European Court of Human Rights Grand Chamber Decision in Tarakhel v. Switzerland

In today’s Grand Chamber judgment, which according to Article 44 of the European Convention of Human Rights (hereinafter ECHR) means it will be the final judgment in this case and cannot be overturned, the European Court of Human Rights (hereinafter ECtHR) held in the case of Tarakhel v. Switzerland (application no. 29217/12) by a majority that there would be a violation of Article 3 (prohibition of inhuman or degrading treatment) of the ECHR 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 the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.

The Dublin system is designed to determine the Member State responsible for examining an asylum application lodged in one of the European Union (hereinafter EU) Member States by a third-country national.
In particular, the Dublin Regulation establishes the principle that only one Member State is responsible for examining an asylum application. The objective is to avoid asylum seekers from being sent from one country to another, and also to prevent abuse of the system by the submission of several applications for asylum by one person. The Member State designated as responsible for the asylum application must take charge of the applicant and process the application. If a Member State to which an asylum application was submitted deems that another Member State is responsible, it can call on that Member State to take charge of the application. Where the requested State accepts to take charge of or to take back the person concerned, a reasoned decision stating that the application is inadmissible in the State in which it was lodged and that there is the obligation to transfer the asylum seeker to the Member State responsible is sent to the applicant.

The ECtHR has found a way of intervening with the Dublin system in cases in which an individual would be subject to inhuman or degrading treatment, prohibited under Article 3. Par example, in M.S.S v Belgium and Greece, a case in which an Afghan national who entered the EU via Greece before arriving in Belgium, the ECtHR found a violation

by Belgium of Article 3 (prohibition degrading treatment) of the Convention. As far as Belgium is considered, the Court further found a violation of Article 13 (right to an effective remedy) taken together with Article 3 of the Convention because of the lack of an effective remedy against the applicant’s expulsion order.
In respect of Greece, the Court found a violation of Article 13 taken in conjunction with Article 3 of the Convention because of the deficiencies in the Greek authorities’ examination of the applicant’s asylum application and the risk he faced of being removed directly or indirectly back to his country of origin without any serious examination of the merits of his application and without having had access to an effective remedy. As far as Greece is concerned, the Court further held that there had been a violation of Article 3 (prohibition of degrading treatment) of the Convention both because of the applicant’s detention conditions and because of his living conditions in Greece.

The Court here is doing more than just finding a violation of the fundamental rights and freedoms protected under the Convention. It is sending an explicit reminder that every Member State of the Council of Europe is, despite Dublin, obliged to investigate whether the individuals they aim to send back according to the regulation will be treated in conformity with the standards of the ECHR. This particularly applies for countries like Italy and Greece, where international organisations among them, United Nations High Commissioner for Refugees, constantly make aware of the lack of capacities needed to ensure fundamental rights and freedoms for all individuals: including refugees during their application procedures. For another recent case decided by the ECtHR against Italy and Greece see here.

Returning to the case at hand, which is concerned with the refusal of the Swiss authorities to examine the asylum application of an Afghan couple and their six children, who came via Pakistan, Iran, Turkey and eventually with a boat to Italy, and the decision by the Swiss authorities to send them back to Italy. The couple and their five oldest children landed on the coast of Calabria on 16 July 2011 and were immediately subjected to the EURODAC identification procedure, the taking of photographs and fingerprints, after supplying a false identity. The same day they were placed in a reception facility, where they remained until 26 July 2011, when they were transferred to the Reception Centre for Asylum Seekers (“CARA”) in Bari, once their true identity had been established. The applicants illegally left the Reception Centre and travelled to Austria where their asylum application was rejected and then later to Switzerland, where  an asylum application was lodged on 3 November 2011. After an interview at the Federal Migration Office and in accordance with Dublin Regulation II, it was concluded that Italy, whose authorities accepted the request, was to take charge of the application and that the applicants were to be removed to Italy. On 24 January 2012 the FMO decided not to examine the applicants’ asylum application on the grounds that, in accordance with the EU’s Dublin Regulation, by which Switzerland was bound under the terms of an association agreement with the European Union, Italy was the State responsible for examining the application. The applicants appealed at the Federal Administration Court without success and then filed an application at the ECtHR.

The Court found in particular that, in view of the current situation regarding the reception system 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 ECtHR increasingly intervenes with EU’s policies on refugee and asylum especially when in comes to the Dublin system or, to phrase it differently, we can witness an increasing interaction between the Council of Europe and the European Union in the field of refugee and asylum. What the Court creates with its judgments constitute at the end of the day exceptions to the Dublin Regulation II itself in the name of fundamental rights and freedoms. That being said only very few if not too few cases end up in front of the ECtHR and we can rest assured that they only display a metaphor of all those other cases of human rights violations as a result of the Dublin system.The Court in Tarakhel v. Switzerland reminded, as in M.S.S v. Belgium and Greece, that Member States are under a particular obligation to ensure that individuals, who are to be sent back to their first country of entrance in accordance to the Dublin Regulation II, are guaranteed their fundamental rights and freedoms under the ECHR especially so if they accompanied by children.

– Lily