Tarakhel v. Switzerland, GC judgment of 4 November 2014
The Court considered it appropriate to examine the complaint concerning the applicants’ reception conditions in Italy solely from the standpoint of Article 3.
Concerning the overall situation of the reception arrangements for asylum seekers in Italy, the Court
had previously observed that the Recommendations of the Office of the United Nations High Commissioner for Refugees (“UNHCR”) and the report of the Commissioner for Human Rights of the Council of Europe, both published in 2012, referred to a number of failings. Without entering into the debate as to the exact number of asylum seekers without accommodation in Italy, the Court noted the glaring discrepancy between the number of asylum applications made in 2013 (over 14,000) and the number of places available in the facilities belonging to the SPRAR network [Sistema di protezione per richiedenti asilo e rifugiati] (9,630 places).
With regard to living conditions in the available facilities, the Court noted that in its Recommendations for 2013 UNHCR had described a number of problems. However, UNHCR had not
reported situations of widespread violence or insalubrious conditions, and had stressed the efforts
undertaken by the Italian authorities to improve reception conditions for asylum seekers. The
Human Rights Commissioner, in his 2012 report, had noted the existence of some problems with
regard to legal aid, care and psychological assistance in the emergency reception centres, the time
taken to identify vulnerable persons and the preservation of family unity during transfers.
The Court reiterated that, as a “particularly underprivileged and vulnerable” population group,
asylum seekers required “special protection” under Article 3 of the European Convention on Human
Rights. This requirement of “special protection” of asylum seekers was particularly important when
the persons concerned were children, even when they were accompanied by their parents
In view of the current situation of the reception system in Italy, the possibility that a significant
number of asylum seekers removed to that country might be left without accommodation or might
be accommodated in overcrowded facilities, in insalubrious and violent conditions, was not
unfounded. The Swiss authorities were obliged to obtain assurances from their Italian counterparts
that on their arrival in Italy the applicants would be received in facilities and in conditions adapted to the age of the children, and that the family would be kept together.
The Court noted that, according to the Italian Government, families with children were regarded as a
particularly vulnerable category and were normally taken charge of within the SPRAR network.
However, the Italian Government had not provided any further details on the specific conditions in
which the authorities would take charge of the applicants.
Without detailed and reliable information about the specific reception facility to which the
applicants would be sent, the physical conditions of their accommodation, and the question of
whether the family would be kept together, the Court considered that the Swiss authorities did not
have sufficient assurances that, if returned to Italy, the applicants would be taken charge of in a
manner adapted to the age of the children.
Were the Swiss authorities to send the applicants back to Italy without having first obtained
individual guarantees from the Italian authorities that they would be taken charge of in a manner
adapted to the age of the children and that the family would be kept together, there would
accordingly be a violation of Article 3 of the Convention.
Court’s press release: http://hudoc.echr.coe.int/webservices/content/pdf/003-4923136-6025044
A.A. v. Switzerland, 07 January 2014
“38. As established in the Court’s case-law, Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006‑XII). Expulsion by a Contracting State may however give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008).
39. As established in the case of Mohammed v. Austria (no. 2283/12, § 109, 6 June 2013) the security and human rights situation in Sudan is alarming. Country reports further indicate that the situation has even deteriorated in the last few months (see paragraphs 20-28 above). However, while the Court has never ruled out the possibility of a situation of general violence in a country of origin triggering the application, and subsequently a breach of Article 3 upon the deportation of an applicant to the said country, it has also held that such an approach would only be adopted in the most extreme cases. It has generally insisted that an applicant shows that special distinguishing features existed in his case that could or ought to have enabled the Contracting State’s authorities to foresee that he or she would be treated in a manner incompatible with Article 3 (see, mutatis mutandis, NA. v. the United Kingdom, no. 25904/07, §§ 114-115, 17 July 2008).
40. With regard to the situation of political opponents of the Sudanese government, the Court nevertheless holds that the situation is very precarious. From the Country reports and the relevant case law above (see paragraphs 20-30), it is evident that suspected members of the SPLM-North, members of other opposition parties, civil society leaders and journalists are frequently harassed, arrested, beaten, tortured and prosecuted by the Sudanese authorities. Because of the ongoing war in different states, the SPLM-North has been banned by the Sudanese government and accordingly many people were detained because of their real or perceived links with that organisation. Furthermore, not only leaders of political organisations or other high-profile people are at risk of being detained, ill-treated and tortured in Sudan, but anyone who opposes or is only suspected of opposing the current regime. Moreover, it has been acknowledged that the Sudanese government monitors activities of political opponents abroad.
41. In the applicant’s case, the Court notes that he has been a member of the SLM-Unity in Switzerland for several years. The Government however disputed the genuineness of his activities. In this regard, the Court acknowledges that it is generally very difficult to assess in cases regarding sur place activities whether a person is genuinely interested in the political cause or has only become involved in it in order to create post-flight grounds. In similar cases, the Court has therefore taken into account factors such as whether the applicant was a political activist prior to fleeing his home country, and whether he played an active role in making his asylum case known to the public in the respondent State (see S.F. and Others v. Sweden, no. 52077/10, §§ 66-67, 15 May 2012, and N. v. Finland, no. 38885/02, § 165, 26 July 2005). In the present case, the Court however also has regard to the fact that the applicant joined the SLM-Unity in Switzerland several years before he launched his second asylum request, at a time when it still might not have been foreseeable for him to apply for asylum in Switzerland a second time. In view of the importance which the Court attaches to Article 3 of the Convention as set out above (see paragraph 38), and the irreversible nature of the damage which results if the risk of torture or ill-treatment materialises, the Court therefore prefers to assess the applicant’s claim on the grounds of the political activities he effectively carried out.
42. In this regard, the Court considers that the applicant’s political activities have increased in importance over time, as illustrated by his appointment as human rights officer of the SLM-Unity in Switzerland and his participation in international meetings on the human rights situation in Sudan. The Court however agrees with the Government insofar as the applicant’s political profile had not been very exposed. He had not, for example, delivered any talks in those conferences, and in the interview broadcast on the TV channel in Eastern Switzerland, he had not mentioned his political activities. The Court therefore considers that if the applicant were to be expelled to a country where the human rights situation of political opponents was less worrying than in Sudan, he would, on account of his political activities, not be exposed to a risk of treatment contrary to Article 3 of the Convention.
43. However, as set out above (see paragraph 40), not only leaders and high-profile people, but also those merely suspected of supporting opposition movements are at risk of treatment contrary to Article 3 of the Convention in Sudan. In the case of politically involved Sudanese nationals abroad, in particular those who had been seen to be affiliated with the SLM at the international meetings in Geneva, it has furthermore been established that they had been registered by the Sudanese authorities (see paragraph 30 above). In view of the applicant’s participation in the international human right meetings, where representatives of the Sudanese government were present and where usually only a few citizens of one country participate so that they are relatively easily identifiable, as well the applicant’s argument with the current Sudanese president’s brother, the Court cannot therefore rule out that he, as an individual, attracted the Sudanese government’s attention. Having also participated in some of those meetings on behalf of the SLM-Unity Switzerland, the Court believes that the applicant might, at least, be suspected of being affiliated with an opposition movement by the Sudanese government. It therefore finds that there are substantial grounds for believing that he might be known to the Sudanese government and would be at risk of being detained, interrogated and tortured as soon as he arrived at the airport in Sudan. Moreover, he would not have the opportunity to relocate. Accordingly, the Court finds that the implementation of the deportation order against the applicant would give rise to a violation of Article 3 of the Convention.”