THIRD SECTION
DECISION
Application no. 67981/16
H and others
against Switzerland
The European Court of Human Rights (Third Section), sitting on 15 May 2018 as a Committee composed of:
Pere Pastor Vilanova, President,
Helen Keller,
María Elósegui, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 23 November 2016,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the parties’ submissions,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are Mr H (the “first applicant”), born in 1992; his wife, Ms I (the “second applicant”), born in 1994; and their two children, Ms J (the “third applicant”), born in 2008, and Mr K (the “fourth applicant”), born in 2016. They are all nationals of the Central African Republic. The President granted their request for their identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court).
2. The applicants, who had been granted legal aid, were represented before the Court by Ms R. Massara, a lawyer practising in Zürich. The Swiss Government (“the Government”) were represented by their Deputy Agent, Mr A. Scheidegger, of the Federal Office of Justice.
3. The applicants alleged, in particular, that they would face a real risk of treatment contrary to Article 3 of the Convention if they were transferred to Italy under the Dublin III Regulation.
4. On 24 November 2016 the duty judge decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicants should not be removed to Italy for the duration of the proceedings before the Court, and granted priority to the application under Rule 41 of the Rules of Court.
5. On 10 March 2017 the complaint concerning Article 3 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
A. The circumstances of the case
1. Background to the case
6. In 2013 the first, second and third applicants left the Central African Republic due to ongoing civil unrest and violence against Muslims. After a two-year stay in Chad the applicants travelled to Libya, from where they embarked for Italy at the end of May 2016. The applicants were rescued by the Italian Coast Guard and subsequently taken to Italy. Upon their arrival the applicants were fingerprinted. They did not apply for asylum in Italy. They subsequently travelled to Switzerland, where they applied for asylum on 26 June 2016.
7. At the beginning of July 2016 the fourth applicant was born and the second applicant was diagnosed with HIV. Subsequently, the second applicant received antiviral medication and her viral load was closely monitored, which led to adjustments in her medical treatment. The new‑born was provided with HIV prophylaxis for four weeks.
2. The proceedings at issue
8. After orally hearing the applicants, on 22 July 2016 the State Secretariat for Migration requested the applicants’ transfer to Italy under the Dublin III Regulation. On 4 October 2016 the Italian authorities confirmed the transfer, stating that the applicants would be accommodated in a family unit in a SPRAR (System of Protection for Asylum-Seekers and Refugees) reception centre in accordance with the circular letter of 8 June 2015 of the Italian Ministry of the Interior. These assurances set out the names and dates of birth of the applicants.
9. On 12 October 2016 the State Secretariat for Migration decided not to examine the applicants’ asylum request in substance and ordered their transfer to Italy.
10. On 26 October 2016 the Federal Administrative Court rejected the applicants’ appeal. It considered that the Italian authorities had provided assurances that the applicants would be placed in one of the family units in a SPRAR reception centre and that it was not necessary to obtain additional assurances. The second applicant’s health was sufficiently stable for travel and Italy was obliged by European law to provide the applicants with the necessary medical care. The fourth applicant no longer required antiviral medication, but only periodic examinations. There were no indications that the applicants would not receive the necessary medical treatment in Italy. Lastly, the Swiss authorities were obliged to inform their Italian counterparts about the health of the applicants and their medical needs before they were transferred.
3. Subsequent developments
11. By email of 30 March 2017 the Italian authorities stated that the applicants’ health and medical needs would be taken into account when identifying their accommodation and that they would have equal access to all necessary medical treatment compared to Italian citizens.
12. The applicants have submitted medical certificates concerning the state of health of the second and fourth applicants to the Court at regular intervals. By June 2017 the treating physician stated that the second applicant’s HIV infection had stabilised and was not at an advanced stage. It was important that she continue to take the prescribed medication (antiretroviral therapy) on a daily basis. Nonetheless, a life‑threatening medical emergency could occur any time, for example as a result of an opportunistic infection. In October 2017 the second applicant was diagnosed with post-traumatic stress disorder and depression. By letter of 23 March 2018 the applicants’ counsel informed the Court that the second applicant had been undergoing psychiatric treatment at a specialised clinic since February 2018. The fourth applicant has so far tested as HIV-negative; however, a fully reliable result will only be possible when he is two years old.
B. Relevant country information on Italy
13. On 9 February 2017 the Swiss Refugee Council and the Danish Refugee Council co-published the report “Is Mutual Trust Enough? The situation of persons with special reception needs upon return to Italy”. The report concerns the reception conditions and access to the asylum procedure for families with minor children or other persons with special needs who were transferred from either Switzerland or Denmark to Italy under the Dublin III Regulation between April 2016 and January 2017. It details six cases of vulnerable persons – pregnant women and families or individuals with minor children – who were not provided with accommodation at a SPRAR reception centre designed for families with minor children upon arrival. The information about their particular needs had been communicated to the reception facility in question. Furthermore, they encountered obstacles in accessing the asylum procedure.
COMPLAINT
14. The applicants complained that they would face a real risk of being subjected to treatment contrary to Article 3 of the Convention if they were transferred to Italy under the Dublin III Regulation. There was a real risk that they, as a family with two minor children, would not be provided with suitable accommodation in a SPRAR reception centre, given the number of asylum-seekers who were transferred and the shortage of places in these reception centres. The assurances given by the Italian authorities based on the circular letter of the Italian Ministry of Interior were not reliable, as proved by the report of the Swiss and Danish Refugee Councils of February 2017. That report also indicated a failure to provide the necessary information about medical needs to the respective reception facilities and the difficulties encountered by the transferred individuals in accessing the asylum procedure. Given that the applicants had not been formally registered as asylum-seekers in Italy, access to the specialised medical care which the second and fourth applicants required was questionable. Delays in monitoring and medical treatment could expose the second applicant to the risk of developing an opportunistic infection with life-threatening consequences. The Government were required to obtain individual and specific assurances from the Italian authorities that the applicants would be taken charge of, upon arrival, in a manner appropriate to the age of the minors, that the family would be kept together, in a manner consonant with the specific health conditions of the applicants, and that the applicants’ medical care would be assured without interruption.
THE LAW
15. Article 3 of the Convention reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
16. The Government maintained that the Court, in its case-law subsequent to Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)), had repeatedly found it compatible with Article 3 of the Convention that States intending to transfer vulnerable asylum-seekers to Italy relied on the assurances given by the Italian authorities and had not doubted that the Italian authorities, upon proper notification about the special needs of vulnerable applicants, would honour their obligations and adequately accommodate those needs. The assurances given by the Italian authorities on 4 October 2016 that the applicants would be placed in a SPRAR reception centre for families were comparable to those accepted by the Court in similar cases. Furthermore, the state of health of the second applicant was stable and not of such severity as to reach the threshold of Article 3 of the Convention. The medical treatment which she required was not complex and she could take the prescribed medication in Italy without interruption, not least because the Swiss authorities would give her a sufficient quantity of the necessary medication prior to the transfer. In their email of 30 March 2017 the Italian authorities had explicitly stated that the necessary medical treatment would be available to the applicants. The Swiss authorities would inform their Italian counterparts of her condition and needs, as well as of those of the fourth applicant, shortly before the transfer.
17. The Court reiterates the relevant principles of Article 3 of the Convention, as set out in Tarakhel (cited above, §§ 93-99 and §§ 101-104), which include the need for the ill-treatment to attain a minimum level of severity to fall within the scope of Article 3 of the Convention. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim. The material date for this assessment is the actual date of expulsion. However, if an applicant has not yet been removed when the Court examines the case, the relevant time for assessing the existence of the risk contrary to Article 3 of the Convention will be that of the proceedings before the Court (see J.K. and Others v. Sweden [GC], no. 59166/12, § 106, ECHR 2016).
18. The applicants are to be considered as asylum-seekers in Italy. It thus has to be determined whether the situation in which the applicants are likely to find themselves in Italy can be regarded as incompatible with Article 3 of the Convention, taking into account the family’s situation as asylum-seekers with young children and serious health problems, and also that they belong to a particularly underprivileged and vulnerable population group in need of special protection (see Tarakhel, cited above, § 97; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 251, ECHR 2011).
19. The Court reiterates that the situation in Italy for asylum-seekers cannot be compared to the situation in Greece at the time of the M.S.S. v. Belgium and Greece judgment (cited above) and that the structure and overall situation of the reception arrangements in Italy cannot in themselves act as a bar to all removals of asylum-seekers to that country (see Ali and Others v. Switzerland and Italy (dec.), no. 30474/14, § 33, 4 October 2016).
20. The Italian authorities provided assurances to their Swiss counterparts that the applicants would be accommodated in a SPRAR reception centre designed for families with minor children (see paragraph 8 above). These assurances are similar to those in the case of Ali and Others (cited above, § 34). The Court has previously also accepted that for efficiency reasons, the Italian authorities cannot be expected to keep open and unoccupied for an extended period of time places in specific reception and accommodation centres reserved for asylum-seekers awaiting transfer to Italy in accordance with the Dublin III Regulation (see M.A.-M. and Others v. Finland (dec.), no. 32275/15, § 26, 4 October 2016).
21. The applicants submitted that the report of the Swiss and Danish Refugee Councils of February 2017 showed that the assurances given by the Italian authorities with regard to the placement of families or individuals with minor children transferred from Switzerland were not always complied with in practice. Observing that the report documents six cases (see paragraph 13 above), the Court considers that this number is not insignificant, but at the same time not so high as to suggest that the assurances provided by the Italian authorities were per se unreliable.
22. The Court does not see any indication that the Italian authorities would fail to honour their assurance to accommodate the applicants in a SPRAR reception centre designed for families with minor children. Rather, they were made aware of the applicants’ particular needs by their Swiss counterparts and confirmed, on 30 March 2017, that they would take their particular needs into account when identifying accommodation suitable for them (see paragraph 11 above), following notification by the Swiss authorities shortly before the transfer.
23. The Court furthermore observes that the second applicant’s health is stable (see paragraph 12 above), that the necessary medical treatment is not complex and that the Swiss authorities will give her a sufficient quantity of the medication she needs (see paragraph 16 above), that the Italian authorities have already been informed about her state of health and medical needs and confirmed the availability of the necessary treatment (see paragraph 11 above), which includes the required periodic examinations for the second and fourth applicants. The Court also takes note that the second applicant’s HIV is not at an advanced stage and that her state of health is not such as to bar her transfer to Italy in accordance with the criteria set out in the case of Paposhvili v. Belgium ([GC], no. 41738/10, ECHR 2016). Under these circumstances, the Court sees no reasons to depart from its conclusions in other cases concerning Dublin transfers to Italy of persons who were not critically ill, but required medical treatment for HIV (see A.T.H. v. the Netherlands (dec.), no. 54000/11, §§ 38 and 40, 17 November 2015), post-traumatic stress disorder or depression (see A.M. v. Switzerland (dec.), no. 37466/13, §§ 6, 20-21, 3 November 2015).
24. It follows from the above that the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
25. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 7 June 2018.
Fatoş AracıPere Pastor Vilanova
Deputy RegistrarPresident
Full & Egal Universal Law Academy