JOINT PARTLY DISSENTING OPINION OF JUDGES CASADEVALL, BERRO-LEFÈVRE AND JÄDERBLOM

(Translation)

We regret to find ourselves in disagreement with the majority of the judges of the Grand Chamber in their conclusion that Switzerland would be in breach of Article 3 if the applicants were to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.

Starting with the Soering case ( Soering v. the United Kingdom, 7 July 1989, Series A no. 161), the Court has consistently held that it would be a breach of Article 3 to send an individual to another State where substantial grounds have been shown for believing that the individual concerned, if extradited or expelled, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving State. The basis for liability is that the returning State has taken action which has as a direct consequence the exposure of the individual to proscribed ill ‑ treatment. That action represents the facilitation through the expulsion process of the denial of the applicant ’ s rights by the other State.

Normally, as the Court noted in Soering , liability arises under the Convention when a violation has in fact occurred; the prospect of a breach is not sufficient. However, the Court made clear that “where an applicant claims that a decision to extradite him would, if implemented, be contrary to Article 3 by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article” (see Soering , cited above, §§ 90-91). The absolute nature of the rights guaranteed under Article 3 and the irreversibility of the effects of torture and other severe forms of ill-treatment justify holding States responsible for placing individuals at risk of such treatment. The risk must be “real”, meaning that the danger must be foreseeable and sufficiently concrete.

The Court held in the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011), where the applicant ’ s expulsion from Belgium to Greece had already taken place at the time of the complaint to the Court, that the degrading conditions of detention and living conditions in Greece were well known before the transfer of the applicant and were freely ascertainable from a wide number of sources (§ 366).

In M.S.S. the Court described the deficiencies of the Greek asylum procedures and the living conditions of asylum seekers during those procedures. The systemic deficiencies and the lack of willingness by the Greek State to deal with them were apparent.

In the present case the description of the system for the reception of asylum seekers in Italy shows that there are many deficiencies, mainly due to the periodic arrival of large numbers of asylum seekers. The Italian Government, as third-party intervener, described how they are trying to deal with the situation. It is obvious that greater resources are needed in order to provide acceptable conditions for all asylum seekers, especially vulnerable groups such as families with children.

As the majority rightly concludes, the situation in Italy is to be distinguished from that in Greece at the time of the M.S.S. judgment, and the structure and overall situation of the reception arrangements in Italy cannot themselves act as a bar to all removals to that country (see paragraphs 114 to 115 of the judgment). Our conclusion is the same as that of the majority, namely that the general deficiencies in the Italian system for the reception of asylum seekers are not of a kind or a degree that would justify a blanket ban on the return of families to that country.

We note in that regard that UNHCR has not advised any “Dublin” State to halt returns of asylum seekers to Italy, whereas it made an express recommendation to that effect regarding returns to Greece. The reports drawn up by governmental and non-governmental institutions and organisations concerning the reception arrangements in Italy attest to an admittedly difficult situation. However, they also demonstrate that Italy is not systemically incapable of providing support and facilities for asylum seekers; they depict a detailed structure of services and care designed to provide for the needs of asylum seekers. Some of the reports, compiled by UNHCR and the Commissioner for Human Rights of the Council of Europe, refer to recent improvements aimed at remedying some of the failings. We further note that neither UNHCR nor the Commissioner for Human Rights sought leave to intervene in the present procedure, whereas they felt it necessary to do so in the case of M.S.S .

The question is thus whether the applicants ’ allegations concerning conditions in the Italian reception facilities disclose a concrete risk of treatment contrary to Article 3 in their individual situation.

When making such an assessment it is not enough to demonstrate that a significant number of asylum seekers are left without accommodation or accommodated in facilities without sufficient privacy, or even in insalubrious or violent conditions. It has to be assessed whether the applicants ’ individual circumstances should have led the Swiss authorities to conclude that there was a real risk of ill-treatment by the Italian authorities if the applicants were sent back to Italy.

In the present case the applicants were taken charge of by the Italian authorities as soon as they arrived in Italy. Despite their lack of cooperation (they initially supplied a false identity), they were identified within ten days and placed in a CARA reception centre in Bari.

We observe too that the applicants complained about the situation in the reception facilities in general and alleged that their living conditions during the two days they spent in the CARA in Bari had been unacceptable owing to the lack of privacy and the violence this caused. However, we note that the applicants did not at any stage claim to have been subjected to ill ‑ treatment or to have been split up.

In that respect, the applicants ’ situation differs substantially from the state of extreme material poverty observed by the Court in M.S.S . In our view, therefore, the living conditions encountered by the Tarakhel family on their arrival in Italy cannot be said to have attained the minimum threshold of severity required to come within the scope of Article 3.

It is interesting to note that, when they were interviewed for the first time by the Federal Migration Office in connection with their application for asylum in Switzerland, the applicants sought to justify their claim by arguing that living conditions in Italy had been difficult and that it would be impossible for the first applicant to find work in that country. The applicants did not invoke any other argument at that time relating to their personal situation or their recent experiences in Italy.

The administrative authority concerned was therefore right, in our view, to consider that “the ... living conditions in Italy [did] not render the removal order unenforceable”.

No information was provided concerning the applicants ’ economic circumstances or the possibilities for them to arrange accommodation of their own. However, we note that they had the resources to travel to Austria and onwards to Switzerland and to support themselves by some means during periods when they were not taken care of by the Italian, Austrian or Swiss authorities. Only if they were unable to arrange private accommodation would they have to rely on the Italian authorities to provide them with a place to live.

In the light of the foregoing we conclude that the risk for the applicants of being subjected to inhuman or degrading treatment is not sufficiently concrete for Switzerland to be held responsible for a violation of Article 3 if it were to enforce the order for the applicants ’ expulsion to Italy.

In sum, we cannot see how it is possible to depart from the Court ’ s findings in numerous recent cases and to justify a reversal of our case-law within the space of a few months: see Mohammed Hussein and Others v. the Netherlands and Italy ((dec.), no. 27725/10, 2 April 2013), in which the Court held unanimously that no systemic failings existed and that there was no reason to believe that an asylum seeker and her two young children would not have received adequate support had they been sent back to Italy from the Netherlands. The same approach was adopted in six other cases concerning returns to Italy (see Halimi v. Austria and Italy (dec.), no. 53852/11, 18 June 2013; Abubeker v. Austria and Italy (dec.), no. 73874/11, 18 June 2013; Daytbegova and Magomedova v. Austria (dec.), no. 6198/12, 4 June 2013; Miruts Hagos v. the Netherlands and Italy (dec.), no. 9053/10, 27 August 2013; Mohammed Hassan and Others v. the Netherlands and Italy (dec.), no. 40524/10, 27 August 2013; and Hussein Diirshi and Others v. the Netherlands and Italy (dec.), no. 2314/10, 10 September 2013).

The principles established by European Union law cannot be disregarded, and especially those applicable to Switzerland under the terms of the association agreement of 26 October 2004. The CJEU, in its judgment cited in paragraph 33, pointed out that the European asylum system is based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights. It is true that this presumption is rebuttable “where [the State] cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision” (see N. S. v Secretary of State for the Home Department and M. E., A. S. M., M. T., K. P., E. H. v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (CJUE C ‑ 411/10 and C-493/10), § 106).

The majority refers in paragraph 104 to the reasoning of the United Kingdom Supreme Court in its judgment of 19 February 2014, according to which, irrespective of whether systemic deficiencies exist in a State ’ s reception system for asylum seekers, the risk should be examined on a case-by-case basis.

We would repeat that, in the instant case, there is nothing to demonstrate that the applicants ’ future prospects if they were returned to Italy, whether taken from a material, physical or psychological perspective, disclosed a sufficiently real and imminent risk of hardship severe enough to fall within the scope of Article 3. There is nothing to suggest that the Tarakhel family would be left without the support and the facilities provided by Italy under Legislative Decree no. 140/2005 on minimum standards for the reception of asylum seekers. On the contrary, the Italian authorities informed the respondent Government that the applicants would be accommodated in Bologna, in one of the facilities funded by the ERF.

However, the majority did not deem these assurances to be sufficient and requested detailed and reliable ( sic ) information on numerous points: the exact facility of destination, the existence of physical reception conditions adapted to the age of the children, and the preservation of the family unit.

The respondent State observed that cooperation with the Italian authorities on the transfer of persons requiring special protection, such as families with young children, worked well, owing in particular to the presence of a Swiss liaison officer in the Dublin department of the Italian Ministry of the Interior.

Must we nonetheless impose additional requirements in future on Switzerland – and by extension on any other country in the same situation – despite the fact that neither systemic deficiencies nor a real and substantiated risk of ill-treatment have been shown to exist?

Will such assurances be required for all asylum seekers liable to be sent back to Italy – who, according to the M.S.S. judgment, are members of a particularly underprivileged and vulnerable population group in need of special protection – or only for families with children?

No doubt it was clearly foreseeable by the Swiss authorities that the applicants ’ standard of accommodation in Italy might be poor. Even if those conditions were similar to those in the CARA in Bari they would not constitute inhuman or degrading treatment in terms of their type, degree or intensity (see above). The fact that they would also affect children, who are particularly vulnerable, does not lead us to any other conclusion. It is possible that such conditions, if they extend over a lengthy period, may eventually give rise to a violation of Article 3. Were that the case it would be too far-reaching to hold the Swiss authorities responsible for failure to include that possibility in their risk assessment. Instead Italy, as a party to the Convention, would be answerable for an alleged violation of Article 3, and it would still remain open to the applicants to lodge an appeal with the Italian authorities.

[1] The footnotes have been omitted.