Italy - Ordinary Court of Rome, RG No. 58068/2017, 25 May 2018
| Country of Decision: | Italy |
| Country of applicant: | Afghanistan |
| Court name: | Ordinary Court of Rome |
| Date of decision: | 25-05-2018 |
| Citation: | RG No. 58068/2017 |
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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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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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 request submitted by the Italian authorities to Norway to take back the applicant would imply his immediate repatriation to his country of origin, Afghanistan, which, in the light of the Court’s reasoning, is not to be considered a safe country.
Facts:
The case originates from the refusal of the Norwegian authorities to grant international protection to an Afghan citizen (the applicant). The decision was based on the exclusion of any individual risk of persecution for him in his country of origin. The applicant then left Norway and came to Italy, where the authorities acknowledged that his fingerprints had already been taken in another country and therefore submitted a request to Norway to take back the applicant and organised his transfer.
The applicant here appeals against such a decision, claiming the risk of being repatriated to Afghanistan by the Norwegian authorities.
Decision & reasoning:
The Court is conscious that the transfer of the applicant to Norway would certainly imply his subsequent repatriation to Afghanistan, since the previous decision taken by the Norwegian Court is definitive and since the repatriation operations are already ongoing.
There is no doubt that the request made by Italian authorities to the Norwegian ones to take back the application is legitimate, in accordance with Dublin Regulation (EU) No 604/2013, art. 23 and 18.1. However, the Court assesses whether there is margin to apply its discretion under the same Regulation, art. 17.
The Court then proceeds as follows:
In accordance with the Charter of Fundamental Rights of the European Union, asylum seekers can be transferred to another country only if such a procedure does not imply any risk for them to be subject to degrading and inhuman treatment. This always needs to be verified, even when there is no reason to believe that there are systemic flaws in the asylum procedure and in the reception conditions in that Member State. In the circumstances at stake, such a condition is not guaranteed, as Italy is aware that the Norwegian authorities will immediately proceed with the repatriation of the applicant.
Furthermore, with regard to the family history of the applicant, the Court notes that he does not have any kind of support network in his country of origin.
The Court then proceeds with a deep examination of the conditions of the applicant’s country of origin: recent reports of the UN High Commissioner for Human Rights, Amnesty International and Human Rights Watch give evidence of a series of human rights abuses (violence, killings, public spaces bombed) taking place in the country and frequently perpetrated also by pro-government groups.
As previously mentioned, the application of art. 23 of Dublin Regulation (EU) No 604/2013 would imply an immediate transfer to Norway and, from there, a repatriation to Afghanistan. In the light of the above considerations, Afghanistan is not to be considered a safe country for the applicant to be repatriated to and such a decision would therefore represent a violation of the applicant’s fundamental rights.
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 National Legislation |
| Italy - Decreto-legge |
| 17 February 2017 |
| n. 13 |
| Italy - Legge |
| 13 April 2017 |
| n. 46 |
| art. 153 |
| Italy - Codice di Procedura Civile |
Cited Cases:
| Cited Cases |
| CJEU - C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru |
| CJEU - C-578/16 PPU, C.K. and others |
Other sources:
UN High Commissioner for Human Rights. Afghanistan: Protection of Civilians in Armed Conflict – Annual Report 2017
Amnesty International. Report 2017
Human Rights Watch. Report 2016/2017