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URL: http://www.bailii.org/eu/cases/ECHR/2013/1342.html
Cite as: (2013) 57 EHRR SE12, [2013] ECHR 1342, 57 EHRR SE12

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FIRST SECTION

DECISION

Application no. 6198/12
Khalisat DAYTBEGOVA and Mariat MAGOMEDOVA
against Austria

The European Court of Human Rights (First Section), sitting on 4 June 2013 as a Chamber composed of:

          Isabelle Berro-Lefèvre, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Linos-Alexandre Sicilianos,
          Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 30 January 2012,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the comments submitted by the Italian Government,

Having regard to the information of 7 June 2012 that the Russian Government did not wish to exercise their right to intervene in the present proceedings,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Khalisat Daytbegova and Ms Mariat Magomedova, are Russian nationals who were born in 1967 and 1997 respectively and live in Semriach. They are mother and daughter and are represented before the Court by Mrs N. Lorenz, a lawyer practising in Vienna.

The Austrian Government were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The asylum proceedings in Austria

The applicants travelled to Austria via Italy, with the first applicant’s son, born in 2002, and lodged an asylum request there on 23 June 2011. The applicants had not lodged an asylum request in Italy, but they had held a visa for entry into the country, which was valid from 18 to 25 June 2011.

At the request of the Austrian authorities Italy accepted jurisdiction with regard to the applicants’ asylum proceedings, pursuant to Council Regulation (EC) No 343/2003 (hereinafter “the Dublin Regulation”).

In the course of the Austrian proceedings the first applicant claimed to fear refoulement from Italy to Dagestan and lack of access to medical treatment in Italy. Her whole family, with the exception of the youngest boy, was suffering from depression. The second applicant in particular was very ill, uncommunicative, and suffered from headaches. The first applicant claimed that her husband was registered as a suspect with the Russian military services. As a result, he had gone into hiding in the mountains. The first applicant and her family had been repeatedly threatened, to induce them to disclose the whereabouts of her husband’s hiding place.

On 26 August 2011 the Federal Asylum Office (Bundesasylamt) rejected the asylum requests in line with section 5 of the 2005 Asylum Act (Asylgesetz 2005) in conjunction with Article 9 § 2 of the Dublin Regulation, and ordered the applicants’ transfer to Italy.

On 26 September 2011 the Asylum Court (Asylgerichtshof) quashed those decisions and noted that the statements made by the Federal Asylum Office regarding the health of the second applicant were insufficient and that the authority had failed to establish that the second applicant was fit to be transferred to Italy (Überstellungsfähigkeit). Furthermore, the authority had failed to evaluate information regarding access to medical treatment in Italy. Finally, since the applicants must be considered vulnerable persons, the authority needed to get assurances from the Italian authorities regarding housing, related support and access to medical treatment.

On 16 November 2011 the Italian Ministry of Internal Affairs responded to the Austrian request for information concerning the reception conditions by stating in general terms that the reception and lodging of asylum seekers in Italy was guaranteed in governmental asylum centres (CARA or SPRAR). It was further especially referred to the fact that Italy paid particular attention to vulnerable asylum seekers. Therefore, to ensure appropriate medical and welfare support for such vulnerable groups, the Austrian authorities were requested to submit detailed information for each individual case.

On 1 December 2011 the Federal Asylum Office again rejected the applicants’ asylum request pursuant to the 2005 Asylum Act and the Dublin Regulation, and ordered their expulsion to Italy. Referring to relevant country reports, it found that asylum seekers had access to medical treatment in Italy after initial registration with the welfare unit. Vulnerable persons also had special access to lodgings with the “Sistema di Protezione per Richiedenti Asilo e Rifugiati” (Protection System for Asylum Seekers and Refugees, hereinafter “SPRAR”). With reference to the medical documents concerning the second applicant’s health, it found that the fact that the applicants had access to Italian medical services meant that they could count on the necessary support if transferred to Italy. To complement this information, the authority also referred to the fact that at the time of the actual transfer the immigration police (Fremdenpolizei) was called upon to decide whether a transfer was possible or not for medical or psychological reasons.

On 26 January 2012 the Asylum Court rendered one decision with regard to the two applicants and the first applicant’s younger son, dismissing the applicants’ appeal against those decisions as unfounded. The decision featured the three file numbers of all parties concerned and the three separate operative parts referred to the different file numbers by reference number.

In substance it found that the applicants had not sufficiently proved that they would not have access to medical treatment in Italy. Furthermore, the applicants had not even lodged an asylum request in Italy, which weakened their criticism of the Italian asylum system. The general information available to the authority would not warrant the opinion that the applicants would be subjected to treatment contrary to Article 3 if they were returned to Italy. Acknowledging the fact that the second applicant, and also the first applicant, who had less serious symptoms, was suffering from psychological impairments, the Asylum Court found that they had to accept the possibility that their health would deteriorate and that their opportunities to receive medical treatment would be reduced if they were transferred, which was in line with the Court’s case-law. Furthermore, the Austrian authorities would treat the transfer as “problematic” and thus provide medical assistance during the removal attempt. Finally, the Austrian authorities had also declared that they would inform the Italian authorities of the planned transfer in due time, to enable them to prepare the reception of the applicants in Italy.

On 31 January 2012 the first applicant applied for legal aid to lodge a complaint with the Constitutional Court. In the application she referred only to the file number of her proceedings before the Asylum Court. Thereupon, on 3 February 2012, the Constitutional Court (Verfassungsgerichtshof) granted legal aid to the first applicant to lodge a complaint against that last decision. By a decision of 3 April 2012 the first applicant’s complaint was not granted suspensive effect by the Constitutional Court. The complaint proceedings are pending.

2. The preparation of the transfer

The transfer of the applicants and the youngest son was originally planned to take place on 25 January 2012.

In preparation for the transfer the Austrian authorities submitted a quantity of medical information to the Italian authorities on 16 January 2012, including a statement from the Sigmund Freud Hospital dated 9 December 2011 (see paragraph 20 below).

On 23 January 2012 the Italian authorities again requested information regarding the applicants’ medical status. The Austrian authorities responded on 24 January 2012 that there was no new medical information and that all relevant information had already been submitted.

However, on the same day the Austrian authorities had to cancel the applicants’ transfer to Italy because the first applicant’s younger son had disappeared and could not be found by the authorities. Thereupon, the Austrian authorities informed the Italian authorities of the expansion of the transfer period to eighteen months because of the disappearance of the first applicant’s son.

3. The second applicant’s health issues

On 24 January 2012 the second applicant was admitted to the secure ward of the Sigmund Freud Psychiatric Hospital in Graz (Landesnervenklinik Sigmund Freud Graz). That admission to the secure ward was approved by the competent court by a decision based on an expert’s diagnosis of acute post-traumatic stress disorder with serious suicidal tendencies and specific thoughts of putting those tendencies into practice. The second applicant was treated in the secure ward until 12 February 2012 and remained in the hospital until 17 February 2012, in the open ward.

Two older psychological statements, commissioned by the Federal Asylum Office and dated 27 July 2011 and 10 October 2011 respectively, diagnosed an adjustment disorder in respect of the second applicant, but no acute suicidal tendencies.

A first psychological statement of the Sigmund Freud Psychiatric Hospital of 9 December 2011 confirmed that the second applicant had been in regular treatment at the hospital since 23 September 2011 and diagnosed post-traumatic stress disorder with distinct symptoms and a traumatic neurosis. In the course of the treatment, a sleep activating anti-depressive therapy had been initiated. However, since the start of the therapy only a slight improvement in the second applicant’s condition had been noticed. The statement recommended a stable environment; cessation of the treatment could lead to aggravation of the symptoms. Furthermore, the second applicant showed suicidal tendencies with some impulses to put them into practice. From a psychiatric point of view it was recommended that the second applicant stay in an environment that she considered safe.

A second statement of the Sigmund Freud Psychiatric Hospital of 19 January 2012 confirmed that pharmacological treatment and psychotherapy had begun; however, no improvement in the second applicant’s condition was yet noticeable. The insecure status of the second applicant’s stay in Austria had led to depression, sleep disorder and continuing weight loss. It further stated that continuing and long-term treatment of the second applicant was essential, and that disruption of the second applicant’s environment could mean a worsening of the symptoms, including the suicidal tendencies. The applicant was treated with Mirtabene, Seroquel and Dominal forte and was in regular psychotherapeutic treatment.

In the course of the proceedings before the Court the applicants provided further medical documentation of 12 July 2012 from the Neuro-Psychiatric Department for children and young persons at the Sigmund Freud Psychiatric Hospital; this indicated that the second applicant remained in outpatient treatment after her release from the hospital in February 2012, and that she was still suffering from post-traumatic stress disorder, manifesting itself with insomnia and a depressed state of mind including suicidal tendencies and weariness. She was continuing to lose weight. The statement continued that on-going and long-term psychotherapeutic treatment was essential, and that security and a sense of safety were important factors that would provide a prospect of improvement. The next steps recommended were drug therapy, regular medical checks, preferably in a familiar environment, continuing trauma-specific psychotherapy, and educational support.

4. Rule 39 of the Rules of Court

On 10 February 2012 the Court applied the interim measure under Rule 39 and requested the Austrian Government to stay the applicants’ transfer to Italy until further notice.

5. Further developments

The first applicant’s husband and elder son entered Austria illegally and lodged asylum requests on 23 January 2012. To secure the union of the family, the Italian authorities agreed on 9 February 2012 to also accept jurisdiction regarding their asylum proceedings. The Federal Asylum Office thereupon rejected the asylum requests; however, an appeal lodged with the Asylum Court against those decisions was awarded suspensive effect on 30 April 2012.

B. Relevant European, Austrian and Italian law and practice

The relevant European and Italian law, instruments, principles and practice have only recently been exhaustively summarised, in Mohammed Hussein v. the Netherlands and Italy (dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013. In the following, only information that is particularly relevant to the present case will be repeated.

1. Council Regulation (EC) No 343/2003 (the Dublin Regulation)

Under the Regulation, the member States must determine, on the basis of a hierarchy of objective criteria (Articles 5 to 14), which member State bears responsibility for examining an asylum application lodged on their territory. The aim is to avoid multiple applications and to guarantee that each asylum seeker’s case is dealt with by a single member State.

Where it is established that an asylum seeker has irregularly crossed the border into a member State, having come from a third country, the member State thus entered is responsible for examining the application for asylum (Article 10 § 1). This responsibility ceases twelve months after the date on which the irregular border crossing took place.

Where the criteria in the regulation indicate that another member State is responsible, that State is requested to take responsibility for the asylum seeker and examine the application for asylum (Article 17).

By way of derogation from the general rule, each member State may examine an application for asylum lodged with it by a third-country national, even if such an examination is not its responsibility under the criteria laid down in the Regulation (Article 3 § 2). This is called the “sovereignty” clause. In such cases the State concerned becomes the member State responsible and assumes the obligations associated with that responsibility.

2. Austrian Asylum Act

Section 5 of the Asylum Act 2005 (Asylgesetz) provides that an asylum application shall be rejected as inadmissible if, under treaty provisions or pursuant to the Dublin Regulation, another State has jurisdiction to examine the application for asylum. When rendering a decision rejecting an application, the authority shall specify which State has jurisdiction in the matter.

According to Section 36, an appeal lodged with the Asylum Court against a decision of the Federal Asylum Office rejecting an asylum request has no suspensive effect. A complaint against a removal order connected with such a decision to reject may be awarded suspensive effect by the Asylum Court within one week (see Section 37).

3. Asylum proceedings in Italy

Reference is made to the extensive description of the Italian asylum procedure and domestic law in Mohammed Hussein, cited above, §§ 33-41.

In particular, paragraphs 33-36 explain that

“33. A person wishing to apply for asylum in Italy should do so with the border police or, if already in Italy, with the police (questura) immigration department. As soon as an asylum request has been filed, the petitioner is granted access to Italy as well as to the asylum procedure, and is authorised to remain in Italy pending the determination of the asylum request by the Territorial Commission for the Recognition of International Protection.

34. For petitioners who do not hold a valid entry visa, an identification procedure (fotosegnalamento) is carried out by the police - if need be - with the assistance of an interpreter. This procedure comprises the taking of passport photographs and fingerprints. The fingerprints are checked for matches in EURODAC and the domestic AFIS (Automated Fingerprint Identification System) database. At the end of this procedure, the petitioner is given a notice confirming the first registration (cedolino), on which future appointments are noted, in particular the appointment for the formal registration of the request.

35. The formal asylum request will be made in writing. On the basis of an interview held with the petitioner in a language which he or she understands, the police will fill out the ‘Standard form C/3 for the recognition of refugee status according to the Geneva Convention’ (Modello C/3 per il riconoscimento dello status di rifugiato ai sensi della Convenzione di Ginevra), which contains questions on the petitioner’s personal data (name, surname, date of birth, citizenship, name and surname of parents/spouse/children and their whereabouts) as well as the details of the journey to Italy and reasons for fleeing the country of origin and for seeking asylum in Italy. The petitioner will be asked to provide a written paper, which will be appended to the form, containing his or her asylum account and written in his or her own language. The police will retain the original form and provide the petitioner with a stamped copy.

36. The petitioner will then be invited by a notification served in writing by the police for a hearing before the competent Territorial Commission for the Recognition of International Protection. During this hearing, the petitioner will be assisted by an interpreter.”

The ‘Dublin II Regulation National Report’ on Italy of December 2012 states additionally to the above-mentioned information with regard to access to the asylum procedure for Dublin-returners (pages 18 and 19 of the report):

“At the arrival in the main airports, the applicant finds NGOs/associations which may help him/her to find an accommodation centre and provide him/her with further information on the asylum procedure. At the airport, the Border Police carry out the fotosegnalamento and verify the person’s identity in the EURODAC database. After having undertaken these procedures, the applicant will receive a letter (called “verbale di invito”) saying that s/he has to go to the Questura competent to continue the asylum procedure. The asylum seeker may be addressed to the office of the Questura where s/he was fingerprinted and photographed or to the office where s/he lodged the asylum application or where the documents related to his/her case are kept. The law does not foresee any support for reaching the competent Questura. In the practice the NGOs working at the border points can provide the train ticket for that destination on the basis of a specific agreement with the competent Prefecture. However, this support is not always guaranteed and often it happens that the NGO does not have information on the real arrival of the asylum seekers and on whether s/he has found an accommodation there.

Once the person is at the Questura, s/he may face different outcomes according to whether s/he did not apply or s/he did apply for asylum when s/he was in Italy previously.

If the person had never applied for international protection before, s/he is able to ask for protection now and is entitled to the same rights as the other asylum seekers. ...”

Both the UNHCR in its “Recommendations on Important Aspects of Refugee Protection in Italy” of July 2012 (page 7) and the Swiss Refugee Council and the Norwegian NGO Juss-Buss in their report ‘Asylum procedure and reception conditions in Italy’ of May 2011 (page 10) inform on incidents in which asylum seekers have had difficulties lodging a formal asylum application with the Questura, or only got an appointment with the Questura several months after their arrival in Italy. In this period of time however, asylum seekers have no access to lodging or subsistence.

4. Reception conditions in Italy

The reception scheme and the reception conditions in Italy are summarised again in Mohammed Hussein, cited above, §§ 42-50.

In particular, it is noted in respect of vulnerable asylum seekers that pursuant to Legislative Decree no. 140/2005, implementing Council Directive 2003/9/EC of 27 January 2003 on laying down minimum standards for the reception of asylum seekers, asylum seekers in Italy are entitled to reception facilities. According to Article 8 of this Decree, reception arrangements are to be made on the basis of the specific needs of asylum seekers and their families, in particular the needs of vulnerable persons, namely unaccompanied minors, disabled persons, pregnant women, single parents with minor children, and persons who have been subjected to torture, rape or other forms of serious psychological, physical or sexual violence. Italian domestic law provides for special guarantees for such vulnerable persons, including a reserved quota of places in the SPRAR reception scheme (see ibid., § 42). The Italian authorities specified in their comments on the report by the Council of Europe Commissioner for Human Rights dated 18 September 2012 that the system of reception in the CARA centres, which accommodate asylum seekers, envisaged that a range of services must be provided to migrants, including, inter alia, socio-psychological support, with special attention for persons belonging to vulnerable categories and medical assistance appointments with consultants. Those reception conditions were also guaranteed to Dublin-returners. This category received a preliminary form of reception upon arrival when the services present in the main airports were activated; subsequently they were accommodated in government reception centres. When the transferring country reported an asylum seeker as belonging to a vulnerable category, appropriate medical measures were taken in the centres, intended to provide appropriate reception. Special attention was paid to migrants with physical or [psychological] trauma and to victims of torture, who were entrusted to the medical stations of the reception centres or at a local level to receive treatment and support of a professional and appropriate nature (see ibid., § 45).

As regards medical assistance, the Italian comments established (ibid.) that

“in Italy, foreign citizens, even those not complying with the provisions regulating their presence, are entitled to ordinary and/or urgent treatment through the National Health Service.

In the government centres for migrants the psychic/physical health of guests is recognized as an unalienable right of the individual, which is safeguarded by art. 32 of the Italian Constitution and it has always been put at the forefront when the regulatory and management system of the centres is being prepared.

More specifically, the medical assistance service provided for in the centres for migrants must grant guests the following:

a) Visit upon entry and medical first aid, carried out in a consulting room set up within the facility with medical staff and nurses, whose shifts must be based on the ratio guests/staff as indicated in the tables of the tender specifications;

b) When the need arises, possible transfer of guests to hospitals outside the centres, in compliance with art. 35 of Legislative Decree 286/98 as migrants hosted in CARA centres can benefit from the services of the National Health Service by showing their STP cards (Temporarily Present Alien), issued by the Local Health Service Unit, whereby they can enjoy treatment in the consulting room or in hospitals, when it is urgent or essential in case life is in peril;

c) Administering of medicines and medical devices necessary for first aid and for ordinary medical assistance, including for generic conditions of psychological type;

d) Recording of a personal medical file, a copy of which must be handed over to the guest. In this connection it is worth mentioning that doctors, when screening the guests upon entry must also evaluate their psychic-social situation as well as the presence of vulnerability factors (serious psychic-psychological conditions, including previous ones, victims of mistreatment/torture, substance addiction, etc.) in order to prescribe possible drug treatment or psychological counselling.

It is further specified that as provided for by the above mentioned art. 35 of Legislative Decree No. 286/98 (Consolidated Text on Immigration), foreign citizens who are on the national territory but do not comply with provisions regulating their presence are anyway entitled to treatment in public health care facilities either in consultation rooms and/or in hospital (both urgent and continuing treatment) because of illness or accident and they also benefit from the programmes of preventive medical treatment aimed at safeguarding individual and collective health.

Regardless of the possession of a residence permit, the Italian legislation provides for the social protection and medical assistance to expectant mothers and to mothers, the protection of the psychic-physical health of minors (as a result of the Convention on the Rights of the Child of 1989), interventions of prevention, diagnosis and treatment of infectious diseases and the decontamination of the related centres of infection.

Finally, when aliens not complying with provisions regulating their presence visit public medical facilities, they are not reported to the Police Authorities.

As far as social services are concerned, the principle enshrined in art. 24 of the 1951 Geneva Convention - according to which the status of a refugee is equal to that of a national - is embodied in the Italian legislation also as a consequence of art. 27 of the above mentioned Legislative Decree No. 251 of 19 November 2007, which lays down that individuals benefiting from refugee status and from subsidiary protection have the same status as Italian citizens and thus they have access to all services and benefits, including economic ones, covered by the social and medical assistance system.

Furthermore, the projects funded through resources of the ERF include measures to ease the access to social security, particularly on the part of vulnerable groups.”

And finally, with regard to the reception of Dublin-returners, the “Dublin II Regulation National Report” on Italy stated in particular that (ibid., § 49)

“Within this broader category, another distinction is deemed necessary according to whether the returnee had already enjoyed the reception system while s/he was in Italy.

If returnees (international protection seekers, beneficiaries of international protection or of a permit of stay for humanitarian reasons) had not been placed in reception facilities while they were in Italy, they may still enter reception centres. Due to the lack of available places in reception structures and to the fragmentation of the reception system, the length of time necessary to find again availability in the centres is - in most of the cases - too long. Since, there is no general practice, it is not possible to make a quantification of the time necessary to access to an accommodation. However, in the last years, temporary reception systems have been established to house persons transferred to Italy on the basis of the Dublin II Regulation. However, it concerns a form of temporary reception that lasts until their juridical situation is defined or, in case they belong to vulnerable categories, an alternative facility is found.

Such temporary reception has been set up thanks to targeted projects funded by the European Fund for Refugees. For instance, in Rome, there are currently projects providing assistance to 200 persons - within this broader category 60 places are for vulnerable categories.

However, it happens that Dublin returnees are not accommodated and find alternative forms of accommodation such as self-organized settlements....”

COMPLAINTS

The applicants complained under Article 3 of the Convention that in view of the applicants’ state of health, and especially of the second applicant’s mental health, a transfer to Italy would subject them to treatment contrary to that provision.

THE LAW

The applicants, who complained of a real risk of ill-treatment upon a return to Italy under the Dublin Regulation, relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. The parties’ submissions

1. The Government

The Government firstly contended that the first applicant had only requested legal aid for a complaint to be lodged with the Constitutional Court with regard to the decision of the Asylum Court dismissing her own appeal. Subsequently, the first applicant had lodged a complaint with the Constitutional Court, which is pending. Under these circumstances, the Government proposed that the complaints of both the first and the second applicant were inadmissible for non-exhaustion of domestic remedies: the first applicant’s complaint proceedings were still pending in Austria and the second applicant had not lodged a complaint with the Constitutional Court. The Government emphasised that the first applicant’s complaint would not automatically include a complaint on behalf of her minor daughter.

On the substance of the applicants’ complaint the Government stated that the Federal Asylum Office and the Asylum Court had carefully examined the general situation of asylum seekers in Italy and the specific situation of the applicants in view of their health in the context of a transfer to Italy and their rights under Article 3 of the Convention. The Government referred in particular to the extensive statements made in the domestic decisions concerning access for asylum seekers to health care and special support for psychologically impaired persons. Against the background of the Court’s own jurisprudence concerning a potential deterioration of a person’s physical or mental health if removed, and the domestic authorities’ principal findings that the applicants would have access to adequate opportunities for medical treatment, the Government asserted that the applicants would not be subjected to ill-treatment if transferred to Italy.

The Government further observed that on the basis of the medical documents available to the authorities in the course of the domestic proceedings it had not been obvious that the applicants were suffering from severe illnesses that could only be treated in Austria. The second applicant’s admission to the psychiatric hospital in January 2012 had obviously not been known to the Austrian authorities at the time of their decision-making. Finally, the immigration police would in any event have the duty to ensure that a transfer to Italy would not violate Article 3 of the Convention. Before such an actual transfer took place the applicants would also be again examined by a medical officer (Amtsarzt).

As regards preparation for a potential transfer to Italy, the Government stated that because of the first applicant’s son’s disappearance and the application of Rule 39 of the Rules of Court, updated medical information in respect to the applicants has not been procured ex officio nor submitted to the Italian authorities, nor have the applicants provided updated information to the domestic authorities. In the event of a transfer of the applicants to Italy, an examination of the applicants by a medical officer would take place to ensure that the applicants were fit to be transferred and that there would be adequate medical treatment upon arrival.