ECtHR - Samsam Mohammed Hussein and Others v the Netherlands and Italy, Application No. 27725/10 - Admissibility Decision

An overview was provided of the relevant domestic law and practice in both the Netherlands and Italy which also referenced reports on conditions in Italy from other actors such as UNHCR and NGOs. Relevant practice in other countries was cited as well including Germany, Belgium and the UK (more relevant NGO reports were cited with respect to the UK litigation). The applicant complained against the Netherlands that her transfer to Italy would breach Article 3 and Article 3 in conjunction with Article 13 ECHR. She also complained that the situation in which she and her children would end up in Italy would be contrary to their rights under Article 8 ECHR. Against Italy the applicant complained that she had been subject to treatment contrary to Article 3 ECHR on account of her living conditions and Article 13 as well as Article 8. The Court noted that the applicant had changed her account in Italy in response to the government’s submission to the Court and there were further discrepancies between the facts submitted by the applicant and the government of Italy and the Netherlands (para 63.). The absolute nature of Article 3 ECHR was emphasised by the Court (para. 67). The assessment of risk upon return is relative, depending on all the circumstances of the case, such as the duration, nature, context of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (Para 68). The Court took into consideration that it must focus on the foreseeable consequences of the applicant’s removal to Italy which must be considered in light of the general situation there as well as the applicant’s personal circumstances.

The Court reiterated that Article 3 cannot be interpreted ‘as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home, and that this provision does not entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living – reference being made to M.S.S. v Belgium and Greece (Para. 70). In the absence of exceptionally compelling humanitarian grounds against removal, the fact that the applicant’s material and social living conditions would be significantly reduced if he or she were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The Court noted that the applicant was provided with reception conditions three days after arrival in Italy and that her request for international protection was accepted by Italy and she was granted a residence permit (Para. 73). It noted that pregnant women were entitled to a priority placement in the SPRAR system and that there was no indication on the applicant’s case file that she ever sought assistance in finding work and/or alternative accommodation in order to avoid the risk of destitution (Para. 74). The Court found that the applicant had not established that her treatment within Italy had attained the minimum level of severity required for treatment to fall within the scope of Article 3 ECHR. Noting that the validity of her residence permit had now expired in Italy, the Court went on to assess risk upon return if transferred to Italy. The Court noted that prior notice will be given by the Dutch authorities to the Italians thus enabling them to prepare for their arrival. The Court lastly noted that the applicant as a single mother of two small children remains eligible for special consideration as vulnerable person within the meaning of Article 8 of the Italian Legislative Decree no. 140/2005. Para 78 ‘Taking into account the reports drawn up by both governmental and non-governmental institutions and organisations on the reception schemes for asylum seekers in Italy, the Court considers that, while the general situation and living situation in Italy of asylum seekers, accepted refugees and aliens who have been granted a residence permit for international protection or humanitarian purposes may disclose some shortcomings, it has not been shown to disclose a systemic failure to provide support or facilities catering for asylum seekers as members of the a particularly vulnerable group, as was the case in M.S.S. v Belgium and Greece. The Court noted recent improvements intended to remedy some of the failings and the treatment that the applicant received in August 2008 in Italy. Therefore the Court found that there was no basis in which it can be assumed that the applicant will not be able to benefit from the available resources in Italy or that, if she encountered difficulties, the Italian authorities would not respond in an appropriate manner to any request for further assistance (Para 78). It follows that the Court found the applicant’s complaints under Article 3 against the Netherlands and Italy as manifestly unfounded. As for Article 13 in conjunction with Article 3 the application did not substantiate her claim that she would lack an effective remedy in Italy or that this would be virtually impossible, either at the material time or in case she would file a fresh request for international protection in Italy. As regard the Netherlands the Court noted the available remedial actions available to the application and found this manifestly unfounded. As to the complaints under Article 8 ECHR the Court found that these allegations were wholly unsubstantiated and therefore rejected as manifestly unfounded.