‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 6 November 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 45

Sending Afghan family of asylum seekers back to Italy under the “Dublin” Regulation without individual guarantees concerning their care would be in violation of the Convention - Tarakhel v. Switzerland - The case concerned the refusal of the Swiss authorities to examine the asylum application of an Afghan couple and their six children and the decision to send them back to Italy. The Court found in particular that, in view of the current situation regarding the reception system in Italy, and in the absence of detailed and reliable information concerning the specific facility of destination, the Swiss authorities did not possess sufficient assurances that, if returned to Italy, the applicants would be taken charge of in a manner adapted to the age of the children. The Court held, by a majority, that there would be a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights if the Swiss authorities were to send the applicants back to Italy under the Dublin Regulation without having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.

“116.  As regards the applicants’ individual situation, the Court notes that, according to the findings of the Italian police and the identification forms annexed to the observations of the Italian Government, the couple and their five oldest children landed on the coast of Calabria on 16 July 2011 and were immediately subjected to an identification procedure, having supplied a false identity. The same day, the applicants were placed in a reception facility provided by the municipal authorities of Stignano, where they remained until 26 July 2011. On that date, once their true identity had been established, they were transferred to the CARA in Bari. They left that centre without permission on 28 July 2011, bound for an unknown destination. 
117.  Accordingly, just as the overall situation of asylum seekers in Italy is not comparable to that of asylum seekers in Greece as analysed in the M.S.S. judgment (see paragraph 114 above), the specific situation of the applicants in the present case is different from that of the applicant in M.S.S. Whereas the applicants in the present case were immediately taken charge of by the Italian authorities, the applicant in M.S.S. was first placed in detention and then left to fend for himself, without any means of subsistence.
118.  The Court reiterates that to fall within the scope of Article 3 the ill treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see paragraph 94 above). It further reiterates that, as a “particularly underprivileged and vulnerable” population group, asylum seekers require “special protection” under that provision (see M.S.S., cited above, § 251).
119.  This requirement of “special protection” of asylum seekers is particularly important when the persons concerned are children, in view of their specific needs and their extreme vulnerability. This applies even when, as in the present case, the children seeking asylum are accompanied by their parents (see Popov, cited above, § 91). Accordingly, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not “create ... for them a situation of stress and anxiety, with particularly traumatic consequences” (see, mutatis mutandis, Popov, cited above, § 102). Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention.
120.  In the present case, as the Court has already observed (see paragraph 115 above), in view of the current situation as regards the reception system in Italy, and although that situation is not comparable to the situation in Greece which the Court examined in M.S.S., the possibility that a significant number of asylum seekers removed to that country may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, is not unfounded. It is therefore incumbent on the Swiss authorities to obtain assurances from their Italian counterparts that on their arrival in Italy the applicants will be received in facilities and in conditions adapted to the age of the children, and that the family will be kept together.
121.  The Court notes that, according to the Italian Government, families with children are regarded as a particularly vulnerable category and are normally taken charge of within the SPRAR network. This system apparently guarantees them accommodation, food, health care, Italian classes, referral to social services, legal advice, vocational training, apprenticeships and help in finding their own accommodation (see paragraph 86 above). However, in their written and oral observations the Italian Government did not provide any further details on the specific conditions in which the authorities would take charge of the applicants. It is true that at the hearing of 12 February 2014 the Swiss Government stated that the FMO had been informed by the Italian authorities that, if the applicants were returned to Italy, they would be accommodated in Bologna in one of the facilities funded by the ERF (see paragraph 75 above). Nevertheless, in the absence of detailed and reliable information concerning the specific facility, the physical reception conditions and the preservation of the family unit, the Court considers that the Swiss authorities do not possess sufficient assurances that, if returned to Italy, the applicants would be taken charge of in a manner adapted to the age of the children.
122.  It follows that, were the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together, there would be a violation of Article 3 of the Convention.”
Steve Peers : Tarakhel v Switzerland: Another nail in the coffin of the Dublin system? "It isn’t clear whether Tarakhel abandons the CJEU’s assumption that only ‘systemic deficiencies’ in the asylum system of a responsible State can justify a challenge to a Dublin transfer, or whether the judgment merely modifies the notion of ‘systemic deficiencies’ considerably, lowering the threshold for its application. On the first hypothesis, ‘systemic deficiencies’ are just one example of a situation that could lead to rebuttal of the assumption that another Dublin State is safe. Uncertainty about adequate reception conditions for families is another. But surely this cannot be an exhaustive list.
On the second hypothesis, a ‘systemic deficiency’ would not exist only where an asylum system had entirely collapsed, but where some particular aspect of the system was malfunctioning regularly to some extent. By analogy, a car needs to be fixed not only when the brakes entirely fail to work, but also when the windshield wipers occasionally malfunction. The risk is far greater in the first case, but the second case shouldn’t be ignored either. Again, the problems in Tarakhel cannot be the only example of a flaw in the asylum system of a responsible Member State that needs to be fixed before asylum-seekers can be transferred there.
There isn’t much difference between these two possible interpretations of Tarakhel. Although the first interpretation is in principle more open-ended than the second one, it shouldn’t take too much imagination to argue that any particular problem an asylum-seeker might face in the responsible Member State is ‘systematic’ in this very broad sense. The second interpretation does give the CJEU more leeway to back down from its head-banging judgment in Abdullahi, and explain that this was also what it had meant by ‘systemic deficiencies’ all along.
Of course, given the strong insistence on the efficiency of the Dublin system in the Abdullahi judgment, this is obviously not what the Court had meant at the time. Yet the clear message from the Tarakhel case is that there is not a simple binary distinction between cases when all Dublin transfers should stop, on the one hand, and cases when all Dublin transfers should go ahead at full speed, on the other. Instead, like a traffic light, yesterday’s judgment creates an intermediate category of cases in which national administrations must proceed with caution. This will undoubtedly make the Dublin system more costly and complex to administer, but that is often the only way to ensure that human rights are protected effectively." 
Hemme Battjes - Belangrijke uitspraak: kinderen niet zomaar uitzetbaar naar Italië - "Het arrest gaat dus veel minder ver dan M.S.S.: er is geen algeheel uitzettingverbod naar Italië en (gezinnen met) kinderen kunnen worden overgedragen als er maar voldoende garanties zijn voor adequate opvang. Vermoedelijk geldt die voorwaarde ook voor anderen die als ” zeer kwetsbaar” kunnen worden aangemerkt. Te denken valt aan zieke, bejaarde of zwangere asielzoekers.
Een ander gevolg is dat het aanvechten van zo’n Dublin-uitzettingen in zeker opzicht eenvoudiger lijkt dan sommigen meenden. In navolging van het Europese Hof voor de Rechten van de Mens had het Hof van Justitie van de Europese Unie in 2011 ook bepaald dat lidstaten asielzoekers op grond van Dublin niet mogen uitzetten als er een onmenselijke of vernederende behandeling dreigt, zoals in Griekenland. Volgens het Luxemburgse Hof was van zo’n dreiging sprake bij „fundamentele tekortkomingen van de asielprocedure en de opvangvoorzieningen”. Het Hof van Justitie leek daarmee de lat zeer hoog te leggen: alleen als het systeem volstrekt niet meer functioneerde mochten uitzettingen verboden worden. Uit Tarakhel volgt dat, ook als het opvangsysteem op zich redelijk functioneert, in individuele gevallen artikel 3 EVRM toch aan uitzetting in de weg kan staan."
Also read: Italy and Dublin – the Grand Chamber Decides 

Protective sexological treatment in a psychiatric hospital did not amount to ill‑treatment - Dvořáček v. the Czech Republic - No violation of Article 3 -  The case concerned the conditions surrounding the compulsory admission of the applicant, Mr Dvořáček, to a psychiatric hospital to undergo protective sexological treatment. In 1999 Mr Dvořáček was diagnosed with Wilson’s disease, a genetic disorder linked to the accumulation of copper in the tissues, with symptoms such as liver disease and neurological and psychological problems. At the time of diagnosis, Mr Dvořáček was beginning to suffer speech and motor problems and was afflicted with hebephilia, a form of paedophilia. Owing to his hebephilia, Mr Dvořáček was prosecuted on several occasions for offences against minors, including indecent assault, soliciting for sexual favours, and sexual abuse. The Court found that although most of the restrictions complained of by Mr Dvořáček in relation to his detention had undoubtedly caused him discomfort, they had been justified by his state of health and his conduct. It also found that, since it could not be established that the applicant had been pressured into undergoing the sexological treatment, the failure to use a specific form setting out Mr Dvořáček’s consent was not such as to infringe Article 3, while indicating that such a form would reinforce legal certainty for all concerned.

In defamation case against historian for allegations about secret service involvement of public figure: Polish courts should not have applied stricter standards than for journalists Braun v. Poland - Violation of Article 10 (freedom of expression) of the Convention - The case concerned the complaint by a film director and historian about being ordered to pay a fine and to publish an apology for having damaged the reputation of a well-known professor to whom he had referred, in a radio debate, as an informant of the secret political police during the communist era. The Court was unable to accept the approach of the Polish courts which had required Mr Braun to prove the veracity of his allegations and thus to fulfil a higher standard than that required from journalists.

Also read: La liberté d'expression de l'historien devant la Cour européenne

A company’s inability to challenge the Roman Catholic Church’s entry in the land register relating to property previously registered by the company violated its ownership rights - SociedadAnónima del Ucieza v. Spain - Violation of Article 1 of Protocol No. 1 to the Convention The case concerned a dispute over ownership of a medieval church between the applicant company, which had purchased and registered in the land register a plot of land in which the church had formed an enclave, and the Diocese of Palencia, which had registered the same church in its own name in the land register sixteen years later. The applicant company therefore considered that it had been unfairly deprived of part of its property for no reason of public interest and without any compensation. Civil proceedings brought by the applicant company to cancel the registration of the church and its annexes effected by the Diocese in 1994 were unsuccessful. The domestic courts held that for historical reasons the church in question had not been included among the items of property purchased by the successive owners of the plot of land in question and its annexes since their initial purchase in 1841. The Court found in particular that the applicant company had suffered because of the exercise of the right of registration granted by domestic legislation to the Roman Catholic Church, without any apparent justification and without the Diocese having challenged its ownership at the time the property had been registered in the land register in 1979. Consequently, the applicant company had borne an individual and excessive burden which could only have been legitimised by the possibility of effectively challenging the measure taken against it, taking into account the applicable provisions of mortgage law.

Texts build on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments.

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