ECtHR- A.M.E. v. The Netherlands, (Application no. 51428/10), 13 January 2015

Facts:

The case relates to a Somali national who fled Somalia on account of his refusal to join Al-Shabaab. He later arrived in Italy, where his fingerprints were taken by the Police, and was registered as an adult under the false name M.A.

He subsequently applied for asylum and received subsidiary protection in the country.  Travelling to the Netherlands the applicant filed a second application, again as anadult, under the false name A.R.M.E, despite the fact that he was still a minor.His application was later rejected due to Italy’s responsibility for processing the asylum application, pursuant to the Dublin Regulation and insufficient argumentation presented that a risk of ill-treatment would occur if the applicant were returned to Italy [12].  

Before the ECtHR the applicant advanced that return to Italy would expose him to distressing living conditions along with insufficient material and procedural guarantees, in violation of article 3 of the Convention.  What is more, it would jeopardize his rights under article 2 of the Convention, given that he would risk being refouled back to Somalia because of his residence permit having expired in the meantime. Additionally, he complained that his right to a fair trial would be breached, in violation of article 6 of the Convention.

Invoking article 13, he complained about the lack of an effective remedy in Italy given that the country would not properly assess a renewed asylum application [21-26].

Decision & reasoning:

Taking cue from Tarakhel v. Switzerland(Application no. 29217/12), the Court reiterated that to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, which is relative, depending on the duration of the treatment and in some cases the applicant’s age, sex and state of health [28].

With regards to the applicant’s age, which is a determining factor in the assessment of ill-treatment, the Court placed great weight on the applicant’s statements to the Italian authorities that he was an adult, when in fact he was a minor at the time of his asylum application in both Italy and the Netherlands. In this regard the Court noted that the applicant had deliberately sought to mislead the authorities and that as there had been no flagrant disparity nor notice of a specific need for protection, the authorities had acted in good faith [29]. Given that the applicant is now an adult he will be obliged to file a new asylum application in Italy, in light of the expiration of his residence permit [31].

The Court further submitted that the facts of the case are in no way similar to the facts of Tarakhel v Switzerland (Application no. 29217/12), as the applicant is an able young man with no dependents [34].

Therefore, the Court found the complaint to be manifestly ill-founded within the meaning of Article 35 para 3 (a) of the Convention and therefore inadmissible [36-37].

With regards to the other Articles litigated(1, 2, 5, 6 and 13) the Court found that on the material in its possession there was no violation of the invoked rights and thus the Court rejected the remainder of the application [39]

Outcome:

No violation of article 1 as regards the Netherlands authorities’ refusal of the applicant’s request for protection

No violation of article 2 and 3 in case of removal of the applicant to Italy

No violation of article 5 upon the applicant’s removal to Somalia

No violation of articles 6 and 13

Observations/comments:

The present case departs from Tarakhel’s reasoning quite clearly and it puts the state of Dublin transfers for vulnerable people into question considerably.