HomeArchiv Rechtsprechung → Keine systemischen Mängel in der Versorgung von AsylwerberInnen in Italien.

EGMR - 02.04.2013 - 27725/10, Mohammed Hussein and Others v. the Netherlands and Italy
Thema / LandDrittstaatsicherheit/Dublin, Refoulementschutz, Italien, Somalia
BeschreibungDie Unzulänglichkeiten bezüglich der generellen Situation und der Lebensbedingungen von AsylwerberInnen in Italien erreichen nicht die für eine Verletzung des Art 3 EMRK notwendige Schwelle der systemischen Mängel in der Gewährleistung der nötigen Unterstützung und Einrichtungen, die sich um die Bedürfnisse der AsylwerberInnen kümmern.


1.  The applicant is Ms Samsam Mohammed Hussein, a Somali national, who was born in 1987. The application is also brought also on behalf of her children Nahyaan and Nowal, born in 2009 and 2011, respectively. The applicant and her children are currently staying in the Netherlands. […]


A.  The circumstances of the case


4.  The applicant entered Italy on 22 August 2008.


6.  In its decision of 28 January 2009, the Rome Territorial Commission for the Recognition of International Protection (Commissione Territoriale per il Riconoscimento della Protezione Internationale) granted the applicant a residence permit for the purpose of subsidiary protection. […]

At the same time, she was provided with a residence permit for an alien having been granted subsidiary protection and a travel document for aliens (Titolo di viagggio per stranieri). Both the residence permit and the travel document were valid until 31 January 2012.

7.  On 11 April 2009, the applicant left the Massa Carrara asylum seekers reception centre.

8.  The applicant applied for asylum in the Netherlands on 18 May 2009. She was seven months pregnant at the time. The examination and comparison of her fingerprints by the Netherlands authorities generated a Eurodac “hit” report on 16 July 2009, indicating that she had been registered in Lampedusa (Italy) on 23 August 2008.


13.  On 25 August 2009 the Netherlands authorities asked the Italian authorities to accept responsibility for the applicant’s asylum request under Article 10 § 1 of Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin II Regulation”). On 23 December 2009 the Italian authorities acceded to that request.

14.  The applicant’s asylum request filed in the Netherlands was rejected on 5 March 2010 by the Minister of Justice (Minister van Justitie) who found that, pursuant to the Dublin II Regulation, Italy was responsible for the processing of the asylum application. The Minister rejected the applicant’s argument that the Netherlands could not rely on the principle of mutual interstate trust (interstatelijk vertrouwensbeginsel) in respect of Italy as there were, according to the applicant, sufficient concrete indications that Italy failed to respect its international treaty obligations in respect of asylum seekers and refugees.


17.  On 10 June 2010, the Netherlands immigration authorities informed the applicant’s lawyer that the applicant’s transfer had been scheduled for 17 June 2010.

B.  Developments after the introduction of the application

18.  On 11 June 2010, at the request of the applicant, the President of the Chamber decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Italy (Rule 39 of the Rules of Court).


23.  A written statement concerning the applicant’s stay in the Massa reception centre, drawn up on 22 April 2012 by the Massa Carrara Local Committee of the Italian Red Cross formed part of the submissions of the Italian Government. It reads:


Specifically, during their stay at the facilities of Marina di Massa all refugees could benefit from the following services:

Room and board, hygiene products, clothing, social and psychological assistance, cultural/linguistic mediation, entertainment activities, laundry, barber, medical and sanitary care (performed by ASL (local health service) staff and by medical/nursing staff of the Codam which also ensured transfer to hospital where necessary).

24.  In her written comments in reply, the applicant admitted that she had been granted an Italian residence permit valid for three years and not, as stated by her to the Netherlands authorities, only for three months. She further confirmed that she had received medical care in the reception centre. She maintained that she had not left the reception centre voluntarily but had been told to leave without having been told what to do, how or where to find work, education, shelter, subsistence, medical care etc. She also maintained that she had been raped in Florence when she had visited this town during her stay in the reception centre. […] The applicant lastly denied that she had been informed of any, more suitable, alternative facilities during her stay in the reception centre. [...]

C.  Relevant European Union law


28.  In its ruling of 21 December 2011 in the cases of NS v. Secretary of State for the Home Department and M. E., A. S. M., M. T., K. P., E. H. v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, EUECJ C-411/10 and C-493/10, the Grand Chamber of the Court of Justice of the European Union considered in respect of transfers under the terms of the Dublin II Regulation that although the Common European Asylum System is based on mutual trust and the presumption of compliance by other Member States with Union law and fundamental rights in particular, such a presumption is rebuttable. In this ruling, it held inter alia:

“ […]

106.  Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.”

D.  Relevant Netherlands domestic law and practice


31.  If the transfer involves a vulnerable person, such as an unaccompanied alien minor or an unaccompanied mother with small children, the Netherlands authorities will explicitly bring this to the attention of the Italian authorities and give the latter fourteen days’ notice.

E.  Relevant Italian domestic law and practice

1.  Asylum procedure


38.  A person granted subsidiary protection will be provided with a residence permit with a validity of three years which can be renewed by the Territorial Commission that granted it. This permit can further be converted into a residence permit for the purposes of work in Italy, provided this is requested before the expiry of the validity of the residence permit and provided the person concerned holds an identity document. A residence permit granted for subsidiary protection entitles the person concerned, inter alia, to a travel document for aliens, to work, to family reunion and to benefit from the general schemes for social assistance, health care, social housing and education under Italian domestic law.


2.  Reception during the asylum procedure

42.  Pursuant to the 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, i.e. 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. […]


Reception during the asylum procedure


4.  Asylum procedures of persons returned to Italy under the Dublin II Regulation

47. According to the report “Asylum procedure and reception conditions in Italy” with a special focus on “Dublin returnees” as released in May 2011 by Juss-Buss, a joint Norwegian-Swiss NGO and absed on a visit to Italy in September 2010, persons who are returned to Italy in accordance with the Dublin II Regulation arrive by plane at international airports. Dublin returnees will in general be reinserted in their previous asylum procedure at the stage when they left. To this end, the border police at the airport will identify the responsible police immigration department. The returnee will be asked to go there and must present him or herself there within five days of arrival in Italy. Travel expenses are covered by the Ministry of Interior.

48.  This report also explains that the majority of Dublin returnees had already received an Italian residence permit before they left Italy for other European countries. It is possible to renew a residence permit issued to an accepted refugee or granted for subsidiary protection or compelling humanitarian reasons by filing a request with the competent police immigration department. However, as such a request must in principle be accompanied by the original permit paper, this can be a serious problem for Dublin returnees who usually no longer have this permit in their possession when they are transferred to Italy. Although the Italian authorities generally display a restrictive approach where it concerns replacing missing permits in order to prevent improper use of such documents, stolen or lost permits can be replaced.



A.  Against the Netherlands

56.  The applicant complained that her transfer to Italy would be in breach of Article 3 of the Convention. Firstly, she and her children would risk being subjected to treatment in violation of Article 3 in Italy where they would not be provided with (State-sponsored) accommodation, sustenance, medical assistance or health insurance and would be forced to live on the streets. Secondly, she and her children would risk refoulement from Italy to Somalia without a proper examination of her asylum and Article 3 claims having taken place in Italy, whereas in Somalia she risks falling victim to an honour crime.


B.  Against Italy

59.  The applicant complained of that she had been subjected to treatment in breach of Article 3 of the Convention during her stay in Italy, also taking into account her then advanced pregnancy. She had not been enabled to file an asylum request and, consequently, no status determination had taken place and she had been forced to live on the streets. She further feared that she would be subjected to the same treatment again if returned to Italy and that refoulement to Somalia was to be expected.



62.  The applicant complained that, on account of her living conditions there, she had been subjected to treatment in breach of Article 3 during her stay in Italy and that – fearing to be subjected to the same treatment – her transfer from the Netherlands to Italy would be in breach of her rights under this provision which reads:

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

63.  The Court notes at the outset that the applicant initially complained that she had not been enabled to apply for asylum in Italy, that she had not been provided with reception facilities for asylum seekers and had been forced to live on the streets in Italy, whereas in her response to the facts submitted by the Italian Government on 14 May 2012 (see paragraphs 22-24 above) she admitted that she had been granted an Italian residence permit valid for three years and that, until 11 April 2009, she had been provided with reception facilities, including medical care, during her stay in Italy. […]

68.  […] 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).

69.  […] The Court’s assessment must focus on the foreseeable consequences of the applicant’s removal to Italy. This in turn must be considered in the light of the general situation there as well as the applicant’s personal circumstances […].


72.  Now turning to the facts of the case at hand, the Court observes that, unlike the situation of the applicant in the case of M.S.S. v. Belgium and Greece (cited above), the applicant in the present case – three days after having arrived in Italy and one day before filing an application for international protection – was provided with reception facilities for asylum seekers in the CARA Massa Carrara reception centre, as put into place by the Italian authorities for asylum seekers pursuant to their international and domestic legal obligations and that, as from 23 October 2008, the applicant was allowed to work in Italy (see paragraphs 4-5 above).

73.  The Court further notes that on 28 January 2009, about five months after her arrival in Italy, the applicant’s request for international protection was accepted. She was granted a residence permit for subsidiary protection under the terms of Article 15c of the Qualification Directive with a validity of three years, i.e. until 31 January 2012, which 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 under Italian domestic law in the same manner as the general population of Italy. […]


75.  In these circumstances and even assuming that on this point the applicant has complied with the requirements of Article 35 § 1, the Court does not find it established that the applicant’s treatment in Italy, either as an asylum seeker or as an alien having been accepted as a person in need of international protection, can be regarded as having attained the minimum level of severity required for treatment to fall within the scope of Article 3.

76.  Noting that the validity of the applicant’s residence permit has expired in the meantime, the Court will now consider the question whether the situation in which the applicant – if transferred to Italy – is likely to find herself, can be regarded as incompatible with Article 3 taking into account her situation as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection (see M.S.S. v. Belgium and Greece, cited above, § 251).

77.  The Court notes that the Netherlands authorities will give prior notice to their Italian counterparts of the transfer of the applicant and her children, thus allowing the Italian authorities to prepare for their arrival. […]

78.  Taking into account the reports drawn up by both governmental and non-governmental institutions and organisations on the reception schemes for asylum seekers in Italy, the Court considers that, while the general situation and living conditions in Italy of asylum seekers, accepted refugees and aliens who have been granted a residence permit for international protection or humanitarian purposes may disclose some shortcomings (see paragraphs 43, 44, 46 and 49 above), it has not been shown to disclose a systemic failure to provide support or facilities catering for asylum seekers as members of a particularly vulnerable group of people, as was the case in M.S.S. v. Belgium and Greece (cited above). The reports drawn up by the UNHCR and the Commissioner for Human Rights refer to recent improvements intended to remedy some of the failings and all reports are unanimous in depicting a detailed structure of facilities and care to provide for the needs of asylum seekers (see paragraphs 43-49 above). The Court would also note that the manner in which the applicant was treated upon her arrival in Italy in August 2008, in particular that her request for protection was processed within a matter of months and accommodation was made available to the applicant along with access to health care and other facilities.

Against this background, the Court considers that the applicant has not shown that her future prospects if returned to Italy, whether taken from a material, physical or psychological perspective, disclose a sufficiently real and imminent risk of hardship severe enough to fall within the scope of Article 3 […]. There is no basis on which it can be assumed that the applicant will not be able to benefit from the available resources in Italy or that, if she ecnountered difficulties, the Italian authorities would not respond in an appropriate manner to any request for further assistance.

79.  It follows that the applicant’s complaints under Article 3 brought against the Netherlands and Italy are manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and therefore inadmissible pursuant to Article 35 § 4.


For these reasons, the Court unanimously

Declares the application inadmissible.