EHRM, 26-11-2015, nr. 21459/14

The facts of the case, as submitted by the parties, may be summarised as follows.

On 25 November 2013, the applicants applied for asylum in the Netherlands. The examination and comparison of the applicants' fingerprints and the verification of their identity in the European Union Visa Information System by the Netherlands authorities disclosed that on 24 July 2013 the Italian mission in Teheran had issued them with a visa for Italy. On 29 November 2013, the Deputy Minister for Security and Justice (Staatssecretaris van Veiligheid en Justitie) rejected the applicants' asylum requests, finding that, pursuant to Council Regulation (EC) no. 343/2003 of 18 February 2003 (‘the Dublin Regulation’), Italy was responsible for the determination of the applicants' asylum request. The Minister rejected the applicants' argument that they risked treatment in breach of Article 3 of the Convention in Italy. The Minister also rejected as unsubstantiated the first applicant's claim that she was dependent on the care of her sister who was living in the Netherlands since 1994.

The applicants' appeal against the decision of 29 November 2013 and the accompanying request for a provisional measure were rejected on 23 January 2014 by the provisional measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Zwolle, who upheld the Deputy Minister's decision and reasoning. The provisional measures judge also rejected the first applicant's argument that her medical situation did not allow her transfer to Italy, finding that the copy of her medical file submitted offered no concrete indication that in her case adequate treatment could not take place in Italy.

The applicants' further appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State was rejected on 28 February 2014. The Division found that the appeal did not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision.

The application was introduced to the Court on 17 March 2014 and, on the same day, the applicants requested the issue of an interim measure within the meaning of Rule 39 of the Rules of Court.

On 2 April 2014, the President of the Section decided to adjourn the determination of the Rule 39 request pending the submission of factual information by the Government under Rule 54 § 2 (a) of the Rules of Court concerning certain practical aspects of the applicants' transfer to Italy.

The Government submitted their answers on 15 April 2014. A copy was transmitted for information to the applicants.

On 16 April 2014, the applicants were notified by the Departure and Repatriation Service (Dienst Terugkeer en Vertrek) of the Ministry of Security and Justice that their transfer to Italy had been scheduled for 22 April 2014.

On 17 April 2014, 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 applicants to Italy until further notice. The President also decided under Rule 54 § 2 (a) to put additional factual questions to the Government about practical aspects of the applicants' removal to Italy.

The Government submitted their answers on 9 May 2014 and the applicant's written comments in reply were submitted on 10 June 2014.

On 3 December 2014, additional factual questions were put to the Government concerning the practical effects given to the Court's judgment of 4 November 2014 in the case of Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)).

In their reply of 7 January 2015, the Government indicated that, following the Tarakhel judgment and where a case concerned a transfer of a family with minor children to Italy, the Netherlands authorities would only transfer such a family after guarantees had been obtained from the Italian authorities that the family would remain together and that information was available about the specific facility where the family was to be accommodated, in order to guarantee that the conditions there were suited to the age of the children. For this reason, the actual transfer to Italy was announced ten to fifteen days beforehand in order to give the Italian authorities the opportunity to provide information on the specific facility where the family was to be accommodated, to guarantee that the conditions in this facility were suitable and to guarantee that the family would not be split up. If these guarantees were not received within the time-limit for transfers as laid down in the Dublin Regulation, the persons involved would be channelled into the Netherlands asylum procedure. However, as long as a Rule 39 indication was in place, the Government was not in a position to commence the preparations for the applicants' transfer to Italy.

The applicants' comments in reply were submitted on 3 February 2015. They stated that no such guarantees had been obtained yet in respect of their transfer to Italy but that, in their view, such guarantees should be obtained before taking the actual transfer decision and not shortly before a scheduled transfer date.

Having noted these submissions, the Chamber decided on 24 March 2015 to lift the Rule 39 indication.

By letter of 5 August 2015, the Government submitted a copy of a circular letter dated 8 June 2015 and sent by the Dublin Unit of the Italian Ministry of the Interior (Ministero dell Interno) to the Dublin Units of the other member States of the European Union, in which the Italian Dublin Unit set out the new policy of the Italian authorities on transfers to Italy of families with small children. In its relevant part, the Netherlands Government's letter reads as follows:

On 21 August 2015, the applicants informed the Court that they had been notified on 11 August 2015 that they should report to the police for the purpose of their placement in aliens' detention (vreemdelingenbewaring) for the purpose of their transfer to Italy. They further requested the issue of an interim measure within the meaning of Rule 39 of the Rules of Court.

On 25 August 2015, the President of the Section decided to adjourn the determination of the applicants' fresh Rule 39 request pending the submission of factual information by the Government under Rule 54 § 2 (a) of the Rules of Court concerning certain practical aspects of the applicants' transfer to Italy.

The Government submitted their replies on 27 August 2015. They informed the Court that the applicants' removal had been scheduled for 9 September 2015, that the Italian authorities had been informed that the transfer concerned a single mother with one adult and one minor daughter. They further submitted a copy of the standard form — prescribed under Article 31 of Regulation (EU) no. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the member State responsible for examining an application for international protection lodged in one of the member States by a third-country national or a stateless person — in which the Italian authorities had been notified on 4 August 2015 of the applicants' transfer to Italy. Under the heading ‘State of health of the person(s) to be transferred’ the following is stated:

The applicants' comments on the Government's submissions of 5 and 27 August 2015 were submitted on 31 August 2015. They considered that the new policy set out in the circular letter sent by the Italian authorities on 5 June 2015 only contained guarantees of a general nature and that it was likely that the 161 places referred to in that letter would be far from enough. They submitted that no individual guarantees had been obtained and that it had not been guaranteed that the first applicant would be provided with adequate mental health care. They further informed the Court that the second and third applicants were attending school in the Netherlands and that, in their opinion, a transfer to Italy would not be in their interest.

Having noted the parties' submissions, the President of the Section decided on 31 August 2015 to reject the applicants' fresh Rule 39 request.

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 summarised in Tarakhel, cited above, §§ 28–48); Hussein Diirshi v. the Netherlands and Italy and 3 other applications ((dec.), nos. 2314/10, 18324/10, 47851/10 & 51377/10, §§ 98–117, 10 September 2013); Halimi v. Austria and Italy ((dec.), no. 53852/11, §§ 21–25 and §§ 29–36, 18 June 2013); Abubeker v. Austria and Italy (dec.), no. 73874/11, §§ 31–34 and 37–41, 18 June 2013); Daybetgova and Magomedova v. Austria ((dec.), no. 6198/12, §§ 25 29 and §§ 32–39, 4 June 2013); and Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25–28 and 33–50, 2 April 2013).