Tribunale di Bologna
National case details
Registration ID: N. R.G. 8490/2020
Instance: 1st Instance
Area of law
Safeguards for access to justice
Relevant principles applied
Legislative decree no. 25
Council of State, Judgment no. 4199
Court of Cassation, Joint Chambers, decision no. 8044
Decree of the Tribunal of Milano
Court of Cassation, decision no. 17963
Court of Cassation, decision no. 23584
Identification of the case
- Prohibition of torture and inhuman or degrading treatment or punishment (art. 4 CFREU)
- Right to an effective remedy and to a fair trial (art. 47 CFREU)
- Legislative decree 28/1/2008, no. 25, art. 3, comma 3 bis, art. 10, art. 12
- TFUE, Art. 78
- CFREU, Art. 4, Art. 47
- Regulation (UE) 604/2013, Art. 3, § 2, Art. 4, Art. 5, Art. 17, Art. 18, Art. 27 § 1, Art. 29, 18° and 19° recital
- Regulation (CE) 343/2003, Art. 19, § 2
Summary of the case
The applicant, a Pakistani citizen of Sunni Islamic religion belonging to the Punjabi ethnic group and coming from the village of Gujrat located near the border with the Kashmir region, reached the Italian territory on October 6th, 2019. He applied for the refugee status before the competent Territorial Commission.
Based on the EURODAC hit, the Italian Police ascertained the pending of a previous request for international protection already submitted in Slovenia.
On April 9th, 2020, the Italian Dublin Unit sent Slovenia a take-back request of the applicant pursuant to article 18, § 1, b) of Regulation (UE) 604/2013. The Slovenian Dublin Unit accepted the request. On June 18th, 2020, the decision of transfer was notified to the concerned person.
The applicant challenged the transfer decision before the Tribunal of Bologna. As to the merit, the applicant complains of the violation of Article 4 of Regulation (EU) 604/2013 for failure to be supplied by the competent authority with an information brochure translated into Punjabi or Urdu, the violation of Article 5 of Regulation (EU) 604/2013 for the failure to be submitted to a personal interview by the proceeding authority, the failure to examine the actual reception condition in the country where the authority deemed competent to decide is based (Slovenia), the failure to examine the material situation in the country of origin, the danger that the transfer to Slovenia will merely result in a step prior to the automatic refoulement to the country of origin.
- Civil judicial enforcement
- The applicant claims the annulment of the transfer order issued by the Italian Dublin Unit to the Member State previously designated as responsible (Slovenia)
- On 7 July 2020, the Tribunal of Bologna issued an interim order of suspension of the transfer decision
- As to the merit, the Tribunal of Bologna rejected the claim
The national Dublin Unit, which is called upon to initiate a take-back procedure pursuant to article 18, § 1, b), c) and d) of Regulation (EU) 604/2013, is not obliged to fulfil the obligation to ensure the application of the safeguards established by Article 4 (right to information) and Article 5 (right to a personal interview) of the Regulation.
Chapters II and III of Regulation (EU) 604/2013 regulate the procedure for determining the Member State responsible for examining an application for international protection. The safeguards established by Articles 4 and 5 of Regulation are instrumental in ensuring that the purpose of this procedure is effectively and usefully achieved (see 18° recital, art. 5, § 1, art. 5, § 2, b, art. 4, § 1, a) and b) of Regulation (EU) 604/2013). Therefore, any activity that does not pertain to this procedure is excluded from the scope of Articles 4 and 5 of Regulation (EU) 604/2013, as they are ontologically unrelated to the purpose of ensuring the correct determination of the Member State responsible. Therefore, the obligation to guarantee these safeguards is not binding on the Dublin Unit requesting for a take-back request, which presupposes that the procedure for determining the Member State responsible has already been definitively completed by the competent authority of the requested Member State (CJEU, GC, C-582/17 and C-583/17, H.R., §§ 72-80).
According to an interpretative option supported both by a strand of case law and by part of the doctrine, the obligation to guarantee the safeguards established by Articles 4 and 5 of the Regulation may be imposed on the requesting Member State on the basis of article 27, § 1 of the Regulation and Article 47 CFREU, inasmuch as instrumental to the exercise of right to an effective judicial remedy against a transfer decision. This opinion is evidently grounded on the assumption that the judicial review on the transfer decision carried out by the requesting Member State’s judge may lead to a reassessment of the merit of the decision determining the Member State responsible issued by the Dublin Unit of the requested Member State. Such an approach, however, ends up in conflict both with the ratio decidendi of the H.R. judgment and the overall structural logic of Regulation (EU) 604/2013. In fact, it is true that pursuant to Articles 27, § 1 and 47 CFREU a person who is the subject of a transfer decision is to have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against that decision, before a court or tribunal (CJEU, H.R., §§ 38; CJEU, C-670/16, Mengesteab; CJEU, C-201/16, Shiri). However, the judgment H.R. also specifies that this “finding does not imply that a person concerned may rely, in the national court before which such a remedy has been invoked, on the provisions of that regulation which, in so far as they are not applicable to his situation, did not bind the competent authorities when conducting the take charge or take back procedure and adopting the transfer decision” (CJEU, H.R., §§ 43). This is precisely the case of the provisions establishing the criteria for determining the Member State responsible set out in Chapter III of the Regulation, whose application falls within the exclusive competence of the Dublin Unit of the requested Member State.
Furthermore, it must be ruled out that the Italian judge, as a judicial authority of the requesting Member State, is vested with concurrent jurisdiction on the merit of claims aimed at invoking the alleged violation of the criteria set out in Chapter III of the Regulation by the foreign competent administrative authority (Slovenia), given that neither the domestic legal system nor the European Union law attribute jurisdiction on this kind of judicial claims to the judge of the Member State to which the authority that submitted the take back request belongs. Conversely, in cases where the EU law, within the scope of its own competences, has considered that in the pursuit of its own purposes it is necessary to establish rules governing the allocation of jurisdiction between the judicial authorities of the Member States, it has expressly adopted ad hoc regulatory provisions, as occurred for example with reference to Regulation (EU) 1215/2012 on jurisdiction in civil and commercial matters. On the other hand, Regulation (EU) 604/2013 does not provide for any provision of similar scope.
Consequently, the requesting Member State is obliged to make available effective judicial remedies against a transfer decision resulting from a take back request pursuant to article 18, § 1, b), c) and d) of Regulation (EU) 604/2013 in order to make possible to invoke any alleged violation both of substantive and procedural rights directly affected by the transfer decision. Conversely, pursuant to Article 47 CFREU and the 19th recital of Regulation (EU) 604/2013, the obligation to make available effective judicial remedies ensuring a review on the merit of the decision determining the Member State responsible lies with the requested Member State, regardless of whether the applicant is by his/her own choice outside the territory of that State CJEU, 7 June 2016, C-63/15, Ghezelbash, § 44-45).
Pursuant to Article 78 TFEU, the common policy of the Union on asylum, subsidiary protection and temporary protection is based on a “common” asylum system, which postulates the mutual trust between national asylum systems and the mutual recognition of judgments in every EU Member States. Trust between the national judicial systems necessarily includes, at least until proven otherwise, the presumption of availability of effective judicial remedies in each Member State. A lack of effectiveness may emerge where, in hypothesis, effective judicial remedies are not provided for by the domestic procedural law and this formal gap cannot be filled by means of a consistent interpretation with article 47 CDFUE, if necessary resorting to an interpretative referral to the CJEU (CJEU, 4 June 2009, C-243/08, Pannon, § 25; CJEU, 17 July 2014, C-169/14, Sánchez Morcillo), or where the foreign authority called upon to adjudicate is radically lacking the essential requirements to qualify itself as judicial in nature, such as impartiality and independence (CJEU, 19 November 2019, C-585/18, C-624/18, C-625/18, A.K.; CJEU, 25 July 2018, C-216/18 PPU, L.M.; CJEU, 24 June 2019, C ‑ 619/18, Commission European Union v. Republic of Poland; CJEU, 27 February 2018, C-64/16, Associação Sindical dos Juízes Portugueses v. Tribunal de Contas). In the present case, no objective reasons emerge that would allow doubting that the Slovenian jurisdiction, generally or even with reference to a particular case, lacks judicial remedies assuring an effective review on the decision determining the Member State responsible issued by the Dublin Unit of the requested Member State.
The foregoing does not exclude the obligation to the requesting Member State - in its legislative, governmental and judicial branches - to ensure effective protection against any transfer decision because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in the Member State primarily designated as responsible, resulting in a risk of inhuman or degrading treatment within the meaning of article 4 of the CFREU.
Role of the Charter and role of the general principles on enforcement
Regulation (EU) 604/2013 has direct effect in national legal order.
- Right of every person to be heard, before any individual measure which would affect him or her adversely is taken
- Right to an effective remedy before a tribunal
- Right to a fair hearing by an independent and impartial tribunal previously established by law.
The common policy of the Union on protection of asylum seekers is based on a common asylum system, which assumes the mutual trust between national asylum systems and the mutual recognition of judgments in every EU Member States. Trust between the national judicial systems necessarily includes, at least until proven otherwise, the presumption of availability of effective judicial remedies in each Member State. Article 47 CFREU binds the judicial authority of the requesting Member State to verify whether, in the specific case, the jurisdiction of the requested Member State is affected by a lack of effectiveness in the judicial remedies made available, such as to determine the overcoming of the rebuttable presumption. A lack of effectiveness may emerge where effective judicial remedies are not provided for by the domestic procedural law and this formal gap cannot be filled by means of a consistent interpretation with article 47 CDFUE or where the foreign authority called upon to adjudicate is radically lacking the essential requirements to qualify itself as judicial in nature, such as impartiality and independence of the judge.
- The obligation to the requesting Member State to make available effective judicial remedies against a transfer decision resulting from a take back request pursuant to article 18, § 1, b), c) and d) of Regulation (EU) 604/2013 stems from article 47 CFREU, such as detailed by Article 27, § 1 of the Regulation.
- The obligation to the requested Member State to make available effective judicial remedies ensuring a review on the merit of the decision determining the Member State responsible stems from Article 47 CFREU.
- The obligation to the requesting Member State to ensure effective protection against refoulement stems from Articles 4 and 47 CFREU.
Elements of judicial dialogue
- Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
- CJEU, GC, C-582/17 and C-583/17, H.R.; CJEU, C-695/15 PPU, Mirza; CJEU, C-60/16, Khir Amayry;
- CJEU, C-490/16, A.S.; CJEU, C-670/16, Mengesteab; CJEU, C-201/16, Shiri;
- CJEU, C-63/15, Ghezelbash; CJEU, C-394/12, Abdullahi; CJEU, C-243/08, Pannon, § 25;
- CJEU, C-169/14, Sánchez Morcillo; CJEU, C-585/18, C-624/18, C-625/18, A. K.; CJEU, C-216/18 PPU, L.M.;
- CJEU, C‑619/18, European Commission v. Republic of Poland; CJEU, C-64/16, Associação Sindical dos Juízes Portugueses;
- CJEU, C-578/16, PPU, C. K. and Others v. Republika Slovenija; CJEU, C-538/15, Al Chodor.
- ECtHR, M.S.S. v. Belgium and Greece, 21/1/2011; Mamatkulov e Askarov v. Turkey, 4/2/2005; Jabari v. Turkey, 11/7/2000;
- Soering v. United Kingdom, 7/7/1989; Al-Saadoon and Mufdhi v. United Kingdom, 2/3/2010;
- Öcalan v. Turkey, GC, 12/5/2005; Abraham Lunguli v. Sweden, 1/7/2003; M.E. v. Sweden, GC, 8/4/2015
- Consistent interpretation with EU law as interpreted by the CJEU
- Citation of foreign domestic judgment (Supreme Court of Slovenia)
- To solve a conflict between different trends of national caselaw
- To provide for a more analytical recognition and systematization of the principles established by the EJEU caselaw
To contribute both to clarifying administrative practices on Dublin III procedures and to orienting conflicting strands of case law