ECtHR - Tarakhel v. Switzerland (no. 29217/12) [Article 3, 8 and 13], 4 November 2014

Date: 
Monday, November 17, 2014

The European Court of Human Rights has held that Switzerland would violate Article 3 of the European Convention of Human Rights (ECHR) if they were to send the Tarakhel family (an Afghan couple and their six children) back to Italy under the Dublin II Regulation without first obtaining assurances 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.”

When considering the applicants complaint relating to reception conditions in Italy under Article 3, the Court noted that whilst Article 3 did not provide guarantees for housing or financial assistance in cases concerning EU Member States the obligations contained within the EU Reception Directive were still applicable (previously stated in M.S.S v Belgium and Greece judgment) [96].  Moreover, and again quoting M.S.S, the Court highlighted that asylum seekers were a particularly underprivileged and vulnerable population group in need of special protection [97], which is even more so the case for children (Popov v France) who required “adapted reception conditions to their age so that those conditions  do not “create ... for them a situation of stress and anxiety, with particularly traumatic consequences” [119]. Noting, however, that the situation in Italy was not comparable to the situation in Greece at the time of the MSS judgment the Court did reiterate that States must carry out a thorough examination of the situation of the person facing a Dublin transfer and that in the case of Italy persons “may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions”[115].

In this regard and when taking the individual circumstances of the applicants into consideration the Court surmised that in light of the vulnerability of the family, especially the children, the lack of guarantees that accommodation would be adequate and preserve the family unit was sufficient enough to constitute a breach of Article 3 [121-122].

Observations in the case were submitted by The AIRE Centre (Advice on Individual Rights in Europe), together with ECRE (European Council on Refugees and Exiles) and Amnesty International, assisted by lawyers from across Europe.

To read the AIRE centre, ECRE and Amnesty International's joint statement in response to the judgment, please see here.


14 November 2014                                      

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.                                                        

 

Keywords: 
Best interest of the child
Child Specific Considerations
Dublin Transfer
Family unity (right to)
Individual assessment
Inhuman or degrading treatment or punishment
Material reception conditions
Personal circumstances of applicant
Reception conditions
Responsibility for examining application
Return
Vulnerable person
Tags: 
ECtHR