Case summaries

The Italian consolidated Law on Migration (Art. 5(6) n. 286/1998) requires humanitarian protection to be given where a person is in a situation of vulnerability. Such a situation occurs when the applicant’s constitutional and international fundamental rights, such as health and nutrition, are compromised.

An Article 3 compliant assessment requires a full and ex nunc evaluation of a claim.  Where the State is made aware of facts that could expose an applicant to an individual risk of ill-treatment, regardless of whether the applicant chooses to rely on such facts, it is obliged to assess this risk ex proprio motu. 

In case of conflict between a domestic and international norm the Court is obliged to adhere to the latter and set aside the former. Given the well-established right to an effective remedy in international and European instruments, an element of which relates to the remedy’s timeliness, the court is obliged to remake the OIN’s subsidiary protection decision and provide the applicant with refugee status. This conclusion applies notwithstanding that domestic legislation prohibits the Court from reforming an OIN decision. To abide by this legislation would result in a never-ending appeal procedure thereby rendering the remedy ineffective.

Article 33 of the Qualification Directive, read in conjunction with the Geneva Convention, requires Member States to allow persons to whom they have granted subsidiary protection status not only to move freely within their territory but also to choose their place of residence within that territory.  However, the Directive does not prevent beneficiaries of subsidiary protection status from being subject to a residence condition for the purpose of promoting their integration where said group of persons are not in a comparable situation as non-EU citizens. 

The Court found that there had been a violation of Article 3 in relation to detention conditions at Tychero. There was no violation of Article 5(1) insofar as the detention was not arbitrary and was in accordance with a procedure prescribed by law, but there was a violation of Article 5(4) in relation to the ineffectiveness of the judicial review of detention conditions. Further, there was a violation of Article 13 read in conjunction with Article 3, because the Greek authorities had deported the Applicant to Turkey, without verifying whether his asylum claim was still pending. 

The Council of State (the “Council”) overturned an order of the National Court of Asylum (the “NCA”) rejecting a request for annulment of a decision of the French Office for the Protection of Refugees and Stateless Persons (the “OFPRA”) rejecting the Applicant’s request for refugee status or subsidiary protection. The reasoning for the rejection by the NCA was that no new elements had been presented since the previous decision that had been given.

The Council considered that the disclosure by the prefecture to the Sri Lankan Embassy in France (the “Embassy”) of information on the French asylum request of the Applicant constituted a new circumstance which justified a review of the Applicant’s asylum request. 

The Court found a violation of Articles 3 and 5(4) ECHR in relation to the Applicant’s detention conditions at Fylakio and Aspropyrgos, and the shortcomings of domestic law in relation to the judicial review of his detention. 

The Court found a violation of Article 3 in relation to a subsequent application for asylum, which had been rejected on the basis that it contained no new elements indicating that the Applicants ran a real risk of being subjected to inhuman and degrading treatment or punishment on deportation to Russia. Because new information had in fact been provided, the national authorities were under an obligation to thoroughly review the information in order to assure themselves that the Applicants’ rights under Article 3 would be safeguarded.

When addressing asylum claims, refugee status must be recognised when there is a well-founded fear of persecution for any of the reasons foreseen in the 1951 Refugee Convention. Assessment of an asylum request fundamentally needs careful consideration of the facts and personal circumstances of the asylum seeker, as well as an analysis of the nature of the risk. The criteria of this test does not have to be restrictive, it is sufficient that the competent authority has a rational belief that the requirements are met for the purpose of receiving refugee status.

The ECtHR recognised a breach of Article 3 ECHR in respect of the conditions at a Greek detention centre, and a breach of Article 3 in conjunction with Article 13 in respect of failures by the Greek authorities in the processing of the Applicant’s claim. However, his rights under Article 5 had not been breached because the detention was prescribed by law and served a legitimate purpose.