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THIRD SECTION

DECISION

Application no. 2314/10

Nuur HUSSEIN DIIRSHI against the Netherlands and Italy

and 3 other applications (see list appended)

The European Court of Human Rights (Third Section), sitting on

10 September 2013 as a Chamber composed of:

Josep Casadevall, President,

Alvina Gyulumyan,

Guido Raimondi,

Corneliu Bîrsan,

Luis López Guerra,

Nona Tsotsoria,

Johannes Silvis, judges,

and Santiago Quesada, Section Registrar,

Having regard to the above applications lodged against both the

Netherlands and Italy between 13 January 2010 and 7 September 2010;

Having regard to the interim measures indicated in the present

applications to the Netherlands Government under Rule 39 of the Rules of

Court, and the fact that these interim measures have been complied with and

have subsequently been lifted by the President on 16 January 2012 in

applications nos. 2314/10, 18324/10 and 47851/10, and on 21 March 2012

in application no. 51377/10;

Having regard to the factual information submitted by the Netherlands

and/or Italian Government and the comments in reply submitted by the

applicants;

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix. The Government of

the Netherlands were represented by their Agent, Mr R.A.A. Böcker, and/or

their Deputy Agent, Ms L. Egmond, both of the Ministry of Foreign Affairs.

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The Italian Government were represented by their Agent, Ms E. Spatafora,

and their Co-Agent, Ms P. Accardo.

A. The circumstances of the cases

2. The facts of the cases, as submitted by the applicants, the Italian

Government and the Netherlands Government, may be summarised as

follows. Some of the facts are in dispute between the parties.

1. Application no. 2314/10

3. The applicant is a Somali national, who claims that he was born in

1992. At the time of the introduction of the application, he was staying in

Baexem, the Netherlands. He was represented before the Court by

Ms J. Niemer, a lawyer practising in Amsterdam.

4. The applicant hails from Mogadishu and belongs to either the Abgaal

or the Habar Gedir sub-clan of the Hawiye clan. After having travelled from

Somalia to Libya, the applicant left Libya by boat in December 2008. A

fight broke out on this boat which nearly sank. The applicant was rescued

by the Italian coastguard. He entered Italy on 1 January 2009, on the island

of Lampedusa. On the same date, his fingerprints and a passport photograph

were taken by the Lampedusa local police, who registered him as having

illegally entered the territory of the European Union. He was registered as

Nuor Hussin Mohamed, a Somali national who was born on 1 January 1994.

5. On 27 January 2009, the applicant applied for international protection

at the Bari police (questura) immigration department. According to the

information set out in the “Standard form C/3 for the recognition of refugee

status according to the Geneva Convention of 28 July 1951” (Modello C/3

per il riconoscimento dello status di rifugiato ai sensi della Convenzione di

Ginevra del 28 Luglio 1951) and obtained from the applicant with the

assistance of an interpreter, the applicant’s name was Nur Hussen

Mohamed, and he was a Somali citizen of Abgaal origin, born in

Mogadishu on 1 January 1990 and not in 1994 as recorded in his initial

registration. He further stated that he had a sister who was living in the

Netherlands and that he had fled Somalia on 29 September 2008 because of

the war there. This standard form was signed by the applicant, the

interpreter and the official having conducted the interview with the

applicant. The applicant’s fingerprints were taken again as well as a new

passport photograph. According to this form, the applicant was staying at

the Bari-Palese reception centre for asylum seekers (Centro di Accoglienza

per Richiendenti Asilo; “CARA”).

6. On 28 January 2009, the applicant was provided with a temporary

residence permit as an asylum seeker. This permit had a validity of twenty

days.

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7. In its decision of 12 March 2009, the Bari Territorial Commission for

the Recognition of International Protection (Commissione Territoriale per il

Riconoscimento della Protezione Internationale) granted the applicant a

residence permit for the purpose of subsidiary protection. This decision was

served on the applicant in person on 16 March 2009 and the certificate of

service was signed by the applicant, the interpreter and the responsible

official. At the same time, the applicant was provided with a residence

permit for an alien having been granted subsidiary protection which

contains the applicant’s signature as well as a travel document for aliens

(Titolo di viaggio per stranieri) which also bears his signature. Both the

residence permit and the travel document were valid until 16 March 2012.

8. On an unspecified date, the applicant left the Bari-Palese asylum

seekers reception centre of his own volition.

9. On 11 May 2009, the applicant entered the Netherlands where he

applied for asylum on 13 May 2009. The examination and comparison of

his fingerprints by the Netherlands authorities generated a Eurodac “hit”

report, indicating that the applicant had illegally entered Italy on 1 January

2009 and that on 27 January 2009 he had applied for asylum in Italy.

10. In the course of his first interview (eerste gehoor) with the Dutch

immigration authorities, held on 15 May 2009, the applicant wrote down his

personal data, declaring that his name was Nuur Hussein Diirshi, and that he

had been born in Mogadishu on 1 July 1992. He confirmed that he was thus

seventeen years old. He further stated that he belonged to the Hawiye/Habar

Gedir, a majority clan. After an initial denial, he admitted that he had been

in Italy and that he had applied for asylum there. He declared that he had

done so under his own name and that he had not been given any documents.

He also declared that his father had died in 1995, and that his mother, his

sister and two half-siblings were living in Mogadishu. He did not mention

having a sister living in the Netherlands. He had left Somalia in March 2008

and had travelled via Ethiopia, Sudan and Libya to Italy.

11. In his written comments on the record drawn up of his first

interview, the applicant stated that he did not know whether he had applied

for asylum in Italy. There had been someone who had interpreted but who

had spoken Somali very badly. He had been taken to a place where he had

to live but it had been very bad there. He had therefore decided to flee

onwards and, for that reason, also did not wish to return to Italy. During the

journey from Somalia to the Netherlands he had used the name

Abdirahman. He further denied that he had ever held a passport or residence

permit issued in his own name or other kind of identity document.

12. In the applicant’s further interview with the Dutch immigration

authorities, held on 16 May 2009, he stated inter alia that he objected to his

transfer to Italy where he had not been provided with education or a roof

over his head.

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13. On 7 July 2009 the Netherlands authorities requested the Italian

authorities to take back the applicant under the terms of Article 16 § 1 (c) of

Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin

Regulation”). As the Italian authorities failed to react to that request within

two weeks, they were considered under Article 20 § 1 of the Dublin

Regulation as having acceded implicitly to that request.

14. The applicant’s asylum request filed in the Netherlands was rejected

on 26 August 2009 by the Deputy Minister of Justice (Staatssecretaris van

Justitie) who found that, pursuant to the Dublin Regulation, Italy was

responsible for the processing of the asylum application. As to the

applicant’s arguments that his transfer to Italy would violate his rights under

Articles 3 and 13 of the Convention because the Italian asylum procedure

had many flaws, because he was a minor and did not have access to an

effective remedy, and because in Italy he would risk homelessness and

having to live a wandering existence on the streets, the Minister held that it

had not been established that Italy would fall short of its obligations under

the Convention or under the 1951 Refugee Convention in respect of the

applicant.

15. The applicant’s appeal against this decision and the accompanying

request for a provisional measure (voorlopige voorziening) were rejected on

12 January 2010 by the provisional-measures judge (voorzieningenrechter)

of the Regional Court (rechtbank) of The Hague sitting in Zwolle. The

judge considered inter alia that in principle the Deputy Minister could rely

on the principle of mutual interstate trust (interstatelijk

vertrouwensbeginsel) unless the applicant could demonstrate, on the basis

of concrete facts and circumstances relating to his individual case, that this

was different in respect of Italy. The judge found that the applicant had not

done so as the mere claim that he, as a minor, had not been given reception

and assistance was insufficient to demonstrate the existence of concrete

indications that Italy failed to respect its international treaty obligations in

respect of the applicant.

16. On 13 January 2010, the applicant filed a further appeal to the

Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the

Council of State (Raad van State) as well as a request for a provisional

measure, i.e. to stay his transfer to Italy pending the proceedings on his

further appeal. On the same day, the President of the Administrative

Jurisdiction Division rejected the applicant’s request for a provisional

measure.

17. On 4 June 2010, the Administrative Jurisdiction Division rejected

the applicant’s further appeal on summary grounds, holding:

“What has been raised in the grievances ... does not provide grounds for quashing

the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden).

Having regard to article 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no

further reasoning is called for, since the arguments submitted do not raise questions

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which require determination in the interest of legal uniformity, legal development or

legal protection in the general sense.”

No further appeal lay against this ruling.

18. The application was introduced to the Court on 13 January 2010. On

13 January 2010, the President of the Section decided, under Rule 39 of the

Rules of the Court, to indicate to the Netherlands Government that it was

desirable in the interest of the parties and the proper conduct of the

proceedings before the Court not to remove the applicant to Italy for the

duration of the proceedings before the Court.

19. On 16 January 2012, the President decided to lift the Rule 39

indication given in the case. On the same day, a number of factual questions

were put to the Government of Italy (Rule 54 § 2 (a)), which concerned the

applicant’s situation in Italy before his arrival in the Netherlands. The

Italian Government submitted their replies on 5 March 2012 and the

applicant’s comments in reply were submitted on 2 April 2012.

20. In the meantime, the applicant had been transferred from the

Netherlands to Italy on 19 March 2012.

21. On 5 December 2012, the applicant returned to the Netherlands

where he filed a fresh asylum request.

22. On 14 January 2013 the Netherlands authorities requested the Italian

authorities to take back the applicant under the terms of Article 16 of the

Dublin Regulation. As the Italian authorities failed to react to that request

within two weeks, they were considered under Article 20 § 1 of the Dublin

Regulation as having acceded implicitly to that request.

23. On 13 June 2013, the Deputy Minister of Security and Justice

(Staatssecretaris van Veiligheid en Justitie) rejected the applicant’s new

asylum request filed in the Netherlands, holding that, pursuant to the Dublin

Regulation, Italy was responsible for the processing of that request. The

Deputy Minister did not find it established that Italy fell short of its

international treaty obligations in respect of asylum seekers and refugees,

and rejected the applicant’s argument that he risked treatment in breach of

Article 3 of the Convention in Italy or refoulement.

24. The applicant’s appeal against this decision and his accompanying

request for a provisional measure were rejected on 12 July 2013 by the

provisional-measures judge of the Regional Court of The Hague sitting in

Haarlem, who found that it had not appeared that the applicant, after his

removal to Italy in 2012, had made a clear attempt to file a complaint with

the Italian authorities about the failure to provide reception, legal aid and

other facilities. According to the judge, this finding was not altered by the

fact that the applicant had filed an application with the Court as he should

first turn to the Italian authorities.

25. The applicant’s further appeal is currently pending before the

Administrative Jurisdiction Division.

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26. On 24 June 2013, the applicant was notified that his transfer to Italy

had been scheduled for 22 July 2013. No further information about this

transfer has been submitted.

2. Application no. 18324/10

27. The applicant is a citizen of Somalia, who states that he was born in

1993. At the time of the introduction of the application, he was staying in

Zuidlaren. He was represented before the Court by Mr P.J. Schüller, a

lawyer practising in Amsterdam.

28. On 9 October 2008, the applicant was registered in Lampedusa and

Linosa as having illegally entered the territory of the European Union. He

stated that he was Liban Ali Omer, a national of Somalia, and that he had

been born on 1 January 1991. He was registered accordingly and his

fingerprints were taken.

29. On 24 November 2008, at the Agrigento police immigration

department, his fingerprints were taken once more and he was registered as

an unaccompanied minor having applied for international protection. He

then stated that his name was Lubaan Cumar Cali and that he was born on

1 January 1991. Being an unaccompanied minor, the applicant was placed

in the Comunità per minori “Alice”, a reception and care centre for

disadvantaged and foreign minors in Palma di Montechiaro, Agrigento

province.

30. On the same day, the Agrigento police immigration department

notified the Palermo Juvenile Court (Tribunale per i minorenni), the office

of the guardianship judge at the Agrigento Tribunal (Tribunale Ufficio del

Giudice Tutelare), the communal social services department (Ufficio Servizi

Sociali) in Palma di Montechiaro, and the Rome Central Service for the

System of Protection of Asylum Seekers and Refugees (Servizio del Sistema

di Protezione per richiedenti asilo e rifugiati) of the presence of the

applicant and four other unaccompanied minor asylum seekers in the

“Alice” centre for minors pending the determination of their asylum request

and other procedures, including the appointment of a legal guardian. No

further information about the latter procedure has been submitted.

31. On 12 March 2009 the applicant left the “Alice” centre without

authorisation for an unknown destination. He was subsequently registered

by the Agrigento police department as a missing minor in the “SDI” police

investigation database system.

32. The applicant having failed to appear at the hearing before it, the

Trapani Territorial Commission rejected the applicant’s asylum request on

5 August 2009, finding that no assessment of the alleged risk of persecution

could be made.

33. In the meantime, the applicant had travelled to the Netherland where

he arrived on 5 April 2009 and applied for asylum, stating that he was

Abdale Ali Omar, a Somali national born on 5 December 1993. The

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examination and comparison of his fingerprints by the Netherlands

authorities generated a Eurodac “hit” report, indicating that the applicant

had been registered in Lampedua e Linosa on 9 October 2008 and in

Agrigento on 24 November 2008.

34. In the applicant’s first interview with the Dutch immigration

authorities, held on 8 April 2009, he stated inter alia that he was an illiterate

orphan, that he hailed from Mogadishu and that he had been told by his

uncle and grandmother that he would turn 16 in 25 days. He held no identity

documents. He had travelled by air from Mogadishu to Hargeisa

(Somaliland) on 15 January 2008. He had then travelled over land, via

Ethiopia and Sudan, to Libya where he had been detained for about five

months. After having managed to abscond, he had travelled by boat to Italy.

The applicant further stated that his real name was Libaan Ali Omar.

Although his “travel agent” had told him never to reveal his true identity, he

had done so in Italy due to the stress he had then been under. As he had

stated in Italy that he was 17, he had been assigned a guardian and he had

been placed in an Italian foster family with two other children. A man had

come with papers to sign, but the applicant had not known that this was an

asylum request. He had left this family because he had not been allowed to

go to school or to do anything. He had had to go to sleep at 10 p.m. and

even at 1 p.m. he had been told to sleep. In the company of a man known to

the applicant’s uncle, the applicant had travelled by train to the Netherlands.

35. On 10 April 2009, a subsequent Dublin Claim interview (gehoor

Dublinclaim) was held with the applicant. He stated during this interview

inter alia that he had been taken from Lampedusa to a home where several

other young asylum seekers had been staying. He had not been allowed to

go to school and he had been beaten when he did not go to bed on time. The

rules had been very strict in the home. He had called his uncle who knew

someone in Italy who had succeeded in getting him out of that home. This

man had also brought the applicant to the Netherlands where he wanted to

build up a future and get schooling.

36. On 11 April 2009, the Deputy Minister of Justice informed the

applicant of her intention (voornemen) to reject his asylum request. The

applicant filed his written comments (zienswijze) on this intention on

13 July 2009 and 31 August 2009 in which he submitted, inter alia, that he

had been detained in Libya for five months and that he had been ill-treated

during his detention there, which traumatic experience had caused him to

develop psychological problems.

37. On 15 June 2009 the Netherlands authorities asked the Italian

authorities to take back the applicant in accordance with Article 16 of the

Dublin Regulation. On 30 June 2009, the Italian authorities accepted this

request.

38. The applicant’s asylum request filed in the Netherlands was rejected

on 1 September 2009 by the Deputy Minister. Noting that the applicant had

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applied for asylum in Italy on 24 November 2008 and that Italy had

accepted to take back the applicant, the Deputy Minister held that, in

accordance with the Dublin Regulation, Italy was responsible for the

processing of the applicant’s asylum request. The Deputy Minister rejected

as unfounded the applicant’s arguments to the effect that Italy failed to

respect its international treaty obligations in respect of asylum seekers and

refugees. The Deputy Minister further rejected the applicant’s argument that

he would risk treatment in breach of Article 3 of the Convention in Italy.

39. On 4 September 2009, the applicant filed an appeal against this

decision with the Regional Court of The Hague.

40. On 3 November 2009, the applicant was notified that his removal to

Italy had been scheduled for 27 November 2009.

41. On 14 November 2009, the applicant requested the Regional Court

of The Hague to issue a provisional measure prohibiting his removal

pending the outcome of the appeal proceedings. On 24 November 2009, the

provisional-measures judge of the Regional Court of The Hague sitting in

Zwolle granted this request.

42. In its judgment of 22 February 2010, the Regional Court of The

Hague sitting in Zwolle rejected the applicant’s appeal. It held that in

principle the Deputy Minister could rely on the principle of mutual

interstate trust unless the applicant could demonstrate, on the basis of

concrete facts and circumstances relating to his individual case, that this was

different in respect of Italy. The Regional Court found that the applicant had

not done so as his mere claim that he, as a minor, would end up in an

inhumane situation if transferred to Italy or that he was not able to take

independent action against the Italian State whose treatment of refugees was

deficient were both insufficient for finding it established that Italy would

fail to respect its international treaty obligations in respect of the applicant.

The Regional Court further did not find it established that the applicant, if

transferred to Italy, would have no access to adequate medical care or that

such a transfer should be regarded as entailing undue hardship

(onevenredige hardheid).

43. On 8 March 2010, Ms S., a guardian of the “Nidos” foundation

(juvenile protection agency for unaccompanied minor asylum seekers), who

– on an unspecified date – had apparently been entrusted with the

applicant’s guardianship (voogdij), was notified that the applicant’s transfer

to Italy had been scheduled for 22 August 2010 at the latest.

44. Between 4 and 22 March 2010, the applicant’s guardian Ms S. sent

messages to inter alia the Central Service of the SPRAR (Sistema di

Protezione per Richiendenti Asilo e Rifugiati; “Protection System for

Asylum Seekers and Refugees”), the Department responsible for Dublin

requests at the Italian Ministry of the Interior (Ministero dell’Interno) and to

the Italian Council for Refugees (Consiglio Italiano per i Rifugiati),

requesting information about the applicant’s situation after his transfer to

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Italy (accommodation, guardianship, schooling). On 22 March 2010, Ms S.

sent a letter by fax to the Netherlands immigration authorities, informing

them that Nidos held the applicant’s guardianship and that Nidos had

contacted the Italian authorities on 15 March 2010 for information about the

applicant’s reception conditions in Italy in order to assess whether it could

accept his transfer to Italy. Since no information about this had been

received yet, Nidos disagreed with the applicant’s removal from the

Netherlands until clarity was obtained on how he would be received and

accommodated in Italy.

45. On 22 March 2010, the applicant filed a further appeal with the

Administrative Jurisdiction Division against the Regional Court’s judgment

of 22 February 2010.

46. On 23 March 2010, the Nidos foundation was notified that the

applicant would be handed over to the (Italian) authorities on 8 April 2010.

The foundation was further informed that the applicant would be escorted

on his journey to Italy and that, after his arrival there, he would be handed

over to the Italian authorities.

47. On 26 March 2010, the applicant requested the Administrative

Jurisdiction Division to issue a provisional measure, staying his removal to

Italy pending the determination of his further appeal. This request was

rejected on 1 April 2010 by the President of the Administrative Jurisdiction

Division.

48. On 14 July 2011, following hearings held on 19 October 2010 and

21 April 2011, the Administrative Jurisdiction Division rejected the

applicant’s further appeal of 22 March 2010. No further appeal lay against

this ruling.

49. The application was introduced to the Court on 1 April 2010. On the

same day, after the rejection of the applicant’s request for a provisional

measure by the President of the Administrative Jurisdiction Division, the

President of the Section decided, under Rule 39 of the Rules of the Court, to

indicate to the Netherlands Government that it was desirable in the interest

of the parties and the proper conduct of the proceedings before the Court not

to remove the applicant to Italy for the duration of the proceedings before

the Court.

50. On 16 January 2012, the President decided to lift the Rule 39

indication given in the case. On the same day, a number of factual questions

were put to the Government of Italy (Rule 54 § 2 (a)), which concerned the

applicant’s situation in Italy before his arrival in the Netherlands. The

Italian Government submitted their replies on 5 March 2012 and comments

in reply were submitted by the applicant’s representative on 25 April 2012.

51. In the meantime, on 22 February 2012, the Minister for Immigration,

Integration and Asylum Policy (Minister voor Immigratie, Integratie en

Asiel) had rejected the applicant’s fresh asylum request, finding that it was

not based on any newly emerged facts and circumstances – within the

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meaning of section 4:6 of the General Administrative Law Act (Algemene

wet bestuursrecht) – warranting a revision of the initial negative decision.

On the same day, the applicant filed an appeal with the Regional Court of

The Hague.

52. Also on 22 February 2012, the applicant filed an objection (bezwaar)

against an act aimed at his effective removal (daadwerkelijke

uitzettingshandeling) within the meaning of section 72 § 3 of the Aliens Act

2000 in respect of his imminent transfer to Italy. The applicant further filed

two requests with the Regional Court of The Hague to issue a provisional

measure to the effect that his removal to Italy would be stayed pending the

proceedings on his appeal and objection.

53. On the same day, the provisional-measures judge of the Regional

Court of The Hague sitting in Almelo rejected the applicant’s requests for a

provisional measure. The judge found there were no reasons to allow the

applicant to await the outcome of his fresh asylum request or of his

application to the Court in the Netherlands. No further information about

the proceedings on the applicant’s appeal and objection has been submitted.

54. On 23 February 2012, the applicant was transferred to Milan (Italy).

According to the applicant’s representative, the applicant has been left to his

own devices in Italy and nobody has explained to him what he should do or

where he should go to get advice or legal aid in order to apply for asylum

again.

55. In a letter of 23 April 2012 (the mention of 2011 seems to be a

typing error), the Italian NGO “Save the Children; Italia Onlus” informed

the lawyer representing the applicant in the proceedings before the Court, at

the latter’s request, that their field operators had found and met the

applicant. He had been destitute. No assistance or accommodation had been

made available by the public authorities after his arrival in Italy, and neither

had he been provided with information on how to access services for asylum

seekers in the municipality of Rome. Due to the very limited number of

places within the asylum seekers reception facilities in that municipality,

they had been unable to find shelter for the applicant. However, he had

recently found shelter in a dormitory run by a private charity in Latina,

about 70 km south of Rome, where volunteers were trying to help him

obtain basic social assistance and medical care. However, this facility was

due to close on 30 April 2012. In this letter, it was further pointed out that

accommodation was a prerequisite for the admissibility of any asylum

request and that, therefore, the applicant’s request for international

protection or for review of the rejection of his initial request would not be

taken up for examination by the authorities if he did not have

accommodation and an address. The letter further expressed concern that in

that case - although removals to Somalia were usually not enforced – the

applicant risked being denied access to the Italian international protection

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system, detention for removal purposes and possibly the issuance of a

removal order against him.

56. In his submissions of 25 April 2012, the applicant’s representative

informed the Court that, after the applicant’s removal to Italy, the lawyer

who had assisted the applicant in the domestic proceedings had managed to

speak to the applicant twice. The applicant’s representative further informed

the Court that he had not had the opportunity to discuss with the applicant

the replies submitted by the Italian Government on 5 March 2012.

3. Application no. 47851/10

57. The applicant is a citizen of Somalia, who states that he was born in

September 1993. At the time of the introduction of the application, he was

staying in Oude Pekela. He was represented before the Court by

Mr W. Eikelboom, a lawyer practising in Amsterdam.

58. After having left Somalia and after a traumatic journey through

Kenya, Uganda, Sudan and Libya, the applicant arrived on the island of

Lampedusa in Italy on 1 December 2008. His fingerprints were taken by the

Lampedusa local police, who registered him as having illegally entered the

territory of the European Union. The applicant indicated that he wished to

apply for international protection. Having been advised by others to do so

and believing that this this would increase his chances, he gave a false

identity to the Lampedusa police. Accordingly, he was registered as Yusuf

Mohamed Osman, a Somali national who was born on 5 December 1980.

59. On 4 March 2009, under the identity given by the applicant to the

Lampedusa police, the Taranto Territorial Commission granted the

applicant a residence permit for the purpose of subsidiary protection, which

permit was valid for three years.

60. On 26 April 2009, the applicant left Italy and travelled to the

Netherlands where he arrived on 27 April 2009 and applied for asylum.

61. In his first interview with the Netherlands immigration authorities,

held on 30 April 2009, the applicant stated that his name was Yusuf Madi

Sheekh and that he had been born on 6 September 1994 in Mogadishu. He

later corrected this to 6 September 1993. He further stated that he had no

identity or other document and that his mother had sent him to Kenya in

2005, where he had lived from 2005 until his departure on 27 April 2009

when he had travelled to the Netherlands by air. When it was put to him that

his fingerprints had been taken in Italy in December 2008, he admitted that

he had been in that country where he had been provided with a residence

permit with a validity of three years as well as with a travel document

allowing him to travel in Europe in March 2009. He further stated that he

had applied for asylum in Italy under the name Yusuf Mohamed Osman and

a date of birth in 1980. He had left Somalia in September 2005 and had

travelled, via Kenya, Uganda, Sudan and Libya, to Lampedusa in Italy. He

had been taken from Lampedusa to Sicily. After he had lost his papers, he

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had travelled to Palermo and then to Turin and subsequently to the

Netherlands. As the applicant claimed that he hailed from Mogadishu, a

number of questions about this city were put to him.

62. In the written comments on the record drawn up of this interview,

the lawyer assisting the applicant in the asylum proceedings explained inter

alia that the applicant did not know his exact year of birth but only that his

mother had told him in a telephone conversation held in October 2008 that

he was 16 years old.

63. On 1 May 2009, a Dublin Claim interview was held with the

applicant. He stated during this interview inter alia that he had stayed in

Italy from 1 December 2008 to 25 April 2009 and that he had been provided

with an Italian residence permit and a kind of passport which had been

stolen from him five days later. Apart from to the office where he had been

provided with these documents, he had not reported the theft to any other

authority. When he had tried to obtain a new residence permit, he was told

that this was not possible. Because he had been unable to find food and a

place to sleep, he had decided to leave Italy. When he had gone to the

reception centre where he had presented his problem, other asylum seekers

had advised him to go to the Netherlands which he had done.

64. On 2 May 2009 the Deputy Minister of Justice gave notice of her

intention to reject the applicant’s asylum request. Noting that it had

appeared from the Eurodac database that the applicant had applied for

asylum in Italy on 5 December 2008 and that he had stated that he had been

granted international protection until 2012, the Deputy Minister held that

Italy was responsible for the applicant under the terms of the Dublin

Regulation and that there were no reasons warranting the use of the

“sovereignty clause” contained in the Dublin Regulation and consequently

determine the asylum application in the Netherlands and refrain from

transferring the applicant to Italy. The applicant, represented by a lawyer in

the asylum proceedings, was given the opportunity to submit written

comments on the notice of intention. He did not avail himself of this

opportunity.

65. On 20 May 2009, the Juvenile Court judge (kinderrechter) at the

civil law section of the Leeuwarden Regional Court, noting the applicant’s

stated date of birth and with his consent, entrusted the Nidos foundation

with the temporary guardianship (tijdelijke voogdij) of the applicant.

66. On 23 June 2009 the Netherlands authorities requested the Italian

authorities to take back the applicant under the terms of Article 16 § 1 (c) of

the Dublin Regulation. As the Italian authorities failed to react to that

request within two weeks, they were considered under Article 20 § 1 of the

Dublin Regulation to have implicitly acceded to that request.

67. The applicant’s asylum request filed in the Netherlands was rejected

on 29 July 2009 by the Deputy Minister. Noting that the applicant had not

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13

filed any comments on the notice of intention, the Deputy Minister referred

to the reasons given in that notice.

68. The applicant’s appeal against this decision was rejected on

19 March 2010 by the Regional Court (rechtbank) of The Hague sitting in

Zwolle. It considered inter alia that in principle the Deputy Minister could

rely on the principle of mutual interstate trust unless the applicant could

demonstrate, on the basis of concrete facts and circumstances relating to his

individual case, that this was different in respect of Italy. The court found

that, by merely claiming that, while a minor, he had been left to his own

devices in Italy where no housing had been allocated to him and no food

provided, the applicant had not demonstrated that there were concrete

indications that Italy failed to respect its international treaty obligations in

respect of the applicant. This finding was further not found to be altered by

the applicant’s claim that his interests as a child would be harmed if his tie

with his guardian was severed, as it had not appeared that there were no

guardianship arrangements in Italy for unaccompanied minor asylum

seekers. It further did not find it established that there was a risk that Italy

would fall short of its obligations under the 1951 Refugee Convention or the

Convention.

69. On 12 April 2010, the applicant filed a further appeal to the

Administrative Jurisdiction Division.

70. On 2 June 2010, the applicant requested the Minister of Justice for

deferment of removal (uitstel van vertrek) on medical grounds under

section 64 of the Aliens Act 2000.

71. On 13 July 2010, the Medical Assessment Section (Bureau Medische

Advisering) of the Ministry of Justice drew up an advice based on the

findings of an inquiry into the applicant’s state of health. According to this

advice, the applicant was suffering from a post-traumatic stress disorder

(PTSD) entailing sleeping problems, reliving past events, nightmares,

headaches and concentration problems. He was receiving temporary

treatment in the Netherlands in the form of Eye Movement Desensitisation

and Reprocessing (EMDR) and specific forms of cognitive behavioural

therapy. Although it was found that the applicant was fit to travel and that a

discontinuation of this treatment would not result in a medical emergency

situation in the short term, it was advised – as in any event an escort was

indicated given his young age – that the applicant be accompanied by a

psychiatric nurse.

72. On 27 July 2010, having noted the advice of 13 July 2010, the

Minister of Justice rejected the applicant’s request for deferment of removal

on medical grounds.

73. On 29 July 2010 the Administrative Jurisdiction Division rejected

the applicant’s further appeal of 12 April 2010 and confirmed the impugned

judgment of 19 March 2010. No further appeal lay against this ruling.

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HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

74. The application was introduced to the Court on 20 August 2010. On

the same day, the President of the Section decided, under Rule 39 of the

Rules of the Court, to indicate to the Netherlands Government that it was

desirable in the interest of the parties and the proper conduct of the

proceedings before the Court not to remove the applicant to Italy for the

duration of the proceedings before the Court.

75. On 30 March 2011, the applicant filed a fresh asylum request in the

Netherlands, which was rejected by the Minister for Immigration,

Integration and Asylum Policy. The applicant filed an appeal with the

Regional Court of The Hague.

76. On 16 January 2012, the President decided to lift the Rule 39

indication given in the case. On the same day, a number of factual questions

were put to the Government of Italy (Rule 54 § 2 (a)), which concerned the

applicant’s situation in Italy before his arrival in the Netherlands. The

Italian Government submitted their replies on 6 March 2012 and the

applicant’s comments in reply were submitted on 25 April 2012.

77. After the President’s decision of 16 January 2012, the applicant

requested the Regional Court of The Hague to issue a provisional measure

aimed at staying his transfer to Italy pending the appeal proceedings. On

15 March 2012 a hearing was held before the Regional Court of The Hague.

No further information about these proceedings has been submitted.

4. Application no. 51377/10

78. The applicant is a citizen of Somalia, who states that he was born in

March 1994. At the time of the introduction of the application, he was

staying in Oude Pekela. He was represented before the Court by

Ms M. Haanstra, a lawyer practising in Groningen.

79. The applicant hails from Mogadishu and belongs to the minority

Sheikal clan. In order to evade pressure to join the al-Shabaab militants he

fled Somalia in 2008.

80. After having suffered serious hardships during his flight, he

eventually reached – via Libya – the coast of Sicily on 10 October 2008

where the Catania local police took his fingerprints and registered him as

having illegally entered the territory of the European Union. The applicant

stated that his name was Negib Ise, that he was a Somali citizen and that he

had been born on 1 January 1992. He was registered accordingly. Also on

10 October 2008, the Deputy Prosecutor of the Catania Juvenile Court

entrusted the temporary care and custody of the applicant and four others,

who – like the applicant – had been found to be unaccompanied minor

asylum seekers, to the manager of the Caltagirone “First Assistance Service

of the SPRAR Service” where these five minors were to be accommodated.

81. On 1 December 2008, the Catania local police took the applicant’s

fingerprints again and registered him as an asylum seeker. He then indicated

that his name was Najib Ise Ali and that he had been born on 1 January

HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

15

1989, and was thus an adult. On 23 December 2008, assisted by an

interpreter, the applicant completed his formal asylum request. According to

the information set out in the “Standard form C/3 for the recognition of

refugee status according to the Geneva Convention of 28 July 1951”, as

obtained from him with the assistance of this interpreter, the applicant’s

name was Najib Ise and he was born on 1 January 1989 in Mogadishu.

82. On 13 March 2009, under the identity given by the applicant on

23 December 2008 to the Italian authorities, the Syracuse Territorial

Commission granted the applicant a residence permit for the purpose of

subsidiary protection. This decision was served on the applicant in person

on the same day. He was provided with a residence permit for an alien

granted subsidiary protection and a travel document for aliens. Both the

residence permit and the travel document were valid until 31 May 2012.

The applicant continued to reside, at least until 1 June 2009, in the Casa

Serena SPRAR reception centre in Caltagirone.

83. On an unspecified date but on or around 10 June 2009, the applicant

left Italy and travelled to the Netherlands where he arrived shortly

afterwards and, on 18 June 2009, applied for asylum.

84. In his first interview with the Netherlands immigration authorities,

held on 20 June 2009, the applicant stated that his name was Aange Isse Ali

and that he had been born on 4 March 1994 in Mogadishu, and that he was

thus a minor. He further stated that he had never held a passport or

residence document in his own name. He had left Somalia about one year

previously. His father had been killed by a stray bullet in August 2008 and

his mother, 6 siblings and 5 half-siblings were still living in Mogadishu. He

had had the most recent conversation with his mother seven days earlier. He

further admitted that he had been in Italy where he had been placed in a

refugee camp. He had been sick in Italy and had been admitted to hospital

for an operation. He had left before a decision had been taken on his asylum

request because his mother had told him to go to a better country. He further

stated that his family had told him to leave Italy and go to another country;

in that way he could work and attend school in order to be of use to his

family later.

85. On 22 June 2009, a further interview was held with the applicant. He

stated during this interview inter alia that he had come to Europe for a good

education, good facilities and good medical care which he had not obtained

in Italy. That was why he had left Italy.

86. On 2 May 2009 the Deputy Minister of Justice gave notice of her

intention to reject the applicant’s asylum request. Noting that it had

appeared from the Eurodac database that the applicant had applied for

asylum in Italy on 1 December 2008, that he had stated that he had stayed in

Italy from 10 October 2008 until 12 June 2009 when he had left Italy for the

Netherlands, and that in Italy he had stayed in a reception centre and had

stayed in hospital for three days for medical treatment purposes, the Deputy

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HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

Minister held that Italy was responsible for the applicant under the terms of

the Dublin Regulation and that there were no reasons warranting the use of

the “sovereignty clause” contained in the Dublin Regulation and

consequently determine the asylum application in the Netherlands and

refrain from transferring the applicant to Italy. The applicant, represented by

a lawyer in the asylum proceedings, did not submit any written comments

on the notice of intention.

87. On 5 August 2009 the Netherlands authorities requested the Italian

authorities to take back the applicant under the terms of Article 16 § 1 (c) of

the Dublin Regulation. As the Italian authorities failed to react to that

request within two weeks, they were considered under Article 20 § 1 of the

Dublin Regulation to have implicitly acceded to that request.

88. The applicant’s asylum request filed in the Netherlands was rejected

on 7 September 2009 by the Deputy Minister. Noting that the applicant had

not filed any comments on the notice of intention, the Deputy Minister

referred to the reasons given in that notice.

89. The applicant’s appeal against this decision was rejected on

29 March 2010 by the Regional Court of The Hague sitting in Almelo. It

considered inter alia that in principle European Union Member States

should be considered as respectful of the principle of non-refoulement and

of their obligations under the Convention and the 1951 Refugee Convention

(the principle of mutual interstate trust), unless the alien concerned could

demonstrate, on the basis of concrete facts and circumstances relating to his

individual case, that this was different in respect of Italy. The court found

that the applicant had not demonstrated any concrete indications that Italy

failed to respect its international treaty obligations towards him.

90. The applicant’s further appeal to the Administrative Jurisdiction

Division was rejected on 14 June 2010. It confirmed the impugned

judgment. No further appeal lay against this ruling.

91. Shortly before, on 1 June 2010, the applicant had requested the

Minister of Justice for deferment of removal on medical grounds under

section 64 of the Aliens Act 2000. The Minister requested the Medical

Assessment Section to issue an advice.

92. On the same date, the applicant had also filed an objection with the

Minister against an act aimed at effective removal within the meaning of

section 72 § 3 of the Aliens Act 2000 in respect of his transfer to Italy,

which had been scheduled for 9 June 2010. On 7 June 2010, the provisional-

measures judge of the Regional Court of The Hague sitting in Almelo

accepted the applicant’s request for a provisional measure and ordered that

his transfer to Italy be stayed until four weeks after the determination of the

applicant’s objection. On 6 July 2010, the Minister rejected the applicant’s

objection.

93. On 13 July 2010, the Medical Assessment Section drew up an advice

based on the findings of an inquiry into the applicant’s state of health.

HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

17

According to this advice, the applicant was suffering from PTSD entailing

sleeping problems, reliving past event, nightmares, headaches and

concentration problems. He was receiving temporary treatment in the

Netherlands in the form of EMDR and specific forms of cognitive

behavioural therapy. Although it was found that the applicant was fit to

travel and that a discontinuation of this treatment would not result in a

medical emergency situation in the short term, it was advised – as in any

event an escort was indicated given his young age – that the applicant be

accompanied by a psychiatric nurse.

94. On 4 August 2010, having noted the advice of 13 July 2010, the

Minister of Justice rejected the applicant’s request for deferment of removal

on medical grounds.

95. The application was introduced to the Court on 20 August 2010. On

the same day, the President of the Section decided, under Rule 39 of the

Rules of the Court, to indicate to the Netherlands Government that it was

desirable in the interest of the parties and the proper conduct of the

proceedings before the Court not to remove the applicant to Italy for the

duration of the proceedings before the Court.

96. On 30 March 2011, the applicant filed a fresh asylum request in the

Netherlands, which was rejected by the Minister for Immigration,

Integration and Asylum Policy. The applicant filed an appeal with the

Regional Court of The Hague.

97. On 16 January 2012, the President decided to lift the Rule 39

indication given in the case. On the same day, a number of factual questions

were put to the Government of Italy (Rule 54 § 2 (a)), which concerned the

applicant’s situation in Italy before his arrival in the Netherlands. The

Italian Government submitted their replies on 6 March 2012 and the

applicant’s comments in reply were submitted on 25 June 2012.

B. Relevant European Union, Italian and Netherlands law and

practice

98. The relevant European, Italian and Netherlands law, instruments,

principles and practice in respect of asylum proceedings, reception of

asylum seekers and transfers of asylum seekers under the Dublin Regulation

have recently been exhaustively summarised in Mohammed Hussein v. the

Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April

2013); Daybetgova and Magomedova v. Austria ((dec.), no. 6198/12,

§§ 25-29 and §§ 32-39, 4 June 2013); Halimi v. Austria and Italy ((dec.),

no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013); and Abubeker

v. Austria and Italy (dec.), no. 73874/11, §§ 31-34 and §§ 37-41, 18 June

2013). In the following, only information that is particularly relevant for the

present case will be repeated or set out.

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HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

1. Council Regulation (EC) No. 2003/9 (the Reception Directive)

Article 2 (h) of the Reception Directive defines unaccompanied minors

as:

“persons below the age of eighteen who arrive in the territory of the Member States

unaccompanied by an adult responsible for them whether by law or by custom, and

for as long as they are not effectively taken into the care of such a person; it shall

include minors who are left unaccompanied after they have entered the territory of

Member States.”

The category of vulnerable persons referred to in Article 17 of the

Reception Directive includes unaccompanied minors and Article 19, which

deals specifically with unaccompanied minors, reads in its relevant part:

“1. Member States shall as soon as possible take measures to ensure the necessary

representation of unaccompanied minors by legal guardianship or, where necessary,

representation by an organisation which is responsible for the care and well-being of

minors, or by any other appropriate representation. Regular assessments shall be made

by the appropriate authorities.

2. Unaccompanied minors who make an application for asylum shall, from the

moment they are admitted to the territory to the moment they are obliged to leave the

host Member State in which the application for asylum was made or is being

examined, be placed:

(a) with adult relatives;

(b) with a foster-family;

(c) in accommodation centres with special provisions for minors;

(d) in other accommodation suitable for minors.

Member States may place unaccompanied minors aged 16 or over in

accommodation centres for adult asylum seekers.... Changes of residence of

unaccompanied minors shall be limited to a minimum....”

2. Council Regulation (EC) No. 343/2003 (the Dublin Regulation)

99. Article 6 of the Dublin Regulation reads as follows:

“Where the applicant for asylum is an unaccompanied minor, the Member State

responsible for examining the application shall be that where a member of his or her

family is legally present, provided that this is in the best interest of the minor.

In the absence of a family member, the Member State responsible for examining the

application shall be that where the minor has lodged his or her application for

asylum.”

100. In its ruling of 6 June 2013 in case C-648/11, MA, BT and DA

v Secretary of State of the Home Department, the Fourth Chamber of the

Court of Justice of the European Union (CJEU) examined transfers of

unaccompanied minor asylum seekers under the terms of the Dublin

Regulation.

101. The case concerned three unaccompanied minors who had applied

for asylum in the United Kingdom after they had filed previous asylum

HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

19

requests in the Netherlands and Italy. None of these minor asylum seekers

had relatives lawfully residing in any of those states. The authorities of the

United Kingdom initially decided to transfer them to the Netherlands or

Italy, in accordance with the Dublin Regulation. The minors concerned

challenged this decision and pursued these appeal proceedings even after the

United Kingdom authorities had subsequently withdrawn their initial

decision and applied the sovereignty clause in each case. In the context of

these appeal proceedings, the Court of Appeal (England and Wales) referred

the following question to the CJEU for a preliminary ruling:

“In [Council Regulation (EC) No 343/2003 of 18 February 2003] establishing the

criteria and mechanisms for determining the Member State responsible for examining

an asylum application lodged in one of the Member States by a third-country national

(OJ [2005 L 50] p. I), where an applicant for asylum who is an unaccompanied minor

with no member of his or her family legally present in another Member State has

lodged claims for asylum in more than one Member State, which Member State does

the second paragraph of Article 6 make responsible for determining the application for

asylum?”

102. After having considered the wording as well as the objective of the

applicable provisions of the Dublin Regulation, the CJEU held that:

“55. Since unaccompanied minors form a category of particularly vulnerable

persons, it is important not to prolong more than is strictly necessary the procedure for

determining the Member State responsible, which means that, as a rule,

unaccompanied minors should not be transferred to another Member State.

56. The above considerations are supported by the requirements arising from recital

15 in the preamble to Regulation No 343/2003, according to which the regulation

observes the fundamental rights and principles which are acknowledged in particular

in the Charter.

57. Those fundamental rights include, in particular, that set out in Article 24(2) of

the Charter, whereby in all actions relating to children, whether taken by public

authorities or private institutions, the child’s best interests are to be a primary

consideration.

58. Thus, the second paragraph of Article 6 of Regulation No 343/2003 cannot be

interpreted in such a way that it disregards that fundamental right (see, by analogy,

Detiček, paragraphs 54 and 55, and Case C-400/10 PPU McB. [2010] ECR I-8965,

paragraph 60).

59. Consequently, although express mention of the best interest of the minor is

made only in the first paragraph of Article 6 of Regulation No 343/2003, the effect of

Article 24(2) of the Charter, in conjunction with Article 51(1) thereof, is that the

child’s best interests must also be a primary consideration in all decisions adopted by

the Member States on the basis of the second paragraph of Article 6 of Regulation

No 343/2003.

60. This taking into account of the child’s best interests requires, in principle, that,

in circumstances such as those relating to the situation of the appellants in the main

proceedings, the second paragraph of Article 6 of Regulation No 343/2003 be

interpreted as designating as responsible the Member State in which the minor is

present after having lodged an application there.

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HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

61. In the interest of unaccompanied minors, it is important, as is evident from

paragraph 55 of the present judgment, not to prolong unnecessarily the procedure for

determining the Member State responsible, and to ensure that unaccompanied minors

have prompt access to the procedures for determining refugee status.

62. That method of determining the Member State responsible for examining an

asylum application lodged by an unaccompanied minor having no member of his

family present in the territory of a Member State is based on an objective criterion as

stated in recital 4 in the preamble to Regulation No 343/2003.

63. Furthermore, such an interpretation of the second paragraph of Article 6 of

Regulation No 343/2003, which designates as responsible the Member State in which

the minor is present after having lodged an application there, does not, contrary to the

Netherlands Government’s contention in its written observations, mean that an

unaccompanied minor whose application for asylum is substantively rejected in one

Member State can subsequently compel another Member State to examine an

application for asylum.

64. It is clear from Article 25 of Directive 2005/85 that, in addition to cases in

which an application is not examined in accordance with Regulation No 343/2003,

Member States are not required to examine whether the applicant is a refugee where

an application is considered inadmissible because, inter alia, the asylum applicant has

lodged an identical application after a final decision has been taken against him.

65. Moreover, it must be added that since the asylum application is required to be

examined only by a single Member State, the Member State which, in circumstances

such as those of the main proceedings, is designated as responsible by virtue of the

second paragraph of Article 6 of Regulation No 343/2003 is to inform accordingly the

Member State with which the first application has been lodged.

66. In the light of all the above considerations, the answer to the question referred is

that the second paragraph of Article 6 of Regulation No 343/2003 must be interpreted

as meaning that, in circumstances such as those of the main proceedings, where an

unaccompanied minor with no member of his family legally present in the territory of

a Member State has lodged asylum applications in more than one Member State, the

Member State in which that minor is present after having lodged an asylum

application there is to be designated the ‘Member State responsible”

3. Unaccompanied minor asylum seekers in Italy

103. According to “Notes on reception conditions of minor age asylum

seekers in Italy”, released on 14 December 2009 by the NGO “Save the

Children; Italia Onlus”:

“2. ... teenagers who land in Italy are often registered by the police as adults, or

declare themselves adults. They often do not change their version when duly informed

about their rights as migrant children in Italy (our colleagues working in Lampedusa

and other disembarkment areas have experienced this). Migrant children have stated

to our colleagues that they think that declaring themselves as adults will ensure them a

residence permit and freedom to move to other European countries. In our view, this

is true to the extent that Italian law obliges public officials to put migrant children to

protected centres and to go to school, whilst adults are not guaranteed such protection.

Municipalities must take charge of migrant children, the local Tribunal must appoint

a guardian and make a decision on an individual project regarding the place and

conditions of the child’s upbringing (Articles 343 and following of the Italian Civil

HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

21

Code). The Juvenile Tribunal examines the case and may judge that the concerned

child is abandoned and open an adoption process (Right to a Family Act

no. 183/1984). However, sometimes these provisions are taken with a considerable

delay, or not at all. Reception centres for minor age migrants (and possible or actual

asylum seekers) are in some cases inadequate or unsatisfying for children and they

often leave them.

3. Minor age migrants who declared themselves adults in Italy are officially

registered as such (i.e. their fingerprints fit with the personal data of an adult) and will

be treated as adults, once returned to Italy. Returned minor age migrants may

consequently end up in reception centres with adults.”

104. In the report “Policies on Reception, Return and Integration

arrangements for, and numbers of, Unaccompanied Minors – an EU

comparative study”, published in May 2010 by the European Migration

Network, which is a EU-funded European network whose aim is to provide

up-to-date, objective, reliable and comparable information on migration and

asylum to support policymaking in the EU, it is stated:

“When an unaccompanied minor applies for international protection in Italy, the

asylum application is brought to the attention of the Juvenile Courts having territorial

jurisdiction and the application itself is confirmed by a guardian, who is appointed by

the Tutelary Judge and will provide assistance during the whole procedure of

application examination. At the same time, the minor is reported to the Committee for

Foreign Minors, who would then be responsible in case of a negative decision, and the

Police are required to issue a document certifying the asylum applicant status of the

minor. With this certificate it is then possible for the minor to receive protection and

assistance from the Protection System for Asylum Seekers and Refugees (SPRAR). In

the period before issuing such a document, and because the detention of a minor is

prohibited, it is the responsibility of the social services of the Municipality where the

minor resides to provide protection and assistance and immediately to report the

minor to the SPRAR.”

105. The report “The reception and care of unaccompanied minors in

eight countries of the European Union; comparative study and

harmonisation prospects”, published in December 2010 is the result of a

project, which was co-funded by the EU’s Fundamental Rights and

Citizenship programme, coordinated by France Terre d’Asile (France) and

carried out in partnership with two non-governmental organisations, namely

the Institute for Rights, Equality and Diversity (Greece) and the Consiglio

Italiano per i Rifugiati (Italy). It contains inter alia, the following passages

in respect of Italy:

“In Italy, an unaccompanied minor who enters and is found within Italian territory

cannot be expelled except for reasons related to public order or State security. In this

case, it is up to the youth court to carry out the expulsion measure. The expulsion ban

relative to unaccompanied minors therefore implies that they cannot be detained in the

centres for immigrants. They can also not be held in the Identification Centres for

Asylum Applicants (CARA), the Identification and Expulsion Centres (CIE, ex-CPT),

or the Reception Centres (CDA). As such, the law dictates that isolated foreign minors

must be placed in accommodations for minors or in centres of the SPRAR - in

quarters reserved for minors - in the event that they are applying for asylum. ...

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HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

In Italy, the appointment of a guardian is mandatory in order for an asylum

application to be examined. The border police office or the questura (central police

station) that receives the application immediately suspends the procedure and transfers

the application to the specific competent juvenile court in order for it to appoint a

guardian. Appointed by the guardianship judge, this guardian will thereafter ‘confirm’

the asylum application and once again activate the procedure with the competent

questura. The minor must then be accompanied by the guardian throughout the

procedure, and the latter must be perfectly attentive to the needs of the minor. In

particular, the guardian must be on hand for the hearing with the Territorial

Commission. He alone will then have sole competence to submit an appeal in case of

a negative decision, though he must obtain the authorisation of the guardianship judge

in order to initiate such a procedure. ...

In Italy, a precise legal framework has been adopted for processing asylum

applications by unaccompanied minors, with the adoption of a directive followed by a

circular in 2007 and by two decrees intended to transpose European legislation: the

‘qualification’ decree on minimum standards relative to the conditions that must be

met by third country nationals or stateless persons in order to claim refugee status, or

by persons who otherwise need international protection, and the ‘procedure’ decree

relative to minimum standards on the procedure for granting and withdrawing refugee

status in the Member States.

Firstly, upon arriving in Italy, the minor must obtain all necessary information

regarding his rights and the existing legal possibilities, in particular regarding the

asylum application. A minor who has expressed a desire to apply for asylum must be

immediately declared to the questura which, in turn, informs the juvenile court and the

guardianship judge in order for the legal representation and social protection measures

to be undertaken. The latter then declare him to the Protection System for Asylum

Applicants, which will undertake the steps needed for his admission to an appropriate

centre. According to art. 3 sub-paragraph 1 of the Directive, the social services of the

community in which the minor has been placed will help him to submit the asylum

application in collaboration with the United Nations High Commissioner for Refugees

and with other institutions active in the field of protecting asylum applicants.

The minor is identified by means of photo and fingerprints, that are then entered in

the Eurodac file in order to check if the Dublin II regulation may apply. A form is

then filled out at the competent questura after the minor’s opinion has been heard and

taken into account, if he is of an age to present one. The interview is carried out

before the Territorial committees for international protection, located in 10 Italian

cities. Within two days of the asylum application being submitted, the questore (police

chief) sends the application to the Territorial committee which then organises a

hearing within 30 days. The ‘procedure’ decree makes provisions for the minor to be

interviewed by the Territorial committee as a priority. The minor applying for asylum

is provided with a residence permit for an asylum application, which can be renewed

until the procedure is final.

To ensure the minor’s peace of mind and tranquillity as needed for this step of the

procedure, the hearing takes place in a sympathetic environment relative to the minor,

with breaks whenever necessary. In all cases, when making its decision, the Territorial

committee considers the minor’s age and maturity, family situation, specific forms of

persecution with which minors may be faced in the country of origin, the possibility

that the minor may be unaware of the situation in his country of origin and, above all,

the fact that the minor may express his fears differently than would be the case with

an adult. The law provides that the hearing will not take place should the Committee

consider that it has acquired sufficient elements for a positive decision. Finally, it is

HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

23

possible that a minor may be recognised as a refugee without a hearing, in the event

that the Committee has already made a favourable decision in his regard, on the basis

of proof provided by documents, testimony, etc.

The Territorial committee can then decide to grant refugee status or subsidiary

protection, or to refuse this request, but it can also recommend that the applicant

should remain in the territory in the event that his repatriation would result in a risk to

his safety. In this last case, the refusal measure initiates a legal provision that allows

the applicant to obtain a residence permit for humanitarian reasons, valid for one year

and renewable.

In the event of a ‘clear-cut’ refusal decision, the minor, if still a minor, can remain

within the territory given that his status prevents any expulsion. He can submit an

appeal but, for this purpose, he will require the approval of his guardian, who cannot

act in this regard without the authorisation of the guardianship judge. ...

In Italy, unaccompanied asylum-seeking minors are integrated into the protection

system for asylum seekers (SPRAR) and are therefore subject to a separate reception

from other unaccompanied minors. Taken into care within the ordinary framework for

the reception of asylum seekers, they are therefore accommodated in centres that also

accommodate adults, while nevertheless receiving specific care. However, the SPRAR

centres are not sufficient to handle the number of reception requests by asylum-

seeking minors who are consequently received in other centres for unaccompanied

minors, where the available services are not always adequate.”

106. The report “The living conditions of refugees in Italy” published on

28 February 2011 by the German NGO “Pro Asyl” and which is based on a

research trip to Rome and Turin on October 2010, states in respect of

unaccompanied minor asylum seekers:

“During our research we encountered a number of people who were obviously

minors, living without a responsible adult. In response to our question of why they did

not live in one of the reception facilities for unaccompanied minors available

throughout Italy, many of them responded that, according to their Italian documents,

they were adults.

Some of them had provided their correct age during their asylum application, but

were not believed. Others reported their ages had been determined by visual age

assessments, described as especially superficial during the winter of 2008, when there

were particularly high numbers of arrivals. Some had undergone age assessments

based on x-rays of the bones in their wrist, which had estimated an earlier date of birth

than was the reality.

A number of these young people also confirmed that they had deliberately provided

a higher age to the authorities. Their justification for this was either that they wanted a

quick asylum procedure as an adult and to be granted the right to work, or a fear of

being separated from their peer group on account of their youth. These justifications

were known and confirmed by our interlocutors within the NGOs.

Furthermore they confirmed that minors – so long as they are registered as such –

are usually accommodated and protected by law from deportation (in contrast to

German law). In practice this bar to removal of a minor means the asylum procedure

is conducted with insufficient thoroughness. As a result once the individual becomes

an adult he or she is suddenly faced with the question of how to secure his or her right

to remain.

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Many young people also place such a high value on being able to work (which in

reality is often only a theoretical possibility) that they forego accommodation in the

youth centres. This is understandable when taking into account those whose journey

was paid ‘on tick’ and who now have to pay back relatives, community members or

smugglers as soon as possible. None of the affected people were willing to talk about

the consequences if the money was not returned.

In contrast, many young people detailed their fears of being separated from the

group with whom they landed in southern Italy or Lampedusa. This was particularly

evident in those who, on their journey through the Sahara and Libya, were continually

left behind by the smugglers because they were too weak or without means to keep

up. Under no circumstances did they want to be separated from the group with whom

they had recently made the particularly dramatic part of their journey – the crossing of

the Mediterranean.

The rumour in Libya, that it is more difficult to be a refugee as a minor than as an

adult, had played a role for all the young people we interviewed who had ‘made

themselves older’. Many later realised that the opposite was the case and regretted

their decision to give a false date of birth, but did not see any way to change it with

the authorities.”

107. The report “Asylum procedure and reception conditions in Italy”

with a special focus on “Dublin returnees”, released in May 2011 by

Juss-Buss, a joint Norwegian-Swiss NGO and based on a visit to Italy in

September 2010, states that unaccompanied minors are not supposed to stay

in CARAs for a longer period and that they will be transferred to a special

centre for minors, usually within 24 hours: In SPRAR centres, only a total

of 134 places are dedicated to unaccompanied minors, so the majorities are

cared for by the local social service which provides accommodation in

different houses for minors, connected to different local projects, which

usually are not specialised in refugees. The report further states:

“Statistics show that many newly arrived minors landing in the South, especially

Afghans, did run away after being registered and assigned to a facility for minors. In

Sicily, the organization Save the Children found that around 70 % of unaccompanied

minors had left.

In fact, many unaccompanied minors arriving in Italy tend to declare themselves to

be of age, because they hope to find work to support their family. They consider

regular schooling to be a waste of time. Many of them try their luck in securing

irregular work in the big cities in order to earn some money. Some of these may, after

a while, approach the social services and ask for protection. But in many cases, it is

difficult for social workers to convince them to decide in favour of a regular status.

Save the Children estimates there are several thousands of irregular minors on the

streets in the big cities, and more than 1000 in Rome alone. Very often, they become

victims of all sorts of exploitation, mostly controlled by adults. Another motivation

for declaring themselves adults is the fact that some minors are afraid of being

separated from their ethnic group. Another reason is the wish to travel further and ask

for asylum in other European countries.”

108. In the report “Unaccompanied Minor Asylum-seekers: Overview of

Protection, Assistance and Promising Practices” drawn up in

HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

25

December 2011 for the International Organisation for Migration (“IOM”)

by B. Hancilova and B. Knauder, it is stated:

“Accounts from Italy suggest that children often disappear because they are not well

informed about the asylum procedure and their rights deriving from the status

received. Due to the scarce information from authorities, they gather patchy and often

false information mostly through the grapevine. Misinformation and its related

insecurity often lead to not always legitimate fears, and young people conclude that it

would be better to run away and hide from authorities. In the meantime, they try to

raise funds for their onward journey to northern countries, where they believe that

better assistance and living conditions and a more promising future await them.”

109. In the “UNHCR Recommendations on important aspects of refugee

protection in Italy” of July 2012 by the United Nations High Commissioner

for Refugees (UNHCR), the following is stated in respect of the protection

of unaccompanied or separated children (“UASC”):

“According to the Ministry of Interior, 827 unaccompanied minors applied for

asylum in Italy in 2011, while the Committee for Foreign Minors, the official inter-

agency body responsible for the well-being of unaccompanied foreign minors in Italy,

had registered in its database a total of 7,750 unaccompanied foreign minors at end-

2011, with the second largest number being Afghans. These figures show that,

although a significant number of UASC arrived from traditional refugee-producing

countries, many did not apply for international protection in Italy. Cases of

unaccompanied foreign minors absconding from designated reception facilities occur

regularly and have been widely reported. Many of the UASC refrain from registering

with the authorities, on the assumption that they would otherwise be unable to move

to other European countries. Research carried out by UNHCR in the last months of

2010 revealed that many UASC who lack reliable information on the possibility of

being granted protection in Italy decide to move on to other countries and that their

decision to leave Italy is, to a great extent, prompted by pressure from traffickers and

family members as well as by concerns about integration prospects in Italy once they

become adults.

Italian law is particularly attentive to the rights of unaccompanied foreign minors.

They may not be expelled and must be issued with a residence permit. Should age

determination procedures concerning an individual declaring him or herself a minor

be unable to yield a definitive result, the benefit of the doubt must be applied in

favour of the individual claiming to be a minor. Though Italian legislation provides a

number of additional safeguards for unaccompanied foreign minors, including the

rapid appointment of a guardian and fast-track determination of international

protection needs for those who apply for it, there is considerable scope for improving

the application of these provisions. In some cases, for instance, the appointment of a

guardian (generally the local mayor or a municipal officer) may be a mere formality,

with duties being delegated to social workers who struggle to provide individualised

assistance due to the high numbers of unaccompanied foreign minors assigned to

them. Lengthy waiting times for the appointment of guardians also often delay access

to international protection procedures and/or the timely identification of the

appropriate support required by each of these minors and the drafting of a tailored

integration plan.

A correct and reliable age determination is key given that the vast majority of

registered unaccompanied foreign minors are between 16 and 17 years of age. Italy

still lacks an adequate multidisciplinary age determination procedure, a necessary

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precondition to ensure that minors are treated as such and are granted forms of

protection tailored to their specific vulnerabilities and needs.

Finally, standards at reception facilities for unaccompanied foreign minors appear to

vary significantly across the country, with some reports that facilities exist where

assistance might not always be up to standard.”

As regards access to asylum proceedings, the report reads:

“According to UNHCR’s observations, third-country nationals who are already in

the country generally do not experience major difficulties in applying for international

protection. However, according to several reports, there have been instances in a

number of Provincial Police Directorates (Questure) in which formal registration of

asylum applications was difficult without proof of residence; or in other instances

some Police Directorates only fixing appointments for the registration of asylum

applications several months after the asylum seeker expressed the intention to apply,

thereby depriving these persons, for prolonged periods of time, of access to the rights

available to formally registered asylum seekers.”

110. The “Dublin II Regulation National Report” on Italy, drawn up on

19 December 2012 by the European Network for technical cooperation of

the application of the Dublin II Regulation, a European-wide network of

non-governmental organisations assisting and counselling asylum seekers

subject to a Dublin procedure, states in respect of unaccompanied minor

asylum seekers in Italy inter alia:

“3.3.3 Unaccompanied minors

... In Italy, however, there is a special issue of minors treated as minors or as adults

depending on the statements made by asylum seekers (if they said they were adults to

avoid to remain in centres for minors with the intention to go in another country) and

on rules of age assessment applied in Italy and those countries that transferred the

minors to Italy under the [Dublin II] Regulation without the consensus of the

interested persons (considered minors by the sending countries). If a child declares to

be adult in Italy and minor in the country he reaches, s/he will be treated as an adult in

Italy, if s/he is sent back there on the basis of the Regulation, according to his/her

previous declarations, with the risk to live in the street or with their communities in

occupied buildings. CIR (Italian Council for Refugees; ‘Consiglio Italiano per i

Rifugiati’) has several times asked the competent authorities to treat them as minors

and, in case of doubt, to submit them to age assessment, but no procedural change has

been registered so far. On the contrary, if asylum seekers declare to be minors in Italy,

as well as in another country, when they are transferred to Italy under the Regulation

they are treated as unaccompanied asylum seekers and are therefore channelled in ad

hoc centres for minors. Any time when in doubt on the age of the person, the

authorities submit him/her to the age assessment.

3.3.3.i The asylum procedure for unaccompanied minors

... When the asylum request is made by an unaccompanied minor, the competent

Police authorities suspend the procedure and immediately inform both the Juvenile

Court (Tribunale per i Minorenni) territorially competent and the Judge for

guardianship (Giudice tutelare). The Judge for guardianship is competent to appoint

the legal guardian who will be responsible for the minor for all the assistance s/he

needs till the age of 18. The judge for guardianship appoints a guardian in the

following 48 hours from the communication made by the Police Immigration Office.

HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

27

The legal guardian takes immediately contact with Police Authorities to confirm and

reactivate the asylum procedure and the adoption of those measures related to the

accommodation and the care of the minor. The legal guardian has the responsibility to

assist the minor during the whole asylum procedure, and even afterwards, in case s/he

obtains a negative decision. For this reason the legal guardian accompanies the minor

to the Police, where s/he could be fingerprinted if s/he is over 14, and assists the

minor to fill the form and formalize the claim. The legal guardian accompanies the

unaccompanied minor at the Territorial Commission (hereafter: Commission) where

the hearing takes place. The Commission proceeds with the hearing only in the

presence of the legal guardian. The minor is informed about the significance and the

consequences of the hearing.

The minor seeking asylum shall benefit from the reception services of SPRAR. In

case it is not possible to accommodate the minor within SPRAR centres targeted for

unaccompanied minors due to unavailability of places, accommodation and assistance

are temporarily assured by the Municipalities’ authorities where the minor is present.

It is important to underline that, according to Article 26 § 6 of the Procedure Decree,

‘in no case the unaccompanied minors can be accommodated and/or retained within

the facilities described in Articles 20 and 21’ [i.e. in the CARAs – Accommodation

Centres for Asylum seekers - and in the CIEs - Centres of Identification and

Expulsion].

3.3.3.ii The correct identification of minors and the Age assessment of minors

The correct identification of the minors is a pre-requisite to allow them to have

access to specific guarantees and measures foreseen by law.

Art. 19 of the Legislative Decree 25/2008 foresees: ‘in case of doubts about the age,

the unaccompanied minor can – at any stage of the procedure – be subjected, if s/he

and his/her guardian agree, to age assessment through non-invasive examinations. If

the age assessment carried out does not give a sure result, the guarantees foreseen for

minors have to be applied’.

It has been underlined that the refusal by the applicant to undertake the age

assessment has no negative consequences on the reception of the asylum request.

In Italy there are no specific provisions on the age assessment procedure, however,

from the law on minors it is possible to deduct some principles. These principles are

contained in a Protocol on the Age Assessment of the Foreign Unaccompanied

Minors. This document has been elaborated by the Italian Authorities with the

counselling of many experts but it has never been formally adopted and, therefore,

applied. Among the guarantees mentioned in that Protocol there are: the informed

consent of the minor, the obligation to issue to the minor a medical certificate

translated into a language for him/her understandable, the obligation to notify the

decision related to the age determination, the obligation to specify the modalities for

the appeal against the age determination, the obligation to indicate the margin of error

in the age determination assessment.

In practice, in most cases, the international protection seekers who declare to be

minor are subjected to the age assessment procedure without the legal guardian, who

is – almost in all cases – nominated afterwards. Very often, furthermore, the medical

report does not indicate the margin of error, although the medical literature indicates

that it is not possible to determine with certainty the age of the person (margin of error

is of at least 2 years). The age assessment is often carried out by unspecialised doctors

who often ignore or scarcely know the cultural background of the migrant and the

consequences of the results of the examination. Minors are verbally notified the

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medical results and it is not possible to appeal directly against the age determination.

Generally, the age ascertained is either indicated directly in the expulsion order or – in

case of an asylum claim – it may be deduced from the fact itself that the specific

guarantees for minors have not been applied, but those for adults.

UNHCR, CIR, Save the Children have requested that the margin of error shall

always be indicated in the medical certificate and, in doubtful cases, the benefit of

doubt principle should be applied.

NGOs urged that age assessment should not be carried out systematically and

exclusively through x-ray method. A copy of the medical certificate should be handed

over to all minors and their consent to be exposed to x-ray methods should be asked in

each case.”

111. On 5 July 2013, AIDA (Asylum Information Database) launched a

website containing reports and other information on the position of asylum

seekers in various European countries. AIDA is a project of the European

Council on Refugees and Exiles (ECRE), in partnership with the French

Forum Refugiés-Cosi, the Hungarian Helsinki Committee and the Irish

Refugee Council. In respect of reception and accommodation of persons

returned to Italy under the Dublin Regulation, it states:

“The Italian legal framework does not foresee any particular reception system for

Dublin cases. Two scenarios should be distinguished: the first scenario concerns

persons whose application has to be examined by another Member State waiting for

their transfer. ...

The second scenario refers to Dublin Returnees - persons who were issued transfer

orders from other Member States and, as a consequence, were sent back to Italy.

Within this broader category, another distinction is deemed necessary depending on

whether the returnee had already enjoyed the reception system while they were in

Italy or not. If returnees (asylum seekers, beneficiaries of international protection or of

a permit of stay for humanitarian reasons) had not been placed in reception facilities

while they were in Italy, they may still enter reception centres. Due to the lack of

available places in reception structures and to the fragmentation of the reception

system, the length of time necessary to find again availability in the centres is – in

most of the cases - too long. Since there is no general practice, it is not possible to

evaluate the time necessary to access an accommodation. In the last years, temporary

reception systems have been established to house persons transferred to Italy on the

basis of the Dublin II Regulation. However, it concerns a form of temporary reception

that lasts until their juridical situation is defined or, in case they belong to vulnerable

categories, an alternative facility is found.

Such temporary reception has been set up thanks to targeted projects funded by the

European Refugee Fund. For instance, in Rome, there are currently projects providing

assistance to 200 persons – within this broader category 60 places are for vulnerable

categories.

However, it happens that Dublin returnees are not accommodated and find

alternative forms of accommodation such as self-organized settlements. If returnees,

who have already been granted a form of protection, had already enjoyed the

reception system when they were in Italy, they have no more right to be

accommodated in CARAs. However, they may be accommodated in these centres in

case places are available to allow them to restart the administrative procedure to

obtain a permit of stay.”

HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

29

4. Italian criminal law

112. Section 495 of the Italian Criminal Code (Codice Penale) makes it

an offence – attracting a prison sentence of between one and six years – to

declare a false identity to public officials.

113. In a letter dated 19 August 2010 and addressed to a lawyer working

for the same law firm as the representatives of the applicants in application

nos. 18324/10 and 47851/10, Ms Lara Olivetti, an immigration and asylum

law practitioner in Italy and advisor to the National Information Service for

Migrant Children’s Rights of Save the Children Italy, wrote that for the

offence defined in section 495 of the Italian Criminal Code, the Italian Code

of Criminal Procedure (Codice di Procedura Penale) provides for an

optional warrantless arrest (section 381). According to Ms Olivetti, a

previous sentence for criminal offences entailing an optional warrantless

arrest within the meaning of section 381, including the act of declaring false

identity data to a public official, hinders the issue of a permit for long-term

residence and it is a ground for revoking one (Article 9, Section 4 of the

Italian Immigration Act (Decreto legislativo no. 286/1998)) and although in

principle a residence permit should be granted, practice shows that it is

difficult to obtain one from the immigration police authorities of many

provinces and battles in court are needed to achieve it.

5. Transfers from the Netherlands to Italy under the Dublin Regulation

114. The domestic law and practice as regards asylum proceedings and

enforcement of removals are set out in K. v. the Netherlands ((dec.),

no. 33403/11, §§ 16-19 and §§ 25-32, 25 September 2012).

115. As regards transfers to Italy under the Dublin Regulation, the

Netherlands authorities decide in consultation with the Italian authorities

how and when the transfer of an asylum seeker to the competent Italian

authorities will take place. In principle three working days’ notice is given,

in accordance with article 8 § 2 of Commission Regulation (EC)

No 1560/2003. Requests by the Italian authorities for a longer period of

notice are respected.

116. If the transfer involves a vulnerable person such as an

unaccompanied foreign minor, the Netherlands authorities will explicitly

bring this to the attention of the Italian authorities and give the latter

fourteen days’ notice. The same period of notice is in principle given where

a transfer involves exceptional medical circumstances. If a doctor sets

conditions for a transfer, such as the presence of a wheelchair, a doctor or an

ambulance for the asylum seeker’s transport to a hospital or other

institution, arrangements are made with the Italian authorities prior to the

transfer in order to fulfil this condition. Only after confirmation has been

received that the condition will be met, will the transfer be actually carried

out.

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117. Unlike unaccompanied minor asylum seekers, adults or families are

in principle not escorted. They are deemed capable, upon their arrival at the

airport, to report to the Italian authorities – who, having received notice, are

aware of their impending arrival – at their own initiative. An escort may be

provided if necessary. The Netherlands Royal Constabulary (Koninklijke

Marechaussee), who carry out the actual transfer, are responsible for

deciding whether an escort is needed. Whenever a transfer takes place, the

person in question is informed that he or she should report to the border

police (polizia di frontiera) at the airport.

COMPLAINTS

1. Application no. 2314/10

118. The applicant complained under Article 3 of his removal to Italy

where he claimed that he would be denied care and reception facilities. Also

relying on Article 3, he further complained that his removal to Italy without

an examination in the Netherlands of what treatment he risks in Somalia

would expose him to a risk of refoulement from Italy to Somalia without a

proper examination of his asylum and Article 3 claims having taken place in

Italy. He further alleged a violation of Article 13 of the Convention and

Article 3 of the United Nations Convention on the Rights of the Child.

2. Application no. 18324/10

(a) Against the Netherlands

119. The applicant complained that the Netherlands authorities, by

removing him – a young, traumatised Somali from Mogadishu – to Italy

violated his rights under Article 3 as the legal system in Italy was unable to

give effective legal protection, both on a national and international level, to

asylum seekers. As he would not have access to the asylum procedure in

Italy he was therefore also at risk of refoulement to Somalia.

120. The applicant further complained that, as regards his complaints

under Article 3, the asylum proceedings in the Netherlands could not be

regarded as an effective remedy within the meaning of Article 13.

(b) Against Italy

121. The applicant complained that he had been subjected to treatment

proscribed by Article 3 during his first stay in Italy as he had been placed in

a foster home where he had suffered physical abuse whilst his vulnerability

was reinforced by the fact that he has a minor at the material time and

suffering from serious mental problems caused by the traumatic events that

had forced him to flee Somalia. He further complained that he was currently

HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

31

also being subjected to treatment in breach of Article 3 of the Convention in

Italy, where he found himself in a situation of extreme destitution, with no

access to basic medical or psychiatric care whereas he continued to suffer

from serious mental problems.

122. The applicant further complained that, in respect of his complaints

under Article 3, the asylum procedure in Italy could not be regarded as an

effective remedy within the meaning of Article 13 of the Convention.

123. Referring to the Court’s findings in Tabesh v. Greece, (no. 8256/07,

26 November 2009), the applicant lastly complained that his detention after

his first arrival in Italy was contrary to his rights under Article 5 §§ 1 and 4

of the Convention.

3. Application no. 47851/10

124. The applicant complained under Article 3 of the Convention that, if

removed from the Netherlands to Italy, he would be placed at a real risk of

onward refoulement to Somalia or Libya where he risked being subjected to

treatment in breach of Article 3, either because he would not have access to

the asylum procedure at all, because he would be criminally prosecuted for

submitting false identity data, and/or because the asylum procedure in Italy

was seriously deficient.

125. The applicant further complained under Article 13 that, due to the

inadequate asylum system in Italy, he had no effective remedy as

guaranteed by this provision in respect of his complaints under Article 3

forming the basis of his asylum claim, and that the manner in which the

Netherlands Government sought to apply the Dublin Regulation in his case

was contrary to his rights under Article 13.

4. Application no. 51377/10

126. The applicant complained that his removal to Italy, where he would

allegedly be denied adequate medical and other care and reception facilities,

would violate his rights under Article 3 of the Convention. Also relying on

Article 3, he further complained that during his initial stay in Italy the

authorities had provided him, a minor at the time, with little or no medical

care, that only the church had provided him with accommodation and food,

and that he had not been assigned a guardian or offered any schooling. He

lastly complained that, as Italy did not comply with applicable EU

Directives, his removal to Italy would expose him to a risk of refoulement

from Italy to Somalia without a proper examination of his asylum and

Article 3 claims having taken place in Italy. He further alleged a violation of

Article 13 of the Convention.

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THE LAW

127. All applicants complained that their removal from the Netherlands

to Italy under the terms of the Dublin Regulation was or would be contrary

to their rights under Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or

punishment.”

128. The Court understands from his submissions that the applicant’s

representative in case no. 18324/10, who did not assist the applicant in the

domestic proceedings, is apparently unable to establish any direct contact

with the applicant (see § 56). This raises the question whether in these

circumstances this representative can meaningfully pursue the proceedings

before the Court (see, for instance, A.S. v. the Netherlands (dec.),

no. 16247/11, 4 June 2013; Betwata Khoushnauw v. the Netherlands (dec.),

nos. 28244/10 and 32224/11, 13 December 2011; and Ramzy v. the

Netherlands (striking out), no. 25424/05, §§ 64-65, 20 July 2010, with

further references).

129. However, the Court does not find it necessary to determine this

question as this application is in any event inadmissible for the reasons set

out below.

130. The Court notes that, after their first arrival in Italy and on the basis

of information they then gave to the Italian authorities, the applicants in

cases nos. 2314/10, 47851/10 and 51377/10 were admitted to Italy as adult

asylum seekers and were subsequently granted a residence permit for

subsidiary protection with a validity of three years.

131. The Court further notes that each of these three applicants

subsequently travelled to the Netherlands where they applied for asylum as

an unaccompanied minor asylum seeker, giving another date of birth and

either another or a slightly different name than they had previously given to

the Italian authorities. After these applicants had been identified in the

Eurodac database as persons for whose asylum requests Italy was

responsible under the terms of the Dublin Regulation, the Netherlands

administrative and judicial authorities – having found no reasons warranting

the use of the sovereignty clause provided for in the Dublin Regulation –

concluded that Italy was responsible for them. Accordingly, the Netherlands

authorities requested their Italian counterparts to accept that responsibility,

which the latter did implicitly. The Court lastly notes that, in so far as can

be established, only the applicant in case no. 2314/10 has been removed to

Italy and that, when this happened on 19 March 2012, he was – on the basis

of his date of birth as given by him to the Netherlands authorities – nearly

twenty years old.

132. The applicant in case no. 18324/10, who stated to be a 17 year-old

minor to the Italian authorities at the time of his initial arrival there, was

HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

33

admitted to Italy in October 2008 as an unaccompanied minor asylum

seeker and treated as such in accordance with the applicable rules under

Italian domestic law, entailing inter alia his placement in a special

accommodation and care centre for minors and the setting into motion of the

procedure to appoint a legal guardian. Before any decision had been taken

in this latter procedure or on his asylum request, the applicant – finding that

the rules he was subjected to in the centre for minors where he was staying

were too strict – absconded and with the aid of a family friend living in Italy

travelled to the Netherlands where he applied for asylum in April 2009

under a different first name and stating that he was about 16 years old.

133. After he had been identified in the Eurodac database as a person for

whose asylum request Italy was responsible under the terms of the Dublin

Regulation, the Netherlands administrative and judicial authorities – having

found no reasons warranting the use of the sovereignty clause provided for

in the Dublin Regulation – concluded that Italy was responsible for the

applicant. Accordingly, the Netherlands authorities requested their Italian

counterparts to accept that responsibility, which the latter did on 30 June

2009. The Court lastly notes that when the applicant was removed to Italy

on 23 February 2012, he was – on the basis of his date of birth as given by

him to the Netherlands authorities – an adult.

134. The Court reiterates the relevant general principles under Article 3

of the Convention as set out most recently in its decision on admissibility in

the cases of Mohammed Hussein v. the Netherlands and Italy (cited above,

§§ 65-71) and Daybetgova and Magomedova v. Austria (cited above, §§ 58-

64). It further recalls that, as regards the material date, the existence of the

alleged exposure to a risk of treatment contrary to Article 3 must be

assessed primarily with reference to those facts which were known or ought

to have been known to the Contracting State at the time of expulsion.

However, if an applicant has not yet been removed when the Court

examines the case, the relevant time for assessing the existence of the risk of

treatment contrary to Article 3 will be that of the proceedings before the

Court (see Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008, and A.L.

v. Austria, no. 7788/11, § 58, 10 May 2012). A full assessment is called for,

as the situation in a country of destination may change over the course of

time (see Salah Sheekh v. the Netherlands, no. 1948/04, § 136, 11 January

2007).

135. As regards the applicants in cases nos. 2314/10, 47851/10 and

51377/10, the Court cannot but take into account that the applicants

themselves wilfully told the Italian authorities that they were adults and

apparently sought to mislead the authorities in order to benefit from the

regime applying to adult asylum seekers which is apparently regarded as

giving more freedom. The Court consideres that the authorities processing

asylum claims must be entitled to rely on the personal information given by

the claimants themselves save where there is a flagrant disparity of some

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HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

kind or the authorities have otherwise been put on notice of a special need

for protection. However there is nothing in the present cases to suggest that

the Italian authorities did not themselves act in good faith in that regard.

136. The Court further finds that all applicants can at present be

regarded as asylum seekers as, even if three of them have already been

admitted in Italy in the past as aliens requiring subsidiary protection

(nos. 2314/10, 47851/10 and 51377/10), none of them holds a valid Italian

residence permit at present. Consequently, if returned to Italy they will have

to file a (fresh) asylum request there.

137. The Court will first consider the question whether the situation in

which the applicants who are currently staying in the Netherlands

(nos. 2314/10, 47851/10 and 51377/10) are likely to find themselves, if

removed to Italy, can be regarded as incompatible with Article 3, taking into

account their situation as asylum seekers and, as such, members of a

particularly underprivileged and vulnerable population group in need of

special protection (see M.S.S. v. Belgium and Greece [GC], no. 30696/09,

§251, ECHR 2011 cited above, § 251).

138. Reiterating its findings in the case of Mohammed Hussein v. the

Netherlands and Italy (cited above, § 78) and having found no reasons in

the submissions made in applications nos. 2314/10, 47851/10 and 51377/10

warranting another conclusion, the Court finds that, although the general

situation and living conditions in Italy of both minor and adult asylum

seekers is certainly far from ideal and may disclose some shortcomings,

there is no systemic failure where it concerns providing support or facilities

catering for asylum seekers, as was the case in M.S.S. v. Belgium and

Greece (cited above).

139. The Court further finds, also in view of the manner in which these

three applicants were treated by the Italian authorities after their initial

arrival in Italy, that none of the three applicants still in the Netherlands have

established that their future prospects, if returned to Italy, whether taken

from a material, physical or psychological perspective, disclose a

sufficiently real and imminent risk of hardship severe enough to fall within

the scope of Article 3. The Court has found no basis on which it can be

assumed that the applicants will not be able to benefit from the available

resources in Italy for asylum seekers or that, in case of difficulties, the

Italian authorities would not respond in an appropriate manner.

140. As regards the applicant in case no. 18324/10 who currently finds

himself in Italy, the Court notes that, after his initial arrival in Italy, the

Italian authorities treated the applicant in accordance with the special rules

applicable to unaccompanied minor asylum seekers. The applicant

voluntarily abandoned this protective scheme for which decision Italy

cannot be held accountable. The applicant’s claim that he had suffered

abuse and that he was denied adequate mental health care in the

accommodation and reception centre for minors where he was staying after

HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

35

his initial arrival in Italy has remained fully unsubstantiated and there is

nothing in the case file indicating that he has sought to bring these matters

to the attention of the Italian authorities at the material time.

141. The Court has further found no indication in the case file that, after

his transfer to Italy on 23 February 2012, the applicant has actually sought

to file a fresh formal asylum request in Italy – which is obviously a

condition sine qua non for eligibility for benefits under the support schemes

for asylum seekers there – either on his own upon his arrival in Italy or at a

later stage with the assistance of his representative before the Court,

volunteers of the Latina private charity where he found shelter and/or the

NGO who located him in Italy. The Court therefore does not find it

established that the applicant would be unable to benefit from the available

resources in Italy for asylum seekers or that, in case of difficulties, the

Italian authorities would not respond in an appropriate manner.

142. It follows that this part of the applicants’ complaints under

Article 3 brought against the Netherlands and Italy is manifestly ill-founded

within the meaning of Article 35 § 3 (a) of the Convention and therefore

inadmissible pursuant to Article 35 § 4.

143. The applicants further complained that, in respect of their

complaints under Article 3, they did not have an effective remedy within the

meaning of Article 13 in the Netherlands and/or Italy. This provision reads

as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated

shall have an effective remedy before a national authority notwithstanding that the

violation has been committed by persons acting in an official capacity.”

144. The Court emphasises that, in so far as the facts of which complaint

is made fall within the scope of one or more Convention provision, the word

“remedy” within the meaning of Article 13 does not mean a remedy bound

to succeed, but simply an accessible remedy before an authority competent

to examine the merits of a Convention grievance (see Ivakhnenko v. Russia

(dec.), no. 12622/04, 21 October 2008; and Adamczuk v. Poland (revision),

no. 30523/07, § 78, 15 June 2010).

145. The Court notes that none of the applicants has sought to challenge

the actions and/or decisions taken by the Italian authorities in the context of

their asylum request filed in Italy after their initial arrival there. There is

further no concrete element in the applicants’ submissions demonstrating

that this would be impossible, either at the material time or in case they

would file a fresh request for international protection in Italy.

146. As regards the determination of their respective asylum requests

filed in the Netherlands, the Court notes that the applicants could and

availed themselves of the possibility of challenging the decision taken by

the (Deputy) Minister before the Regional Court of The Hague and the

Administrative Jurisdiction Division and that these judicial bodies examined

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HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

and determined the applicants’ arguments based on Article 3 of the

Convention in respect of their transfer to Italy.

147. It follows that these complaints are also manifestly ill-founded and

must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the

Convention.

148. The applicant in case no. 18324/10 also complained that his

deprivation of liberty in Italy after his first arrival there was contrary to his

rights under Article 5 §§ 1 and 4 of the Convention. This Article guarantees

the right to liberty and seeks to protect the physical liberty of persons.

149. The Court notes that, after his initial arrival in Italy in October

2008, the applicant – on the basis of his statement that he was a minor – was

admitted to Italy as an unaccompanied minor asylum seeker and, for this

reason, placed in a reception and care centre for disadvantaged and alien

minors. The Court further notes that the applicant absconded from this

centre in March 2009, finding that the rules there were too strict.

150. However, in the absence of any indication that the applicant has

sought to challenge his placement in this centre before the Italian authorities

or that this would be impossible for him, whereas his application was

introduced on 1 April 2010, which is more than six months after his

placement in the centre concerned, the Court finds that, in respect of this

complaint, the requirements of Article 35 § 1 have not been met.

151. Consequently, this complaint must rejected in accordance with

Article 35 §§ 1 and 4 of the Convention.

152. Insofar as the applicant in case no. 2314/10 alleged a violation of

his rights under Article 3 of the United Nations Convention on the Rights of

the Child, the Court recalls that under the terms of Articles 19 and 32 § 1 of

the Convention its jurisdiction exclusively extends to all matters concerning

the interpretation and application of the European Convention on Human

Rights and the Protocols thereto.

153. It follows that this complaint is incompatible ratione materiae with

the provisions of the Convention within the meaning of Article 35 § 3 (a)

and must be rejected in accordance with Article 35 § 4 (see, for instance, El-

Habach v. Germany (dec.), no. 66837/11, 22 January 2013).

HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

37

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Santiago Quesada

Josep Casadevall

Registrar

President

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HUSSEIN DIIRSHI AND OTHERS v. THE NETHERLANDS AND ITALY DECISION

APPENDIX

No Application

No

Lodged on Applicant

Date of birth

Place of residence

Represented by

1.

2314/10

13/01/2010 Nuur HUSSEIN

DIIRSHI

01/07/1992

Baexem

J. NIEMER

2.

18324/10

01/04/2010 Abdale ALI

OMAR

05/12/1993

Zuidlaren

P. SCHÜLLER

3.

47851/10

20/08/2010 Yusuf MADI

SHEEKH

06/09/1993

Oude Pekela

W. EIKELBOOM

4.

51377/10

07/09/2010 Aange ISSE ALI

07/03/1994

Oude Pekela

M. HAANSTRA