ECtHR - A.S. v. Switzerland, Application no. 39350/13, 30 June 2015

Facts:

The applicant, a Syrian national of Kurdish origin, entered Switzerland from Italy and applied for asylum. His asylum request was rejected on the grounds that his fingerprints had already been registered in Greece and Italy and that the latter had accepted to take him back under the Dublin II Regulation. The applicant appealed against that decision, stating that he had been prosecuted, detained and tortured in Syria. He further claimed that this decision was in breach of the Dublin Regulation because Greece was the first Member State he entered and therefore responsible for examining his asylum request. The applicant claimed that if returned to Italy, he would face treatment contrary to Article 3 of the Convention. He further complained under Article 8 of the Convention stating that his removal to Italy would violate his right to family life.

Decision & reasoning:

Taking cue from Tarakhel (Tarakhel v. Switzerland ([GC], no. 29217/12), the Court raised serious concerns over the capacity of the Italian accommodation facilities for asylum seekers. However, it highlighted that in the case at hand the applicant was not critically ill and that there were no indications that he would not receive appropriate psychological treatment if returned to Italy. Accordingly, the Court found that the present case did not disclose very exceptional circumstances such as in D. v. the United Kingdom and therefore found no violation of Article 3 in case of expulsion [36-37].

Turning to the complaint under Article 8, the Court recalled that within the meaning of that Article, there would be no family life between parents and adult children or between adult siblings unless they would demonstrate additional elements of dependence (F.N. v. the United Kingdom) [49]. The Court considered that the Swiss authorities had achieved a fair balance between the applicant’s interests in family life and the public order interests of the country. Therefore, it found that the implementation of the decision to remove the applicant to Italy would not give rise to a violation of Article 8 of the Convention.

With regards to the applicant’s complaint under Article 13 in conjunction with Article 3, it was struck out in accordance with Article 37 para 1 (a) of the Convention.

Outcome:

No violation of Article 3 in case of removal to Italy.

No violation of Article 8.

Observations/comments:

Joint Concurring Opinion of Judges Sajó, Vučinić and Lemmens

Judges Sajó, Vučinić and Lemmens did not share the majority’s opinion with regards to the reasoning of the complaint based on Article 8. In their view, close personal ties between the family members are sufficient for the purposes of Article 8. They considered that the fact that the three siblings were the only family members living in Switzerland strengthened their ties. What is more, in their opinion, the applicant’s claims that he depends emotionally on his sisters supports the argument of family life.

Nevertheless, they joined the majority’s opinion because even though the applicant and his sisters may now have strong family ties, they cannot be considered so strong as to require the applicant’s continued presence in Switzerland.