ECtHR - Samsam Mohammed Hussein and Others v the Netherlands and Italy, Application No. 27725/10 - Admissibility Decision

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Country of Applicant: 
Somalia
Date of Decision: 
02-04-2013
Citation: 
Application No. 27725/10
Court Name: 
ECHR Third Section
Headnote: 

This inadmissibility decision concerned the transfer of Mrs. Hussein and her children to Italy from the Netherlands under the Dublin II Regulation. The Court found the applicant’s complaints under Article 3 ECHR and Article 13 ECHR as manifestly unfounded within the meaning of Article 35(3)(a) of the Convention. The Court found that though there were shortcomings in Italy it did not disclose systemic failures to provide support for asylum seekers there. 

Facts: 

It should be noted that some of the facts of these are in dispute between the parties (Para. 3). The case concerned a Somali national who was a member of the Hawiye/Abgal clan and fled Somalia entering Italy in August 2008. Her fingerprints were taken by the Italian authorities and she was registered as an asylum seeker. The applicant was granted subsidiary protection in Italy as well as an alien’s residence permit. In May 2009 the applicant applied for asylum in the Netherlands. She was seven months pregnant and claimed that although her fingerprints were taken in Italy she had not been enabled to apply for asylum. She also stated she had been raped and fallen pregnant whilst sleeping at a railway station in Florence. After the birth of her son the Dutch authorities asked the Italian authorities to take over responsibility for her asylum application under the Dublin II Regulation. She submitted a number of appeals and then when the transfer had been scheduled for June 2010, the applicant submitted an application to the European Court of Human Rights to prevent removal to Italy. A rule 39 interim measure was granted by the Court. She also submitted a second asylum application in the Netherlands on the basis of new developments including the birth of her daughter who had a skin condition as well as the contraction of a traditional marriage in the Netherlands in April 2010 with another man and their subsequent separation. The court’s correspondence with Italy included a letter by the Massa CArrara Local Committee of the Italian Red Cross which was including in the Italian authorities submission to the Court on the availability of support for Mrs. Hussein (Para. 23). Some of the facts set out in this letter were disputed by the applicant (Para. 24). 

Decision & Reasoning: 

An overview was provided of the relevant domestic law and practice in both the Netherlands and Italy which also referenced reports on conditions in Italy from other actors such as UNHCR and NGOs. Relevant practice in other countries was cited as well including Germany, Belgium and the UK (more relevant NGO reports were cited with respect to the UK litigation). The applicant complained against the Netherlands that her transfer to Italy would breach Article 3 and Article 3 in conjunction with Article 13 ECHR. She also complained that the situation in which she and her children would end up in Italy would be contrary to their rights under Article 8 ECHR. Against Italy the applicant complained that she had been subject to treatment contrary to Article 3 ECHR on account of her living conditions and Article 13 as well as Article 8. The Court noted that the applicant had changed her account in Italy in response to the government’s submission to the Court and there were further discrepancies between the facts submitted by the applicant and the government of Italy and the Netherlands (para 63.). The absolute nature of Article 3 ECHR was emphasised by the Court (para. 67). The assessment of risk upon return is relative, depending on all the circumstances of the case, such as the duration, nature, context of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (Para 68). The Court took into consideration that it must focus on the foreseeable consequences of the applicant’s removal to Italy which must be considered in light of the general situation there as well as the applicant’s personal circumstances.

The Court reiterated that Article 3 cannot be interpreted ‘as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home, and that this provision does not entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living – reference being made to M.S.S. v Belgium and Greece (Para. 70). In the absence of exceptionally compelling humanitarian grounds against removal, the fact that the applicant’s material and social living conditions would be significantly reduced if he or she were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The Court noted that the applicant was provided with reception conditions three days after arrival in Italy and that her request for international protection was accepted by Italy and she was granted a residence permit (Para. 73). It noted that pregnant women were entitled to a priority placement in the SPRAR system and that there was no indication on the applicant’s case file that she ever sought assistance in finding work and/or alternative accommodation in order to avoid the risk of destitution (Para. 74). The Court found that the applicant had not established that her treatment within Italy had attained the minimum level of severity required for treatment to fall within the scope of Article 3 ECHR. Noting that the validity of her residence permit had now expired in Italy, the Court went on to assess risk upon return if transferred to Italy. The Court noted that prior notice will be given by the Dutch authorities to the Italians thus enabling them to prepare for their arrival. The Court lastly noted that the applicant as a single mother of two small children remains eligible for special consideration as vulnerable person within the meaning of Article 8 of the Italian Legislative Decree no. 140/2005. Para 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 situation 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, it has not been shown to disclose a systemic failure to provide support or facilities catering for asylum seekers as members of the a particularly vulnerable group, as was the case in M.S.S. v Belgium and Greece. The Court noted recent improvements intended to remedy some of the failings and the treatment that the applicant received in August 2008 in Italy. Therefore the Court found that there was no basis in which it can be assumed that the applicant will not be able to benefit from the available resources in Italy or that, if she encountered difficulties, the Italian authorities would not respond in an appropriate manner to any request for further assistance (Para 78). It follows that the Court found the applicant’s complaints under Article 3 against the Netherlands and Italy as manifestly unfounded. As for Article 13 in conjunction with Article 3 the application did not substantiate her claim that she would lack an effective remedy in Italy or that this would be virtually impossible, either at the material time or in case she would file a fresh request for international protection in Italy. As regard the Netherlands the Court noted the available remedial actions available to the application and found this manifestly unfounded. As to the complaints under Article 8 ECHR the Court found that these allegations were wholly unsubstantiated and therefore rejected as manifestly unfounded. 

Outcome: 

The application was found inadmissible by the Court and manifestly unfounded and rejected under Article 35(3)(a) and the Rule 39 interim measures were discontinued. 

Case Law Cited: 

ECtHR - Adamczuk v. Poland, Application No. 30523/07

ECtHR - N. v. Finland, Application No. 38885/02

ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99

ECtHR - Jalloh v Germany (2006) (Application no. 54810/00)

ECtHR - Ireland v United Kingdom (Application no. 5310/71)

ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99

ECtHR - Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI

ECtHR - Ivakhnenko v. Russia, Application No. 12622/04

ECtHR - K v the Netherlands, Application No. 33403/11

ECtHR - Sarmina and Sarmin v. Russia, Application No. 58830/00

ECtHR - Milošević v. Serbia, Application No. 20037/07

ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81

ECtHR - Al Husin v. Bosnia and Herzegovina, Application No. 3727/08

ECtHR - El Masri v. the former Yugoslav Republic of Macedonia [GC], Application No. 39630/09

ECtHR - Miah v. the United Kingdom, Application No. 53080/07

ECtHR - Haidn v. Germany, Application No. 6587/04
Other sources cited: 
  • UNHCR Recommendations on important aspects of refugee protection in Italy, July 2012; 
  • Council of Europe Commissioner for Human Rights, Mr. Nils Muiznieks following his visit to Italy – 3 to 6 July 2012 (CommDH (2012)26);
  • The Dublin II Regulation National Report on Italy by  the European Network for technical cooperation of the application of the Dublin II Regulation, Juss-Buss report on Asylum Procedure and Reception Conditions in Italy published in May 2011;
  • European Comparative Report Dublin II Regulation: Lives on Hold, 3 February 2013
Authentic Language: 
English
State Party: 
Italy
Netherlands
National / Other Legislative Provisions: 
Italy - Legislative Decree No. 140/2005
Italy - Legislative Decree No. 25 of 28 January 2008