights of the European Union is rebutted in the event of ‘systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State’ (see paragraph 33 above).

In the case of ‘Dublin’ returns, the presumption that a Contracting State which is also the ‘receiving’ country will comply with Article 3 of the Convention can therefore validly be rebutted where ‘substantial grounds have been shown for believing’ that the person whose return is being ordered faces a ‘real risk’ of being subjected to treatment contrary to that provision in the receiving country.

The source of the risk does nothing to alter the level of protection guaranteed by the Convention or the Convention obligations of the State ordering the person's removal. It does not exempt that State from carrying out a thorough and individualised examination of the situation of the person concerned and from suspending enforcement of the removal order should the risk of inhuman or degrading treatment be established.

The Court also notes that this approach was followed by the United Kingdom Supreme Court in its judgment of 19 February 2014 (see paragraph 52 above).

In the present case the Court must therefore ascertain whether, in view of the overall situation with regard to the reception arrangements for asylum seekers in Italy and the applicants' specific situation, substantial grounds have been shown for believing that the applicants would be at risk of treatment contrary to Article 3 if they were returned to Italy.