CASE OF A.S. v. SWITZERLAND
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Italy);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Positive obligations;Article 8-1 - Respect for family life) (Conditional) (Italy)
András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens
5. The applicant is a Syrian national of Kurdish origin. He was born in 1988 and currently lives in Geneva. On an unknown date he entered Swizerland from Italy, where he had arrived also on an unknown date. On 18 February 2013 he sought asylum in Switzerland. 6. On 8 May 2013 the Federal Office of Migration (the “FOM”) rejected the applicant’s asylum request on the basis of the fact that his fingerprints had already been registered in EURODAC, in Greece, on 16 August 2012, and in Italy, on 21 January 2013. Furthermore, the Italian authorities had accepted the Swiss authorities’ request of 17 April 2013 to take the applicant back into their territory by virtue of Article 10 § 1 of Regulation no. 343/2003/EC (the “Dublin Regulation”). The FOM further ruled that the applicant’s two sisters, who were living in Switzerland respectively since 2006 and January 2012, did not fall under the category of “family members” as provided in Article 2 (i) of the Dublin Regulation. Regarding the back problems alleged by the applicant, it considered that Italy was obliged to grant him access to medical treatment and that nothing indicated that those health problems impeded the transfer of the applicant to Italy. 7. The applicant appealed against the FOM’s decision to the Federal Administrative Court (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 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 Regulation because Greece was the first member State he had entered less than twelve months before. Thus it was the Greek 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 his 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 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. He claimed that owing to the presence of his sisters he had 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. 8. On 13 June 2013 the FAC dismissed the applicant’s appeal. It ruled that according to the Dublin Regulation the applicant had to return to Italy, whose authorities had, prior to accepting the Swiss request for 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 Regulation was not applicable in 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 deficiencies in the Italian reception system and that Italy failed to respect its international 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 their Italian counterparts about the applicant’s health problems when they were executing the expulsion. 9. Before this Court the applicant produced in particular a medical report dated 6 June 2013 establishing that, as a result of trauma allegedly suffered in detention in Syria, he had back problems and showed severe symptoms of post-traumatic stress disorder. As a result, the applicant was put on a course of twice monthly psychotherapy sessions with a general practitioner and was prescribeda daily dose of Sertraline, an anti-depressant, as well as sleeping pills (Zolpidem) and pain-killers for his back (Tilur). The report also stated that in the absence of medical treatment the applicant’s health status would deteriorate quickly and put him at a high risk of alcohol or drug abuse as well as suicide. The risk of suicide would be greater should the applicant be returned to his country of origin. Moreover, according to the report, the involvment of the applicant’s sisters was “an absolute necessity” (absolument nécessaire) for him to gain some emotional stability in order to overcome the multiple traumas suffered. Upon the recommendation of his doctor, the applicant was allocated an individual apartment unit for asylum seekers. The applicant also submitted his sisters’ declarations, according to which he was virtually spending the whole time with their families, he was in great emotional need, could not be left alone and spent only the nights alone in his apartment. They added that they were willing and able to provide him with emotional support so that he could recover from his trauma.