European Court of Human Rights

Information Note on the Court’s case-law No. 162

April 2013

Mohammed Hussein and Others v. the Netherlands and Italy - 27725/10

Decision 2.4.2013 [Section III]

Article 3

Degrading treatment

Inhuman treatment

Expulsion

Proposed removal of Somali asylum-seeker to Italy under Dublin II Regulation: inadmissible

 

Facts - The first applicant is a Somali national and the mother of two small children (the second and third applicants). She arrived in Italy in August 2008 and applied for asylum. She was transferred to a reception centre and two months later received a temporary residence permit that allowed her to work in Italy. In January 2009 she was given a three-year residence permit and travel document. She left the reception centre in April 2009 and travelled to the Netherlands where, now heavily pregnant, she again applied for asylum. Her application was refused on the grounds that under the Dublin II Regulation, it was the Italian authorities who had responsibility for her asylum request. In her application to the European Court, the applicant complained that her transfer from the Netherlands to Italy would violate her rights under Article 3 of the Convention.

Law - Article 3: Unlike the situation in M.S.S. v. Belgium and Greece [GC] (no. 30696/09, 21 January 2011, Information Note no. 137), in the instant case the applicant had within three days of arriving in Italy benefited from the reception facilities that had been put in place by the Italian authorities for asylum seekers and within three months she had been allowed to seek work. Her request for international protection had been accepted and she had been granted a residence permit for subsidiary protection valid for three years. This entitled her to a travel document for aliens, to work and to benefit from the general schemes for social assistance, health care, social housing and education in the same manner as the general population. Even assuming the applicant had been compelled to vacate the reception centre where she was staying in order to make place for newly arrived asylum seekers, as a pregnant women she would have been entitled to a priority placement in a facility for accepted refugees. However, there was no indication that the applicant had ever sought assistance in finding work and/or alternative accommodation under the special public or private social assistance schemes established in Italy for vulnerable persons at risk of destitution and/or homelessness. In these circumstances it had not been established that the applicant’s treatment in Italy could be regarded as having attained the minimum level of severity required for treatment to fall within the scope of Article 3.

However, the validity of the applicant’s residence permit had since expired and so the Court went on to consider what her situation would be if she was returned to Italy. In that connection, it noted that the Netherlands authorities would give prior notice of the transfer to their Italian counterparts, thus giving them time to prepare. While the applicant would be required to renew her residence permit, as a single mother of two small children she remained eligible for special consideration as a vulnerable person under the applicable legislation.

Although reports on the reception schemes for asylum seekers in Italy disclosed some shortcomings in the general situation and living conditions of asylum seekers and refugees, they did not show any systemic failure to provide support or facilities. The reports drawn up by the UNHCR and the Commissioner for Human Rights referred to recent improvements intended to remedy some of the failings and all the reports were unanimous in depicting a detailed structure of facilities and care to provide for the needs of asylum seekers. The applicant’s own request for protection following her arrival in August 2008 had been processed within months and she had been given accommodation and access to health care and other facilities. Against this background, the Court considered that the applicant had not shown that her future prospects if returned to Italy, whether taken from a material, physical or psychological perspective, disclosed a sufficiently real and imminent risk of hardship severe enough to fall within the scope of Article 3.

Conclusion: inadmissible (manifestly ill-founded).

 

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This summary by the Registry does not bind the Court.

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