Switzerland – Federal Administrative Court, 5th September 2017, E-305/2017
| Country of Decision: | Switzerland |
| Country of applicant: | Morocco |
| Court name: | Federal Administrative Court (Bundesverwaltungsgericht) |
| Date of decision: | 05-09-2017 |
| Citation: | E-305/2017 |
Keywords:
| Keywords |
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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." |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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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. |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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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.” |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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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." |
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Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
Headnote:
Facts:
Decision & reasoning:
The complaint was successful. The court reversed the decision of the SEM.
Firstly, the court explained that the SEM, according to Art. 31a (1) (b) Asylum Act, generally does not go ahead with the asylum procedure, if another state is responsible according to European law. According to Art. 18 (1) (d) Dublin-III-Regulation, Bulgaria would be responsible to execute the asylum procedure.
The court then made note that each member state can decide to examine the application of an asylum seeker, even though another member state is originally responsible (Art. 17 (1) 1 Dublin-III-Regulation).
The judges disagreed with the applicant regarding the systemic deficiencies in the Bulgarian asylum procedure and reception conditions. The presented reports (by the European Council on Refugees and Exiles among others) as well as references to German and Belgian verdicts do not prove that Bulgaria violated its duties. They found the hygienic deficiencies that were brought forward by the complainant not sufficient to prove an inhuman or degrading treatment in Bulgaria.
The court then explained that the state is obliged to apply Art. 17 Dublin-III-Regulation, examining an asylum application, if otherwise a provision of public international law could be infringed (Federal Administrative Court, BVGE 2010/45 E. 7.2). In the present case, there is a possible violation of Art. 33 of the Convention Relating to the Status of Refugees, Art. 3 ECHR, Art. 7 of the International Covenant on Civil and Political Rights (ICCPR) or Art. 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The Federal Administrative Court refers to a decision of the European Court of Human Rights prohibiting deportation in the case of a real risk of a violation of Art. 3 ECHR (ECtHR - T.I. v. The United Kingdom, Application No. 43844/98, Decision as to the Admissibility, 7 March 2000).
The judges clarified that generally one has to proceed on the assumption that the member states obey public international law. However, this assumption can be disproved.
They dissented from the SEM’s finding that there are no concrete indicators for a violation of the principle of non-refoulement. The complainant repeatedly stated that he was tortured in Morocco. These statements and the correlating evidence result in the obligation to examine, whether the Bulgarian authorities included it in their decision. The court questioned the assessment of the SEM that the Bulgarian authorities considered the application for asylum and explicitly explained the outcome. Although the SEM was in possession of the Bulgarian decision, their records did not include a sufficient translation thereof. Moreover, it did not include the judgement of the Bulgarian court of appeal.
Therefore, it cannot be assessed, whether and to what extent the evidence of torture found its way into the Bulgarian asylum procedure. Yet it is a strong indicator for a specific and serious risk of further torture in the case of a return to Morocco.
Thus, the court concluded that a violation of the non-refoulement principle cannot be ruled out when transferring the applicant to Bulgaria.
The court reversed the decision of the SEM. The judges ordered the SEM to declare itself responsible and examine the applicant’s claim for asylum.
Outcome:
The complaint was successful. The court reversed the decision of the SEM.
The judges ordered the SEM to declare itself responsible and examine the applicant’s claim for asylum.
Observations/comments:
This case summary was written by Tim Drunkenmölle.
In other case law considering the transfer of vulnerable persons to Bulgaria, the Federal Administrative Tribunal has given differing decisions. For example in the case of a man who claimed to have been detained and mistreated in Bulgaria, with diabetes and psychological problems, the Tribunal upheld the State's decision to transfer (E-521/2016 13 June 2016). This was also the case in another decision (D-6395/2015, 14 October 2015) where the Tribunal found that the applicant had not provided evidence to substantiate his argument that Article 17(1) DRIII applied in respect of Switerland's responsibility for his claim. Conversely, in another decision (E-7365/2015, 2 December 2015) the Tribunal held that the State authorities had not undertaken an individualised and rigorous assessment of the risk the applicants would face on return to Bulgaria, in light of the country condition reports and their specific profiles (a family with young children).
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - T.I. v United Kingdom (Application no. 43844/98) |
| ECtHR - Tarakhel v. Switzerland, Application no. 29217/12 |
Other sources:
International Covenant on Civil and Political Rights, Article 7