Information Note on the Court’s case-law 191

December 2015

Z.H. and R.H. v. Switzerland - 60119/12

Judgment 8.12.2015 [Section III]

Article 8

Article 8-1

Respect for family life

Removal of husband under Dublin Convention following refusal to recognise his alleged marriage to 14-year-old bride: no violation

Facts – The applicants, who were Afghan nationals, requested asylum in Switzerland after previously re gistering as asylum-seekers in Italy. They presented themselves to the Swiss asylum authorities as a married couple, saying they had been married at a religious ceremony in Iran when the first applicant was 14 and her husband, the second applicant, 18. The y did not produce a marriage certificate. Their request for asylum was rejected. The second applicant was removed to Italy, but managed to return illegally three days later and was allowed to remain. In the appeal proceedings against the refusal, the domes tic courts found, among other things, that the applicants’ marriage was incompatible on grounds of public policy given that sexual intercourse with a child under the age of 16 was a criminal offence under Swiss law. The applicants could not therefore claim any right to family life under Article 8 of the Convention.

In the Convention proceedings, the applicants alleged that the second applicant’s expulsion to Italy in 2012 had violated Article 8 of the Convention and that there would be a further violation i f he was expelled again.

Law – Article 8: The Court saw no reason to depart from the Swiss Federal Administrative Court’s findings that the applicants’ religious marriage was invalid under Afghan law and was in any case incompatible with Swiss ordre public owing to the first applicant’s young age. Article 8 of the Convention could not be interpreted as imposing on any State party to the Convention an obligation to recognise a marriage, religious or otherwise, contracted by a 14-year-old child. Nor could suc h obligation be derived from Article 12 of the Convention. Article 12 expressly provided for regulation of marriage by national law and given the sensitive moral choices concerned and the importance to be attached to the protection of children and the fost ering of secure family environments, the Court should not rush to substitute its own judgment for that of the national authorities.

The national authorities had therefore been justified in considering that the applicants, who had taken no steps to seek rec ognition of their religious marriage in Switzerland, were not married.

In any event, even if their relationship had qualified as “family life” under Article 8, the second applicant had returned to Switzerland just three days later and had been allowed to r emain in Switzerland and to request a re-examination of his asylum application, which had eventually succeeded. Nor was the first applicant ever prevented from joining the second applicant after his expulsion to Italy.

Bearing in mind the margin of appreciation afforded to States in immigration matters, a fair balance had been struck between, on the one hand, the personal interests of the applicants in remaining together in Switzerland while awaiting the outcome of the f irst applicant’s asylum application, and, on the other, the Swiss Government’s interests in controlling immigration.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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