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Italy: Court upholds appeal against Dublin II transfer to Greece

18 June 2012

18.06.2012 - n 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

Previous Statewatch coverage
Greece: UNHCR call to stop Dublin II returns to Greece, Statewatch news online, January 2010

Background documents
"Observations on Greece as a country of asylum", Office of the United Nations High Commissioner for Refugees (UNHCR), December 2009

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

"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