A. M. v. SWITZERLAND

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.