Switzerland: Federal Administrative Court (BVG), 12.06.2019, BVGE 3078/2019
| Country of Decision: | Switzerland |
| Country of applicant: | Syria |
| Court name: | Federal Administrative Court (BVG) |
| Date of decision: | 12-06-2019 |
| Citation: | BVGE 3078/2019 |
Keywords:
| Keywords |
|
Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
|
Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
|
Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
|
Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
The State Secretariat for Migration (SEM) must carry out an individualised examination to determine whether there are substantial grounds for believing that the asylum procedure of the Member State where the applicant shall be transferred to has systemic weaknesses that would entail a risk of inhuman treatment or chain deportation.
Facts:
The complainant is a Syrian national who travelled via the Balkan route to Italy and from there to Switzerland, where he applied for asylum.
According to the EURODAC database, the complainant had been registered in Croatia, but had not submitted an asylum application there.
The SEM requested the Croatian Dublin Unit to take charge of the complainant in accordance with Art. 13 para. 1 Dublin III Regulation. During the legal hearing on the responsibility of Croatia for conducting the asylum procedure, the complainant stated that he would not go back to Croatia due to his experiences in Croatia. He asserted that he had tried to enter Croatia 18 times and that each time he was taken back to the Bosnian-Herzegovinian border. The Croatian police tortured and humiliated him, they fingerprinted the applicant under duress and had also injured his leg. As evidence, he submitted a photograph of his injured leg. The complainant alleged that he was not in a fit state to return to Croatia and that he had also injured himself. To prove this, the complainant's representative submitted media reports and a short medical report. Later, the legal representative of the complainant informed the SEM that the latter had visited the hospital due to suicidal risks.
As the Croatian Dublin Unit agreed to the transfer of the complainant, the SEM ordered his transfer to Croatia. In its order, the SEM stated that Croatia is a signatory state to the European Convention of Human Rights (ECHR) and that it complies with all obligations under international law. Furthermore, the SEM argued that Croatia continues to have adequate medical care and that the transfer arrangements will take the complainant's state of health into account.
The complainant lodged an appeal against the transfer order and requested that the case be referred back to the lower court for re-evaluation.
Decision & reasoning:
The Federal Administrative Court (BVG) annuls the decision and refers the matter back to the lower instance for re-evaluation.
The BVG had to examine, in light of Art. 3 para. 2 Dublin III Regulation, whether there were substantial grounds to believe that the asylum procedure and conditions for asylum applicants in Croatia had systemic weaknesses that would entail a risk of inhuman treatment within the meaning of Art. 4 of the European Charter of Fundamental Rights.
The BVG argues that there is a presumption that the states participating in the Common European Asylum System respect human rights. However, this presumption could be rebutted. If there is reason to believe that the person concerned will be subjected to inhuman treatment in the event of a transfer, he or she may not be transferred.
The BVG first sets out that there is an increasing number of reports from national and international organisations stating that the Croatian authorities are refusing asylum seekers access to an asylum application centre and are returning them to the Bosnian-Herzegovinian border. However, the BVG is refraining from examining whether there are serious and systemic deficiencies for asylum seekers in Croatia. The BVG argues that the SEM had not sufficiently addressed the individual situation of the complainant and the situation in Croatia.
The SEM should have investigated ex officio whether the complainant might be at risk of being subject to treatment prohibited by Art. 3 ECHR, so that there might have been compelling reasons for activating the discretionary clause under Art. 17 para. 1 Dublin III Regulation. On the basis of the complainant's submissions and the country situation, the SEM should have examined in the present case whether the transfer to Croatia could result in chain deportation and thus violate the principle of non-refoulement. The SEM also failed to sufficiently address the medical situation of the complainant and did not examine whether he could face medical hardship if transferred to Croatia.
Outcome:
The appeal is granted.
Observations/comments:
This summary was written by Theresa Richter, LLM-student at Queen-Mary-University (London).
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-411-10 and C-493-10, Joined cases of N.S. v United Kingdom and M.E. v Ireland |
Other sources:
Special Rapporteur of the Committee on Migration, Refugees and Displaced Persons, Tineke Strik ‘Pushback policies and practice in Council of Europe member States’, Doc. 14909, 8 June 2019
Communication from the Parliamentary Assembly of the Council of Europe, Member States must halt 'pushback' policies and expulsion of migrants, 31 May 2019
Jean-Pierre Monnet, 'La Jurisprudence du Tribunal administratif fédéral en matière de transferts Dublin', in: Breitenmoser et al [Ed.], Schengen and Dublin in practice - Current issues, 2015
Organisation Are you Syrious, AYS Special: EU Border Violence ‘Combi is like hell’ 4. October 2018