The practice of informal readmission (refoulement, or pushback) violates primary, constitutional and supranational norms: it inevitably and profoundly affects the legal sphere and freedom of the person concerned, given that in the present case the applicant was stopped, detained, transferred to another place and handed over to the custody of the agents of a foreign country under the constant control of the authorities and without the possibility of evading the procedure ("chain refoulement").
The right to an effective remedy and the right to an individual examination of one's personal situation, as provided for in Article 19 of the Charter of Fundamental Rights of the European Union, which prohibits collective expulsions, are instrumental to the effective guarantee of Article 3 ECHR and Article 4 CDFUE and thus of the absolute prohibition of inhuman and degrading treatment, including the obligation not to refoulement in case the foreigner runs the risk of suffering such treatment in the place to which he is being returned; this prohibition admits of no derogation or exception.
Liability for the relevant violations also arises in cases where the member state is aware (or can reasonably be aware) that the real and present risk of conduct detrimental to the person's integrity and dignity materializes not in the first country to which the person is rejected (intermediate step), but in another subsequent final location.
The rich jurisprudence of supranational courts on the prohibition of chain refoulement prompted the EU legislature to provide, in Article 3 of the new text of the Dublin Regulation.
N. G.R. 3938/2022COURT OF ROME
PERSONAL RIGHTS AND IMMIGRATION SECTION
The Court, in the person of Judge Dr. Damiana Colla, pronounced the following
ORDER PURSUANT TO ARTICLE 702 BIS C.P.C.
In the civil case of the First Degree registered under No. r.g. 3938/2022 brought by
born in, electively domiciled in Trieste, ** at the office of lawyer CB, who represents and defends him, together with lawyer AB, by power of attorney attached to the application filed telematically
- appellant -
MINISTERO DELL'INTERNO, in the person of the Minister pro tempore, domiciled in Rome, via dei Portoghesi n. 12, at the Avvocatura Generale dello Stato, who represents and defends him ex lege
- Respondent -
Subject: compensation for damages for informal readmission to Slovenia.
In an application filed on Dec. 31, 2021, the appellant sought compensation for non-pecuniary damage suffered as a result of the informal readmission practice by which the Italian authorities rejected him to Slovenia on , despite the fact that he had expressed his wish to apply for international protection, resulting in a chain refoulement from Slovenia to Croatia and from Croatia to Bosnia.
Specifically, the applicant represented that he left his country of origin in 2018 after being injured in an attack by the terrorist group Tehrik-i-Taliban Pakistan, fearing retaliation from both the extremists and the Pakistani army, of which he was a member; that he spent a year in Turkey, during which time he tried several times to enter Greece, succeeding only on the third attempt; from Greece, to have crossed through North Macedonia and Serbia and in the summer of 2019 to have arrived in Bosnia; from there to have attempted to continue to Italy, suffering nine rejections by Croatian authorities and three by Slovenian authorities, being identified and photographed each time; to have undertaken a new attempt on 01. 10.2020 and that he entered Italy for the first time, in Trieste, on the morning of 17.10.2020.
He inferred on appeal that he was immediately stopped in Trieste by some military personnel, transferred to a police station along with four other people, medically examined, and asked to provide information and sign documents whose contents were neither translated nor explained to him. Finally, despite expressing a desire to seek international protection, he claimed that he was handed over to the Slovenian authorities, detained in a Slovenian police station overnight, handed over to the Croatian authorities the next day, and rejected by them back to Bosnia using violent methods, including beatings. In Bosnia, the claimant said he initially found shelter at the informal settlement of Vedro Polje, only to decide to tackle the route again, prompted by the degrading living conditions at the camp, and arrive in Italy for the second time on 17.04.2021. Moving from Trieste to Brescia, he applied for international protection, formalized on 10.05.2021 and decided on 22.12.2021 with recognition in his favor of refugee status.
The applicant complained that the practice undergone, of readmission from Italy to Slovenia without any formal measure despite the presence of a manifestation of willingness to seek protection in Italy, in execution of an intergovernmental agreement (the one between Italy and Slovenia of 1996) never ratified by law and therefore (if not null and void under Art. 80 Const., however certainly) of secondary rank, violated primary norms of fundamental importance, such as first of all the right to asylum constitutionally guaranteed by Art. 10, c. 3 Const, as well as related rights protected domestically and internationally, in particular by the European Convention on Human Rights and the EU Charter of Fundamental Rights, including the right to an effective examination of the application for protection, to defense through an effective remedy, to judicial review of restrictions on personal liberty, and to reception according to minimum standards while the application for protection is being examined. The readmission practice also violated, according to the applicant, his right to non-refoulement, enshrined in Art. 3 ECHR according to the constant interpretation of the European Court of Human Rights, exposing him to a chain of refoulement to countries where he risked suffering (and has suffered) systematic violence by local authorities (Croatia) and degrading reception conditions (Bosnia), such as to configure real inhuman treatment, according to what was already well known at the time of the facts - thanks to numerous journalistic reports and those of non-governmental and international organizations - and therefore knowable even by the Italian authorities.
Given the illegitimacy of the conduct of the Italian authorities and the seriousness of the violations of fundamental rights suffered, the appellant concluded by claiming the existence of a civil liability of the Italian State and requesting compensation for the non-pecuniary damages suffered, to be settled in the amount of 18. 200.00 euros, equal to the sum of one hundred euros per day for each day that elapsed between his readmission to Slovenia on 17.10.2020 and his return to Italy on 17.04.2021, in accordance with the criteria developed by EU and national case law on similar cases.
The Respondent Administration appeared in court on 09/27/2022, arguing the legitimacy of the practice of informal readmission of foreign nationals to the member state from which they entered, when they are identified in the immediate spatial and temporal proximity of the irregular border crossing and when this is provided for by an agreement between the states concerned. He argued the legitimacy of the latter agreements on the basis of European law, in particular Directive 2008/115/EC, and in any case the legitimacy of their stipulation since this is an assessment left to the discretion of the political will. He denied the configurability in this case of a collective expulsion prohibited by international and European law, and pointed out how the entire procedure was carried out with respect for the fundamental human rights of the persons involved. Finally, he noted the failure to demonstrate the damage suffered by the applicant and concluded by requesting the rejection of the adverse claim.
Set a hearing for 09/28/2022, which was held in writings, at the outcome, the oral evidence requested by the plaintiff in the application was admitted, with examinations of informants at the subsequent hearing on 04/12/2023, following which the case was retained for decision.
The request must be considered well-founded and deserves to be granted in light of the following considerations.
The treatment that the appellant described having been subjected to by the Italian border authorities at the time of his first entry into Trieste on 1 was fully proven at trial.
In this regard, the appellant has attached to the record the documentation (obtained on 05.07.2021 following access to the records) relating to the appellant's being taken into custody by the Trieste Border Police on 17.10.2020, including - in addition to the health assessment form and the report of identification, election/declaration of domicile and appointment of counsel made by the person under investigation - also the multilingual identification form, from which it manifestation of willingness to apply for protection (under the heading "Manifestation of willingness to apply for international protection" the answer "yes" was noted), and of the application "for readmission without formalities on the basis of the Agreement between the Government of the Republic of Italy and the Government of the Republic of Slovenia on the readmission of persons to the border, signed in Rome on September 3, 1996," concerning the person of the applicant as "traced ... on 17. 10.2020 at 12 noon in the locality Basovizza, after they irregularly crossed the common border," indicating the taking over by the requested Slovenian authorities at 6 p.m. on 17.10.2020 and the signature of the official in charge.
Also documented is the procedure put in place by the Slovenian authorities, through attachment of the relevant documentation including the "official note on the declaration of entry into the R. of Slovenia," the resulting injunction for the payment of the sanction provided for irregular immigration, the record of the statements made by the applicant confirming the events experienced by him in the country of origin and during the migration route, the decision of administrative detention in the Center for Foreigners in Veliki Otok, Postojna, pending deportation, and the record "of delivery and readmission by abbreviated procedure pursuant to Art. 2, cc 3 and 4, of the Agreement between the Government of the Republic of Slovenia and the Government of the Republic of Croatia concerning the surrender and readmission of persons whose entry or stay is illegal."
The totality of these documents demonstrates both the handover of the applicant to the Slovenian authorities by the Italian authorities - where the detention decision reads, "On 17/10/2020, 18:00 hours, he was handed over by the Italian security authorities to the PPIU [Police Station for Compensatory Measures] in Koper, Krvavi Potok, pursuant to the Agreement for the Readmission of Persons at the Border" - , and the subsequent readmission to Croatia, attested in the relevant report, on the basis of the agreement on the matter between Slovenia and Croatia.
On the other hand, the practice was admitted by the Respondent Administration in the statement of appearance, in the precise spatial, temporal and operational manner represented by the claimant.
The Administration has also taken steps to document the entire procedure, through the re-submission in court of the documentation pertaining to the claimant already provided to the latter in response to the request for access to documents.
In addition to appearing from the documentation filed and having been expressly acknowledged by the Administration in court, the practice described by the claimant is reflected in the response of the Ministry of the Interior to the parliamentary interpellation of 24.07.2020, regarding the implementation of informal readmissions in Slovenia, in which the Ministry pointed out that such procedures are activated even when the person concerned has expressed a desire to seek protection in Italy. In the text of that response (attached by the plaintiff in the record), it states in particular: "...informal readmission procedures in Slovenia are applied with respect to migrants traced close to the Italian-Slovenian border line, when it appears that they come from Slovenian territory, even when the intention to seek international protection is manifested ... [the] execution of this type of readmission does not entail the drafting of a formal measure, applying by established practice the expeditious procedures provided by the relevant readmission agreement, signed between Italy and Slovenia on September 3, 1996 ... If the conditions for the readmission request are met and the same is accepted by the Slovenian Authorities, there is no invitation to the Police Headquarters for the formalization of the application for protection."
Also proven is the remaining path of the applicant after his removal from Italy, and in particular the further rejection he suffered from Croatia to Bosnia. Indeed, the applicant was in Bosnia between January and March 2021, specifically within the informal settlement of Vedro Polje, not far from Bihać, where he met journalist Elisa Oddone and social worker Diego Saccora of the association "Lungo la rotta balcanica."
Listened to as summary informants, the latter confirmed that they met the appellant on that occasion (see minutes of the hearing of 12.04.2023). In particular, EO illustrated what was portrayed in the photographs of the settlement attached in the record, which she took (on the dates of January 24 and 27 and February 15, 2021) to document the living conditions inside it for the Al Jazeera and NPR news outlets and which were incorporated into a journalistic report, also produced in the record. She recognized the appellant's person in the photographs taken and confirmed that on that occasion she collected her testimony about her experience at the Italian-Slovenian border on the day they met, i.e., 01/24/2021. He finally testified that she was the one who offered him the first contact with the current defenders.
DS also confirmed that he met the plaintiff several times during February 2021 inside the Vedro Polje settlement, where he went to bring assistance and basic necessities. He also testified that he personally accompanied the appellant to a notary's office in Bihać to give a mandate to the current defense attorneys in order to file an appeal against readmission to Slovenia (see the power of attorney filed in the record, translated and apostilled, signed by the appellant in Bihać and dated 18.03.2021).
Both informants then narrated the poor living conditions at the informal settlement in which the applicant had taken shelter in the forested area around Bihać, together with a small group of Pakistani compatriots (between 12 and 15 people), like him traveling in an attempt to reach Europe. They reported that the reception situation in the area was particularly critical at the time, due to the closure of the two largest local camps, the inability of the Bosnian authorities to provide alternative accommodations, and the subsequent displacement of the people there, who were forced to take shelter in makeshift camps. The informants also described the extremely cold temperatures (up to twenty degrees below zero), weather conditions characterized by snow and torrential rains, lack of running and drinking water, food shortages, and total dependence on help from international organizations such as the IOM and local civil society, the insufficiency of basic necessities nevertheless provided, as well as the insecurity associated with the constant danger of the (formally irregular) camp being dismantled by the police, patrols by hostile local citizens, and possible theft by other groups of asylum seekers in search of what they need to survive.
Finally, proven is the applicant's re-entry into Italy in April 2021 and the recognition of his refugee status by the Brescia Territorial Commission meeting on Dec. 21, 2021, as evidenced by the relevant certificate produced in the record.
That said, as to the evidence of the circumstances personally experienced by the applicant, the practice of informal readmission he underwent, adopted by the Ministry of the Interior in implementation of the bilateral agreement with Slovenia, is illegitimate in multiple respects.
First of all, it must be recalled that, pursuant to Article 80 of the Italian Constitution, the Bilateral Agreement on the Readmission of Persons at the Border, signed in Rome on September 3, 1996 between the Government of the Italian Republic and the Government of the Republic of Slovenia, having never been ratified by the Italian Parliament, cannot introduce amendments to or derogate from Italian laws or norms of European or international derivation in force in the Italian legal system. Rather, it must be read in light of constitutional and international law.
Instead, the practice of informal readmissions implemented under this agreement violates several legal norms.
First of all, it is necessary to consider how the readmission to the border inevitably and profoundly affects the legal sphere and freedom of the person concerned, given that in the present case the applicant was stopped, detained, transferred to another place and handed over to the custody of the agents of a foreign country under the constant control of the authorities and without the possibility of evading the procedure. The duration of this restriction - which the Administration stresses was limited to the time of a few hours - all the more so when one considers that the applicant was then unable to escape the control of the (European) authorities until he was expelled outside the borders of the Union (to Bosnia), in the meantime also suffering detention in a repatriation center (in Slovenia) in addition to the violence that characterizes the operation of the Croatian police according to numerous and reliable sources (on which see below). In this regard, the Constitutional Court recalled, "this Court, since Judgment No. 2 of 1956, has affirmed that the translation of the returnee with a mandatory travel warrant is a measure affecting personal freedom ... in Judgment No. 62 of 1994, the deportation with accompaniment to the border by means of public force of the foreigner subject to pre-trial detention or serving a prison sentence, even if residual, not exceeding three years, was held to be a measure incident to personal liberty ... it is, however, the force of the constitutional precept of Article 13 that imposes a full meaning of the control that is the responsibility of the validating judge ... the accompaniment to the border ... is the immediate cause of the limitation of the foreigner's personal liberty" (Constitutional Court, Judgment No. 105/2001).
Well, the illegitimacy of the practice undergone is therefore evident first and foremost due to the failure to issue a reasoned administrative measure in advance, notified to the person concerned and appealable before the judicial authority, as provided for by Articles 2 and 3 of Law No. 241/90, as well as the absence of prior validation by the judicial authority, pursuant to Article 13 of the Constitution and as already provided for foreign nationals by Articles 10, c. 2 bis and 13,
c. 5 bis of Legislative Decree 286/1998. Moreover, the lack of an appealable measure ends up depriving the person subjected to readmission of his or her rights to defense and to an effective remedy, in violation of Art. 24 of the Italian Constitution, Art. 13 of the European Convention on Human Rights and Art. 47 of the Charter of Fundamental Rights of the European Union (see also international jurisprudence on this point, in particular Court of Human Rights, Abdolkhani Karmimnia v. Turkey, Case No. 30471/08, judgment of Sept. 22, 2009, which found that an expulsion without the service of a reasoned order was unlawful).
Thus, the described practice of informal readmission contradicts the cited primary, constitutional and supranational norms, which clearly cannot be derogated from by a bilateral intergovernmental agreement that has not been ratified by law.
Secondly, the right to an effective remedy and the right to an individual examination of one's personal situation, as provided for in Article 19 of the Charter of Fundamental Rights of the European Union, which prohibits collective expulsions, are instrumental to the effective guarantee of Article 3 ECHR and Article 4 CDFUE and thus of the absolute prohibition of inhuman and degrading treatment, including the obligation not to refoulement in case the foreigner runs the risk of suffering such treatment in the place to which he is being returned (cf. Edu Court Grand Chamber, Hirsi Jamaa and Others v. Italy, decision of February 23, 2012). This prohibition admits of no derogation or exception (see Article 15 ECHR and Edu Court, Chahal v. United Kingdom, July 7, 1996). Liability for the relevant violations also arises in cases where the member state is aware (or can reasonably be aware) that the real and present risk of conduct detrimental to the person's integrity and dignity materializes not in the first country to which the person is rejected (intermediate step), but in another subsequent final location (see Abdolkhani and Karimnia v. Turkey cit., EDU Court M.S.S. v. Belgium and Greece, Grand Chamber Jan. 21, 2011).
The rich jurisprudence of supranational courts on the prohibition of chain refoulement (see, for example: EDU Court Ilias and Ahmed v. Hungary, March 14, 2017; EDU Court Sharifi and Others v. Italy AND Greece, Oct. 21, 2014; EDU Court Tarkel v. Switzerland, Nov. 4, 2014; EDU Court M.S.S. v. Belgium & Greece cit; Court of Justice (Grand Chamber) March 19, 2019 in Case C 163/17; CJEU Feb. 16, 2017 Case C 578/16 PPU C.K., H.F., A.S.
c. Slovenia) prompted the EU legislature to provide, in Article 3 of the new text of the Dublin Regulation (EU Reg. No. 604/2013, the so-called Dublin III Regulation), that "Where it is impossible to transfer an applicant to the Member State initially designated as responsible because there are reasonable grounds for believing that there are systemic deficiencies in the asylum procedure and in the reception conditions of applicants in that Member State, entailing the risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the Member State which initiated the procedure for determining the Member State responsible shall continue the examination of the criteria set out in Chapter III in order to verify whether another Member State may be designated as responsible."
In the Italian legal system, the same principles are enshrined in Article 19, paragraphs 1 and 1.1. of Legislative Decree 286/1998, which explicitly prohibit transfers to a state where the person risks being returned to another state where he or she might suffer persecution, torture or inhuman and degrading treatment. Regarding transfers under the Dublin Regulation, the Supreme Court also states, "every transfer decision requires the administrative authority to assess both that the asylum procedures and reception conditions in the State designated as responsible do not suffer from 'systemic deficiencies' (Art. 3(2) Dublin III Reg.), and also, regardless of the existence of such general criticalities, that said transfer does not entail for the applicant a real risk of suffering inhuman or degrading treatment within the meaning of Art. 4 of the E.U. Charter of Fundamental Rights, a situation the existence of which is capable of overcoming the (relative) presumption of security and equal respect for fundamental rights in member states" (Cass. SS.UU. no. 8044/2018).
Therefore, the rejections implemented by the Italian state in the absence of guarantees regarding the respect of the fundamental rights of the rejected persons, starting with their right to seek international protection, not to be subjected to inhuman and degrading treatment and not to be sent to places where they run the risk of being subjected to such practices, are unlawful - for violation of Articles 3 and 13 ECHR and Article 4 of Protocol No. 4 to the ECHR, as well as Articles 4 and 19 of the Charter of Fundamental Rights of the European Union. Already in Sharifi and others v. Italy and Greece, Italy was condemned by the EDU Court for the unregistered and indiscriminate readmission of non-European nationals to Greece, on the basis of the bilateral readmission agreement concluded in 1999, in a situation as we can see that completely overlaps with the one under consideration.
Contrary, moreover, to the Respondent Administration's claim (which purports to identify therein the legal basis of its conduct), Directive 2008/115/EC does not legitimize at all, indeed contrasts with the described practice of informal readmission put in place by the Italian government. In fact, although this directive (in its Article 6(3)) allows member states to readmit to the neighboring state of origin without a specific return decision, if there are bilateral agreements between the states concerned already in force on the date of entry into force of the directive itself (such agreements, on the other hand, being no longer permitted during the directive's in force), nevertheless, in the execution of the agreement, the Italian state is nevertheless bound by domestic law, including constitutional law (Article 13 Const. ), as well as by supranational law, under which the state has a duty to ascertain the concrete situation in which the readmitted person will find himself, with particular reference to the possibility of a violation of his fundamental rights (which was envisaged in the case according to the information widely available). Above all then, informal readmission can never be applied against a person who manifests the intention to seek asylum, as happened in the present case.
In fact, further directing circumstance in the present case is the applicant's filing of an application for protection in Italy prior to readmission. In fact, although the obligation of nonrefoulement under Article 3 ECHR applies to everyone and must be respected in every case of informal readmission, the asylum seeker suffers (and today's applicant has suffered in the present case) the violation of additional rights linked to his status, starting with the fundamental right to access the procedure for the recognition of international protection. The practice, recognized by the
government (cf. the response of the Ministry of the Interior to the parliamentary interpellation in which it states, "If the conditions for the readmission request are met and it is accepted by the Slovenian Authorities, there is no invitation to the Police Headquarters for the formalization of the application for protection") and demonstrated in the present case, even violates the same Agreement with Slovenia, whose Art. 2 provides that each party, at the request of the other, undertakes to readmit to its territory the national of a third state who does not meet the conditions for entry or residence in the territory of the requesting state, clearly not being able to consider in such a situation those who have expressed the desire to seek protection (as the applicant in the present case: cf. multilingual identification card filed in the record).
Indeed, from the moment of the first manifestation of will - moreover, already resulting from official documents - the applicant would have been entitled to the relevant prompt registration of the application by the competent offices, an administrative activity for which the law, moreover, provides stringent deadlines (cf. Articles 3 and 26 of Legislative Decree 25/2008), in implementation of Article 6 of Directive 2013/31/EU (according to which: "Member States shall ensure that any person who has submitted an application for international protection has an effective possibility to forward it as soon as possible") and as also consistently recalled by the EU Court of Justice (see e.g. CJEU, C- 104/10, Patrick Kelly v. State University of Ireland, University College, Dublin, decision of July 21, 2011). He would consequently have had access to all the rights guaranteed to asylum seekers, such as reception under Article 1, c. 2 of Legislative Decree 142/2015 and, of even greater importance, a provisional residence permit for asylum application (under Article 4 of Legislative Decree 142/2015), the latter of which makes the applicant lawfully resident on the territory of the receiving country.
From the same moment of manifestation of the willingness to seek protection, then, Regulation No. 604/2013 (so-called Dublin III, see in particular Art. 20 on the initiation of the procedure) must be applied for the determination of the Member State responsible for examining the application, with possible transfer of the applicant to another EU state only upon completion of this procedure. In Art. 13, the regulation stipulates that when irregular entry from a third state into a Member State is established, "that Member State shall be responsible for examining the application for international protection." However, this cannot imply a readmission without formalities in the Member State of first entry, since the same Regulation provides that the applicant shall in any case obtain the registration of his or her will in the country where he or she expressed it. In fact, it is in the latter country that the applicant must be temporarily received, for the time necessary for the completion of the procedure for the identification of the competent state, with all the guarantees that come with it and with the application of all the criteria provided for, even as an exception to the one mentioned above, starting with Article 3 of the Regulation, according to which the applicant may not be transferred to a member state where he/she risks being subjected to inhuman and degrading treatment. Under Article 27, the right to an effective remedy must then always be guaranteed against the transfer decision.
In contrast to the position taken by the Italian government (which considers Slovenia and Croatia, as member states of the European Union, to be "inherently safe countries, from the point of view of full respect for human rights and the relevant international conventions," cf. the response of the Ministry of the Interior already cited above), the EU Court of Justice has repeatedly stated that European law precludes any absolute presumption of respect for fundamental rights by the member state designated as responsible. This is particularly so in the light of Article 4 of the Charter of Fundamental Rights of the European Union, which is also to be interpreted as meaning that, even in the absence of serious reasons for considering that state to be systematically deficient, a transfer may be carried out only where a real risk of inhuman or degrading treatment is completely excluded (cf. CJEU, Grand Chamber, judgment Dec. 21, 2011 in Joined Cases C- 411/10 and C-493/10; CJEU, Fifth Chamber, judgment Feb. 16, 2017 in Case C-578/16 PPU, where it is specified that the principle of mutual trust is not absolute; Court of Justice (Grand Chamber) March 19, 2019 in Case C 163/17 Abubacarr Jawo; see in the same sense Cass. SS.UU, n. 8044/2018).
In addition to the described violations of the Dublin Regulation, as seen affecting fundamental human rights, it must be added that the applicant was not sent back to Slovenia as an asylum seeker, but as a non-European citizen who entered irregularly, to the extent that he was subjected in that country to the relevant administrative sanction and detention in a return center pending removal to Croatia, with further compression of the rights linked to his status under European and international law.
The unlawfulness of the conduct of informal readmission operated by the Italian authorities also in the present case has, on the other hand, already been sanctioned by this Court, in a precautionary order dated 18.01.2021, rendered in the proceedings registered under no.
In the present case then, not only did the Italian State fail to ascertain the consequences that the rejected persons (and among them today's appellant) would have suffered as a result of readmission, but it implemented this practice despite having perfect knowledge (or at least being in a position to have perfect knowledge) of the violations to which the rejected persons would have been exposed in Slovenia. Already at the time of the readmission of the present applicant, there were in fact numerous and widely circulated newspaper reports, reports by nongovernmental organizations, and positions of international organizations (on which cf. the documentation attached to the record, as well as that cited below) attesting, based on the sources cited below, how readmission to Slovenia would in turn involve informal readmission to Croatia and refoulement to Bosnia, and how migrants would be subjected to inhumane treatment and actual torture by Croatian police, as well as inadequate and often degrading reception conditions in Bosnia.
The information available on Slovenia, in fact, attested at the time and continues to attest to a complex of deficiencies such that the right to asylum in that country is largely ineffective, especially because of the recurring eventuality of the refoulement of persons intercepted (or taken back by Italy) to Croatia, even regardless of the expression of their willingness to seek protection.
According to the latest report of the European Council on Refugees and Exiles (ECRE) database, "the police do not carry out the identification of persons in need of protection in the migratory groups entering Slovenian territory ... access to the asylum procedure is still systematically denied to persons in the police procedure. After the police procedure, people are returned, under the readmission agreement, to the country from which they entered Slovenia ... there is no assessment of whether the principle of non-refoulement could be violated ... The majority, 3860 people, were returned to Croatia" (Aida, Country Report Slovenia 2021 update, March 2022, https://asylumineurope.org/wp-content/uploads/2022/05/AIDA-SI_2021update.pdf).
Even today, moreover, "facilities housing asylum seekers are often overcrowded. A significant increase in the number of migrants ... combined with a lack of staff to process asylum seekers and a dearth of language and cultural training, has exacerbated overcrowding ... The lack of capacity to handle large numbers of arrivals has resulted in overcrowding, reduced hygiene standards, and increased health risks ... Local NGOs reported unjustified restrictions on the movement of asylum seekers residing in reception facilities ... asylum seekers in reception facilities faced detention periods of up to two weeks while authorities processed their initial asylum claims" (USDOS - US Department of State, 2022 Country Report on Human Rights Practices: Slovenia, March 20, 2023, https://www. state.gov/reports/2022-country-reports-on- human-rights-practices/slovenia/).
The same information is contained in reliable reports prior to and contemporaneous with the time of the readmission against today's claimant, according to which "access to the asylum procedure is denied to many potential applicants who entered Slovenia illegally: they are fined and forcibly returned-often collectively-to
neighboring Croatia. These collective expulsions occur without respect for appropriate procedural safeguards against refoulement and despite credible information about widespread violence committed by Croatian police and the risk of further expulsions to Bosnia and Herzegovina" (AI - Amnesty International, Human Rights in Europe - Review of 2019 - Slovenia [EUR 01/2098/2020], April 16, 2020, https://www.amnesty.org/en/countries/europe-and- central-asia/slovenia/report-slovenia/; see also EASO, Asylum Report 2020, https://www.easo.europa.eu/sites/default/files/EASO-Asylum-Report-2020.pdf; Aida, Country Report Slovenia 2019 update, March 2020, https://asylumineurope.org/wp-content/uploads/2020/03/report-download_aida_si_2019update.pdf; USDOS - US Department of State, Country Report on Human Rights Practices 2019 - Slovenia, March 11, 2020, https://www.state.gov/reports/2019-country-reports-on-human-rights-practices/slovenia/).
Thus demonstrated the high risk of informal readmission from Slovenia to Croatia without respect for asylum-related guarantees, international sources also attested (and attest) to the violence perpetrated by Croatian agents against migrants, as well as to the systematic refoulements operated to Bosnia; specifically, "Refoulement practices persisted throughout 2021 ... According to the Danish Refugee Council (DRC), 9. 114 people were returned from Croatia to Bosnia and Herzegovina (BiH) in 2021, including vulnerable groups ... The AYS and the Border Violence Monitoring Network (BVMN) recorded 2. 805 individual victims of illegal deportation and police violence who were collectively deported in 205 groups, of which 44% of the individuals explicitly and unsuccessfully sought asylum in Croatia ... The Center for Peace Studies (CPS) also reported that the practice of refoulement and denial of access to asylum continued in 2021. The SPC reported that the practice of denial of access to the asylum system, illegal deportation, and frequent use of violence are the most problematic aspects in relation to access to the international protection system ... there were also reports of injured and dead migrants ... In April 2021, the United Nations in Bosnia and Herzegovina called for urgent action to end violent refoulement and collective expulsions of migrants, asylum seekers and refugees, including minors, along the Croatian border with Bosnia and Herzegovina" (Aida, Country Report Croatia 2021 update, March 2022, https: //asylumineurope. org/wp-content/uploads/2022/04/AIDA-HR_2021update.pdf) and again "Humanitarian organizations have documented continued collective refoulement and expulsions by Croatian authorities. Civil society groups have called for a proper investigation into systemic violations at the country's borders" (AI - Amnesty International, Amnesty International Report 2022/23; The State of the World's Human Rights; Croatia 2022, March 27, 2023, https://www.amnesty.org/en/location/europe-and-central-asia/croatia/report-croatia/).
Such practices were well known as early as 2020 at the time of the readmission of today's plaintiff (USDOS - US Department of State, Country Report on Human Rights Practices 2019 - Croatia, March 11, 2020, https://www.state.gov/reports/2019-country-reports-on-human-rights-practices/croatia/; HRW - Human Rights Watch, Violent Pushbacks on Croatia Border Require EU Action, October 29, 2020, https://www.hrw.org/news/2020/10/29/violent-pushbacks-croatia-border-require-eu-action; HRW - Human Rights Watch, World Report 2020 - Croatia, January 14, 2020, https://www. hrw.org/world-report/2020/country- chapters/croatia; AI - Amnesty International, Croatia: Prosecution of police accused of beating migrant must herald end of cruel practices at the borders, June 19, 2020, https://www.amnesty.org/en/latest/news/2020/06/croatia-prosecution- of-police-accused-of-beating-migrant-must-herald-end-of-cruel-practices-at-the-borders/; AIDA, Country Report Croatia 2019 update, April 2020, https://asylumineurope.org/wp-content/uploads/2014/08/AIDA-HR_2019update.pdf). Well, all of the cited sources give an account of the violence that Croatian police officers systematically use against intercepted migrants, on a psychological and physical level, with reports of destruction and removal of belongings
personal belongings, including clothing and shoes, beatings including with weapons (such as sticks and iron bars), attacks by police dogs, and sexual violence.
Finally, fully documented is the situation that rejected persons find themselves living in Bosnia, determined by overcrowding and lack of reception spaces, resulting in displacement to (often informal) places unable to guarantee the most basic human needs, exposed to the weather and lacking sufficient water and food.
In this regard, it appears that "While most refugees and migrants have been housed in reception centers, several hundred people, including families with children, were sleeping rough near the border, especially in Una-Sana Canton. They lacked access to essential services, including water, food, sanitation, heating and medical care. Activists said the authorities have prevented them from providing humanitarian assistance to people outside the reception centers. Discriminatory measures imposed by cantonal authorities in 2020 remained in place, including illegal bans on migrants' and refugees' freedom of movement, gathering in public places and using public transportation. The asylum system has remained largely ineffective" (AI - Amnesty International, Amnesty International Report 2022/23; The State of the World's Human Rights; Bosnia And Herzegovina 2022, March 27, 2023, https://www.amnesty.org/en/location/europe-and-central-asia/bosnia-and-herzegovina/report- bosnia-and-herzegovina/).
The state of reception in the country has been denounced by the leadership of European institutions, in particular by the Council of Europe Commissioner for Human Rights Dunja Mijatović (in a letter dated 07.12.2020 addressed to the President of the Council and the Minister of Security of Bosnia and Herzegovina: see https://rm.coe.int/commdh-2020-30- letter-to-the-authorities-of-bosnia-and-herzegovina-en/1680a099b6) and the then Vice President of the European Commission Josep Borrel (https://eeas.europa.eu/regions/africa/91182/bosnia-and-herzegovina-migration-crisis-far- over_en). The European Commission's Office of Civil Protection spoke of a real ongoing humanitarian crisis: "The current weather conditions threaten the lives of more than 1,700 people sleeping outside in dire conditions, including many children and unaccompanied families. ... Existing temporary shelter centers are overburdened and more than 1,700 people, including many children and unaccompanied families, are forced to sleep in abandoned buildings or makeshift tents, without access to safe and decent shelter, water, sanitation, electricity and heating. They have only limited access to food and drinking water. The worrying sanitary conditions increase exposure to communicable and infectious diseases as well as the spread of the coronavirus pandemic. ...existing EU-funded temporary reception centers, additional restrictions on refugee and migrant movement imposed by local authorities, and the recent closure of two major temporary reception centers in Bira and Lipa, have exacerbated the humanitarian situation with some 1,700 refugees and migrants sleeping outside. As an immediate priority, the EU had urged the authorities in Bosnia and Herzegovina to relocate the refugees and migrants living in the Lipa facility, which was not winter-proof, to the EU-funded "Bira" reception center in Bihać, which is ready to house them. The decision of the local authorities not to materialize this request, resulted in a humanitarian disaster ... Overcrowded reception centers or rough sleeping, poor living conditions, and the permanent state of insecurity and violence are straining the mental health of migrants, refugees and asylum seekers ... The coronavirus outbreak could worsen the already difficult humanitarian situation and have dramatic consequences both inside the overcrowded reception facilities and outside, as migrants and refugees lack adequate access to water and sanitation" (https://ec.europa.eu/echo/where/europe/bosnia-and-herzegovina_en).
Other sources attested to this situation in the very months immediately preceding the readmission of today's applicant (USDOS - US Department of State, Country Report on Human Rights Practices 2019 - Bosnia and Herzegovina, March 11, 2020, https://www.state.gov/reports/2019-country-reports-on-human-rights-practices/bosnia- and-herzegovina/; AI - Amnesty International, Human Rights in Europe - Review of 2019 - Bosnia and Herzegovina,
April 16, 2020, https://www.amnesty.org/en/countries/europe-and-central-asia/bosnia-and-herzegovina/report-bosnia- and-herzegovina/; HRW - Human Rights Watch, World Report 2020 - Bosnia and Herzegovina, January 14, 2020, https://www.hrw.org/world-report/2020/country-chapters/bosnia-and-herzegovina).
The description of the sources coincides perfectly, on the other hand, with what the informants heard at the hearing reported about the state in which the applicant was forced to live when they met him in early 2021, at the informal settlement near Bihać where he had arrived following the chain of rejections that began with the first one suffered in Trieste.
If the above sources show that the risk associated with informal readmission was perfectly knowable by the Italian authorities at the time they carried it out, the conditions of extreme deprivation witnessed and documented in court confirm that this risk actually materialized with respect to today's applicant, contrary to the Respondent Administration's claim about the lack of evidence on the point. Specifically, the appellant expressed his willingness to seek protection in Italy, but this possibility was denied to him by the Italian authorities, who readmitted him to Slovenia by unlawful conduct, as set forth above. As a result of this, the applicant was harmed in his right to seek protection and to receive all the guarantees related to the status of asylum seeker, as well as in his other fundamental rights, including the right to physical integrity, due to the inhumane treatment and undignified living conditions he experienced during the chain refoulement process and in the informal camp in Bosnia.
Precisely in order to escape the described degrading conditions in Bosnia and once again putting his own safety at risk, the applicant finally re-crossed the entire route through the Balkan countries on his own and managed to reach Italy a second time, where he still is after having finally had access to the asylum procedure and having obtained, as a result of it, the recognition of refugee status (as per the certificate on file), the highest form of international protection.
All in all, the complex of violations suffered deserves to receive redress in the form of compensation, all the conditions being met.
In fact, the informal readmission, actually carried out by the Administration as fully demonstrated in court and acknowledged by the Administration itself, must first of all qualify as unlawful and therefore illegitimate due to its conflict with domestic law, even of constitutional rank, and international law, with the value of a superordinate source pursuant to Article 117 of the Constitution, under the profiles analyzed above. Moreover, this conduct was carried out despite the fact that the responsible authorities knew, or at least could have (and should have) known, the consequences of the readmission itself, in light of the numerous reports cited already existing at the time, what is worth configuring the subjective element required by Article 2043 of the Civil Code for the purpose of the recognition of a liability for tort.
It must still be considered that the described illegitimate conduct not without fault on the part of the Administration has caused unjust damage to today's applicant, exposing him to serious and multiple violations of his fundamental rights, in the very act of readmission (as to the right to seek and receive protection) and as a result of it (in the chain of illegitimate rejections as far outside the European Union, marked by the risk and concrete subjection to inhuman and degrading treatment). Such damage is compensable in accordance with the principles enucleated on the subject by the jurisprudence of
legitimacy (see in particular Cass. SS.UU. no. 26972 of 11.11.2008), which, on the basis of the combined provisions of Articles 2043 and 2059 of the Civil Code, in the sphere of non-pecuniary rights, recognize the right to compensation when the wrongful act has seriously violated inviolable rights of the person, as such subject to constitutional protection, as certainly occurred in the case at hand.
The rigorous proof of such damage, which must necessarily be provided at trial by the party seeking compensation for it, can, however, by well-established jurisprudence of legitimacy, be replaced, in the case of non-material damage as in the case at hand, by presumptive evidence, it being sufficient for the injured party to indicate "the concatenated series of known facts which, according to the principle of causal regularity, make it possible to deduce the consequences derived therefrom" (Cass. SS.UU. no. 26972/2008 cited above). The harm to the applicant could thus already be inferred from the very conduct of readmission to Slovenia, i.e., to a country which, while it does not guarantee fair access to the asylum procedure, frequently destines readmitted persons for refoulement to Croatia and thus to the violence of the authorities of the latter country, as well as for a new refoulement to Bosnia and thus to the degrading living conditions existing there for migrants and asylum seekers, all as concordantly documented by the most authoritative international sources cited above.
In the present case, then, the violations of fundamental rights suffered by the appellant are also proven concretely and specifically, with particular regard to the living conditions in the camp in Bosnia, testified to by informants who met the appellant while he was there and portrayed in a photographic and journalistic report made public and produced in the record. The damage thus appears to be not only the normal consequence of the tortious conduct, but even specifically proven.
Finally, between the actions of the Administration and the damage suffered by the appellant there is a clear causal link, since the violation of the right to asylum and the inhuman treatment were the direct consequence of the informal readmission of the appellant to Slovenia by the border authorities of Trieste: the latter immediately violated the appellant's right to seek asylum and to enjoy the related guarantees provided by domestic and international law and, by the same conduct, made possible the subsequent violations.
That said, finally, as to the liquidation of the damage suffered by today's applicant, necessarily having to proceed with an equitable criterion since it is a non-pecuniary prejudice, it is necessary to consider the continuation of the damage for a period of six months, from the moment of his readmission to Slovenia on 17.10.2020 until the moment of his re-entry into Italy on 17.04.2021, when the applicant was able to access a fair asylum procedure and the illegitimate violation of his rights attributable to the Italian authorities consequently ceased. Well, in light of all the above considerations, the applicant's claim for compensation must be granted and the sum owed in this regard by the Respondent Administration in favor of the applicant must be determined, at present value, at 18,200.00 euros, equal to the measure of 100.00 euros for each day of delay in access to the asylum procedure in Italy, for period between 17.10.2020 and 17.04.2021, plus legal interest from the publication of this judgment to the balance.
The costs of litigation follow the criterion of losing the case and must be borne by the Respondent Administration, in the amount set forth in the operative part and with distraction, having regard to the bracket relating to the sum claimed and awarded by way of compensation, average values for all phases and excluding the decision-making phase, which was not carried out.
The Court of Rome, in monocratic composition, definitively ruling, thus provides:
- ascertains and declares the illegitimacy of the conduct of the respondent administration in ordering the readmission of the applicant to Slovenia on that date and, accordingly condemns it, in the person of its legal representative, to pay the sum of 18,200.00 euros in favor of the same, as compensation for damages, plus legal interest from the judgment to the balance;
- orders the respondent Administration, in the person of its legal representative, to reimburse the costs of litigation in favor of Attorneys Caterina Bove and Anna Brambilla, who have declared themselves antistatists, in total settled in the amount of 3,376.00 euros for fees, plus general expenses at 15% and accessories as per law.
Rome, May 9, 2023.
The Judge dott.ssa Damiana Colla