Communicated on 1 July 2015

SECOND SECTION

Application no. 26456/14 M.G. and E.T . against Switzerland lodged on 4 April 2014

STATEMENT OF FACTS

1. The applicants, M.G. and E.T. , are Eritrean nationals, who were born in 1985 and 2013 respectively and live in Geneva . The President of the Section to which the application was allocated granted the applicants ’ request for their identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court ). They are represented before the Court by Centre Social Protestant , a n association registered in Geneva .

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

3. The first applicant used to work for the Eritrean Ministry of Defence, in relation to which she was imprisoned in March 2009 without any charges, legal advice or requisite medical treatment in prison.

4. In 2012 the first applicant escaped from prison and travelled to Dubai, where she gave birth to the second applicant in July 2013. She got in touch with a person organising illegal transfers abroad and stated that she would like to travel to Switzerland in order to seek asylum there.

5. That person obtained for the applicants a visa for Malta. Consequently, in November 2013 the applicants flew from Dubai to what appears to be Italy and then continued by bus to Switzerland.

6. On 10 December 2013 the applicants entered Switzerland and applied for asylum.

7. The Federal Migration Office (“FMO”) conducted a EURODAC and CS-VIS background check which revealed that the applicants had entered the EU on a Maltese visa.

8. On 30 December 2013 the applicants were interviewed in relation to their asylum application. The first applicant stated that she did not know that they had obtained a visa for Malta, since the agreement with the person organising her travel had been to transfer her and her son to Switzerland, where they had family members.

9. The FMO launched a procedure to return the applicants to Malta in accordance with Article 9 § 4 of Council Regulation (EC) No. 343/2003 (“Dublin II”).

10. In the ensuing correspondence with the Maltese authorities, on 17 February 2014 the latter accepted to take charge of the applicants under the Dublin Regulation.

11. In a letter of the Maltese authorities dated 19 February 2014 as regards the accommodation of the applicants, they stated that there was “severe pressure on the reception network in Malta” and that “ every attempt will be made to allocate [the first applicant] and her child to an open accommodation centre where their needs can be followed” . Additionally, mainstream health services which are mostly free would be available to them. The Maltese authorities held that “ motherhood per se is not a vulnerability ” and that “ this woman will no longer be defined as vulnerable once th e child starts growing and [ the first applicant] gradually becom es more and more independent ” .

12. On 5 March 2014 the FMO decided that Switzerland was not responsible for the applicants ’ asylum application due to their Maltese visa and ordered their return Malta. Notwithstanding the recognised difficulties in reception conditions and shortcomings in the examination of asylum applications in that country as reported by different sources, the Federal Administrative Tribunal ’ s longstanding jurisprudence held that there were no systematic breaches leading to a general waiving of transfers to Malta. The fact that the applicant was a single mother with a small child was not sufficient to refrain from a transfer. The FMO took into account that the applicants would have the possibility to lodge an asylum application and would be adequately treated by the Maltese authorities. Finally, the FMO ’ s decision expressly stated that an appeal did not stay the execution of the removal order.

13. The applicants appealed, maintaining that the first instance decision had not taken into account their family members residing in Switzerland and that no individual assessment had taken place concerning the applicants ’ particular vulnerability. They referred to many observer reports noting severe deficiencies in reception conditions in Malta as well as calls by different European actors on States to s top transfers to that country . Finally, they relied on Articles 3 and 8 of the Convention claiming that there was a real risk that they would be exposed to degrading and inhuman living conditions in Malta, which would go against the best interests of the second applicant, who was a small child.

14. On 1 April 2014 the Federal Administrative Tribunal upheld the first instance decision to return the applicants to Malta in summary proceedings. It recalled that the Dublin Regulation did not grant the right to choose in which state to lodge an asylum application. Although family affiliations in a certain country could be taken into account, a cousin did not fall under the definition of a family member as set out in the relevant provision. Concerning a possible violation of Article 3 of the Convention, there were no sufficiently concrete indications of a systematic failure in the asylum procedures in Malta which would violat e the European norms. Given the correspondence between the Swiss and Maltese authorities, the Federal Administrative Tribunal found no indications that the applicant s would be exposed to inhuman or degrading treatment. Their appeal and request for partial legal aid were rejected and they were ordered to pay CHF 600 for the costs of the proceedings.

15. On 4 April 2014 the applicants requested the Court to apply Rule 39 of the Rules of Court and stay their return to Malta pending the outcome of their application before it. On the same date, the Acting Section President indicated to the Swiss Government that the applicants should not be returned to Malta until further notice. In addition, the Acting President decided to give priority to the application under Rule 41 of the Rules of Court.

COMPLAINTS

1. The applicants complain that their expulsion to Malta would violate Article 3 of the Convention as they would face inhuman and degrading living conditions in that country.

2. The applicants also complain under Article 8 of the Convention that the exposure of the second applicant to conditions of severe material deprivation in Malta would be contrary to his best interest and harmful to his physical and moral integrity.

3. Finally, the applicants complain that they were denied an effective remedy as provided for by Article 13 in conjunction with their complaint under Article 3 because (a) their appeal to the Federal Administrative Tribunal did not have suspensive effect; (b) that court examined their claim in summary proceedings without individualized examination of fundamental rights; and (c) they were denied legal aid and ordered to pay the costs of the proceedings despite their indigence.

QUESTIONS TO THE PARTIES

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 return order were enforced?

2. Before deciding on the applicants ’ return, have the Swiss authorities fully examined their complaint related to the possibility of inhuman and degrading treatment in Malta? In particular, have their vulnerability, the young age of the second applicant and the reception conditions in Malta been sufficiently taken into account in the assessment of the situation by the authorities (cf. Tarakhel v. Switzerland [GC], no. 29217/12 , ECHR 2014) ?

3. Did the applicant s have at their disposal an effective domestic remedy for their complaint under Article 3 , as required by Article 13 of the Convention? In particular, did they have access to a remedy with automatic suspensive effect in order to challenge the decision on their removal (cf. M.A. v. Cyprus , no. 41872/10 , ECHR 2013)?