Communicated on 10 March 2017

THIRD SECTION

Application no 67981/16 H and others against Switzerland lodged on 23 November 2016

STATEMENT OF FACTS

1 . The applicants, a father and mother and their daughter and son, are nationals of the Central African Republic. They are represented by Ms R. Massara, a lawyer practising in Zurich.

2 . The facts of the case, as submitted by the applicants, may be summarised as follows.

A. The circumstances of the case

1. Background to the case

3 . In 2013 the first, second and third applicant left the Central African Republic, due to ongoing civil unrest and violence against Muslims. After a two year stay in Chad the applicant s travelled to Libya, from where they embarked towards Italy at the end of May 2016. The applicants were rescued by the Italian Coast Guard and subsequently brought to Italy . Upon their arrival the applicants were registered and fingerprinted. They did not, however, apply for asylum in Italy.

4 . Due to the accommodation conditions in Italy and the lack of medical care for the highly pregnant second applicant, the applicants travelled to Switzerland, where they applied for asylum at the end of June 2016. In the beginning of July 2016 the fourth applicant was born and the mother, 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 of her medical treatment. The new ‑ born was provided with HIV prophylaxis for four weeks.

2. Asylum and Deportation proceedings

5 . In July 2016 the applicants were interviewed by the State Secretariat for Migration ( Staatssekretariat für Migration ) (SEM), which subsequently requested a transfer to Italy. On 4 October the Italian authorities confirmed the transfer request for the applicants and reaffirmed the circular letter of the Italian government, guaranteeing appropriate accommodation and support for families, such as the applicants.

6 . On 12 October 2016 the SEM decided not to examine the applicants ’ asylum request due to the competence of the Italian authorities. In addition it ordered the removal of the applicants to Naples, Italy. The SEM held that, since the applicants were registered in Italy, the Italian authorities were competent to examine their asylum request. Moreover, as the Italian authorities had provided assurances, appropriate accommodation in one of the family units provided by the SPRAR ( Sistema di protezione per richiedenti asilo e rifugiati ) projects was ensured for the applicants in Italy. As regards the health conditions of the mother the SEM stated that her health condition was sufficiently stable to travel and that Italy was obliged by European law to provide the applicants with the necessary medical care. Concerning the new-born it held that he was not receiving antiviral medication anymore and that he only required periodic examinations. The SEM also found that there were no indications that medical treatment for HIV was not accessible in Italy, that Italy would not comply with its international obligations and that the applicants would not receive the necessary medical treatment in Italy. It also stated that the Swiss authorities were obliged to inform the receiving authorities in Italy about the health conditions of the applicants and their medical needs before they were transferred.

7 . On 26 October 2016 the Federal Administrative Court dismissed the applicants appeal and confirmed the reasoning of the SEM.

B. Relevant domestic law

8 . Article 31a of the Swiss Asylum Act ( Asylgesetz ) reads, as far as relevant, as follows:

“(1) The SEM shall normally dismiss an application for asylum if the asylum seeker:

(...)

b . can travel to a third country that is responsible under an international agreement for conducting the asylum and removal procedures; (...)”

9 . Article 29a of the Asylum Ordinance 1 ( Asylverordnung 1 ) concerning the assessment of competence under the Dublin Regulation reads as follows:

(1) The SEM shall assess competence to deal with an asylum application in accordance with the criteria laid down in Regulation (EU) No 604/2013.

(2) If this assessment shows that another State is responsible for dealing with the asylum application, the SEM shall issue a decision declining to examine the application once the requested State has agreed to take charge of or take back the asylum seeker.

(3) The SEM may also, on humanitarian grounds, deal with the application even where the assessment shows that another State is competent.

(4) The procedure for taking charge of or taking back the asylum seeker by the competent State shall be carried out in acc ordance with Regulation (EC) No 1560/2003.”

C. Relevant European Union Law

10 . The relevant provisions of the Dublin III Regulation of the European Union (Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third ‑ country national or a stateless person (recast)) read as follows:

Article 3 – Access to the procedure for examining an application for international protection

“1. Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.

2. Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it.

Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.

Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible.

3. Any Member State shall retain the right to send an applicant to a safe third country, subject to the rules and safeguards laid down in Directive 2013/32/EU.”

Article 13 – Entry and/or stay

“1. Where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned in Article 22(3) of this Regulation, including the data referred to in Regulation (EU) No 603/2013, that an applicant has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for international protection. That responsibility shall cease 12 months after the date on which the irregular border crossing took place.

2. When a Member State cannot or can no longer be held responsible in accordance with paragraph 1 of this Article and where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned in Article 22(3), that the applicant — who has entered the territories of the Member States irregularly or whose circumstances of entry cannot be established — has been living for a continuous period of at least five months in a Member State before lodging the application for international protection, that Member State shall be responsible for examining the application for international protection.

If the applicant has been living for periods of time of at least five months in several Member States, the Member State where he or she has been living most recently shall be responsible for examining the application for international protection. ”

Article 25 – Replying to a take back request

“1. The requested Member State shall make the necessary checks and shall give a decision on the request to take back the person concerned as quickly as possible and in any event no later than one month from the date on which the request was received. When the request is based on data obtained from the Eurodac system, that time limit shall be reduced to two weeks.

2. Failure to act within the one month period or the two weeks period mentioned in paragraph 1 shall be tantamount to accepting the request, and shall entail the obligation to take back the person concerned, including the obligation to provide for proper arrangements for arrival.”

Article 31 – Exchange of relevant information before a transfer is carried out

“1. The Member State carrying out the transfer of an applicant or of another person as referred to in Article 18(1)(c) or (d) shall communicate to the Member State responsible such personal data concerning the person to be transferred as is appropriate, relevant and non-excessive for the sole purposes of ensuring that the competent authorities, in accordance with national law in the Member State responsible, are in a position to provide that person with adequate assistance, including the provision of immediate health care required in order to protect his or her vital interests, and to ensure continuity in the protection and rights afforded by this Regulation and by other relevant asylum legal instruments. Those data shall be communicated to the Member State responsible within a reasonable period of time before a transfer is carried out, in order to ensure that its competent authorities in accordance with national law have sufficient time to take the necessary measures.

2. The transferring Member State shall, in so far as such information is available to the competent authority in accordance with national law, transmit to the Member State responsible any information that is essential in order to safeguard the rights and immediate special needs of the person to be transferred, and in particular:

(a) any immediate measures which the Member State responsible is required to take in order to ensure that the special needs of the person to be transferred are adequately addressed, including any immediate health care that may be required;

(b) contact details of family members, relatives or any other family relations in the receiving Member State, where applicable;

(c) in the case of minors, information on their education;

(d) an assessment of the age of an applicant.

3. The exchange of information under this Article shall only take place between the authorities notified to the Commission in accordance with Article 35 of this Regulation using the ‘ DubliNet ’ electronic communication network set-up under Article 18 of Regulation (EC) No 1560/2003. The information exchanged shall only be used for the purposes set out in paragraph 1 of this Article and shall not be further processed.

4. With a view to facilitating the exchange of information between Member States, the Commission shall, by means of implementing acts, draw up a standard form for the transfer of the data required pursuant to this Article. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44(2).

5. The rules laid down in Article 34(8) to (12) shall apply to the exchange of information pursuant to this Article.”

Article 32 – Exchange of health data before a transfer is carried out

“1. For the sole purpose of the provision of medical care or treatment, in particular concerning disabled persons, elderly people, pregnant women, minors and persons who have been subject to torture, rape or other serious forms of psychological, physical and sexual violence, the transferring Member State shall, in so far as it is available to the competent authority in accordance with national law, transmit to the Member State responsible information on any special needs of the person to be transferred, which in specific cases may include information on that person ’ s physical or mental health. That information shall be transferred in a common health certificate with the necessary documents attached. The Member State responsible shall ensure that those special needs are adequately addressed, including in particular any essential medical care that may be required.

The Commission shall, by means of implementing acts, draw up the common health certificate. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44(2).

2. The transferring Member State shall only transmit the information referred to in paragraph 1 to the Member State responsible after having obtained the explicit consent of the applicant and/or of his or her representative or, if the applicant is physically or legally incapable of giving his or her consent, when such transmission is necessary to protect the vital interests of the applicant or of another person. The lack of consent, including a refusal to consent, shall not constitute an obstacle to the transfer.

3. The processing of personal health data referred to in paragraph 1 shall only be carried out by a health professional who is subject, under national law or rules established by national competent bodies, to the obligation of professional secrecy or by another person subject to an equivalent obligation of professional secrecy.

4. The exchange of information under this Article shall only take place between the health professionals or other persons referred to in paragraph 3. The information exchanged shall only be used for the purposes set out in paragraph 1 and shall not be further processed.

5. The Commission shall, by means of implementing acts, adopt uniform conditions and practical arrangements for exchanging the information referred to in paragraph 1 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44(2).

6. The rules laid down in Article 34(8) to (12) shall apply to the exchange of information pursuant to this Article.”

11 . The Dublin III Regulation definitively/in its entirety entered into force in Switzerland on 1 July 2015 by resolution of the Swiss Federal Council of 12 June 2015 following the decree of t he Swiss Federal Assembly of 26 September 2014.

COMPLAINT

The applicants complain under Article 3 of the Convention about their impending deportation to Italy. They argue that due to the increased number of migrants in Italy there is a strong likelihood that they will not be accommodated in one of the existing family units provided by the SPRAR project ( Sistema di protezione per richiedenti asilo e rifugiati ) in Italy, as there exist only 12 family units in the Naples area. Moreover, the applicants complain that their deportation would lead to an interruption in the medical treatment of the second and fourth applicant, which could have life ‑ threatening consequences.

QUESTIONS

1. In the light of the applicants ’ claims and the documents which have been submitted, would they face a risk of being subjected to treatment in breach of Article 3 of the Convention if the deportation order were enforced?

2. Given the health condition of the second and fourth applicant, were the assurances, obtained from the Italian authorities, sufficient to exclude the possibility of a breach of Article 3?

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