In 2022, the European Court intervened in some cases of Italy's alleged violation of the European Convention on Human Rights by Italy concerning its duties to protect refugees and asylum seekers.

Unaccompanied Foreign Minor Asylum Seekers

The first case concerned, in particular, the rights of an applicant who, when applying for international protection, stated that he was under 18 years of age. In the case of Darboe and Camara (no. 5797/17 of 21 July 2022), the complaint concerns the alleged violation of Article 8 ECHR, due to the non-application of the guarantees provided for in the age determination procedure for an unaccompanied foreign minor, and the violation of Article 3 ECHR, for having placed the minor in a reception centre for adults in inadequate conditions. While the case of the applicant Camara was struck off the list as the lawyers had meanwhile lost contact with the applicant, the Darboe case was declared admissible. The applicant, who arrived in Italy in 2016, had stated that he was an unaccompanied minor and requested international protection. Darboe was placed for four months in an overcrowded reception centre for adults, with insufficient staff and hardly accessible care. The poor conditions of the facility were confirmed both in a parliamentary question tabled following a visit to the Cona facility (metropolitan city of Venice) on 16 November 2016, and in a report by the non-governmental organisation Associazione Giuristi Democratici (ASGI) which visited Cona on 4 January 2017. To ascertain his age, the applicant had undergone a radiological examination, without having given his informed consent and despite having been issued a health card in the meantime, attesting to his minority. 

The applicant, therefore, complains that the Government did not take all necessary measures to protect him as a minor and ensure the procedural guarantees related to the determination of his age. In fact, not only was he not appointed a guardian as required by law, but he also did not have the support of an interpreter or cultural mediator. Law No. 47 of 2017, which introduced specific guarantees for migrant minors regarding the age determination procedure, entered into force after the events that are the subject of the case. The ECHR, therefore, considered Article 19 of Legislative Decree No. 25 of 2008, which implements Article 17 of European Union Directive 2005/85 on guarantees for unaccompanied minor asylum seekers. The rules considered provided for the assistance of a guardian during the application for international protection, the need to obtain the consent of the person for a "non-invasive" medical examination aimed at ascertaining minority in case of doubt, and the right to be informed about the examination, the type of medical examination and its consequences about the application for international protection. According to the Court, the European Union law in force at the time of the events clearly recognised the primary importance of the child's best interests and the principle of the presumption of minority. Upon arrival in Italy, the applicant had requested international protection and declared his minority; nevertheless, he was unable to benefit from a legal guardian, was placed in a reception centre for adults, was not provided with the necessary tools to submit an asylum application, nor did he receive information regarding the age determination procedure. The presumption of minority represents, according to the Court, an element inherent to the protection of the right to respect for the private life of an unaccompanied foreign national who declares himself or herself to be a minor. Therefore, failure to respect this principle, therefore, constitutes a violation of Article 8 ECHR. The same article implies that the age assessment procedure must be accompanied by sufficient procedural safeguards, including the appointment of a legal representative or guardian, access to a defender and informed participation in the procedure itself. The Court then looked into the conditions of the applicant's placement in the Cona facility. The argument that during the period in question, Italy, like various other European countries located at the external borders of the Union, was facing an extraordinary influx of asylum seekers cannot justify the adoption of reception standards below a certain threshold: the prohibition of inhuman treatment is defined by Article 3 ECHR in absolute terms. In particular, the reception conditions for minor asylum seekers must be appropriate to their age and such as not to create stress, anxiety and further trauma. The Court also recognised that there had been a violation of Article 13 ECHR, as the applicant did not have an effective remedy available to complain about his conditions at the reception facility and its suitability. In summary, the Court recognised a violation of Articles 3, 8 and 13 in conjunction and ordered the Italian authorities to pay €7,500 in compensation for non-pecuniary damage and €4,000 in reimbursement of costs.

Conditions in Hotspots

Some applications that were rejected as inadmissible concerned asylum seekers detained in hotspots who had been unable to consult with their lawyers. The case of H.B. (no. 33803/18 decided on 22 November 2022) concerned the applicant's detention at the hotspot located inside the First Reception and Aid Centre in Pozzallo before his expulsion to Tunisia and the inability to consult a lawyer, in violation of Article 5 ECHR. The application was struck out of the list under Article 35 as being manifestly ill-founded in light of the applicant's inability to challenge the objection raised by the Government or to provide any reasonable explanation for the fact that his name was not found in the Italian authorities' database or for the discrepancy between the identification number and the name associated with it. The case of H.L. (no. 52953/18 of 22 November 2022) concerned the applicant's detention in the hotspot located inside the First Reception and Aid Centre in Trapani, pending his expulsion to Tunisia. Here, too, the applicant complained of being unable to consult a lawyer, which violated Article 5 ECHR. The application was struck out of the list under Article 35 as the applicant did not explain the reasons why he did not appeal the expulsion order and did not submit an application for international protection.