Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment
Key facts of the case:
During the summer of 2017, the Danish Immigration Service requested that the Italian immigration authorities take back A, who was of age, and her mother, B, including B’s four children, C, D, E and F in accordance with Article 18, paragraph 1, litra b of the Dublin Regulation. Later on, during the summer of 2017, the Danish Immigration Service submitted a so-called accept by default to the Italian authorities, as the Italian authorities had not replied to the request to take back the applicant and her family. According to Article 25, paragraph 2, if a Member State fails to act within the one-month period or the two-week period mentioned in Article 25, paragraph 1, this is tantamount to accepting the request, and entails the obligation to take back the person concerned, including the obligation to provide for proper arrangements for arrival.
The Danish Immigration Service requested the Italian authorities to take back the applicants in accordance with Article 18, paragraph 1, litra b of the Dublin Regulation. The Italian authorities failed to reply to this request. Hence, the Danish Immigration Service submitted an accept by default to the Italian authorities in accordance with Article 25, paragraph 2 of the Dublin Regulation
Outcome of the case:
The Danish Refugee Appeals Board found that the applicants could be returned to Italy. Based on a circular letter of 8 June 2015 from Italy, and Italy’s subsequent assurances on the adaptation of its reception capacity at a meeting of the Dublin Contact Committee on 24 June 2015, the Appeals Board found that Italy must be considered to satisfy the requirements to take charge of the applicants. In its reasoning, the Appeals Board referred to the case of F.M. and Others v. Denmark. In this case, the ECtHR refused to assess complaints from families with minor children claiming that they would be subjected to treatment contrary to Article 3 of the ECHR if they were returned to Italy. The Appeals Board further reasoned that the applicants had not demonstrated that their future prospects, if they were to be returned to Italy, would constitute a violation of Article 3 of the ECHR, as it was noted by the Appeals Board that during meetings with the Danish Immigration Service the applicants had stated that they were otherwise healthy, apart from one of the applicant’s herniated disc and B’s son’s urinary and bowel incontincence. The Danish Refugee Council has pleaded that the applicants were at risk of living on the streets, to which the Appeals Board found that this could not lead to another decision as reports showed that very few Dublin returnees in Italy became homeless and there was no concrete evidence that the applicants were at risk of becoming homeless if returned to Italy. Adding to this, the Appeals Board rejected the claim of the Danish Refugee Council that the applicants would not receive proper health care if returned to Italy, as reports showed that asylum seekers in Italy have adequate access to medical care and they enjoy the same rights and treatment as Italian citizens. Finally, the Appeals Board found that consideration of B’s children could not solely result in rejection of return to Italy.
The Refugee Appeals Board on the legal basis for the assessment (EN): ‘The question for the Danish Refugee Appeals Board is whether, in any event, there exist such circumstances that the complainant, her daughter of age, and four minor children cannot be returned to Italy and whetherthe application should be assessed in Denmark, cf. Article 3, paragraph 2 and Article 17 of the Dublin Regulation. Thus, it is a question whether the complainant, her daughter of age, and four minor children are likely to be subjected to such stressful conditions by return to Italy and that this would be in violation of Article 3 of the European Convention on Human Rights and Article 4 of the EU Charter’.
The Refugee Appeals Board on the legal basis for the assessment (DA): ‘Spørgsmålet for Flygtningenævnet er, om der foreligger sådanne omstændigheder, at klageren, hendes myndige datter samt fire mindreårige børn alligevel ikke kan sendes tilbage til Italien, og at ansøgningen skal tages under behandling i Danmark, jf. Dublinforordningens artikel 3, stk. 2, og artikel 17. Det er herved et spørgsmål, om klageren, hendes myndige datter og fire mindreårige børn må antages at blive udsat for så belastende forhold ved en tilbagesendelse til Italien, at dette vil være i strid med Den Europæiske Menneskerettighedskonventions artikel 3 og EU-chartrets artikel 4’.
