Italy - Council of State, 27 September 2016, N.00198/2016 REG. RIC.
Keywords:
| Keywords |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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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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Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
Headnote:
The asylum applicant cannot be transferred to Bulgaria because he would face a real risk of being subjected to inhuman or degrading treatment pursuant to Article 4 of the EU Charter of Fundamental Rights.
Facts:
The applicant submitted the request for international protection for the first time in Bulgaria and then in Italy. Under the Dublin Regulation, Italy requested that the asylum applicant be taken back by Bulgaria and the latter accepted. The “Central Direction of Civil Services for Immigration and Asylum - Dublin Unit” therefore ordered the transfer of the applicant to Bulgaria on 23 February 2015.
The applicant lodged an appeal against that decision to the Regional Administrative Court complaining about the system’s flaws in the asylum procedure and reception conditions in Bulgaria and, in addition, the failure to comply with the information requirements laid down in the Dublin Regulation.
The Regional Administrative Court rejected the appeal and the applicant brought the action before the Council of State.
Decision & reasoning:
The Council considers that art. 3(2) of Dublin Regulation, which prohibits the transfer to the responsible EU Member State, where asylum procedure and reception conditions have systemic flaws resulting in a risk of a treatment within the meaning of art. 4 of the Charter of Fundamental Rights of EU, is applicable.
By analysing several sources, the Council notes the “existence of a cultural climate of intolerance and discrimination against refugees in Bulgaria”. According to UNHCR, refoulements at the boundaries breach the obligations undertaken by Bulgaria. The High Commissioner also reports cases of violence by border police.
In the report of 22 June 2015, the Council of Europe Commissioner for Human Rights expressed concerns about the asylum system in Bulgaria and the possible introduction of legislation whose compliance with international human rights standards is dubious. In the annual report 2015-2016, Amnesty International states that the reception conditions of asylum-seekers along the Balkan route remain poor.
The Council, on the basis of these sources, upheld the appeal and annuled the transfer order to Bulgaria.
Outcome:
Appeal upheld.
Observations/comments:
This case summary was written by Ruggero Leotta and Alessia Sgroi, members of the Legal Clinic of Università degli studi di Catania.
Relevant International and European Legislation:
Other sources:
Fifth Report on Bulgaria by the European Commission Against Racism and Intolerance - ECRI - September 16, 2014. https://rm.coe.int/fifth-report-on-bulgaria/16808b55d8 last accessed on 23 September 2019.
Report of the Commissioner for Human Rights of the Council of Europe, June 22, 2015. https://rm.coe.int/16806db7e2 last accessed on 23 September 2019.
Amnesty International, Annual Report 2015-2016 on The human rights situation in the world. https://www.amnesty.org.uk/files/pol1025522016english.pdf last accessed on 23 September 2019.