Last Updated on July 21, 2022 by LawEuro
Information Note on the Court’s case-law 264
July 2022
Darboe and Camara v. Italy – 5797/17
Judgment 21.7.2022 [Section I]
Article 8
Positive obligations
Article 8-1
Respect for private life
Unaccompanied minor asylum-seeker placed in adult reception centre, not provided minimum procedural guarantees in age-assessment procedure: violation
Article 3
Degrading treatment
Inhuman treatment
Placement of minor in adult reception centre in inadequate conditions for more than four months and subjected to age-assessment procedure breaching Article 8: violation
Facts – The applicant, a Guinean national, arrived in Italy and sought asylum claiming to be an unaccompanied minor. He submitted that he had declared his minor age and intention to apply for international protection shortly after arrival. However, no information on how to initiate the relevant procedure had been provided to him and no request for international protection had been lodged in his case.
The applicant was initially placed in a centre for foreign unaccompanied minors but subsequently transferred to an adult reception centre, which he further alleged was overcrowded and lacking in facilities and healthcare. A month after his transfer, a medical examination (wrist X-ray examination) was carried out on the applicant to determine his age, which concluded that he was an adult of eighteen years old.
After eventually being assisted by lawyers, the applicant promptly filed an application to the domestic court to obtain the appointment of a guardian and recognition of his rights protected by domestic law as an unaccompanied minor asylum-seeker. However, there was no information on the outcome of the application. Subsequent to a Rule 39 request, the applicant was transferred to a centre for minors. His stay in the adult reception centre lasted more than four months.
Law – Article 8:
(a) Admissibility – In determining that the applicant’s complaint under Article 8 was admissible, the Court considered that the age of a person was a means of personal identification and that the procedure to assess the age of an individual alleging to be a minor, including its procedural safeguards, was essential in order to guarantee all the rights deriving from a person’s minor status. The Court also emphasised the importance of age-assessment procedures in the migration context. The applicability of domestic, European and other international legislation protecting children’s rights started from the moment of identification as a child. Determining if an individual was a minor was thus the first step to recognising his or her rights and putting into place all necessary care arrangements. Indeed, if a minor was wrongly identified as an adult, serious measures in breach of his or her rights might be taken.
(b) Merits – It was appropriate to approach the case from the perspective of the State’s positive obligation under Article 8. In that connection, it was not the Court’s task to speculate on whether or not the applicant had been a minor at the time of his arrival in Italy, or whether he had submitted any document to prove his age. He had declared his minor age at some point after his arrival and there was no indication that his claims that he had been a minor had been unfounded or unreasonable. The question was rather whether the domestic authorities had ensured the procedural rights stemming from the applicant’s status as an unaccompanied minor requesting international protection.
The Court welcomed the fact that guarantees put in place by the EU and international law since the time of the facts had gone further to ensure a holistic and multidisciplinary age-assessment procedure. However, the national and international legal framework applicable at the time of the facts had also showed a general recognition, at the material time, of the need for special protection of unaccompanied minor migrants. That had included the safeguards of appointment of a legal representative or guardian, access to a lawyer and informed participation in the age-assessment procedure of the person whose age had been in doubt:
– The national authorities had failed to promptly provide the applicant with a legal guardian or representative. Despite having orally expressed his wish to apply for international protection after his arrival, he had been unable to request to have a guardian until his application before the domestic court on more than six months after his arrival. The failure had prevented him from duly and effectively submitting an asylum request;
– The X-ray examination of the applicant’s wrist had been carried out without any information as to the type of age-assessment procedure he was undergoing and to its possible consequences. The relevant medical report, which had failed to indicate any margin of error, had not been served on him. Moreover, no judicial decision or administrative measure concluding that the applicant had been of adult age had been issued, making it impossible for him to lodge an appeal;
– Further, the applicant had not been provided with any information concerning the outcome of his application to the domestic court to obtain the appointment of a guardian and recognition of his rights as an unaccompanied minor asylum-seeker.
Overall, the Italian authorities had failed to apply the principle of presumption of minor age, which was an inherent element of the protection of the right to respect for private life of a foreign unaccompanied individual declaring to be a minor. While age assessment of an individual might be a necessary step in the event of doubt as to his or her minority, that principle implied that sufficient procedural guarantees had to accompany the relevant procedure. The applicant had not benefitted from the minimum procedural guarantees, and his placement in an adult reception centre for more than four months must have affected his right to personal development and to establish and develop relationships with others. That could have been avoided had he been placed in a specialised centre or with foster parents – measures more conducive of the best interests of the child.
Conclusion: violation (unanimously).
Article 3: Upon the applicant’s arrival, the adult reception centre had been overcrowded, with insufficient number of staff and difficulties in accessing medical care. In addition, there were a number of circumstances in themselves problematic with regard to the applicant’s vulnerability: despite having declared himself to be a minor, the applicant had been housed in an adult reception centre; once there, he had been subject to an age-assessment procedure conducted in breach of Article 8; and he had then been considered to be an adult and kept there for more than four months. The Court was sensitive to the fact that the reception centre in question had been converted from a former military facility to deal with the massive phenomenon of migration. The number of unaccompanied minors arriving in Italy had dramatically increased during the period in which the facts of the case had taken place. However, the difficulties deriving from the increased inflow of migrant and asylum seekers in particular States from external EU borders did not exonerate member States of the Council of Europe from their obligations under Article 3, which was of an absolute character.
Conclusion: violation (unanimously).
The Court also held, unanimously, that there had been a violation of Article 13 in conjunction with Articles 3 and 8, in that there had been no effective remedies under domestic law by which to lodge the applicant’s complaints.
Article 41: EUR 7,500 to the applicant in respect of non-pecuniary damage.
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