CCPR/C/117/D/2379/2014
Further submissions by the parties
State party
6.1
In reply to the author’s comments, on 12 June 2015, the State party noted that the
Tarakhel case concerned the refusal by the Swiss authorities to examine the asylum
application of an Afghan couple and their six children and the decision to send them back
to Italy because the applicants had already applied for asylum in Italy and their application
was still pending there. The Court found that, in view of the current situation concerning
the reception system of asylum seekers in Italy, and in the absence of detailed and reliable
information concerning the specific facility of destination, the Swiss authorities did not
possess sufficient assurances that, if returned to Italy, the applicants would be taken charge
of in a manner adapted to the age of the children. The majority of the judges of the Grand
Chamber held that there would be a violation of article 3 of the European Convention if the
Swiss authorities were to send the applicants back to Italy under the Dublin Regulation
without having first obtained individual guarantees from the Italian authorities that they
would be treated in a manner adapted to the age of the children and that the family would
remain together. However, at the same time, referring to its case law, the Court reiterated
that article 3 could be interpreted as obliging the High Contracting Parties to provide
everyone within their jurisdiction with a home, and that article 3 did not entail any general
obligation to give refugees financial assistance to enable them to maintain a certain
standard of living.25
6.2
According to the State party, Tarakhel v. Switzerland, which concerned a family
with the status of asylum seekers in Italy, did not deviate from the findings in previous case
law of the Court on individuals and families with a residence permit for Italy, as expressed
in, inter alia, Samsam. Accordingly, the State party finds that it cannot be inferred from
Tarakhel case that Member States are required to obtain individual guarantees from the
Italian authorities before returning to Italy individuals or families in need of protection who
have already been granted residence there. In that regard, the State party reiterates that,
according to the judgment in the case of Samsam, those recognized as refugees or who have
been granted subsidiary protection in Italy are entitled to benefit from the general schemes
for social assistance, health care, social housing and education under Italian domestic law.26
6.3
In the light of the above, the State party maintains that the communication should be
rejected by the Committee as inadmissible because the author has failed to establish a prima
facie case for the purpose of admissibility of her communication under article 7 of the
Covenant and that the communication therefore is manifestly unfounded. In the alternative,
the State party maintains that article 7 of the Covenant will not be violated if the author and
her four children are returned to Italy.
Author
7.
On 15 December 2015, the author submitted further comments. She refers to her
comments of 28 January 2015 and notes the Committee’s conclusions in a previous case in
which the Committee noted that various reports continued to point to a lack of available
places in reception structures. Moreover, the Committee in particular noted that returnees
who had already enjoyed the reception system, which is the case for the author, had no
more right to be accommodated in government reception centres for asylum seekers. 27
25
26
27
10
Ibid, para. 95.
Samsam Mohammed Hussein and Others v. the Netherlands and Italy (application No. 27725/10),
decision of 2 April 2013, paras. 37-38.
See communication No. 2360/2014, Jasin et al v. Denmark, Views dated 22 July 2015, para. 8.5.