The European Court of Human Rights (ECtHR) held this week that returning the Tarakhel family from Switzerland to Italy without guarantees that they would benefit from appropriate conditions would violate their human rights as enshrined in the European Convention of Human Rights.

The Tarakhel family, an Afghan family with young children, made their way to Switzerland from Italy and claimed asylum there. The Court ruled that returning the family to Italy would breach Article 3 of the European Convention on Human Rights (ECHR) which prohibits inhuman and degrading treatment, if Switzerland did not first obtain specific individual guarantees that the Italian authorities would take charge of the applicants in a manner adapted to the age of the children and that the family would be kept together.

The Court stated that, in the present case, in view of the current situation of the reception system for asylum seekers in Italy, the possibility that a significant number of asylum seekers removed to that country may be left without housing or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, is not unfounded.

The ECtHR reiterated that before returning people under the Dublin Regulation, States have to obtain individual guarantees that the fundamental rights of asylum seekers will be respected. It ruled that safety in another European Member State cannot be assumed.

The AIRE Centre (Advice on Individual Rights in Europe), ECRE and Amnesty International welcomed the judgment on the case in which the organisations had jointly intervened with the assistance of lawyers from across Europe in February 2014. The NGOs noted: “Yesterday’s decision is a definite step forward as it reiterates asylum seekers cannot be automatically returned to another EU country on the assumption that all EU Member States respect fundamental rights. The Court clarifies that where there are substantial grounds for believing that the individuals face a real risk of ill-treatment, the authorities must conduct a thorough examination of the individuals’ particular situation before returning anyone under the Dublin Regulation to ensure that their fundamental rights will be respected. Guarantees specific to any particularly vulnerable individuals – such as families with young children – must be obtained so as to ensure those individuals will personally benefit from appropriate material conditions. This duty goes beyond assessing the general situation.”

The European Court of Human Rights and the EU Court of Justice had already held in 2011 in the M.S.S. case, that the inadequate conditions in Greece precluded returning asylum seekers to Greece.


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This article originally appeared in the ECRE Weekly Bulletin of 7 November 2014. You can subscribe to the Weekly Bulletin here.