Tarakhel v. Switzerland (ECtHR), Appl. no. 29217/12, of 4 Nov. 2014

Introduction

The Tarakhel v. Switzerland judgment underlines the importance of ensuring fundamental rights in the Dublin system and the problems in making the Dublin system consistent with the obligations and rights of the ECHR.

The Dublin III Regulation sets criteria for determining the Member State responsible to examine an asylum claim in Europe. Aim of the regulation is to guarantee that a Member State is responsible for the examination of an asylum application, to prevent applicants from submitting applications in more than one Member State and to ensure an effective access to the asylum procedure. The Dublin Regulation is binding for all EU Member States as well as for Iceland, Liechtenstein, Norway and Switzerland.

Background

The Tarakhel v. Switzerland judgment concerns a family of eight Afghans who firstly applied for asylum in Italy in 2011, but left the country due to inadequate conditions at the asylum seekers reception where they were assigned to. According to the family, living conditions at the reception center were very poor, due to the lack of appropriate sanitation facilities, the lack of privacy and the climate of violence among the occupants. The family moved to Austria where they also applied for asylum but the application was rejected due to Italy’s responsibility in accordance with the Dublin Regulation. Before they could be transferred to Italy, the family moved to Switzerland and lodged a new application.The Swiss authorities requester Italy to take charge of the family which the Italian authorities accepted in accordance with the Dublin Regulation. In connection with the Swiss authorities’ transfer decisions, Mr. G. Tarakhel challenged the decision firstly before the Federal Administrative Court and thereafter before the European Court of Human Rights (ECtHR).

Before the ECtHR, the applicant relied on articles 3, 8 and 13 of the ECHR and claimed that if they were to returned to Italy they would be exposed to inhuman and degrading treatment due to the risk that they would not obtain accommodation or being accommodated in inhuman and degrading conditions. The applicants claimed that such treatment would violate their rights under article 3 of the ECHR, which prohibits torture and degrading treatment. According to the applicants, this risk was related to the lack
of individual guarantees due to the systemic deficiencies in the reception system of asylum seekers in Italy. The applicants also alleged a breach of article 13, right to an effective remedy, and claimed that the Swiss authorities had not given satisfactory consideration to their personal circumstances (the ECtHR rejected the claim of article 13).

Judgment by the Grand Chamber of the ECtHR

Tarakhel v. Switzerland is the latest case to join the growing case law regarding the Dublin system. In M.S.S. v. Belgium and Greece (Appl. no. 30696/09, of 11 January 2011) the Court held that Belgium had violated the applicant’s right under articles 3 and 13 of the ECHR, since Belgium had transferred an Afghan national to Greece in accordance with the Dublin Regulation, being aware of the systematic deficiencies in the country. The ECtHR also ruled that Greece had violated article 3 of the ECHR due to bad detention conditions, no adequate living conditions after the release from detention, and because of Greece’s deficient asylum procedure.

There are some crucial differences between Tarakhel and the judgment in M.S.S., since the argument in Tarakhel was merely about the applicant’s living conditions at the Italian reception centre and not related to deficiencies in the Italian asylum procedure.

The Court stated that the ‘current situation in Italy can in no way be compared to the situation in Greece at the time of the M.S.S. judgment’, where only a few asylum seekers received accommodation and lived in conditions of the most extreme poverty. The Court held that ‘the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, cannot be dismissed as unfounded’. Consequently, the Court confirmed the risk that asylum seekers might not get accommodation or that the conditions of the accommodations would be defective. The Swiss authorities therefore needed to obtain assurance and individual guarantees from the Italian authorities that the applicants ‘will be received in facilities and in conditions adapted to the age of the children, and that the family will be kept together’, since asylum seekers and especially children are regarded as vulnerable groups. The Swiss authorities did not obtain assurance and individual guarantees for the applicants on their return to Italy, which the Court found constituted a breach of article 3 of the ECHR.

The Court did not mention the CJEU’s Abdullahi v. Bundesasylamt judgment (C-394/12) in Tarakhel v. Switzerland but it is of great significance in this context. The main question in the Abdullahi v Bundesasylamt judgment concerns the interpretation of the Dublin Regulation and which rights asylum seekers derive from this Regulation. The Court stated that ‘the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systematic deficiencies in the asylum procedure’, or pleading system deficiencies in the conditions for the reception.

Comments

The Tarakhel judgment confers a greater investigative responsibility to the Member States. Before this decision States had to investigate whether systemic deficiencies occurred in the receiving State which then would prohibit a transfer. After Tarakhel it can be seen that Member States need to obtain individual guarantees from the receiving Member State whether there are systemic deficiencies or not. Hence, an asylum seeker can challenge his or her transfer much easier. The European Asylum System and the Dublin Regulation were adopted in order to make it possible to assume that all contracting States observe and fulfill the fundamental human rights. The purpose of the Dublin Regulation is thus, to make the asylum seeking procedure more effective by ensuring a mutual confidence for contracting States in the regard that the receiving State will provide an asylum procedure that is in line with fundamental rights.

However, this can be disputed after the Tarakhel judgment. One can see that the ECtHR is developing its case law in a direction where Member States have to investigate whether the receiving State actually fulfils its obligations regarding fundamental human rights contained in the ECHR and other international treaties. This decision diminishes the purpose of the Dublin Regulation and weakens the assumption that all contracting States observe fundamental human rights.

The ECtHR’s decision and the obligation to investigate imposes a heavy workload on the Member States, compromising the effectiveness and quickness of the asylum seeking procedure. However, the decision of the ECtHR also means that Member States must actively investigate and ensure a reception of asylum seekers that complies with fundamental human rights in each individual case. This kind of procedure is more likely to ensure that a Member State does not breach the principle of non-refoulement than the earlier system, where States could send an asylum seeker to his or her first State without any obligation to investigate whether fundamental human rights are observed in any case of suspicion.

by Mathias Davatz, Stephanie Winkler, Kristé Zvinklyté

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About eulaworebro

Örebro Universitet (Sweden)
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2 Responses to Tarakhel v. Switzerland (ECtHR), Appl. no. 29217/12, of 4 Nov. 2014

  1. Julia Sandgren says:

    It is clear that the ECtHR takes another standpoint than the CJEU in this matter. Since the EU has not yet acceded to the ECHR, the ECtHR cannot assess whether the Dublin Regulation is compatible with the ECHR. But it can, as in this case, assess whether the practice and interpretation of the Dublin Regulation by a Contracting Party is in line with the ECHR.

    As the authors of the post make clear, the Tarakhel judgment “weakens the assumption that all contracting States observe fundamental human rights”, a presumption that follows the principle of mutual recognition. Steve Peers is critical to the CJEU’s maintenance of the principle of mutual recognition as regards asylum law in his article “The EU’s Accession to the ECHR: The Dream Becomes a Nightmare” published in the German Law Journal (Vol. 16 No. 01 2015, pp. 213-222). He argues that it will be possible to avoid many violations of human rights if a State could refuse to transfer asylum-seekers to another State on human rights grounds, despite the Dublin Regulation. But CJEU is probably objecting to the judgment in Tarakhel by the ECtHR, which departed from the CJEU’s judgment in Abdullahi v. Bundesasylamt (see p. 220 in Peers’ article). Peers further states that the Treaties only refer to mutual recognition regarding criminal and civil law, never asylum law. Furthermore, the divergent practice regarding asylum-seekers in different Member States undercut the CJEU’s assumption that the mutual recognition is justifiable to such a high degree (see p. 222 in Peers’ article). I agree with Peers since it is no meaning to maintain the principle of mutual recognition in this field where it is very doubtful if every Member State is fulfilling its human rights obligations. Fundamental rights must simply come first. I therefore welcome the ECtHR’s judgment in Tarakhel and hope that the CJEU will follow in its footsteps in this matter.

  2. Sara Carlbom says:

    The Court is indeed taking an approach that promotes fundamental rights for the individual by declaring that contracting parties to the Dublin Regulation are under the duty to find out all relevant information of the living conditions of the State they intend to send them back to. This judgment thus extends the responsibility for Member States in the form of investigating the conditions in the receiving State. The pros with this judgment is clearly the strengthening of fundamental rights for asylum seekers.

    However, consequences with such a ruling is that the underlying purpose of the Dublin Regulation is neglected. As the authors so rightly point out, the purpose was to ensure an effective access to the asylum procedure and make it more effective. An extensive State obligation to robustly investigate the living conditions for other States before making a decision would in fact slow down the asylum process. Even though such a ruling is an important one to make in the sense of promoting human rights, one might wonder whether the ECtHR possibly has taken this matter a little too far when laying down such State obligations. It is problematic in certain aspects. First of all, this was not what the contracting States signed up for when they signed the treaty. On the second point, this ruling creates a situation leading to a quiet opposite situation that the Dublin regulation initially aimed for. However, it does not seem that strange that the ECtHR judged in such a way, based on the fact that the Court aims to protect and ensure human rights as far as possible. Furthermore, even though it is important and the obligation sounds good in theory, one might wonder whether the concerned States really fulfill this obligation in practice. Not because they don’t want to, but because they cannot do it since it is a very far-reaching obligation causing a heavy burden on the Member States.

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