Italy - Council of State, 7 July 2016, No. RG 196/2016

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Headnote: 

It is unlawful to transfer an asylum applicant under the Dublin Regulation to a country, in this case Bulgaria, where the reception conditions conflict with Article 4 of the EU Charter of Fundamental Rights.

Facts: 

The applicant had applied for asylum for the first time in Bulgaria and later travelled to Italy where he made another asylum application on a subsequent date. Under the Dublin Regulation Italy had asked Bulgaria to take responsibility of the person concerned, a request which was later accepted by the Bulgarian authorities.

On March 4, 2015, the applicant was notified the decision of the Dublin Unit to transfer him back to Bulgaria. The applicant challenged first the decision before the T.a.r. of Lazio, n.r.g. 5100 of 2015, but the court denied the appeal.

On the second appeal before the Council of State the applicant complained of systemic deficiencies in the asylum procedure and the reception conditions for asylum seekers in Bulgaria and, furthermore, Italy’s failure to comply with the duty of information. 

Decision & Reasoning: 

The Council of State held that the scarcity of sources on the security of asylum seekers in Bulgaria, refugee reception conditions and systemic shortcomings in the asylum procedure alleged by the applicant and based on different sources have led to consider that the current risk that the asylum seeker could be subjected to inhuman and degrading treatment in Bulgaria is well founded . The Dublin transfer cannot, therefore, be implemented.

The risk that the appellant could be subjected to a situation contrary to Article 4 of the EU Charter of Fundamental Rights is sufficient to trigger the application of Article 3, paragraph 2, of the Dublin Regulation.

The Council based its reasoning on the consideration that the ECtHR has repeatedly emphasized the need to use a plurality of sources in the examination of the information regarding the country in which the transfer will be implemented.

Relying on only one source such as ECRI - September 16, 2014, cannot be the only source used as a basis for the decision.. Also, different sources with contrasting information about the country should not be ignored.

Outcome: 

Appeal granted.

Observations/Comments: 

The Council of State, grants the appeal and, in effect, reforms the appealed judgment and annuls the contested decision.

This case summary was written by Daiana Neagoe Doctor in Law, member of the Clinic of Human Rights and Migration Law (Torino).

Other sources cited: 

Fifth Report on Bulgaria by the European Commission Against Racism and Intolerance - ECRI - September 16, 2014.

News published on the UNHCR website, 15 September 2015.

News published by the Italian press (Repubblica.it), 20

January 2015.

Report of the Commissioner for Human Rights of the Council of Europe,  June 22, 2016.

Amnesty International, Annual Report 2015-2016 on The human rights situation in the world.