51357/07
Naït-Liman Abdennacer c. Suisse
Arrêt no. 51357/07, 21 juin 2016
(2. Quartalsbericht 2016)
Recht auf ein faires Verfahren (Art. 6 Abs. 1 EMRK); weltweite zivilrechtliche Kompetenz.
Der Beschwerdeführer, ein damals in Italien ansässiger Tunesier, machte geltend, in Tunesien 1992 auf Befehl des damaligen Innenministers A. K. gefoltert worden zu sein. Im Jahr darauf sei er in die Schweiz gereist, wo er 1995 politisches Asyl erhalten habe. Am 8. Juli 2004 erhob der Beschwerdeführer beim Kantonsgericht Genf erstinstanzlich eine Schadenersatzklage gegen den tunesischen Staat und A. K. Er machte dabei geltend, dass er in Tunesien keine solche Klage einreichen könne. Das Kantonsgericht erster Instanz erklärte sich am 9. Juni 2005 örtlich nicht zuständig. Dieser Entscheid wurde vom Kantonsgericht zweiter Instanz sowie vom Bundesgericht bestätigt. Unter dem Hinweis, dass der Beschwerdeführer zum Zeitpunkt des Sachverhalts noch nicht in der Schweiz ansässig war, befand das Bundesgericht, dass der Fall keinen sachlichen Bezug zur Schweiz aufweist. Die Voraussetzungen für eine Notzuständigkeit im Sinne von Artikel 3 des Internationalen Privatrechts (IPRG) seien nicht erfüllt. Der Beschwerdeführer machte nun vor dem Gerichtshof eine Verletzung seines Rechts auf Zugang zu einem Gericht im Sinne von Artikel 6 Absatz 1 EMRK geltend.
Gemäss dem Gerichtshof war die restriktive Auslegung von Artikel 3 IPRG nicht willkürlich. Unter den gegebenen Umständen hätten sich die nationalen Behörden mit Recht darauf berufen, dass die Beweisabnahme und der Vollzug der Urteile schwierig wären, wenn sie sich für die Bearbeitung des Falls zuständig erklärten. Der Gerichtshof hielt allerdings auch fest, dass zwischen den Mitgliedstaaten des Europarates, die eine Notzuständigkeit anerkennen, ein breiter Konsens hinsichtlich der Kriterien für einen hinreichenden Bezug bestehe. Artikel 3 IPRG sei diesbezüglich nicht aussergewöhnlich. Schliesslich verpflichte keine weitere völkerrechtliche Norm die Schweiz, eine weltweite zivilrechtliche Kompetenz anzuerkennen. Keine Verletzung von Artikel 6 Absatz 1 EMRK (4 zu 3 Stimmen).
THIRD SECTION
DECISION
Application no. 37466/13
A. M.
against Switzerland
The European Court of Human Rights (Third Section), sitting on 3 November 2015 as a Chamber composed of:
Luis López Guerra,President,
George Nicolaou,
Helen Keller,
Helena Jäderblom,
Johannes Silvis,
Dmitry Dedov,
Branko Lubarda,judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 10 June 2013,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr A.M., is a Syrian national of Kurdish origin, who was born in 1993 and lives in Geneva. The President granted the applicant's request for his identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). The applicant was represented before the Court by Mr B. Wijkstrom, a lawyer practising in Geneva.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant arrived in Italy on an unknown date. His fingerprints were recorded in the EURODAC system on 17 December 2012. On 29 December 2012 the applicant entered Switzerland from Italy and sought asylum the same day. Soon after reaching Geneva, the applicant started to suffer from mental illness.
4. The applicant's sister had arrived in Switzerland on 19 December 2012, had applied for asylum and had received a temporary permit which entitled her to remain on Swiss territory for the duration of her own asylum application. She was married to a man who had been granted temporary refugee status.
5. On 17 January 2013, the Swiss Federal Migration Office ("FMO") requested that its Italian counterparts take charge of the applicant's asylum request, pursuant to Article 10 § 1 of Regulation no. 343/2003/EC (the "Dublin Regulation"). On 21 February 2013, the Italian immigration authorities explicitly accepted the FMO's request. On 22 February 2013, the applicant's asylum request was rejected by the FMO on the basis of the fact that he had entered Switzerland from another "Dublin" State. The FMO refused the application of the humanitarian clause provided for in § 15 of the Dublin Regulation.
6. On 24 April 2013, the applicant was diagnosed with post-traumatic stress disorder, depression and back pain. He was put on a course of weekly psychiatric sessions and was given an anti-depressant (Zoloft, 50mg/day). According to the medical report, the stabilization of his psychological and social environment was a precondition for the successful outcome of the applicant's therapy. According to a subsequent medical report, dated 6 June 2013, the applicant showed some risk of self-harm, which could go as far as suicide if he were returned to Italy, where he had been allegedly abused by the police. The report clearly stated, however, that the applicant's death thoughts were passive and did not disclose any concrete plan ("sans projet concret").
7. The applicant appealed against the decision of the FMO to the Federal Administrative Court. The appeal was rejected on 28 May 2013.
B. Relevant domestic law and relevant law of the European Union
8. The relevant domestic law is set out in the Court's judgment in the case of Tarakhel v. Switzerland([GC], no. 29217/12, §§ 22-23 and 26-27, 4 November 2014).
9. The relevant instruments and principles of European Union law are set out in the same judgment (§§ 28-36).
10. In particular, the Court recalls that the Dublin Regulation is applicable to Switzerland under the terms of the association agreement of 26 October 2004 between the Swiss Confederation and the European Community regarding criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (OJ L 53 of 27 February 2008). The Dublin Regulation was recently replaced by Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 (the "Dublin III Regulation"), which is designed to make the Dublin system more effective and to strengthen the legal safeguards for persons subject to the Dublin procedure.
11. The Dublin III Regulation entered into force on 1 January 2014 and was passed into law by the Swiss Federal Council on 7 March 2014.
C. The Italian context
12. A detailed description of the asylum procedure and the legal framework and organisation of the reception system for asylum seekers in Italy is also set out in the Tarakhel judgment (§§ 36-50).
COMPLAINTS
13. The applicant complained that if returned to Italy he would face treatment contrary to Article 3 of the Convention.
14. Under Article 8 of the Convention the applicant alleged that, by severing his relationship with his sister and with his sister's husband, who both lived in Switzerland, his removal to Italy would violate his right to respect for his family and private life.
15. Under Article 13 in conjunction with Articles 3 and 8, the applicant claimed that he did not have an effective remedy to assess the alleged violation of his rights under Article 3 and 8 of the Convention.
THE LAW A. Complaint under Article 3 of the Convention
16. The applicant alleged that given the poor general reception conditions of asylum seekers in Italy and the lack of proper care for his mental illness, if removed to that country he would be subjected to inhuman and degrading treatment prohibited by Article 3 of the Convention. Article 3 provides as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
17. The Court reiterates that according to its well-established case-law the expulsion of an asylum seeker by a Contracting State may 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 faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country (see Soering v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161; Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 103, Series A no. 125; H.L.R. v. France, 29 April 1997, § 34, Reports 1997-III; Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000-VIII; and Salah Sheekh v. the Netherlands, no. 1948/04, § 135, ECHR 2007-I; Saadi v. Italy [GC], no. 37201/06, § 152, ECHR 2008; M.S.S., cited above, § 365).
18. With regard to persons suffering from serious mental illness, the Court recalls that in Bensaid v. the United Kingdom (no. 44599/98, ECHR 2001-I), which concerned the removal from the United Kingdom of an Algerian national who was a schizophrenic, the Court unanimously rejected the complaint under Article 3 (§§ 36-40), considering that the case did not disclose the exceptional circumstances where the applicant was in the final stages of a terminal illness and had no prospect of medical care or family support (compare and contrast with D. v. the United Kingdom, § 53, 2 May 1997, Reports of Judgments and Decisions 1997-III).
19. In a subsequent case, concerning the removal of a Moroccan national from Finland to Morocco (S.B. v. Finland (dec.), no. 17200/11, § 36, 24 June 2014) the Court found that mental health care was available in Morocco, that treatment for depression as well as for anxiety disorders was in general available in outpatient and inpatient clinics and that the applicant also had access to the anti-depressant medication which had been prescribed for her. It therefore considered that the applicant would have access to treatment for her severe depression, post-traumatic stress disorder and generalised anxiety disorder in Morocco and was therefore not at risk of treatment contrary to Article 3 of the Convention if removed to Morocco.
20. In a more recent judgment (A.S. v. Switzerland, no. 39350/13, 30 June 2015) the Court examined the case of another Syrian national to be removed from Switzerland to Italy under the Dublin Regulation and also suffering from post-traumatic stress disorder and back pain.
In A.S. v. Switzerland, the Court considered that the applicant was not critically ill and there was no indication that, if returned to Italy, he would not receive appropriate psychological treatment and would not have access to anti-depressants of the kind that he was receiving in Switzerland (§ 36).
Accordingly, the Court found that the implementation of the decision to remove the applicant to Italy would not give rise to a violation of Article 3 of the Convention (§ 38).
21. In the Court's view, the present case cannot be distinguished from A.S. v. Switzerland.
Moreover, the Court reiterates that the overall situation of the reception arrangements in Italy cannot in itself act as a bar to all removals of asylum-seekers to that country (see Tarakhel, cited above, §§ 114-115).
The applicant's complaint under Article 3 of the Convention is therefore manifestly ill-founded and must be declared inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Complaints under Article 8 of the Convention
22. Under Article 8 of the Convention the applicant alleged that, by severing his relationship with his sister and with his sister's husband, who both lived in Switzerland, his removal to Italy would violate his right to respect for his family life. He also contented that as he was in a particularly vulnerable situation and dependent on his sister due to his mental illness, his removal to Italy would also violate his right to respect for his private life. Article 8 reads as follows:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
23. In A.S. v. Switzerland, which is similar to the present case, as the applicant had two sisters living in Switzerland, the Court noted that the applicant's presence on Swiss territory had been accepted by the domestic authorities for a very short period of time (four months) and only for the purpose of examining his status as an asylum seeker and complying with their relevant obligations under the Dublin Regulation and national law (§ 49). The Court recalled that it had already held that there would be no family life, within the meaning of Article 8, between parents and adult children or between adult siblings unless they could demonstrate additional elements of dependence (ibid.). It considered that assuming that the applicant and his sisters had maintained family ties when they were living in Syria and assuming that additional elements of dependence could be demonstrated in the applicant's case, it could not be argued that the tolerance by the domestic authorities of the applicant's presence on Swiss territory for a lengthy period of time had enabled him to establish and develop strong family ties in Switzerland.
Bearing in mind the margin of appreciation afforded to States in immigration matters, the Court found that a fair balance had been struck between the competing interests at stake, namely the personal interests of the applicant, in establishing any family life in Switzerland on the one hand and, on the other, the public order interests of the respondent Government in controlling immigration (ibid., § 51).
As to the applicant's complaint regarding the fact that his removal to Italy would have prevented him from continuing to benefit from the support of his sisters in the context of his therapy, the Court recalled that it had already been dealt with under Article 3 and it did not consider it necessary to examine it again under Article 8 of the Convention (ibid., § 52).
24. In the Court's view, again, the present case cannot be distinguished from A.S. v. Switzerland. On the one hand, the applicant lodged his application for asylum the very same day he entered Swiss territory on 29 December 2012 (see paragraph 3 above) and the FMO rejected it on 22 February 2013 (see paragraph 5 above). His presence on Swiss territory was therefore tolerated by the domestic authorities for less than two months and only for the purpose of examining his status as an asylum seeker and complying with their relevant obligations under the Dublin Regulation and national law (see paragraph 24 above). Assuming that the applicant and his sister had maintained family ties when they were living in Syria and assuming that any elements of dependence could be demonstrated in the applicant's case, it cannot be argued that he had established and developed strong family ties in Switzerland with his sister, who had herself arrived in Switzerland only a few days before the applicant and was at that time tolerated on Swiss territory only for the duration of her own asylum application (see paragraph 4 above).
25. In view of the above considerations, the applicant's complaints under Article 8 are manifestly ill-founded and therefore inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Complaint under Article 13 combined with Articles 3 and 8 of the Convention
26. The applicant complained in very general terms that he had been denied an effective remedy in respect of his complaints under Articles 3 and 8 of the Convention because the Federal Administrative Court "failed to take account of his right to respect for his private and family life and his right to be free from torture, and inhuman and degrading treatment". Article 13 of the Convention provides:
"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
27. The Court reiterates that an applicant's complaint alleging that his or her removal to a third State would expose him or her to treatment prohibited under Article 3 of the Convention "must imperatively be subject to close scrutiny by a 'national authority'" (see Hirsi Jamaa and Others v. Italy[GC], no. 27765/09, § 198, ECHR 2012 and Tarakhel, cited above, § 126). That principle has led the Court to rule that the notion of "effective remedy" within the meaning of Article 13 taken in conjunction with Article 3 requires, firstly, "independent and rigorous scrutiny" of any complaint made by a person in such a situation, where "there exist substantial grounds for fearing a real risk of treatment contrary to Article 3" and, secondly, "the possibility of suspending the implementation of the measure impugned" (ibid.).
28. In the present case the Court notes that following the decision of the FMO of 22 February 2013 to reject his asylum application and return him to Italy, the applicant was able to lodge an application with the Federal Administrative Court. He submitted before that court that his removal to Italy would be in breach of his rights under Articles 3 and 8 of the Convention in view of the reception conditions in Italy and the severance of his ties with his sister and his brother in law (see paragraph 4 above). The appeal was lodged with the Federal Administrative Court on 30 April 2013 and that court delivered its judgement promptly on 28 May 2013. The judgment was fully reasoned, addressed in detail the complaints raised by the applicant, in particular in the light of this Court's case-law, and did not contain the slightest trace of arbitrariness (see Tarakhel, cited above, § 130).
29. Furthermore, as the Court has already noted in the Tarakhel judgment (§ 131), the Federal Administrative Court normally undertakes a thorough examination of each individual situation and does not hesitate to invoke the "sovereignty clause" contained in Article 3(2) of the Dublin Regulation.
30. It follows that, assuming that the applicant had arguable claims, he had available to him an effective remedy. Accordingly, his complaint under Article 13 of the Convention taken in conjunction with Articles 3 and 8 must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
31. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court, unanimously, Declares the application inadmissible.
Done in English and notified in writing on 26 November 2015.
Marialena Tsirli Luis López Deputy Registrar
Guerra President