HALIMI v. AUSTRIA AND ITALY
Inadmissible
Elisabeth Steiner;Guido Raimondi;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
1. The applicant, Mr Nasib Halimi, is an Afghan national who was born in 1994 and resides at present in Vienna. He was represented before the Court by Mrs N. Lorenz, a lawyer practising in Vienna. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs. 4. The applicant lodged his first asylum request in Austria on 20 September 2010. He claimed then to be 17 years old and to have left Afghanistan two and a half years before. He spent two years in Turkey and had finally left for Italy with the aid of traffickers. He and a group of others had hidden in a refrigerator truck that was held up and searched in Tarvisio, Italy. There, police officers had allegedly taken the applicant to a police station, interviewed him without an interpreter, and held him without food or water for twenty-four hours. After his release they had handed him an order to leave the country, which the applicant had thrown away. He had taken a train for Rome, slept in a railway station, received food from a church and, finally, after five days in Italy, travelled on to Austria. He stated that he had left Afghanistan because the Taliban had come to his village and had asked his father to cooperate with them, which he had refused to do. Thereupon, the Taliban had kidnapped his father and brother, and the applicant had been afraid that he would suffer the same destiny if he stayed in Afghanistan. 5. With regard to his age, the applicant claimed to have been born on 5 December 1372 according to the Afghan calendar. He stated that in Turkey he had been told to say that he was born on 24 February 1993, whereas a conversion of his birth date into the Gregorian calendar would give a birth date of 24 February 1994. The applicant mentioned that he had a birth certificate showing that he was 17 years old. However, he was not entirely certain about his date of birth. 6. When asked whether he had lodged an asylum request in Italy, the applicant replied in the negative, stating that he wanted to lodge his asylum application in Austria, not in Italy. 7. On 21 February 2011 the Federal Asylum Office (Bundesasylamt) rejected the applicant’s asylum request under section 5 of the 2005 Asylum Act and declared that Italy had jurisdiction in respect of asylum proceedings pursuant to Article 10 § 1 taken in conjunction with Article 18 § 7 of European Council Regulation no. 343/2003/EC (hereinafter, “the Dublin Regulation”). It also ordered the applicant’s transfer to Italy. It stated that the results of a forensic examination had found the applicant to be at least 19 years old. With reference to a number of country reports concerning asylum proceedings in Italy, the Federal Asylum Office found that asylum requests could be lodged in Italy at any police station or in the local Questura. An asylum-seeker had to present himself personally to lodge a request. The Italian authority would first examine the question of the applicability of the Dublin Regulation and would then forward the request to one of ten Territorial Commissions to be dealt with. With regard to access to subsistence in Italy, the Federal Asylum Office referred to legislation on the provision to asylum-seekers of shelter or financial support and access to medical treatment in accordance with the relevant European Union directives. It further stated that problems had been reported concerning immigration centres in the south of the country owing to refugees arriving by boat. Upon a request by the authority, the Austrian embassy in Rome explained in February 2011 that every asylum-seeker could request an interpreter for his or her interviews, but that an interpreter had to be asked for specifically, which was sometimes difficult and often depended on the good will of the officials dealing with the case. As to the order to leave the country, the embassy explained that an illegal immigrant received an order to leave the country within fifteen days. If he or she did not leave the country, his illegal presence would become a criminal act which could lead to him or her being detained. It could happen that the order to leave the country was given in a language the foreigner could not understand, so that he would slip into a criminal illegal presence in Italy without knowledge or intent. 8. The applicant appealed against the decision. 9. On 21 March 2011 the Asylum Court (Asylgerichtshof) dismissed the applicant’s appeal as unfounded. Referring to country reports on Italy, it found that there was no systematic real risk that the applicant would be subjected to ill-treatment because of lack of access to asylum proceedings, refoulement, or lack of subsistence upon his return to Italy. Furthermore, it found the applicant’s story about his stay in Italy contradictory and not credible. With reference to the “effet utile” principle of Community law, it concluded that the applicant had thus not substantiated his claim of a real risk under Article 3 of the Convention sufficiently for the sovereignty clause to be engaged under the Dublin Regulation. Furthermore, any possible criticism with regard to the treatment of refugees arriving by boat in the south of Italy would not apply to the applicant as a returner to the north of Italy under that Regulation. 10. On 7 April 2011 the applicant was transferred to Italy. 11. The applicant returned to Austria after twelve days and subsequently lodged an asylum request in Austria on 19 April 2011. In his first interview at the Baden police station the applicant stated that the conditions for asylum-seekers in Italy had been inhuman and that the Italian police had treated him badly. In subsequent statements he stated that he had been stopped by police at the airport in Rome immediately upon his return and had been served with a paper ordering him to leave the country. There had again been no interpreter available. He had slept at the Roma Ostiense railway station together with other foreigners, and they had been woken at 6.00 a.m. by the police, in some cases brutally so. When he had tried to enter an official refugee camp in Rome he had been chased away by police. He had received food from a church once per day, but the church did not distribute food at weekends. The applicant further stated that he had had problems with his stomach and kidneys, but no access to medical care. 12. When asked whether he had lodged an asylum request in Italy, the applicant answered that he had not. 13. On 4 January 2012 the applicant was heard by the Federal Asylum Office in the presence of his legal representative. In respect of his medical condition, he submitted that he was suffering from post-traumatic stress disorder and asked for a further psychiatric examination to be carried out. It can be seen from the minutes of the hearing that the applicant interrupted the interview, claiming that he could not carry on because of an acute headache. A number of reports on the reception conditions for asylum-seekers in Italy were handed to his representative, who was given a two-week time-limit to comment. The applicant was placed in detention with a view to his expulsion. 14. On 6 January 2012 the Court applied an interim measure under Rule 39, requesting the Austrian Government to stay the applicant’s transfer to Italy until further notice. Thereupon, the applicant’s transfer to Milan scheduled for 19 January 2012 was cancelled. 15. The applicant’s subsequent asylum proceedings in Austria are still pending at first instance. 16. A doctor’s note from the Amber-Med free clinic in Vienna dated 17 August 2011 stated that the applicant was suffering from gastritis and pain in the lower back and recommended further examinations. 17. In a letter of 29 December 2011 a psychologist at the Hemayat centre for support for trauma patients stated after an hour-long diagnostic meeting that the applicant was suffering from an acute stress reaction that had its origins in a post-traumatic stress disorder and posed a latent suicide risk that could very quickly become acute. The applicant further suffered from a somatoform pain disorder. A stable environment, medical investigation of the pain disorder and long-term psychotherapy were urgently recommended. 18. In the course of the proceedings, the applicant’s representative provided an update by way of an information letter from the Hemayat centre dated 23 May 2012. It was stated therein that the applicant had been receiving regular psychotherapy since 11 January 2012 and that a stable therapeutic relationship had been established in the course of the therapy. There were no diagnostic changes. The letter recommended a stable social environment for the applicant and the continuation of the promising therapy in order for him to avoid a deterioration of his current symptoms. 19. She also submitted an expert opinion prepared in June 2012 by a psychiatrist in Vienna after an examination on 26 June 2012. That opinion found that the applicant’s post-traumatic stress disorder had developed into a depressive episode with a personality change due to extreme stress. The applicant was therefore a multiply traumatised adolescent and the expert classified him as gravely psychologically impaired. She urgently recommended a safe living environment and ongoing psychotherapy to stabilise the applicant’s mental state. His removal would lead to re-traumatisation and could pose an acute suicidal risk. 20. The Austrian Government provided a psychological expert opinion, undated, submitted to the Federal Asylum Office in June 2012. It found that the applicant suffered from a mild adjustment disorder bordering on a stress disorder but without a clinical character. There were no indications of an acute suicidal tendency and no symptoms of serious post-traumatic stress disorder. 21. The relevant European and Italian law, instruments, principles and practice have recently been exhaustively summarised in Mohammed Hussein v. the Netherlands and Italy (dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013. Only the information that is particularly relevant to the present case is repeated below. 22. 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. 23. 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. 24. 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). 25. 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. 26. Section 5 of the Asylum Act 2005 (Asylgesetz) provides that an asylum application must 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. 27. Section 12 establishes – with the exception of cases falling under section 12a – de facto protection against deportation (faktischer Abschiebeschutz) for aliens who have lodged an application for asylum. However, section 12a provides that a person whose asylum application has been rejected because of lack of jurisdiction under the Dublin Regulation (section 5 of the Asylum Act) is not entitled to such de facto protection against deportation in the event that he or she lodges a second asylum application. 28. Asylum-seekers can lodge an appeal with the Asylum Court against decisions rejecting their application rendered by the Federal Asylum Office as the first-instance asylum authority within one week of the decision (see section 22(12)). However, section 36(1) stipulates that such an appeal shall not have suspensive effect. Section 37 allows the Asylum Court to grant suspensive effect to such an appeal – or to an appeal against a deportation order issued in conjunction with the rejection of an asylum application – within one week if there is reason to believe that the individual’s deportation will give rise to: (i) a real risk of a violation of Articles 2 or 3 of the Convention or of Protocol 6 or Protocol 13 to the Convention; or (ii) a serious threat to his or her life or person as a result of arbitrary violence in connection with an international or internal conflict in relation to which the applicant is a civilian. Against decisions rendered by the Asylum Court, claimants may lodge a complaint with the Constitutional Court alleging a violation of a constitutionally guaranteed right (Article 144 a of the Federal Constitution). Such a complaint has no automatic suspensive effect; however, such suspensive effect can be granted by the Constitutional Court upon a request by the claimant. 29. Reference is made to the extensive description of the Italian asylum procedure and domestic law in Mohammed Hussein, cited above, §§ 33-41. 30. In particular, paragraphs 33-36 state as follows: “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.” 31. The ‘Dublin II Regulation National Report’ on Italy of December 2012 states, in addition 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. ...” 32. 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) refer to incidents in which asylum-seekers have had difficulties lodging a formal asylum application with the Questura, or only obtained an appointment with the Questura several months after their arrival in Italy. During this period of time however, asylum-seekers have no access to accommodation or subsistence. 33. The reception scheme and the reception conditions in Italy are also summarised in Mohammed Hussein, cited above, §§ 42-50. 34. 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 laying down minimum standards for the reception of asylum-seekers, asylum-seekers in Italy are entitled to reception facilities. According to Article 8 of that 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 appointments with consultants. These reception conditions were also guaranteed to Dublin-returners. This category received a preliminary form of reception upon arrival from the services present in the main airports; subsequently these asylum-seekers 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 with the aim of providing appropriate reception conditions. 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 to a local centre to receive treatment and support of a professional and appropriate nature (see ibid., § 45). 35. As regards medical assistance, the Italian comments established as follows (ibid.). “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.” 36. And finally, with regard to the reception of Dublin-returners, the “Dublin II Regulation National Report” on Italy stated in particular (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. ...”