E.A. and U.A. (Azerbaijan) v Switzerland
UN: CRC ruled that Switzerland violated Articles 3 and 12 of the CRC in the absence of a direct hearing of children pending a Dublin transfer
Accoding to the ELENA Weekly Legal update of 20 November 2020 :
"The author, her husband and their children, E.A and U.A, fled from Azerbaijan to Switzerland. The first time, the family had to agree to return to Azerbaijan. However, after her husband’s arrest upon return, the author arranged to flee again to Switzerland via Italy, with E.A and U.A. While the Swiss authorities subsequently instituted a take back request to Italy under the Dublin III Regulation (Regulation 604/2013), the author unsuccessfully requested, under article 17 of Dublin III, that the Swiss authorities examine their asylum application, given that the transfer would be detrimental to the rights and best interests of the children in a vulnerable family. The author suffered panic and anxiety attacks during the removal operation and as a result the police abandoned the family at Zurich airport with no money and told them to make their own way back to their accommodation in Ticino.
The author complained that the Swiss authorities violated their obligation to respect the rights set out in the CRC under, inter alia, articles 3 and 12.
The Committee took note of the author’s allegation that the Swiss authorities violated article 12, guaranteeing the right of the child to be heard in any judicial or administrative proceedings affecting the child. It pointed out that this article imposes no age limit on the right of the child to express her or his views and stated that, in general, it discourages States parties from introducing age limits either in law or in practice that would restrict the child’s right to be heard in all matters affecting her or him. The Committee highlighted that determining the best interests of the children requires that their situation be assessed separately, notwithstanding the reasons for which their parents made their asylum application. It adopted the view that the absence of a direct hearing of the children constituted a violation of article 12 CRC.
Moreover, the Committee noted the author’s argument that the Swiss authorities did not take into consideration the trauma experienced by the children, including twice fleeing their country of origin, once returning to their country of origin and attempting a second time at making them return under particularly traumatic conditions. It considered that the national authorities, having failed to hear E.A and U.A, did not show due diligence in assessing the children’s best interests and thus violated article 3 CRC."
Dublin procedure; Effective remedy; Medical condition; Minor; Return/Removal/Deportation; Vulnerable Group;
United Nations, Committee on the Rights of the Child [CRC], E.A. and U.A. (Azerbaijan) v Switzerland, CRC/C/85/D/56/2018, 30 October 2020. Link redirects to the English summary in the EASO Case Law Database.