Judgment Nº CRC/C/85/D/56/2018 from United Nations of Human Rights, Office of the High Commissioner, 28-09-2020

• Judgment Date: 28 September 2020
• Case Outcome: Adoption of views
• Submitted Date: 27 September 2018
• Subject Matter: best interests of the child,cruel, inhuman or degrading treatment or punishment,freedom of opinion and expression,health rights,non-refoulement,refugee status,right to life
• Court: Office of the United Nations High Commissioner for Human Rights

	United Nations	CRC/C/85/D/56/2018
	Convention on the Rights of the Child	Distr.: General 30 October 2020 English Original: French

Committee on the Rights of the Child

Views adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child ona communications procedure concerning communicationNo. 56/2018 * , ** , ***

Communication submitted by:V.A. (represented by counsel, Immacolata Iglio Rezzonico and Paolo Bernasconi)

Alleged victims:E.A. and U.A.

State party:Switzerland

Date of communication:21 September 2018 (initial submission)

Date of adoption of Views:28 September 2020

Subject matter:Deportation to Italy

Procedural issues:Non-exhaustion of domestic remedies; manifestly ill-founded; justiciability of Convention rights

Substantive issues:Discrimination; best interests of the child; development of the child; right to be heard in any judicial and administrative proceedings affecting the child; protection and humanitarian assistance for refugee children; right of the child to the enjoyment of the highest attainable standard of health; inhuman or degrading treatment

Articles of the Convention:2, 3, 6 (2), 12, 22, 24 and 37

Articles of the Optional Protocol:6 and 7 (e) and (f)

1.1The author of the communication is V.A., an Azerbaijani national born in 1986. She submits the communication on behalf of her sons, E.A., born in 2009, and U.A., born in 2014, both Azerbaijani nationals. She claims that E.A. and U.A. are victims of a violation of articles 2, 3, 6 (2), 12, 22, 24 and 37 of the Convention. The author is represented by counsel. The Optional Protocol entered into force for the State party on 24 July 2017.

1.2Pursuant to article 6 of the Optional Protocol, on 2 October 2018, the Working Group on Communications, acting on behalf of the Committee, requested the State party to adopt interim measures to suspend the removal of the author, E.A. and U.A. to Italy pending the consideration of the case by the Committee. On 5 October 2018, the State party informed the Committee that the removal had been suspended.

The facts as submitted by the author

2.1The author and her husband are journalists and owners of the Ilkxeber Info newspaper. In March 2017, they fled Azerbaijan with their sons E.A. and U.A., as the situation facing opposition journalists in Azerbaijan was becoming increasingly critical and the life of the author’s husband was seriously in danger. The author and her husband were forced to close down the physical office of their newspaper, which remains accessible only online.

2.2On 20 March 2017, the family applied for asylum in Kreuzlingen, Switzerland. Due to the lack of Azeri interpreters, the family was transferred to the canton of Ticino and accommodated in a room at the Leon d’Oro guesthouse in Bellinzona. In the absence of interpreters, their communication with officials was almost non-existent. Their requests to be allowed to cook for themselves, instead of eating in the canteen, to be transferred to an apartment and to obtain medical treatment for the author’s husband for a shoulder injury were not taken seriously. However, the family received the support of the APA 13 association, the Baobab centre and the DaRe association. The “precarious and degrading” accommodation conditions and the linguistic isolation had repercussions on the mental and physical well-being of the family members. The author’s husband became depressed. There were episodes of domestic violence. U.A. experienced eating and digestive disorders and E.A. revealed the family’s state of suffering by injuring himself in a bicycle collision with a car. On 3 November 2017, following a seven-month wait for the second asylum hearing, the family reluctantly agreed to withdraw its asylum claim and to be voluntarily repatriated. Since the author’s father-in-law had bribed the Azerbaijani police to ensure that his son was not incarcerated, they believed they would be safe. On 13 November 2017, the family left Switzerland.

2.3On 26 February 2018, the author’s husband was arrested along with other journalists and intellectuals in Baku during a commemoration in honour of the Azerbaijanis who had died in the conflict between Azerbaijan and Armenia. The author also started having problems with the police. She was pressured by the Azerbaijani authorities, which threatened her so that she would stop publishing articles. Having been an observer during the presidential elections of 11 April 2018, she denounced the irregularities she had witnessed. On 16 April 2018, she was beaten by two unknown persons. On 20 April 2018, she was interrogated for four hours in the Baku Prosecutor’s Office. She was threatened with imprisonment if she did not stop publishing articles, participating in demonstrations and challenging the Government. Her husband, who was still in prison, advised her to leave the country.

2.4The smuggler contacted by the author said that the only way they would be able to return to Switzerland would be if they obtained an Italian visa. The author, E.A. and U.A. therefore returned to Switzerland via Italy on an Italian visa obtained on 9 May 2018, valid from 15 May to 8 June 2018. On 25 May 2018, the author, E.A. and U.A. arrived in Ticino and filed a new asylum application. The author’s mother informed her that she was now wanted by the Azerbaijani police. On 4 June 2018, the author was heard by the State Secretariat for Migration.

2.5The author’s state of health worsened as a result of the trauma she had experienced. According to a report drawn up on 31 July 2018 by a psychologist-psychotherapist from the Baobab centre, the author developed symptoms of anxiety and depression, insomnia and somatic reactions. According to the report, the social network established by the author and her children during their first stay in Ticino, which was still “present and active”, allowed them to maintain a minimum level of mental and physical well-being. The report concluded that sending the mother and children back to their country of origin or transferring them to another country or another Swiss canton would seriously harm their mental and physical development.

2.6Under the second subparagraph of article 19 (2) of Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Dublin III Regulation), any asylum application lodged after the asylum seeker has actually left the country gives rise to a new procedure for determining the Member State responsible for processing the application. On 5 July 2018, the author requested the State Secretariat for Migration to apply the sovereignty clause mentioned in article 17 (1) of the Dublin III Regulation and to declare itself competent to examine her asylum application on the basis that the case involved a vulnerable family that had already previously fled their country of origin and experienced the subsequent arrest of the father, that the children were integrated and attending school in Ticino, that the author was in a state of depression and that transferring the family to Italy would be detrimental to the rights and best interests of the children. On 13 June 2018, the State Secretariat for Migration submitted a request to Italy to take charge of the author and her children. After an initial refusal, the Italian authorities agreed to take charge of the family on 19 July 2018.

2.7On 20 July 2018, the State Secretariat for Migration decided not to consider the case and ordered the removal of the author and her children to Italy. The decision stated that E.A. and U.A. “have no particular ties to Switzerland, where they lived for only eight months before returning to their country of origin in 2017 and where they have currently been staying since 25 May 2018”. The State Secretariat noted that the Italian authorities had agreed to take charge of the family in accordance with the circular of 8 June 2015 concerning the Protection System for Refugees and Asylum Seekers (SPRAR). With respect to the author’s allegations regarding her depression, the State Secretariat noted that she was receiving medical treatment. The State Secretariat indicated that the Italian medical system would be able to provide treatment for illnesses of a psychiatric nature and that the country was obliged, under article 19 (1) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013laying down standards for the reception of applicants for international protection, to provide asylum seekers with essential treatment of illnesses and of serious mental disorders.

2.8The complainant filed an appeal against the State Secretariat for Migration’s decision to the Swiss Federal Administrative Court on 31 July 2018. The Court rejected her appeal on 8 August 2018, noting that the author and her children had been recognized by Italy as a family nucleus. With regard to the report of 31 July 2018, the Court ruled that there were no concrete and substantiated indications in the procedural documents that the persons concerned would be unable to travel or that the alleged health problems were so serious that the family’s transfer to Italy would be contrary to the requirements of the European Court of Human Rights. The Federal Court pointed out that the alleged need for psychiatric treatment was not supported by any concrete evidence and that such treatment could, if necessary, be provided in Italy. With regard to the author’s argument that the State party should apply the sovereignty clause set forth in article 17 (1) of the Dublin III Regulation in order not to prejudice the best interests of the children, the Court noted that it could not substitute its...