CAT/C/64/D/742/2016
would be in danger of being subjected to torture in a State to which he or she is facing
deportation, either as an individual or a member of a group that may be at risk of being
tortured in the State of destination; and that the Committee’s practice has been to determine
that “substantial grounds” exist whenever the risk is “foreseeable, personal, present and
real” (para. 11). The Committee also recalls that the burden of proof generally falls on the
complainant, who must present an arguable case — namely, to submit circumstantiated
arguments showing that the danger of being subjected to torture is foreseeable, present,
personal and real. However, when the complainant is in a situation in which he or she
cannot elaborate on his or her case, the burden of proof is reversed and it is up to the State
party concerned to investigate the allegations and verify the information on which the
communication is based (para. 38). The Committee gives considerable weight to findings of
fact made by the organs of the State party concerned; however, it is not bound by such
findings and will make a free assessment of the information available to it in accordance
with article 22 (4) of the Convention, taking into account all the circumstances relevant to
each case (para. 40).
8.5
In the present case, the Committee takes note of the complainant’s allegation that, if
transferred to Italy, he would likely have no access to accommodation, nor to the
specialized medical and psychiatric treatment or emotional support from his brother, all of
which he requires as a victim of torture. This would leave him no reasonable choice but to
seek protection elsewhere, exposing him to a risk of chain refoulement to his home country.
The complainant has provided extensive reports describing the largely deficient reception
conditions for asylum seekers in Italy. These include the insufficient capacity of
accommodation centres to house asylum seekers, including Dublin returnees, the deficient
living conditions in those centres, and the very limited access to medical and specialized
psychiatric treatment for asylum seekers. This situation is compounded by the lack of
adequate procedures to systematically identify victims of torture. Although the State party,
on 29 September 2016, informed the Italian authorities of the complainant’s health situation
in a standard form for the exchange of health data prior to a Dublin transfer, the Committee
notes that this form did not establish that the complainant is a victim of torture. It also notes
that the State party did not request individual assurances from the Italian authorities and
that they did not respond to the submission of his medical report. Furthermore, on 12
October 2016, the complainant was transferred to Italy where he claims he was not
provided with shelter on the first night or information on health care or filing an asylum
application in a language he could understand, and he did not receive any medical
assistance. On 28 November 2016, the State Secretariat for Migration submitted to the
Italian authorities a standard form to request that the State party take back the complainant.
The Committee notes that this form did not include any information about the
complainant’s health and specific needs, and that the State party’s authorities decided to
transfer the complainant to Italy again, despite the absence of a response.
8.6
The Committee considers that it was incumbent upon the State party to undertake an
individualized assessment of the personal and real risk that the complainant would face in
Italy, in particular considering his specific vulnerability as an asylum seeker and victim of
torture, rather than relying on the assumption that he is not particularly vulnerable and
would be able to obtain adequate medical treatment there. 29
8.7
The Committee notes the State party’s claims that there are no reasons to think that
the complainant’s health problems are serious or invalidating, or to believe that his
brother’s presence is essential to him. However, the Committee also notes that the
complainant has provided three medical reports with very detailed information regarding
his vulnerability as a victim of torture, his specific needs and the necessity for him to
remain close to his brother, the validity of which has not been challenged by the State party.
The Committee notes the complainant’s statement that the lack of specialized medical and
psychiatric treatment, together with the probable lack of accommodation and the absence of
any family support in Italy, would prevent his full rehabilitation as a victim of torture. The
Committee observes that the complainant has been receiving specialized psychiatric
treatment for victims of torture in Switzerland, and that the continuation of this treatment is
29
See Jasin v. Denmark, para. 8.9.
11