MIRUTS HAGOS v. THE NETHERLANDS AND ITALY - 9053/10 - Admissibility Decision [2013] ECHR 1345 (27 August 2013)

THIRD SECTION

DECISION

Application no. 9053/10
Hannibal MIRUTS HAGOS
against the Netherlands and Italy

The European Court of Human Rights (Third Section), sitting on 27 August 2013 as a Chamber composed of:

          Josep Casadevall, President,
          Alvina Gyulumyan,
          Guido Raimondi,
          Corneliu Bîrsan,
          Luis López Guerra,
          Nona Tsotsoria,
          Johannes Silvis, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 15 February 2010,

Having regard to the factual information submitted by the Netherlands and Italian Government and the comments in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Hannibal Miruts Hagos, is an Eritrean national, who states that he was born in 1990. At the time of the introduction of the application, he was held in a removal centre in Rotterdam. He was represented before the Court by Ms I. Oomen, a lawyer practising in Amsterdam. The Government of the Netherlands were represented by their Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs. The Italian Government were represented by their Agent, Ms E. Spatafora, and their Co-Agents, Mr N. Lettieri and Ms P. Accardo.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, the Italian Government and the Netherlands Government, may be summarised as follows. Some of the facts are in dispute between the parties.

3. The applicant was registered in Lampedusa e Linola (Italy) on 15 August 2007 as having illegally entered the territory of the European Union. He was registered under the name of Binyam Murst, born in Eritrea in 1988. Under this identity, he was granted an Italian residence permit for humanitarian reasons by the competent Territorial Commission for the Recognition of International Protection (Commissione Territoriale per il Riconoscimento della Protezione Internationale). This residence permit as well as an accompanying travel document for aliens (Titolo di Viaggio per Stranieri) were valid until 12 September 2008 and were delivered by the Foggia police immigration department. There is no indication that the applicant has ever sought to prolong this residence permit. According to the information set out on the residence permit, the applicant was residing in a reception centre for asylum seekers in Borgo Mezzanone, Foggia, at the time of its issuance.

4. On 28 October 2008, the applicant entered the Netherlands, where he applied for asylum the next day, stating that his name was Hannibal Hagos (subsequently corrected to Hannibal Miruts Hagos) and that he was an Eritrean national, born in February 1990.

5. The examination and comparison of the applicant’s fingerprints by the Netherlands immigration authorities generated a Eurodac “hit” report on 19 December 2008, indicating that he had been registered in Lampedusa e Linola on 15 August 2007.

6. On 23 January 2009 the Netherlands authorities asked the Italian authorities to take responsibility for the determination of the applicant’s asylum request in accordance with Article 10 of Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin Regulation”). As the Italian authorities failed to react to that request within two months, they were considered to have implicitly acceded to that request.

7. In the applicant’s interviews with the Netherlands immigration authorities, held on 22 December 2008 and 24 March 2009, he stated inter alia that he had fled Eritrea after having deserted from the army. He had travelled, via Sudan and Libya, to Italy where directly after his arrival he had been admitted to hospital where he had stayed for three days and received treatment for tuberculosis. He had tried to build a life for himself in Italy, but it had been hard without a residence permit. He had initially stayed in Foggia and later in Rome. He had left because he was suffering from tuberculosis for which he could not get treatment in Italy where he had been homeless and victim of an assault with a knife. Although the police had arrived on the scene, he had not filed a criminal complaint as this required holding a residence permit. Together with others, he had travelled to France and from there he had travelled to the Netherlands. It had been his intention to travel on to the United Kingdom.

8. On 27 March 2009, the Italian authorities informed the Netherlands authorities that they agreed to accept responsibility for the applicant’s asylum request.

9. On 29 May 2009, the Deputy Minister of Justice (staatssecretaris van Justitie) rejected the applicant’s asylum request filed in the Netherlands, holding that, pursuant to the Dublin Regulation, Italy was responsible for the processing of that request. Noting that the applicant had had tuberculosis in the past but currently did not require treatment, the Deputy Minister found no medical or other reasons warranting use of the “sovereignty clause” contained in the Dublin Regulation and consequently to determine the asylum application in the Netherlands and refrain from transferring the applicant to Italy.

10. The applicant’s appeal against the decision of 29 May 2009 was rejected on 24 December 2009 by the Regional Court (rechtbank) of The Hague sitting in Zwolle. It noted that the applicant claimed that he had not applied for asylum in Italy and that this was not in dispute. It further did not find it established that Italy fell short of its international treaty obligations in respect of asylum seekers and refugees and that the applicant had not demonstrated individual facts and circumstances on the basis of which the Deputy Ministry could not rely on the principle of mutual interstate trust (interstatelijk vertrouwensbeginsel) in respect of Italy and the applicant.

11. On 21 January 2010, the applicant filed a further appeal with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrecht van de Raad van State). On 15 February 2010, he also applied for a provisional measure to the effect that pending the proceedings on his appeal he would not be transferred to Italy. This request was rejected the next day by the President of the Administrative Jurisdiction Division. The applicant’s appeal was rejected by the Administrative Jurisdiction Division on 16 September 2010. It upheld the impugned judgment of 24 December 2009. No further appeal lay against this ruling.

B. Developments after the introduction of the application

12. The application was introduced to the Court on 15 February 2010. On 16 February 2010, after the rejection of the applicant’s request for a provisional measure by the President of the Administrative Jurisdiction Division, the President of the Section decided to reject the applicant’s request, under Rule 39 of the Rules of the Court, to indicate to the Netherlands Government to stay his removal to Italy. The Governments of the Netherlands and Italy were informed of this decision.

13. The Netherlands Government were requested to inform the Court if and when the applicant would be removed to Italy and the Italian Government were requested to inform the Court of the progress of any asylum claim filed by the applicant as well as the place of his detention should he be detained upon his arrival in Italy (Rule 49 § 3 (a)).

14. On 26 February 2010, the Netherlands Government informed the Court that the applicant’s transfer to Italy had been scheduled for 1 March 2010.

15. In an e-mail message sent by the applicant on 11 March 2010 in bad but comprehensible English to his Netherlands lawyer, he informed her that after his arrival in Italy he had been detained for six days in Rome and that, when he was released, he had been told to leave Italy within five days as he did not have a residence permit. He further wrote that he had nothing to eat and drink and that he was suffering from flu.

16. On 6 April 2010, the Italian Government informed the Court that, according to their criminal proceedings database, there were no pending or concluded criminal proceedings against the applicant. On 16 June 2010, the Italian Government submitted factual information about the applicant’s situation in Italy after his removal on 1 March 2010. The applicant filed comments in reply on 23 July 2010.

17. In the meantime, on an unspecified day in the first half of June 2010, the applicant had returned to the Netherlands where he is currently staying and where, on 4 April 2012, he filed a fresh asylum request.

18. In an undated statement written by the applicant in Tigrinya, he relates his transfer, escorted by two Netherlands law enforcement officers, on 1 March 2010 from the Netherlands to Italy where he had been handed over to the Rome police, who had taken his fingerprints and held him for three days. When he was released, he had been given three documents the content of which he did not understand. He was told to leave Italy within 5 days. He had then travelled to Milan, where he had been arrested by police and held for six days. Upon his release, he had again been told that he should leave Italy. He had then travelled to a place called Loji where he had stayed for two months, sleeping at the railway station. From there he had travelled again to the Netherlands.

19. On 5 August 2010, the Italian Government were requested to submit additional factual information on the applicant’s situation in Italy after his removal from the Netherlands on 1 March 2010. The Italian Government submitted their reply on 15 September 2010 and the applicant’s comments in reply were submitted on 26 October 2010.

20. According to information submitted by the Italian Government, the applicant had arrived at Rome Fiumicino airport on 1 March 2010. After his arrival, the applicant had been asked, by the Italian authorities at the Assistance Service for persons seeking international protection at Fiumicino Airport - who had been notified of the applicant’s arrival and had conducted an inquiry which had disclosed that the applicant had been provided by the Foggia police with a residence permit for humanitarian reasons under another identity, and that he should have reported to that police office on or after 4 January 2010 -, to report to the Foggia police headquarters in order to regularise his stay in Italy. To this end, he had been provided with a written convocation, drawn up in Italian, French, Spanish and English. The Italian Government further stated that the applicant had never reported to the Foggia police headquarters for renewal of his residence permit and that the Milan police department had never had any contact with the applicant.

21. The applicant confirmed that, when released after having been held for three days, he had received and signed the convocation as well as other documents the contents of which he had not understood as he does not speak or read English, Italian, Spanish or French. Directly after having been sent away from Fiumicino airport, he had travelled to Foggia where he had arrived the next day and had gone directly to the police (questura) immigration department, finding, at 9 a.m., a long queue of about 50 people waiting outside the building. When the department closed at 1.30 p.m., he had still been waiting in line. After having unsuccessfully queued up for a second day, he had been able to show his papers to the police officer at the door on the third day. The latter had told him that he should have reported within three days and sent him away. Two days later, the applicant had managed to make it to the head of the queue and to hand in his documents. He had been admitted to the department but, instead of taking him upstairs where residence permits were prolonged, he had been taken downstairs to an office on the ground floor. When it became clear that he did not speak any Italian or English, a Tigrinya speaking alien from the queue had been asked to translate. This person had told him that residence permit prolongations were processed upstairs and that referrals were processed downstairs. The immigration official dealing with the applicant had told him that there was no file of Mr Miruts Hagos or Hannibal Hagos and that Italy had never invited him to come back from the Netherlands. Again he had had to sign documents and fingerprints had been taken once more. He had then been told not to come back and had been sent out. He had wished to tell this official that he had nowhere to go and needed help and care, but the interpreter had advised against that since he would be beaten in that case. It does not appear from the applicant’s comments that he pointed out to the Foggia police immigration department that he was also known to them under the name Binyam Murst.

22. On 5 August 2010, the Italian Government were requested to submit additional factual information on the applicant’s situation in Italy. The Italian Government did so on 24 March 2011 and the applicant’s comments in reply were filed on 3 May 2011.

23. According to the Italian Government, the applicant - after his arrival in Italy on 1 March 2010 and when told by the Italian authorities to report to the police headquarters in Foggia - had not indicated that he had no money to pay for the journey to Foggia. The Italian Government further submitted that, according to information obtained from the Foggia police headquarters, the applicant had never reported to these headquarters to apply for a renewal of his residence permit.

24. According to the applicant, he had never seen the Italian residence permit or travel document for aliens that was said to have been issued to him. Furthermore, the holder’s signature placed on these documents is different from his signature, as is clear when compared with his signature on his asylum application in the Netherlands. He confirmed that the signature placed on the convocation of 1 March 2010 was his. However, due to his feeling of relieve at having been released from detention in Rome, he had not dared to point to the fact that he had no means or money for transportation to Foggia.

25. On 7 May 2012, the Netherlands authorities requested the Italian authorities to take back the applicant under the terms of Article 16 of the Dublin Regulation. As the Italian authorities failed to react to that request within the defined time-limit they were considered as having implicitly acceded to that request.

26. On 23 July 2012, the applicant’s fresh asylum request filed on 4 April 2012 was rejected by the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel). The Minister found that, pursuant to the Dublin Regulation, Italy was responsible for the processing of the applicant’s asylum request and he did not find it established that Italy was falling short of its international treaty obligations in respect of the applicant. The applicant filed an appeal and accompanying request for a provisional measure with the Regional Court of The Hague. A hearing before the Regional Court of The Hague sitting in Haarlem was scheduled for 23 April 2013. No further information about these proceedings has been submitted.

C. Relevant European Union, Italian and Netherlands law and practice

27. The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum seekers and transfers of asylum seekers under the Dublin Regulation have recently been exhaustively summarised in Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013); Daybetgova and Magomedova v. Austria ((dec.), no. 6198/12, §§ 25-29 and §§ 32-39, 4 June 2013); Halimi v. Austria and Italy ((dec.), no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013); and Abubeker v. Austria and Italy (dec.), no. 73874/11, §§ 31-34 and §§ 37-41, 18 June 2013).

COMPLAINTS

28. The applicant complained that the Netherlands authorities, by removing him to Italy whilst they are or should be aware of the flaws in the Italian asylum law and practice, would act contrary to his rights under Article 3 of the Convention. In the absence of an examination in the Netherlands of what treatment he risks in Eritrea, expulsion to Italy would expose him to a risk of refoulement from Italy to Eritrea without a proper examination of his asylum and Article 3 claims having taken place in Italy.

29. The applicant further complained under Article 3 that he would not receive a proper examination of his application for asylum/international protection in Italy, with the ensuing risk of refoulement from Italy to Eritrea

30. The applicant lastly complained that, in respect of his above complaints, he did not have an effective remedy as guaranteed by Article 13 of the Convention.

THE LAW

31. The applicant complained that the Netherlands, by removing him to Italy, acted and will act contrary to his rights under Article 3 of the Convention as his asylum claim will not be properly examined in Italy.

Article 3 of the Convention reads:

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

32. The Court notes at the outset that the applicant is literate and appears to have a basic command of English (see §§ 15 and 18 above). The Court finds it established that the applicant, as identified by his fingerprints in the Eurodac database which excludes a mistake in identity, entered Italy on 15 August 2007 where - under another identity than he later gave to the Netherlands authorities - he applied for international protection, which resulted in a decision of the competent Territorial Commission granting him an Italian residence permit for humanitarian reasons, valid until 12 September 2008, and that, when this residence permit was issued, he was staying in a reception centre for asylum seekers in Borgo Mezzanone, Foggia.

33. The Court also notes that, on 28 October 2008, the applicant entered the Netherlands and, under another identity than the one given previously to the Italian authorities, applied for asylum in the Netherlands. After the applicant had been identified in the Eurodac database as a person for whose asylum request Italy is responsible under the terms of the Dublin Regulation, the Netherlands authorities requested their Italian counterparts to accept that responsibility, which they did on 27 March 2009. Having found no medical or other reasons warranting the use of the sovereignty clause provided for in the Dublin Regulation, the applicant was transferred to Italy on 1 March 2010 whilst the Italian authorities had been notified beforehand of the applicant’s arrival.

34. The Court further finds it established that, after having been handed over by the two escorting Netherlands law enforcement officers to the Italian authorities at Rome Fiumicino airport, the applicant was informed by the latter that he should report to the Foggia police immigration department - where his initial residence permit had been issued - for the purposes of renewal of this residence permit. Although the applicant claims that he was detained in Rome for several days, the Court has found no substantiation in the case file of this part of his account. It further appears that, when the applicant reported to the Foggia police immigration department, he failed to inform them - after he had been told that this immigration department held no file of Miruts Hagos or Hannibal Hagos - that he was known to this department under the name Binyam Murst (see §§ 3, 4 and 21 above), due to which his file was not found.

35. The Court reiterates at the outset the relevant general principles under Article 3 of the Convention as set out most recently in its decision on admissibility in the cases of Mohammed Hussein v. the Netherlands and Italy (cited above, §§ 65-71) and Daybetgova and Magomedova v. Austria (cited above, §§ 58-64). It further recalls that, if an applicant has not yet been removed when the Court examines the case, the relevant time for assessing the existence of the risk of treatment contrary to Article 3 will be that of the proceedings before the Court (see Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008, and A.L. v. Austria, no. 7788/11, § 58, 10 May 2012). A full assessment is called for, as the situation in a country of destination may change over the course of time (see Salah Sheekh v. the Netherlands, no. 1948/04, § 136, 11 January 2007).

36. The Court is of the opinion that the applicant is to be considered as an asylum seeker as, even though he has already been admitted in Italy in the past for humanitarian reasons, he does not hold a valid Italian residence permit at present. Consequently, he will have to file a fresh request for international protection in Italy in case he is transferred to Italy.

37. In that respect, the Court has found no indication in the case file that the applicant, after having been removed to Italy on 1 March 2010 and after reporting to the Foggia police immigration department, has sought to file a fresh request for international protection in Italy, which would entitle him to admission to a reception centre for asylum seekers and a fresh determination of that request by the Territorial Commission. Instead, in June 2010 he travelled back to the Netherlands where - but not until 4 April 2012 - he filed a new asylum request the proceedings on which currently still appear to be pending.

38. Reiterating its findings in the case of Mohammed Hussein v. the Netherlands and Italy (cited above, § 78) and having found no reasons in the submissions made in the case at hand warranting another conclusion, the Court finds that, although the general situation and living conditions in Italy of asylum seekers is certainly far from ideal and may disclose some shortcomings, there is no systemic failure where it concerns providing support or facilities catering for asylum seekers, as was the case in Greece as found by the Court in M.S.S. v. Belgium and Greece (cited above). The Court further cannot find, also in view of the manner in which the applicant was treated by the Italian authorities after his initial arrival in Italy and after his removal on 1 March 2010, that the applicant has established that his transfer 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 or that he would risk removal to his country of origin. The Court has found no basis on which it should be held that the applicant had been unable to benefit from the available resources in Italy for asylum seekers or that, in case of difficulties, the Italian authorities would not have responded in an appropriate manner.

39. It remains to be examined whether the situation in which the applicant, if removed to Italy for a second time, is likely to find himself can be regarded as incompatible with Article 3, taking into account his 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 [GC], no. 30696/09, § 251, ECHR 2011).

40. In view of its finding in respect of the applicant’s treatment after his initial arrival in Italy and after his transfer to Italy on 1 March 2010, the Court finds nothing in the case file warranting a different conclusion as regard the applicant’s future prospects of treatment in Italy.

41. 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.

42. The applicant further complained that, in respect of his complaints under Article 3, he did not have an effective remedy within the meaning of Article 13 in the Netherlands and/or Italy. This provision reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

43. The Court emphasises that, in so far as the facts of which complaint is made fall within the scope of one or more Convention provision, the word “remedy” within the meaning of Article 13 does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a Convention grievance (see Ivakhnenko v. Russia (dec.), no. 12622/04, 21 October 2008; and Adamczuk v. Poland (revision), no. 30523/07, § 78, 15 June 2010).

44. The Court notes that the applicant has not sought to challenge the actions and/or decisions taken by the Italian authorities in the context of his request for international protection filed in Italy in 2007 and that there is no indication that, after his transfer to Italy on 1 March 2010, he has sought to file a fresh request for international protection in Italy.

45. As regards the determination of his first asylum request filed in the Netherlands, the Court notes that the applicant could and indeed did avail himself of the possibility of challenging the decision taken by the Deputy Minister of Justice before the Regional Court of The Hague and the Administrative Jurisdiction Division and that these judicial bodies examined and determined the applicant’s arguments based on Article 3 of the Convention in respect of his transfer to Italy. As regards his second asylum request in the Netherlands, the Court considers that this part of the present complaint is premature as the applicant’s appeal against the Minister’s rejection of 23 July 2012 is currently pending before the Regional Court of The Hague and a further appeal lies with the Administrative Jurisdiction Division.

46. It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall
Registrar President

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