Italy - Council of State, 19 October 2017, N. 05085/2017

Country of Decision:
Country of Applicant:
Date of Decision:
19-10-2017
Court Name:
Council of State
National / Other Legislative Provisions:
Italy - TAR per il Lazio
sede di Roma
19 October 2015
n. 11860
Italy - Minister of the Interior
23 February 2015
n. IT-217976-A
Italy - Council of State
10 March 2016
n. 792
Italy - Council of State
22 March 2017
n. 1309
5 May 2017
n. 2051
27 September 2016
n. 3999
Italy - Constitutional Court
27 April 2007
n. 140
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Headnote: 

Sending countries are under the obligation not to transfer any individual to another country if any reasonable doubt regarding systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State arises. The mere assumption that the country will comply with its obligations under international and European law is not sufficient and the sending country is under the obligation to comply with the precautionary principle and not allow the transfer.

Facts: 

The case originates from the second appeal of an Afghan national against the decision made by the Italian Minister of the Interior to transfer him to Bulgaria, the country where he previously submitted an application.

The applicant appeals against the sentence n. 11860 (19 October 2015), according to which his transfer to Bulgaria does not represent a violation of the Dublin Regulation (EU) No 604/2013, art. 3 and 17 and art. 4, and claims instead the risk to be subject, in case of transfer to Bulgaria, to inhuman and degrading treatment. 

Decision & Reasoning: 
The Council of State structures its reasoning starting from a full investigation into the asylum procedure and reception conditions in Bulgaria and requesting the Minister of Foreign Affairs and International Cooperation to provide two detailed reports on the topic. Despite acknowledging a substantial improvement in the reception conditions and asylum procedure and the efforts of the Bulgarian government in this regard, the two reports do not provide any sufficient element to ensure that there are no systemic flaws in the asylum procedure and in the reception conditions for applicants. The Council of State observes that the two reports do not provide any tangible example of such an improvement, nor any comparison with previous conditions. 
 
The Council of States considers then another report, published by UNHCR, which acknowledges abuses and attacks against asylum seekers perpetrated by Bulgarian smugglers and borders authorities. 
 
Moreover, the Council refers to a decision made by the Austrian Constitutional Court to overrule a previous decision of the Supreme Administrative Court that had rejected the appeal of the Afghan citizen against his transfer to Bulgaria. Therefore, in the light of the recent jurisprudence of European Courts on the same issue, the Council of State notes that there are no certain guarantees that prevent the risk of the applicant being subject to degrading and inhuman treatments. 
 
In these circumstances, the State is under the obligation to comply with the precautionary principle: this means blocking any transfer of asylum applicants to a country, in case any reasonable doubt regarding systemic flaws in the asylum procedure and in the reception conditions for applicants in that country arises. 
 
Only certain living conditions, in the reception state, that are adequate and respectful of human dignity (CFREU art. 4, Dublin Regulation (EU) No. 604/2013, art. 3 and 17 and ECHR, art. 3) can guarantee the effective respect of the applicant’s fundamental rights. Moreover, also in the light of previous statements and decisions of the Court of Justice of the EU and of the European Court of Human Rights, the assumption that the receiving state will treat the applicant in accordance with the agreed international standards and obligations is not sufficient: the effective compliance with them needs to be demonstrated in order to proceed with the transfer.
 
In conclusion, the Council of State overrules the previous decisions of the Minister of the Interior and grant the appeal. 
 
Outcome: 

Appeal granted.

Observations/Comments: 

This case summary was written by Ilaria Della Moretta - MA Human Rights, University College London.

Other sources cited: 

Minister of Foreign Affairs and International Cooperation: Reports on the living conditions of asylum seekers in Bulgaria, 12 April 2017 and 15 September 2017;

UNHCR: Report: UNHCR welcomes Bulgaria’s new ordinance on refugee integration, 24 July 2017.

 

 

Case Law Cited: 

France - Administrative Court of Appeal of Bordeaux, 30 January 2017, no. 16BX03424

Luxembourg - Administrative Court of Luxembourg, 5 April 2017, no. 39356

Swiss Federal Administrative Court, 5 September 2017, E-305/2017

Austria - Austrian Constitutional Court, 9 June 2017, 484