Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment
1) The case originated in an application (no. 29217/12) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eight Afghan nationals (collectively, “the applicants”), Mr Golajan Tarakhel (“the first applicant”), born in 1971, his wife Mrs Maryam Habibi (“the second applicant”), born in 1981, and their six minor children, Arezoo, born in 1999, Mohammad, born in 2001, Nazanin, born in 2003, Shiba, born in 2005, Zeynab, born in 2008, and Amir Hassan, born in 2012, all living in Lausanne, on 10 May 2012.
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3) Relying on Articles 3 and 8 of the Convention, the applicants alleged mainly that if they were returned to Italy they would be exposed to inhuman and degrading treatment on account of the risk of being left without accommodation or being accommodated in inhuman and degrading conditions. The risk stemmed, in their submission, from the absence of individual guarantees as to how they would be taken charge of, in view of the systemic deficiencies in the reception arrangements for asylum seekers in Italy.
Under Articles 13 and 3 of the Convention, the applicants further submitted that the Swiss authorities had not given sufficient consideration to their personal circumstances and had not taken into account their situation as a family.
8) The facts of the case may be summarised as follows.
9) On an unspecified date the first applicant left Afghanistan for Pakistan, where he met and married the second applicant. The couple subsequently moved to Iran, where they lived for fifteen years.
10) On an unspecified date the couple and their children left Iran for Turkey and from there took a boat to Italy. According to the findings of the Italian police and the identification forms annexed to the observations of the Italian Government, the applicants (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 (taking of photographs and fingerprints) after supplying a false identity. The same day the couple and the five children were placed in a reception facility provided by the municipal authorities of Stignano (Reggio Calabria province), where they remained until 26 July 2011. On that date they were transferred to the Reception Centre for Asylum Seekers (Centro di Acoglienza per Richiedenti Asilo, “CARA”) in Bari, in the Puglia region, once their true identity had been established.
11) According to the applicants, living conditions in the centre were poor, particularly on account of the lack of appropriate sanitation facilities, the lack of privacy and the climate of violence among the occupants.
12) On 28 July 2011 the applicants left the CARA in Bari without permission. They subsequently travelled to Austria, where on 30 July 2011 they were again registered in the EURODAC system. They lodged an application for asylum in Austria which was rejected. On 1 August 2011 Austria submitted a request to take charge of the applicants to the Italian authorities, which on 17 August 2011 formally accepted the request. On an unspecified date the applicants travelled to Switzerland. On 14 November 2011 the Austrian authorities informed their Italian counterparts that the transfer had been cancelled because the applicants had gone missing.
13) On 3 November 2011 the applicants applied for asylum in Switzerland.
14) On 15 November 2011 the first and second applicants were interviewed by the Federal Migration Office (“the FMO”) and stated that living conditions in Italy were difficult and that it would be impossible for the first applicant to find work there.
15) On 22 November 2011 the FMO requested the Italian authorities to take charge of the applicants. In their respective observations the Swiss and Italian Governments agreed that the request had been tacitly accepted by Italy.
16) In a decision of 24 January 2012 the FMO rejected the applicants’ asylum application and made an order for their removal to Italy. The administrative authority considered that “the difficult living conditions in Italy [did] not render the removal order unenforceable”, that “it [was] therefore for the Italian authorities to provide support to the applicants” and that “the Swiss authorities [did] not have competence to take the place of the Italian authorities.” On the basis of these considerations it concluded that “the file [did] not contain any specific element disclosing a risk to the applicants’ lives in the event of their return to Italy.”
17) On 2 February 2012 the applicants appealed to the Federal Administrative Court. In support of their appeal they submitted that the reception conditions for asylum seekers in Italy were in breach of Article 3 of the Convention and that the federal authorities had not given sufficient consideration to their complaint in that regard.
18) In a judgment of 9 February 2012 the Federal Administrative Court dismissed the appeal, upholding the FMO’s decision in its entirety. The court considered that “while there [were] shortcomings in the reception and social welfare arrangements, and asylum seekers [could] not always be taken care of by the authorities or private charities”, there was no evidence in the file capable of “rebutting the presumption that Italy complie[d] with its obligations under public international law.” With more particular reference to the applicants’ conduct it held that “in deciding to travel to Switzerland, they [had] not given the Italian authorities the opportunity to assume their obligations with regard to [the applicants’] situation.”
19) On 13 March 2012 the applicants requested the FMO to have the proceedings reopened and to grant them asylum in Switzerland. They submitted that their individual situation had not been examined in detail. The FMO forwarded the request to the Federal Administrative Court, which reclassified it as a “request for revision” of the judgment of 9 February 2012 and rejected it in a judgment dated 21 March 2012, on the ground that the applicants had not submitted any new grounds which they could not have relied on during the ordinary proceedings. The applicants had based their request mainly on a more detailed account of their stay in Italy and the fact that their children were now attending school in Switzerland.
20) In a letter of 10 May 2012 which reached the Registry on 15 May, the applicants applied to this Court and sought an interim measure requesting the Swiss Government not to deport them to Italy for the duration of the proceedings.
21) In a fax dated 18 May 2012 the Registry informed the Swiss Government’s Agent that the acting President of the Section to which the case had been assigned had decided to indicate to the Swiss Government under Rule 39 of the Rules of Court that the applicants should not be deported to Italy for the duration of the proceedings before the Court.
Outcome of the case:
For these reasons, the Court
1. Declares, unanimously, the complaints of a violation of Article 3 of the Convention admissible and the remainder of the application inadmissible;
2. Holds, by fourteen votes to three, that there would be a violation of Article 3 of the Convention if the applicants were to be returned to Italy without the Swiss authorities 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;
3. Holds, unanimously, that the Court’s finding at point 2 above constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;
4. Holds, unanimously, (a) that the respondent State is to pay the applicants, within three months, the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: EUR 7,000 (seven thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
103. It is also clear from the M.S.S. judgment that the presumption that a State participating in the “Dublin” system will respect the fundamental rights laid down by the Convention is not irrebuttable. For its part, the Court of Justice of the European Union has ruled that the presumption that a Dublin State complies with its obligations under Article 4 of the Charter of Fundamental Rights of the European Union is rebutted in the event of “systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State” (see paragraph 33 above).
