Case summaries

Detention conditions in Greek police stations and living conditions in Idomeni Camp in northern Greece for five unaccompanied children were in breach of Article 3 of the Convention. A further violation was found in respect of Article 5 § 1 regarding the “protective custody” of unaccompanied children in police stations.

The Court decides that Greece is responsible for the examination of the applicant’s claim for international protection. The Court does not find that asylum procedures in Greece are flawed and that the applicant will be exposed to inhuman and degrading reception conditions. Moreover, neither the fact that the applicant’s sister is living in Germany nor the purpose of medical and psychological support in a Member State entitles the applicant under the Dublin Regulation to choose which country will examine his application for international protection.

The Judge of the liberty and detention of the Lyon Court of Appeal released the applicant based on the unavailability of the necessary medical care needed in his country of return.

The Court decides that a beneficiary of international protection cannot be deported to a country in which the individual concerned faces a serious risk of inhumane or degrading treatment. The risk of destitution after deportation is only excluded when the receiving state authorities provide a specific, and not just a general, assurance to the individual concerned.

The Belgian authorities carried out a reasonable assessment, balancing the risk to public safety with the applicant’s mental health, in deciding the applicant’s detention. The duration and medical care provided in detention were lawful and justified.

Foreign asylum seekers without employment have a right to be exempted from the payment of health care contributions under Art. 8(16) of Law No. 537/1993, irrespective of whether they are seeking a job for the first time or have worked in the past. The entitlement to this benefit depends solely on the condition of “non-employment” under Art. 19(1), (2) and (7) of Legislative Decree 150/2015 and to the declaration by the non-employed individual of their availability to work. Denying this benefit to jobless asylum seekers amounts to discrimination.

The fact that a person cannot be repatriated under Article 3 of the ECHR does not imply that that person should be granted a leave to reside in the host country by way of subsidiary protection under Directive 2004/83. The person concerned is eligible for subsidiary protection only if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate health care.

The ECtHR ruled that there had not been a violation of Article 5(1) ECHR in the applicant’s detention at the VIAL hotspot, a day after the entry into force of the EU-Turkey Statement. It also ruled that the threshold of severity required for their detention conditions to be considered as inhuman or degrading treatment had not been reached.

However, the ECtHR found that Greece violated the applicant’s rights under Article 5(2) by not providing them with detailed, understandable information about the reasons for their detention and the remedies available to them.

Even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible, a Dublin transfer can only be carried out in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment within the meaning of Article 4 CFR EU.

If there is a real and proven risk that the state of health of an applicant who suffers from a serious mental or physical illness would significantly and permanently deteriorate, that transfer would constitute a violation of Article 4 CFR EU.

It is for the courts and authorities of the requesting Member State to eliminate any serious doubts concerning the impact of the transfer on the health of the person concerned by taking all necessary precaution. If the taking of precautions is not sufficient, it is for the authorities of the Member State concerned to suspend the execution of the transfer for as long as the applicant’s conditions render him unfit for transfer.

Member States may choose to conduct its own examination of that person’s application by making use of the “discretionary clause” laid down in Article 17(1) DRIII, but is not required to do so.

In some cases of severe illness Art. 3 ECHR precludes a deportation even though a treatment in the state of origin is possible. If the appellant cannot bear the costs of the treatment or the necessary concomitant medication the renewed increase of the illness and therefore a real life-threatening risk is probable which precludes the deportation of the applicant.