The United Nations rules that the expulsion of a torture victim to Italy under the Dublin Regulation violates Convention against Torture

 

We welcome the decision of 3 August 2018 of the United Nations Committee against Torture finding that the expulsion of our client to Italy under the Dublin Regulation would violate the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by depriving him of the necessary conditions for his rehabilitation as a torture survivor. The decision of the Committee acknowledges that reception conditions for asylum seekers in Europe vary widely and that the specific medical needs of highly traumatised individuals must therefore be taken into consideration in order to avoid violating the prohibition on ill treatment. The decision provides important guidance for national decisions makers in Europe on how to apply the Dublin Regulation in a manner consistent with the fundamental rights of the individuals concerned thus avoiding unnecessary human tragedy.

Our case involves an Eritrean national who was imprisoned in Eritrea for 5 years on politically motivated charges, kept in solitary confinement for extended periods of time and repeatedly tortured during interrogation. He requested asylum in Switzerland in September 2015. On arrival, he was in a highly traumatised state and in urgent need of medical attention. He was immediately followed-up at the specialized trauma clinic for victims of torture of the Geneva University Hospital. Several detailed medical reports describing the physical and psychological consequences of his torture were submitted to the Swiss migration authorities. These reports unambiguously established his status as a torture survivor.

Ignoring his specific medical needs, the Swiss authorities ordered our client expelled to Italy under the Dublin Regulation. The decision of the State Secretariat for Migration was twice confirmed on appeal by the Federal Administrative Court. In April 2016, the CSDM challenged the expulsion before the Committee against Torture in the case of A.N. v. Switzerland, Communication No. 742/2016 on the grounds that it would violate his rights to rehabilitation under Article 14 of the Convention because of the lack of access to specialized medical treatment in Italy, and that it would therefore constitute ill treatment in violation of Articles 3 and 16 of the Convention.

In its decision, the Committee found that the Swiss authorities had “failed to sufficiently and individually assess the complainant’s personal experience as a victim of torture and the foreseeable consequences of forcibly returning him to Italy.” According to the Committee, those foreseeable consequences included the real risk that our client would be deprived of necessary medical treatment and exposed to street destitution, which amounted to a breach of Article 14 of the Convention. The fact that our client would be separated from his brother who is a resident of Switzerland, and therefore be deprived of the stabilizing social context necessary for the successful treatment of his post-traumatic stress disorder (PTSD) was also considered a significant factor in reaching this conclusion.

In light of the above analysis, the Committee held that our client’s expulsion would amount to ill treatment constituting a breach of Articles 3 and 16 of the Convention and engaging Switzerland’s non-refoulement obligations. Our client will now have the possibility of having his asylum claim decided in Switzerland.

In light of this decision, we call on the Swiss migration authorities to review their practice under the Dublin Regulation to ensure that all pending and future cases of highly vulnerable asylum seekers are decided in a manner consistent with this new jurisprudence. We emphasise that in this case the Committee has held that victims of serious trauma have the right to rehabilitation under Article 14 of the Convention and that expulsions that interfere with this right are illegal and must not be executed.

 

 

About Strategic Litigation at a European Level, by Jeff Walsh for EDAL

What is strategic litigation and why is it important?

Strategic litigation is an important aspect of refugee protection and, indeed, for human rights protection generally, whereby cases are taken with a specific aim of benefitting as many people as possible by bringing about a change in the law and/or its implementation in practice. Of course, even using the term ‘strategy’ gives the impression that there is a set list of criteria that a case can meet to become strategic and while it may be true that there are criteria that can attach to a case that will, if successful, have a strategic benefit, such criteria are hard to explain and apply to every case. Continuer la lecture de « About Strategic Litigation at a European Level, by Jeff Walsh for EDAL »

B. v. Switzerland: The Committee against Torture suspends Dublin expulsion to Bulgaria

The case concerns an Afghan asylum seeker who was detained under inhuman and degrading conditions and severely illtreated in Bulgaria. He subsequently sought asylum in Switzerland and was ordered expelled back to Bulgaria under the Dublin Regulation. He challenged his expulsion on the grounds that it would contravene Articles 3 and 16 of the Convention against Torture due to the risk of further illtreatment and exposure to inhuman and degrading conditions of detention in Bulgaria. He also alleged that he risked onwards refoulement to his country of origin where he faced summary execution and torture. The Committee against Torture suspended his expulsion and has asked Switzerland to reply to the allegations.

Z.H. and R.H. v. Switzerland, Application No. 60119/12

The applicants, a married couple of Afghan asylum seekers, were facing a Dublin expulsion to Italy. The Swiss authorities expelled the second applicant to Italy while the first applicant was allowed to remain in Switzerland to pursue her asylum application. The first applicant was still a minor at the time. The expulsion of her husband – her only family member in Europe – caused her significant psychological distress, which led to a suicide attempt and a long hospitalisation. The applicants claimed inter alia a breach of Article 8 of the Convention because of an unjustified interference with their right to respect for family life.

Continuer la lecture de « Z.H. and R.H. v. Switzerland, Application No. 60119/12 »

A.S. v. Switzerland: missed opportunity to explain different degrees of vulnerability in asylum cases

Published on www.strasbourgobservers.com, July 16, 2015. Post by Salvo Nicolosi and Ruth Delbaere (Ghent University)

In the recent judgment of last 30 June 2015 in A.S. v. Switzerland, the European Court of Human Rights offers another occasion to reflect on the issue of vulnerability in asylum cases. Continuer la lecture de « A.S. v. Switzerland: missed opportunity to explain different degrees of vulnerability in asylum cases »