Italy - Council of State, 19 October 2017, N. 05085/2017
| Country of Decision: | Italy |
| Country of applicant: | Afghanistan |
| Court name: | Council of State |
| Date of decision: | 19-10-2017 |
Keywords:
| Keywords |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
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:
Outcome:
Appeal granted.
Observations/comments:
This case summary was written by Ilaria Della Moretta - MA Human Rights, University College London.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| 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 |
Other sources:
Minister of Foreign Affairs and International Cooperation: Reports on the living conditions of asylum seekers in Bulgaria, 12 April 2017 and 15 September 2017;