SECOND SECTION

DECISION

Application no . 20617/14 Z.A. and O thers against Denmark

The European Court of Human Rights (Second Section), sitting on 26 April 2016 as a Committee composed of:

Ksenija Turković, President, Jon Fridrik Kjølbro, Georges Ravarani, judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 12 March 2014,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the decision to give the case priority under Rule 41,

Having regard to the decision to grant the applicants anonymity,

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

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

2. The applicants are Syrian nationals, born in 1980, 2007 and 2010. They are represented by the Danish Refugee Council ( Dansk Flygtningehjælp ).

3. The applicants, a mother and her two sons, entered Italy in July 2013. Subsequently they entered Denmark, it appears, in autumn 2013.

4. On 4 December 2013 and anew on 9 January 2014 the Immigration Service ( Udlændingestyrelsen ) found that the applicant and her children should be returned to Italy under the Dublin Regulation. Since the Italian authorities did not reply within two months, it was assumed by virtue of Article 18, no. 7 of the Dublin Regulation that the Italian authorities accepted the transfer. There was no information as to where the applicants would be placed. The applicant appealed in vain against the transfer decision to the Ministry of Justice ( Justitsministeriet ). The appeal did not have suspensive effect.

5. On 12 March 2014, upon the applicants ’ request, the Acting President of the Second Section decided to apply an interim measure pursuant to Rule 39 of the Rules of Court and requested the Danish Government to stay the applicants ’ expulsion to Italy until further notice.

6. On 4 November 2014 the Court delivered its judgment in Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)), which concerned the compatibility of the removal of asylum seekers to Italy with the respondent State ’ s obligations under Article 3 of the Convention.

7. On 2 December 2014 the Court requested the Government to indicate whether they envisaged taking any steps in response to the Tarakhel v. Switzerland judgment, including any that might directly affect the applicants ’ status in Denmark.

8. By letters of 10 December 2014 and 30 January 2015 the Government informed the Court that, in the light of the Tarakhel v. Switzerland judgment, the present case had been remitted to the Danish Immigration Service for review.

9. A circular letter dated 8 June 2015 was 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 order to safeguard appropriate facilities where families could stay together, the Italian authorities had earmarked a total of 161 places, distributed over twenty-nine projects under the System for Protection of Asylum Seekers and Refugees (SPRAR). This number would be increased should the need arise. The projects would provide for, inter alia , information and guidance, assistance and orientation measures, by creating individual and family paths of socioeconomic integration as well as specific paths for minors. They would also ensure family unity, Italian language courses and job training.

10. In a letter of 22 September 2015 regarding the present case and other similar cases, the Government informed the Court that:

“... The Danish authorities are currently in the process of collecting more detailed information about the SPRAR framework. As part of this process the Danish authorities are seeking information from other Member States regarding their knowledge of the SPRAR framework, including Member States that have conducted visits to some of the asylum centers within the SPRAR framework. The Danish authorities are also collecting information regarding the procedures of other member States concerning the transfer of asylum-seeker families with minor children to Italy in accordance with the Dublin-regulation.

When sufficient information has been collected, the Danish Immigration Service will - as first instance in Dublin-cases - assess whether the SPRAR network generally guarantees that on arrival families will be received in facilities under conditions adapted to the age of the children, and that the family unit will be preserved.

In each individual case, the Danish Immigration Service will also make a concrete assessment of whether it will be in accordance with the international obligations of Denmark, including Article 3 of the Convention, to transfer an asylum-seeker family with minor children to Italy in accordance with the Dublin-regulation. This assessment will include an assessment of the conditions in the given facility within the SPRAR framework.

If the Danish Immigration Service decides to proceed with the transfer of an asylum-seeker family with minor children to Italy this decision may be appealed against.

Due to a change in legislation, the authority competent to examine the appeal will depend on whether the original decision to transfer the asylum-seeking family has been rendered with reference to the Dublin II or Dublin III-regulation.

In cases falling under the Dublin II-regulation, the Ministry of Immigration, Integration and Housing is the competent second instance authority to try the decision, and a decision rendered by the Ministry of Immigration, Integration and Housing may, according to Section 63 of the Danish Constitution, be brought before the national courts.

In cases falling under the Dublin III-regulation, the Refugee Appeals Board is the competent second instance authority to try the decision of the Danish Immigration Service. A decision from the Refugee Appeals Board is final, cf. section 56 (8) of the Danish Aliens Act. However, according to Article 63 of the Danish Constitution, decisions of the Refugee Appeals Board can be tried before the national courts as regards matters concerning points of law, including any inadequacy in the basis for the relevant decision and illegal exercise of discretion.

In individual cases, where the Danish Immigration Service assesses that it will not be in accordance with the international obligations of Denmark, including Article 3 of the Convention, to transfer an asylum-seeker family with minor children to Italy, the Danish Immigration Service will examine whether another Member State can be considered responsible. If no other State can be considered responsible, the asylum application will be examined in Denmark.

Against this background, the Government kindly request that the Court strike out the said cases from its list.”

11. In a letter of 19 October 2015 the Government stated that in various named similar cases the Immigration Service had decided to examine the asylum applications on the merits. The said cases were consequently struck out by the Court. The present case was still pending before the Immigration Service.

12. The applicants opposed the striking out of the case, most recently in a letter to the Court of 30 October 2015. They maintained that their transfer to Italy under the Dublin Regulation would be in violation of Article 3 and that it would be in the best interest of the children that they be granted access to an asylum procedure in Denmark instead of being transferred to Italy.

13. On 18 February 2016, in reply to a request by the Court, the Government confirmed that the present case is still pending before the Immigration Service as first instance, and subject to appeal. They also informed the Court that in four test cases concerning transfer of asylum ‑ seeker families with minor children to Italy, the authorities had found (the Immigration Service in October 2015 and, on appeal, the Refugee Appeals Board in February 2016) that the applicants in those cases would be provided with suitable reception conditions upon transfer to Italy.

B. Relevant domestic law and practice

14. The relevant European and Italian law, instruments, principles and practice in respect of asylum proceedings, reception of asylum-seekers and transfer of asylum-seekers under the Dublin Regulation have recently been summarised in Tarakhel v. Switzerland ([GC], no. 29217/12 , §§ 28-48, 4 November 2014).

15. The relevant Danish law on asylum has been summarised in, for example, M.E. v. Denmark ( no. 58363/10 , § 32, 8 July 2014) and T.N. v. Denmark (no. 20594/08 , §§ 32-35, 20 January 2011).

COMPLAINT

16. The applicants complained that their removal to Italy would be in breach of Article 3 of the Convention because of the deficiencies in the reception system for asylum-seekers.

THE LAW

17. Article 3 of the Convention sets out:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

18. Article 37 of the Convention provides:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

19. The Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, for example, Abdulaziz , Cabales and Balkandali v. the United Kingdom , judgment of 28 May 1985, Series A no. 94, p. 34, § 67; Boujlifa v. France , judgment of 21 October 1997, § 42, Reports of Judgments and Decisions 1997 ‑ VI;              and Ãœner v. the Netherlands [GC], no. 46410/99 , § 54, ECHR 2006-XII). However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to deport the person in question to that country (see, among other authorities, Saadi v. Italy [GC], no. 37201/06 , §§ 124-125, ECHR 2008, and Tarakhel v. Switzerland , cited above, § 93).

20. In Tarakhel v. Switzerland (cited above) the Court concluded that “there would be a violation of Article 3 of the Convention if the applicants were to be returned to Italy without the authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together”.

21. However, in cases concerning the expulsion of an applicant from a respondent State where it is clear from the information available that he or she is not at the moment, and for a considerable time to come, at risk of being expelled and subjected to treatment allegedly in breach of Article 3 of the Convention, and the applicant can challenge a future removal decision before the domestic authorities and the Court, the latter has on various occasions considered that it is no longer justified to continue the examination of the case and struck it out of its list of cases by virtue of Article 37 § 1 (c) of the Convention (see, among others, I.A. v. the Netherlands (dec.), no. 76660/12 , 27 May 2014; P.Z. v. Sweden (dec.), no. 68194/10, 18 December 2012, §§ 14 ‑ 17; B.Z. v. Sweden (striking out), no. 74352/11, 18 December 2012, §§ 17 ‑ 20; and mutatis mutandis , under Article 8, Atayeva and Burman v. Sweden , (striking out), no. 17471/11, 31 October 2013 §§ 19-24). In the cases cited, the Court found that there were no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which required the continued examination of the case (Article 37 § 1 in fine ).

22. The review of the applicants ’ case is currently pending before the domestic authorities, namely the Immigration Service. If the Immigration Service decides to proceed with the transfer of the applicants to Italy, this decision may be appealed against. The applicants are therefore not, at the moment and for a considerable time to come, at risk of being deported to Italy.

23. Moreover, the Court notes that should the final domestic decision go against the applicants, and the latter consider that such a decision is in breach of the Convention, notably because the specific conditions of the reception facilities do not comply with the requirements set out in Tarakhel v. Switzerland , they will be able to lodge a new application before the Court.

24. Finally, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the complaint. Accordingly, it is appropriate to strike the application out of the Court ’ s list of cases and to discontinue the application of Rule 39 of the Rules of Court.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Done in English and notified in writing on 19 May 2016 .

             Stanley Naismith Ksenija Turković Registrar President