Statewatch News Online: Italy: Court upholds appeal against Dublin II transfer to Greece
28 March 2012
Support our work: become a Friend of Statewatch from as little as £1/€1 per month.
Italy
Court upholds
appeal against Dublin II transfer to Greece
18.06.2012 
On 12 April 2012, the
Lazio Tribunale Amministrativo Regionale (regional administrative
court) in Rome upheld an appeal (no. 9252/2009) against a transfer
to Greece under the Dublin II regulation rules issued by the
Piacenza police on 16 July 2009. This decision annulled the order
for K.K., a Congolese national who lodged an asylum application
in Italy on 8 April 2009, to be transferred in order for the
Greek authorities to take charge of his application. Checks on
the EURODAC database revealed that he had crossed the Greek border
illegally on 10 December 2008, leading the administration's Dublin
Unit to initiate procedures that led to a request to take charge
of the asylum seeker being sent to the Greek authorities on 4
May 2009. On the implicit assumption that Greece would accept,
deeming Greece to be a safe third country and unaware of any
circumstances that would have required Italy to evaluate the
application, the Dublin Unit arranged the applicant's transfer
to Greece in an order dated 16 July 2009 and of which K.K. was
notified a fortnight later, on 30 July. In his appeal, the appellant
deemed this transfer to violate his human rights due to the failure
to apply article 3.2 of the Dublin II regulation, a derogation
whereby a "Member State may examine an application for asylum
lodged with it by a third-country national, even if such examination
is not its responsibility under the criteria laid down in this
Regulation." The court deemed the appeal to be well founded,
noting that the administration issued the transfer order without
considering the "notorious situation in which those applying
for international protection in Greece lie." Referring to
three UNHCR documents from December 2009, April 2008 and July
2007 in which the agency expressed its concern for the situation
of asylum seekers in Greece including a lack of access to effective
protection, the court expressly recommended that governments
should refrain from returning applicants to Greece, but rather,
"they should apply article 3.2 of the Dublin Regulation"
and thus take charge of applications even when they would not
theoretically be their responsibility.
In spite of Greece ratifying Directives 2005/85/EC (minimum standards
in asylum procedures), 2004/83/EC (minimum standards for qualification)
and 2003/9/EC (minimum reception standards) and having ceased
to automatically reject any "interrupted" applications
as of July 2008, the situation for asylum seekers has improved
slightly but is still not comparable to that in other EU countries,
as the UNHCR document from December 2009 illustrates (see link,
below). In fact, normative adjustments do not entail an automatic
end to the serious problems experienced by asylum seekers in
Greece. This has been argued by UNHCR, while Amnesty International
and Thomas Hammarberg, the Council of Europe's Commissioner for
human rights, have also highlighted critical problems with the
"Dublin system." Hammerberg was heard by the European
Court on Human Rights (ECtHR) in Strasbourg in September 2010
during an appeal by M.S.S., an Afghan asylum applicant who was
sent from Belgium to Greece, which ended with both Belgium and
Greece being found guilty of violating articles 3 (prohibition
of torture) and 13 (right to judicial remedy) of the ECHR on
21 January 2011. Hammarberg's monitoring of the situation, including
two visits to Greece in December 2008 and February 2010, led
him to observe that in spite of the Greek government's efforts
to modify the system and remedy its structural shortcomings,
Greek legislative measures and practice did not comply with international
and European human rights standards. Moreover, he levelled criticism
at the Dublin II system as a whole because "a consequence
of its application is that some countries must process a number
of asylum applications that exceeds their capability."
The January 2011 ECtHR judgement found Greece guilty on the basis
of its treatment of refugees, and Belgium guilty for having transferred
M.S.S to Greece despite knowing that his human rights might be
violated. After the hearing in this case in Strasbourg in September
2010, several countries temporarily stopped transfers to Greece
resulting from the Dublin II regulation, including Belgium, Norway,
Great Britain, the Netherlands and Germany. Hence, the court
deemed that the progress in Greece towards complying with European
standards does not yet suffice to consider it a safe country
for asylum seekers.
"Hence, the appeal must be accepted and the impugnated measure
must be annulled" because the failure to apply article 3.2
is not "adequately justified" and, although the ECtHR
sentence of 21 January 2011 was issued after the transfer measure,
"it merely photographed a situation that had existed de
facto for a long time." The ECtHR sentence also clarified
the fact that it cannot be assumed that a member state responsible
for assessing an asylum application under the Dublin II regulation
rules automatically respects fundamental rights. Thus, the existence
of "systemic shortcomings in asylum procedures and in the
conditions of reception for asylum seekers" cannot be ignored
because they "constitute serious and proven reasons to believe
that an applicant runs a serious risk of being subjected to inhumane
or degrading treatment." In such cases, it is member states'
duty to not transfer an asylum seeker to the state that is theoretically
competent to evaluate their claim.
Source
Tribunale Amministrativo Regionale del Lazio, Sezione
Seconda Quater, N. 04195/2012 REG.PROV.COLL., N. 09252/2009 REG.RIC.,
12.4.2012 decision, deposited on 9.5.2012, http://www.asgi.it/public/parser_download/save/1_2012_tar_lazio_asilo_dublino_ii.pdf
Background documents
"Observations
on Greece as a country of asylum", Office of the United
Nations High Commissioner for Refugees (UNHCR), December 2009, http://www.unhcr.gr/fileadmin/Greece/General/Greece/Observations2009EN.pdf
European Court of Human Rights, Grand Chamber judgement, Case
of M.S.S. v. Belgium and Greece, (Application no. 30696/09),
Strasbourg, 21 January 2011,
http://www.statewatch.org/news/2011/jan/echr-judgment-mss-v-belgium-greece.pdf
"Belgian authorities should not have expelled asylum
seeker to Greece", European Court of Human Rights, Case
of M.S.S. v. Belgium and Greece, Strasbourg, 21 January 2011,
press release,
http://www.statewatch.org/news/2011/jan/echr-prel-belgium-greece.pdf
Previous Statewatch coverage
Greece:UNHCR call to stop Dublin II returns to Greece,
Statewatch news online, January 2010, http://www.statewatch.org/news/2010/jan/03greece-unhcr-dublin.htm
Statewatch News online | Join Statewatch news e-mail list | Download a free sample issue of Statewatch Journal
© Statewatch ISSN 1756-851X. Personal usage as private individuals/"fair dealing" is allowed. We also welcome links to material on our site. Usage by those working for organisations is allowed only if the organisation holds an appropriate licence from the relevant reprographic rights organisation (eg: Copyright Licensing Agency in the UK) with such usage being subject to the terms and conditions of that licence and to local copyright law.
Our work is only possible with your support.
Become a Friend of Statewatch from as little as £1/€1 per month.
Spotted an error? If you've spotted a problem with this page, just click once to let us know.