SECOND SECTION

Application no . 39350/13 A.S. against Switzerland lodged on 17 June 2013

STATEMENT OF FACTS

1 . The applicant, Mr A.S., is a Syrian national, who currently lives in Geneva. He is represented before the Court by Mr B. Wijkstrom, a jurist of the Centre Social Protestant in Geneva.

A. The circumstances of the case

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

3 . The applicant, a Syrian national of Kurdish origin, sought asylum in Switzerland.

4 . The Federal Office of Migration (hereafter “the FOM”) rejected the applicant ’ s asylum request based on the fact that his fingerprints had already been registered in EURODAC in Greece and in Italy. Furthermore, the Italian authorities had accepted the Swiss authorities ’ request to take the applicant back into its territory according to Article 10 § 1 of Regulation no. 343/2003/EC (hereafter “the Dublin II Regulation”). The FOM further ruled that the applicant ’ s sisters, who are living in Switzerland, do not fall under the category of “family members” as provided in Article 2 let. i of the Dublin II Regulation. Regarding the alleged back problems of the applicant, it considered that Italy was obliged to grant him access to medical treatment. Furthermore, nothing indicated that those health problems impeded the transfer of the applicant to Italy.

5 . The applicant appealed against the FOM ’ s decision to the Federal Administrative Court (hereafter “the FAC”). He maintained that he had fled his home country Syria because he had been persecuted, detained and tortured there. As established by medical certificates, he had been diagnosed with a severe post-traumatic stress disorder for which he was receiving medical treatment. He was also receiving medical treatment for his back problems. He claimed that the FOM ’ s decision was in breach of Article 10 § 1 of the Dublin II Regulation because Greece was the first member State he had entered less than 12 months ago. Thus it was the Greece authorities which were theoretically responsible for examining his asylum request. It could not, however, be derived from the fact that he could not be returned to Greece as established in M.S.S. v. Belgium and Greece [GC] (no. 30696/09, ECHR 2011) that Switzerland could return him to Italy. Therefore, the Swiss authorities ’ request for return to Italy was in breach of the law because they had known that the Italian authorities were not competent in that matter, and Italy had erroneously accepted the request. According to the applicant, the FOM ’ s decision also violated Article 15 § 2 of the Dublin II Regulation which provided that persons who were dependent on relatives who were residing in a member State should be kept together with them. In this regard he established that two of his older sisters were legally residing in Switzerland with their families. Owing to their presence he claimed to have regained a certain emotional stability in his life. His expulsion to Italy, where he had no family member to care for him, would therefore aggravate his mental health problems in such a way that he would be at risk of irreparable harm contrary to Articles 3 and 8 of the Convention.

6 . The Federal Administrative Court dismissed the applicant ’ s appeal. It ruled that according to the Dublin II Regulation the applicant had to return to Italy whose authorities had, prior to accepting the Swiss request of return, been informed by Switzerland that the applicant had first entered the Dublin area in Greece. Furthermore, the FAC considered that in view of the dates of arrival in the respective countries it could not be excluded that on leaving Greece the applicant had left the Dublin area before entering Italy. Furthermore, it established that the applicant was not so severely ill that he was dependent on the assistance of his sisters. Therefore, Article 15 § 2 of the Dublin II Regulation was not applicable on his case and neither was Article 8 of the Convention. Moreover, the FAC held that with regard to the asylum procedure and the availability of medical treatment for asylum seekers it had not been established that there were structural failures in Italy and that it failed to respect its international treaty obligations in respect of asylum seekers and refugees. Therefore, nothing indicated that the applicant would suffer treatment contrary to Article 3 of the Convention in the event of expulsion to Italy. Finally, the FAC stated that it was up to the Swiss authorities to inform the Italian authorities about the applicant ’ s health problems when they were executing the expulsion.

7 . Before this Court the applicant produced medical certificates establishing that as a result of torture suffered in detention in Syria, he has back problems and shows severe symptoms of post-traumatic stress disorder. His treating psychiatrist in Switzerland placed him on a course of twice monthly psychotherapy sessions and he receives an antidepressant and sleeping pills as well as pain-killers for his back. Furthermore, upon the recommendation of his treating psychiatrist to the Cantonal migration authorities, the applicant was allocated an individual apartment unit for asylum seekers, which is only granted in very exceptional cases based on medical needs. His psychiatrist further envisaged the possibility that psychiatric follow-up might be necessary depending upon the evolution of the applicant ’ s mental health status. With regard to the impending expulsion, the psychiatrist stated that in absence of medical treatment the applicant ’ s health status would deteriorate quickly and put him at a high risk of suicide. Moreover, the presence of the applicant ’ s sisters was “absolument nécessaire” so that he gained some emotional stability in order to overcome the multiple traumas suffered. The applicant also submitted his sisters ’ declarations, according to which he is virtually spending the whole time with their families, is in great emotional need, cannot be left alone and spends only the nights in the apartment. They added that they were willing and able to provide him with the emotional support so that he recovers from his trauma.

B. Relevant domestic and international law

8 . Article 34 of the Asylum Act of of 26 June 1998, as in force at the relevant time, reads as follows:

Art. 34 Dismissal of an asylum application due to safety from persecution abroad

« 1. [ ... ].

2. Applications for asylum are normally dismissed if asylum seekers:

[ ... ]

d. can travel to a third country that has jurisdiction under an international agreement to conduct the asylum and removal proceedings

[ ... ]. »

9 . Article 2, 10 and 15 of the Council Regulation (EC) No 343/2003 of 18 February 2003 (the Dublin II Regulation) read as follows:

Article 2

« For the purposes of this Regulation:

[ ... ]

( i ) ‘ family members ’ means insofar as the family already existed in the country of origin, the following members of the applicant ’ s family who are present in the territory of the Member States:

(i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens;

(ii) the minor children of couples referred to in point ( i ) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law;

(iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried;

[ ... ]. »

Article 10

« 1. Where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned in Article 18(3), including the data referred to in Chapter III of Regulation (EC) No 2725/2000, that an asylum seeker 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 asylum. This responsibility shall cease 12 months after the date on which the irregular border crossing took place.

[ ... ]. »

Article 15

« [ ... ]

2. In cases in which the person concerned is dependent on the assistance of the other on account of pregnancy or a newborn child, serious illness, severe handicap or old age, Member States shall normally keep or bring together the asylum seeker with another relative present in the territory of one of the Member States, provided that family ties existed in the country of origin.

[ ... ]. »

COMPLAINTS

The applicant complains under Article 3 of the Convention that he would face treatment contrary to Article 3 of the Convention in the event of his expulsion to Italy. He submits that a return would cause a serious deterioration of his mental health status and put him at a very significant risk of suicide. He alleges that in Italy he would face conditions of indigence with little, if any, access to appropriate medical care. He alleges that the consequences to his physical and mental integrity would be so severe that they would amount to a breach of Article 3 of the Convention.

Under Article 8 of the Convention and referring to the Court ’ s case-law he alleges that his relationship to his sisters in Switzerland falls within the protective scope of his right to respect for his family life owing to his severe mental health status which represents an “[...] additional factor of dependence, other than normal emotional ties” (see Bousarra v. France , no. 25672/07, §§ 38-39, 23 September 2010, no. 39051/03, et al.). He claims that he has no family members living in Italy and that he is young and unmarried. In addition, he alleges that an expulsion would also infringe his right to respect for his private life because it would affect his moral and physical integrity, as established above (see Bensaid v. the United Kingdom , no. 44599/98, § 47, ECHR 2001 I).

Under Article 3 in conjunction with Article 13 he claims that the FAC failed to grant him interim relief pending the outcome of the proceedings before them. Thereby, they made his appeal a totally ineffective remedy because, despite his severe mental health status, he was not protected from being expelled to Italy at any time, which would have put him at a serious risk of a treatment contrary to Article 3 of the Convention (see Mohammed v. Austria , no. 2283/12, § 72, 6 June 2013).

QUESTIONS

1. In the light of the applicant ’ s health status, especially his mental health condition and the treatment indicated by his treating psychiatrist, would his removal to Italy pursuant to the provisions of Council Regulation (EC) No. 343/2003 (the “Dublin II Regulation”) amount to treatment in breach of Article 3 of the Convention?

2. In the light of the applicant ’ s health status and his alleged dependency on his two sisters in Switzerland, would his removal to Italy interfere with the applicant ’ s right to respect for his private and family life within the meaning of Article 8 § 1 of the Convention?

If so, would that interference be in accordance with the law, necessary in a democratic society and proportionate to the aims pursued in terms of Article 8 § 2?

3 . In the light of the refused interim relief pending proceedings before the Federal Administrative Court, did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3 as required by Article 13 of the Convention?

4 . The parties are requested to provide full and updated details on the accommodation and medical arrangements to be put in place by the Italian authorities upon the applicants ’ arrival in Italy and to comment on the sufficiency of those arrangements.