Dublin regulation
II. RELEVANT DOMESTIC LAW A. Federal Asylum Act of 26 June 1998, as in force at the relevant time 22. The relevant provisions of the Federal Asylum Act of 26 June 1998 read as follows: Section 29 Interview on grounds for seeking asylum “1. The Office shall interview asylum seekers on their grounds for seeking asylum a. in the registration centre; or b. within twenty days of the decision to allocate the application to a canton. 1 bis. If necessary, an interpreter shall be called. 2. The asylum seekers may be accompanied by a representative and an interpreter of his or her choice who are not themselves asylum seekers. 3. A record of the interview shall be drawn up. It shall be signed by those present at the interview, with the exception of the representative of the charitable organisations. 4. The Office may entrust the conduct of the interview to the cantonal authorities themselves if this enables the procedure to be speeded up significantly. Paragraphs 1 to 3 shall apply .” Section 34 Decision not to examine in the absence of a risk of persecution in the other country “1. If the asylum seeker has arrived from a country where he or she does not risk persecution within the meaning of section 6a(2)(a), the Office shall not examine the application unless there are indications of persecution. 2. As a general rule, the Office shall not examine an asylum application where the asylum seeker a. can return to a safe third country within the meaning of section 6a(2)(b) where he or she has resided previously; b. can return to a third country where he or she has resided previously and which, in the case in issue, respects the principle of non-refoulement referred to in section 5(1); c. can continue his or her journey to a third country for which he or she already has a visa and where he or she can claim protection; d. can travel to a third country which has competence under an international agreement to carry out the asylum and removal procedure; e. can continue his or her journey to a third country where he or she has close relatives or other persons with whom he or she has close ties. 3. Sub-section 2 ( a ), ( b ), ( c ) and ( e ) shall not apply where a. close relatives of the asylum seeker or other persons with whom he or she has close ties are living in Switzerland; b. the asylum seeker manifestly has refugee status within the meaning of section 3; c. the Office possesses information indicating that the third country does not offer effective protection as regards the principle of non-refoulement referred to in section 5(1).” Section 42 Residence during the asylum proceedings “Any person who lodges an application for asylum in Switzerland may remain in the country until the proceedings have been concluded. ” Section 105 Appeals against decisions of the Office “Appeals against decisions of the Office shall be governed by the Federal Administrative Court Act of 17 June 2005.” Section 107a Dublin procedure “Appeals against decisions not to examine asylum applications lodged by asylum seekers who can travel to a country with competence under an international treaty to carry out the asylum and removal procedure shall not have suspensive effect. The asylum seeker concerned may request that suspensive effect be granted while the appeal is pending. The Federal Administrative Court shall give a ruling within five days from the lodging of the request. Where suspensive effect has not been granted within that period, the removal order may be enforced.” B. Asylum Ordinance 1 of 11 August 1999 concerning procedure ( Asylum Ordinance 1, OA 1), as in force at the relevant time 23. The relevant Article of Asylum Ordinance 1 of 11 August 1999 concerning procedure provided: Article 29a Assessment of competence under Dublin Regulation ( Section 34 ( 2 )( d ), Asylum Act ) “ 1 The FMO shall assess competence to deal with an asylum application in accordance with the criteria laid down in Regulation (EC) No 343/2003. 2 If this assessment shows that another State is responsible for dealing with the asylum application, the FMO shall issue a decision declining to examine the application once the requested State has agreed to take charge of or take back the asylum seeker. 3 The FMO may also, on humanitarian grounds, deal with the application even where the assessment shows that another State is competent. 4 The procedure for taking charge of or taking back the asylum seeker by the competent State shall be carried out in accordance with Regulation (EC) No 1560/2003. ” C. Federal Court Act of 17 June 2005 24. The relevant provision of the Federal Court Act of 17 June 2005 reads as follows: Section 123 Other grounds “ ... 2 A request for revision may also be made ... a. in civil and public-law cases, if the applicant later discovers relevant facts or conclusive evidence that he or she was unable to rely on in the previous proceedings, with the exception of facts or evidence subsequent to the judgment; ... ” D. Federal Administrative Court Act of 17 June 2005 25. The relevant section of the Federal Administrative Court Act of 17 June 2005 reads as follows: Section 45 Principle “Sections 121 to 128 of the Federal Court Act of 17 June 2005 shall apply by analogy to the revision of judgments of the Federal Administrative Court.” E. Relevant case-law of the Federal Administrative Court 26. The Federal Administrative Court, which rules at final instance on asylum matters, has set aside deportation orders or subjected them to conditions because the persons concerned fell into the category of “vulnerable persons”. It has done so in particular in the following situations: (i) a person deemed vulnerable by virtue of being an unaccompanied young woman (D-4267/2007 of 30 August 2007 ); (ii) an elderly man with serious and debilitating health problems (E ‑ 6557/2009 of 23 October 2009 ); (iii) a young man with no social or family network in Somaliland (E ‑ 2157/2011 of 18 November 2011 ); (iv) a person deemed to be vulnerable because of her particular medical and social needs, in view of her psychological state and the fact that she had a small dependent child (E-188/2012 of 31 January 2012); (v) women, and in particular single women and widows, from certain regions or certain countries (E-3568/2012 of 1 May 2013 ). 27. In three judgments (E-5194/2012 of 15 February 2013, E-1341/2012 of 2 May 2012 and D-1689/2012 of 24 April 2012 ), the Federal Administrative Court recognised that the conditions of detention in Malta, a State belonging to the “ Dublin ” system, could raise issues, in particular for individuals accompanied by a child. In another case (E-1574/2011 of 18 October 2013 ), concerning the removal to Italy of a Somalian family with three young children, it held that Switzerland should apply the “ sovereignty clause ” (see paragraph 3 2 below) provided for by the Dublin Regulation (see paragraph 2 9 below), which allows States to suspend deportation on humanitarian grounds, on account of the conditions in which the applicants would be taken charge of in Italy, which were judged to be inadequate, and the parents ’ state of health. III. RELEVANT EUROPEAN UNION LAW 28. The relevant provisions of the Charter of Fundamental Rights of the European Union provide: Article 4 Prohibition of torture and inhuman or degrading treatment or punishment “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 18 Right to asylum “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.” Article 19 Protection in the event of removal, expulsion or extradition “1. Collective expulsions are prohibited. 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.” Article 24 The rights of the child “1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child ’ s best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.” 29. The relevant instruments of European Union secondary legislation were set forth in the Court ’ s judgment in the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, §§ 57-86, ECHR 2011), which refers in particular to : – Council Directive 2003/9 /EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers in the Member States (“the Reception Directive”); – Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin Regulation”); – Council Directive 2004/83 /EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”); – Council Directive 2005/85 /EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status in the Member States (the “Procedures Directive”). 30. Under the Dublin Regulation the Member States must determine, based on a hierarchy of objective criteria (Articles 5 to 14), which Member State bears responsibility for examining an asylum application lodged on their territory. The system is aimed at avoiding multiple applications and provides for each asylum seeker ’ s case to be dealt with by a single Member State ( Article 3 ( 1) ). Hence, where it is established that an asylum seeker has irregularly crossed the border into a Member State having come from a third country, the Member State thus entered is responsible for examining the application for asylum (Article 10 ( 1 ) ). 31. Where the criteria in the Regulation indicate that another Member State is responsible, that State is requested to take charge of the asylum seeker and examine the application for asylum ( Article 17). 32. By way of derogation from the principle articulated in Article 3 ( 1 ), a “sovereignty clause ” contained in Article 3 ( 2 ) allows any Member State to examine an application for asylum even if such examination is not its responsibility under the criteria laid down in the Regulation. Furthermore, the “humanitarian clause” contained in Article 15 allows any Member State, even where it is not responsible according to the same criteria, to examine an asylum application on humanitarian grounds based in particular on family or cultural considerations. 33. In its judgment of 21 December 2011 in the cases N. S. v. Secretary of State for the Home Department and M. E., A. S. M., M. T., K. P., E. H. v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (CJEU C-411/10 and C-493/10), the Grand Chamber of the Court of Justice of the European Union ( “ the CJEU ” ) held, on the subject of transfers under the Dublin Regulation, that although the Common European Asylum System was based on mutual confidence and a presumption of compliance by other Member States with European Union law and, in particular, with fundamental rights, that presumption was nonetheless rebuttable. The judgment stated, inter alia : “78. Consideration of the texts which constitute the Common European Asylum System shows that it was conceived in a context making it possible to assume that all the participating States, whether Member States or third States, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the ECHR, and that the Member States can have confidence in each other in that regard. ... 80. In those circumstances, it must be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the Charter [of Fundamental Rights of the European Union], the Geneva Convention and the ECHR. 81. It is not however inconceivable that that system may, in practice, experience major operational problems in a given Member State, meaning that there is a substantial risk that asylum seekers may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights. 82. Nevertheless, it cannot be concluded from the above that any infringement of a fundamental right by the Member State responsible will affect the obligations of the other Member States to comply with the provisions of Regulation No 343/2003. 83. At issue here is the raison d ’ être of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights. 84. In addition, it would be not be compatible with the aims of Regulation No 343/2003 were the slightest infringement of Directives 2003/9, 2004/83 or 2005/85 to be sufficient to prevent the transfer of an asylum seeker to the Member State primarily responsible. Regulation No 343/2003 aims – on the assumption that the fundamental rights of the asylum seeker are observed in the Member State primarily responsible for examining the application – to establish ... a clear and effective method for dealing with an asylum application. In order to achieve that objective, Regulation No 343/2003 provides that responsibility for examining an asylum application lodged in a European Union country rests with a single Member State, which is determined on the basis of objective criteria. 85. If the mandatory consequence of any infringement of the individual provisions of Directives 2003/9, 2004/83 or 2005/85 by the Member State responsible were that the Member State in which the asylum application was lodged is precluded from transferring the applicant to the first mentioned State, that would add to the criteria for determining the Member State responsible set out in Chapter III of Regulation No 343/2003 another exclusionary criterion according to which minor infringements of the abovementioned directives committed in a certain Member State may exempt that Member State from the obligations provided for under Regulation No 343/2003. Such a result would deprive those obligations of their substance and endanger the realisation of the objective of quickly designating the Member State responsible for examining an asylum claim lodged in the European Union. 86. By contrast, if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision. ... 104. ... the presumption underlying the relevant legislation, stated in paragraph 80 above, that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as rebuttable. 105. In the light of those factors, .. European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union. 106. Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘ Member State responsible ’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.” 34. 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). However, Switzerland is not formally bound by the three Directives referred to at paragraph 29 above. 35. The Dublin II Regulation was recently replaced by Regulation 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 subjected to the “ Dublin ” procedure. One of its aims is to ensure that families are kept together, and it pays particular attention to the needs of unaccompanied minors and other persons requiring special protection. In particular, Articles 6, 31, 32 and 33 of the Dublin III Regulation read as follows: Article 6 Guarantees for minors “1. The best interests of the child shall be a primary consideration for Member States with respect to all procedures provided for in this Regulation. ... 3. In assessing the best interests of the child, Member States shall closely cooperate with each other and shall, in particular, take due account of the following factors: (a) family reunification possibilities; (b) the minor ’ s well-being and social development; (c) safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking; (d) the views of the minor, in accordance with his or her age and maturity.” Article 31 Exchange of relevant information before a transfer is carried out “ 1. The Member State carrying out the transfer of an applicant or of another person as referred to in Article 18(1)(c) or (d) shall communicate to the Member State responsible such personal data concerning the person to be transferred as is appropriate, relevant and non-excessive for the sole purposes of ensuring that the competent authorities, in accordance with national law in the Member State responsible, are in a position to provide that person with adequate assistance, including the provision of immediate health care required in order to protect his or her vital interests, and to ensure continuity in the protection and rights afforded by this Regulation and by other relevant asylum legal instruments. Those data shall be communicated to the Member State responsible within a reasonable period of time before a transfer is carried out, in order to ensure that its competent authorities in accordance with national law have sufficient time to take the necessary measures. 2. The transferring Member State shall, in so far as such information is available to the competent authority in accordance with national law, transmit to the Member State responsible any information that is essential in order to safeguard the rights and immediate special needs of the person to be transferred, and in particular: (a) any immediate measures which the Member State responsible is required to take in order to ensure that the special needs of the person to be transferred are adequately addressed, including any immediate health care that may be required; (b) contact details of family members, relatives or any other family relations in the receiving Member State, where applicable; (c) in the case of minors, information on their education; (d) an assessment of the age of an applicant. 3. The exchange of information under this Article shall only take place between the authorities notified to the Commission in accordance with Article 35 of this Regulation using the ‘ DubliNet ’ electronic communication network set-up under Article 18 of Regulation (EC) No 1560/2003. The information exchanged shall only be used for the purposes set out in paragraph 1 of this Article and shall not be further processed. 4. With a view to facilitating the exchange of information between Member States, the Commission shall, by means of implementing acts, draw up a standard form for the transfer of the data required pursuant to this Article. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44(2). 5. The rules laid down in Article 34(8) to (12) shall apply to the exchange of information pursuant to this Article.” Article 32 Exchange of health data before a transfer is carried out “1. For the sole purpose of the provision of medical care or treatment, in particular concerning disabled persons, elderly people, pregnant women, minors and persons who have been subject to torture, rape or other serious forms of psychological, physical and sexual violence, the transferring Member State shall, in so far as it is available to the competent authority in accordance with national law, transmit to the Member State responsible information on any special needs of the person to be transferred, which in specific cases may include information on that person ’ s physical or mental health. That information shall be transferred in a common health certificate with the necessary documents attached. The Member State responsible shall ensure that those special needs are adequately addressed, including in particular any essential medical care that may be required. The Commission shall, by means of implementing acts, draw up the common health certificate. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44(2). 2. The transferring Member State shall only transmit the information referred to in paragraph 1 to the Member State responsible after having obtained the explicit consent of the applicant and/or of his or her representative or, if the applicant is physically or legally incapable of giving his or her consent, when such transmission is necessary to protect the vital interests of the applicant or of another person. The lack of consent, including a refusal to consent, shall not constitute an obstacle to the transfer. 3. The processing of personal health data referred to in paragraph 1 shall only be carried out by a health professional who is subject, under national law or rules established by national competent bodies, to the obligation of professional secrecy or by another person subject to an equivalent obligation of professional secrecy. 4. The exchange of information under this Article shall only take place between the health professionals or other persons referred to in paragraph 3. The information exchanged shall only be used for the purposes set out in paragraph 1 and shall not be further processed. 5. The Commission shall, by means of implementing acts, adopt uniform conditions and practical arrangements for exchanging the information referred to in paragraph 1 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44(2). 6. The rules laid down in Article 34(8) to (12) shall apply to the exchange of information pursuant to this Article.” Article 33 A mechanism for early warning, preparedness and crisis management “1. Where, on the basis of, in particular, the information gathered by EASO pursuant to Regulation (EU) No 439/2010, the Commission establishes that the application of this Regulation may be jeopardised due either to a substantiated risk of particular pressure being placed on a Member State ’ s asylum system and/or to problems in the functioning of the asylum system of a Member State, it shall, in cooperation with EASO, make recommendations to that Member State, inviting it to draw up a preventive action plan. The Member State concerned shall inform the Council and the Commission whether it intends to present a preventive action plan in order to overcome the pressure and/or problems in the functioning of its asylum system whilst ensuring the protection of the fundamental rights of applicants for international protection. A Member State may, at its own discretion and initiative, draw up a preventive action plan and subsequent revisions thereof. When drawing up a preventive action plan, the Member State may call for the assistance of the Commission, other Member States, EASO and other relevant Union agencies. 2. Where a preventive action plan is drawn up, the Member State concerned shall submit it and shall regularly report on its implementation to the Council and to the Commission. The Commission shall subsequently inform the European Parliament of the key elements of the preventive action plan. The Commission shall submit reports on its implementation to the Council and transmit reports on its implementation to the European Parliament. The Member State concerned shall take all appropriate measures to deal with the situation of particular pressure on its asylum system or to ensure that the deficiencies identified are addressed before the situation deteriorates. Where the preventive action plan includes measures aimed at addressing particular pressure on a Member State ’ s asylum system which may jeopardise the application of this Regulation, the Commission shall seek the advice of EASO before reporting to the European Parliament and to the Council. 3. Where the Commission establishes, on the basis of EASO ’ s analysis, that the implementation of the preventive action plan has not remedied the deficiencies identified or where there is a serious risk that the asylum situation in the Member State concerned develops into a crisis which is unlikely to be remedied by a preventive action plan, the Commission, in cooperation with EASO as applicable, may request the Member State concerned to draw up a crisis management action plan and, where necessary, revisions thereof. The crisis management action plan shall ensure, throughout the entire process, compliance with the asylum acquis of the Union, in particular with the fundamental rights of applicants for international protection. Following the request to draw up a crisis management action plan, the Member State concerned shall, in cooperation with the Commission and EASO, do so promptly, and at the latest within three months of the request. The Member State concerned shall submit its crisis management action plan and shall report, at least every three months, on its implementation to the Commission and other relevant stakeholders, such as EASO, as appropriate. The Commission shall inform the European Parliament and the Council of the crisis management action plan, possible revisions and the implementation thereof. In those reports, the Member State concerned shall report on data to monitor compliance with the crisis management action plan, such as the length of the procedure, the detention conditions and the reception capacity in relation to the inflow of applicants. 4. Throughout the entire process for early warning, preparedness and crisis management established in this Article, the Council shall closely monitor the situation and may request further information and provide political guidance, in particular as regards the urgency and severity of the situation and thus the need for a Member State to draw up either a preventive action plan or, if necessary, a crisis management action plan. The European Parliament and the Council may, throughout the entire process, discuss and provide guidance on any solidarity measures as they deem appropriate.” 36. 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. V. RELEVANT COMPARATIVE LAW A. Relevant German case-law 51. The Court notes that several German administrative courts, for instance the Stuttgart Administrative Court (on 4 February 2013), the Gelsenkirchen Administrative Court (on 17 May and 11 April 2013) and the Frankfurt am Main Administrative Court (on 9 July 2013) have ruled against the return of asylum seekers to Italy under the Dublin Regulation, irrespective of whether they belonged to categories deemed to be vulnerable. In its judgment of 9 July 2013 ( no. 7 K 560/11.F.A) in particular, the Frankfurt Administrative Court held that the shortage of places in Italian reception centres and the living conditions there would be liable to entail a violation of Article 3 of the Convention if a 24-year-old Afghan asylum seeker were sent back from Germany to Italy. In its judgment the Administrative Court held as follows: ( Translation by the Registry ) “ 25. The court is convinced that systemic deficiencies exist in the reception conditions for asylum seekers in Italy which constitute substantial grounds for believing that the applicant, if he were to be transferred to that country under the Dublin Regulation, would run a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the EU Charter of Fundamental Rights (see the ECJ judgment of 21 December 2011 – C-411/10, N. S. v Secretary of State for the Home Department and Others, EuGRZ 2012 24, § 94). ... 28. The reception and accommodation system in Italy is very confusing and the Italian authorities themselves seem to lack a full overview of its capacity and effectiveness (see the December 2012 expert report by Borderline-europe e.V. to the Braunschweig Administrative Court, p. 37). The Italian Government have admitted these shortcomings even before the European Court of Human Rights ( see Mohammed Hussein and Others, cited above, § 45, second sub-paragraph ). ... 49. The court does not possess any reliable information or reports capable of refuting, or even casting doubt on, the above finding. First of all, according to the case-law of both the European Court of Human Rights and the European Court of Justice, the rules on responsibility under the Dublin Regulation do not cease to apply only if it is established with certainty that the asylum seeker in question will be exposed to inhuman or degrading treatment if he is transferred to Italy. The facts do not support such a conclusion. Italy certainly has a number of acceptable reception facilities for asylum seekers and it can be assumed on the basis of the reports that at least one asylum seeker in two can be accommodated in accordance with the requirements of the Reception Directive. However, in view of the case-law cited above, it is sufficient for the person concerned to run a real risk of being subjected to inhuman or degrading treatment. Given that the chances of receiving accommodation that conforms to the above-mentioned requirements are at best 50%, it must in any event be concluded that such a risk exists. ... ” B. Relevant case-law of the Supreme Court of the United Kingdom 52. In a judgment of 19 February 2014 ([2014] UKSC 12), the Supreme Court of the United Kingdom held that, irrespective of whether “ systemic deficiencies ” existed in the reception system for asylum seekers in Italy, the Court of Appeal should examine on a case-by-case basis the risk that appellants would be subjected to treatment contrary to the Convention if they were returned to Italy. Lord Kerr, with whom Lord Neuberger (President), Lord Carnwath, Lord Toulson and Lord Hodge agreed, stated as follows: “ ... 42. Violation of article 3 does not require (or, at least, does not necessarily require) that the complained of conditions said to constitute inhuman or degrading conditions are the product of systemic shortcomings. It is self-evident that a violation of article 3 rights is not intrinsically dependent on the failure of a system. If this requirement is grafted on to the presumption it will unquestionably make its rebuttal more difficult. And it means that those who would suffer breach of their article 3 rights other than as a result of a systemic deficiency in the procedure and reception conditions provided for the asylum seeker will be unable to avail of those rights in order to prevent their enforced return to a listed country where such violation would occur. That this should be the result of the decision of CJEU in NS [ N. S. v Secretary of State for the Home Department and M. E., A. S. M., M. T., K. P., E. H. v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (CJEU C-411/10 and C-493/10)] would be, as I have said, remarkable. ... 46. In paras 76-80 of its judgment, CJEU sets out the background to the need for mutual confidence among member states about the obligation of those states that participate in the Common European Asylum System to comply with fundamental rights including those based on the Convention relating to the Status of Refugees (the 1951 Convention) ((1951) Cmd 9171) and its 1967 Protocol ((1967) Cmnd 3906). In these paras the court also dealt with the assumption that needed to be made that the states will be prepared to fully comply. These twin considerations (the importance of the obligations and the assumption that they will be fulfilled) underpin the system – a system designed to ‘ avoid blockages ... as a result of the obligation on state authorities to examine multiple claims by the same applicant, and ... to increase legal certainty with regard to the determination of the state responsible for examining the asylum claim and thus to avoid forum shopping, it being the principal objective ... to speed up the handling of claims in the interests both of asylum seekers and the participating member states. ’ – para 79. ... 48. Before examining what CJEU said on this issue, it can be observed that an exclusionary rule based only on systemic failures would be arbitrary both in conception and in practice. There is nothing intrinsically significant about a systemic failure which marks it out as one where the violation of fundamental rights is more grievous or more deserving of protection. And, as a matter of practical experience, gross violations of article 3 rights can occur without there being any systemic failure whatsoever. 49. One must be careful, therefore, to determine whether CJEU referred to systemic failures in order merely to distinguish these from trivial infringements of the various European asylum directives or whether it consciously decided to create a new and difficult-to-fulfil pre-condition for asylum-seekers who seek to have recourse to their article 3 rights to prevent their return to a country where it can be shown that those rights will be violated. For there can be little doubt that such a condition would indeed be difficult to fulfil. Some of the facts in the present cases exemplify the truth of that proposition. ... ... The correct approach 58. I consider that the Court of Appeal ’ s conclusion that only systemic deficiencies in the listed country ’ s asylum procedures and reception conditions will constitute a basis for resisting transfer to the listed country cannot be upheld. The critical test remains that articulated in Soering v United Kingdom (1989) 11 EHRR 439. The removal of a person from a member state of the Council of Europe to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of ECHR. ... 63. Where ... it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his removal to that state is forbidden. When one is in the realm of positive obligations (which is what is involved in the claim that the state has not ensured that satisfactory living conditions are available to the asylum seeker) the evidence is more likely to partake of systemic failings but the search for such failings is by way of a route to establish that there is a real risk of article 3 breach, rather than a hurdle to be surmounted. 64. There is, however, what Sales J described in R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin), at para 42(i) as ‘ a significant evidential presumption ’ that listed states will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory. It is against the backdrop of that presumption that any claim that there is a real risk of breach of article 3 rights falls to be addressed. The first instance decisions 65. In his first judgment in EM [2011] EWHC 3012 Admin, delivered on 18 November 2011, Kenneth Parker J referred approvingly to the statement in R v Home Secretary Ex p Adan [1999] 3 WLR 1274 to the effect that a system which will, if it operates as it usually does, provide the required standard protection for the asylum seeker will not be found to be deficient because of aberrations. He then said this at para 12: ‘ Following KRS, the existence of such a system is to be presumed. It is for the claimant to rebut that presumption, by pointing to a reliable body of evidence demonstrating that Italy systematically and on a significant scale fails to comply with its international obligations to asylum seekers on its territory. (original emphasis [KRS judgment] ) ’ 66. ‘ Systematic ’ is defined as ‘ arranged or conducted according to a system, plan, or organised method ’ whereas the definition of the word ‘ systemic ’ is ‘ of or pertaining to a system ’. Taken in context, I believe that Kenneth Parker J ’ s statement that it had to be shown that there was a systematic and significant failure to comply with international obligations meant that the omissions were on a widespread and substantial scale. His approach is rather different from that of the Court of Appeal, therefore, in that it does not appear to suggest that it needed to be shown that there were inherent deficiencies in the system, merely that there were substantial operational problems. This approximates (at least) to what I consider is the true import of the decision in NS. On one view, therefore, Kenneth Parker J ’ s decision is in keeping with the correct test and his decision should stand. 67. For two reasons, however, I have decided that this would not be the correct disposal. In the first place the Court of Appeal took a different view from that of Kenneth Parker J as to the effect of the evidence. As I pointed out, (in paras 26 and 31 above) the court indicated that, but for the effect of NS, it would have been bound to conclude that there was a triable issue in all four cases as to whether return to Italy entailed a real risk to exposing the appellants to inhuman or degrading treatment contrary to article 3 of ECHR. Secondly, there is an issue as to whether Kenneth Parker J ’ s approach accords precisely with that in Soering. In that case ECtHR had said that an extraditing contracting state will incur liability under the Convention if it takes action ‘ which has as a direct consequence the exposure of an individual to proscribed ill-treatment ’. In order to rebut the presumption a claimant will have to produce sufficient evidence to show that it would be unsafe for the court to rely on it. On proper analysis, it may well be that Kenneth Parker J was not suggesting that there was a requirement that a person subject to an enforced return must show that his or her risk of suffering ill-treatment contrary to article 3 of EHCR was the result of a significant and systematic omission of the receiving state to comply with its international obligations. It seems to me, however, that, to impose such an obligation in every instance would go beyond the Soering requirement. Since there was no reference to Soering in Kenneth Parker J ’ s judgment and in light of this court ’ s re ‑ assertion of the test articulated in that case, I consider that it would be sensible to have the matter revisited. 68. ... Although one starts with a significant evidential presumption that listed states will comply with their international obligations, a claim that such a risk is present is not to be halted in limine solely because it does not constitute a systemic or systematic breach of the rights of refugees or asylum seekers. Moreover, practical realities lie at the heart of the inquiry; evidence of what happens on the ground must be capable of rebutting the presumption if it shows sufficiently clearly that there is a real risk of article 3 ill-treatment if there is an enforced return. Disposal ... 70. That examination can only be conducted properly if there is an assessment of the situation in the receiving country. In appropriate circumstances, this calls for a rigorous assessment – see Chahal v United Kingdom (1997) 23 EHRR 413 at para 96 and Vilvarajah v United Kingdom (1991) 14 EHRR 248 at para 108. The court must examine the foreseeable consequences of sending a claimant to the receiving country bearing in mind both the general situation there and the claimant ’ s personal circumstances, including his or her previous experience – see Vilvarajah at para 108 and Saadi v Italy (2009) 49 EHRR 30 at para 130. This approach has been followed by decisions of ECtHR subsequent to MSS – Hussein v Netherlands Application no. 27725/10 at paras 69 and 78 and Daytbegova v Austria Application no. 6198/12 at paras 61 and 67-69. ” THE LAW 53. Relying on Article 3 of the Convention, the applicants submitted that if they were returned to Italy “in the absence of individual guarantees concerning their care”, they would be subjected to inhuman and degrading treatment linked to the existence of “ systemic deficiencies ” in the reception arrangements for asylum seekers in Italy. Article 3 provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 54. Under Article 8 of the Convention the applicants submitted that their return to Italy, where they had no ties and did not speak the language, would be in breach of their right to respect for their family 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.” 55. The Court, as master of the characterisation to be given in law to the facts of the case (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012; Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I; Halil Yüksel Akıncı v. Turkey, no. 39125/04, § 54, 11 December 2012 ), considers it more appropriate to examine the complaint concerning the applicants ’ reception conditions in Italy solely from the standpoint of Article 3 of the Convention. 56. Relying on Article 13 of the Convention taken in conjunction with Article 3, the applicants complained that the Swiss authorities had not given sufficient consideration to their personal circumstances and had not taken into account their situation as a family in the procedure for their return to Italy, which they considered to be unduly formalistic and automatic, not to say arbitrary. 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.” I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION A. The parties ’ submissions 1. The applicants 57. The applicants maintained that the reception arrangements for asylum seekers in Italy were beset by systemic deficiencies, relating to: difficulties in gaining access to the reception facilities owing to the slowness of the identification procedure; the accommodation capacity of those facilities, which they regarded in any case as insufficient; and the inadequate living conditions in the available facilities. In support of their arguments, the applicants referred to the findings of the following organisations: the Swiss Refugee Council (SFH-OSAR), Reception conditions in Italy: Report on the current situation of asylum seekers and beneficiaries of protection, in particular Dublin returnees, Berne, October 2013 (“the SFH-OSAR report”); PRO ASYL, Maria Bethke, Dominik Bender, Zur Situation von Flüchtlingen in Italien, 28 February 2011, www.proasyl.de (“the PRO ASYL report”); Jesuit Refugee Service-Europe (JRS), Dublin II info country sheets. Country: Italy, November 2011 (“the JRS report”); Office of the United Nations High Commissioner for Refugees, UNHCR Recommendations on important aspects of refugee protection in Italy, July 2012 (“the 2012 UNHCR Recommendations”); report by Nils Muižnieks, Council of Europe Commissioner for Human Rights, published on 18 September 2012 following his visit to Italy from 3 to 6 July 2012 (“the Human Rights Commissioner ’ s 2012 report); and the European network for technical cooperation on the application of the Dublin II regulation, Dublin II Regulation National Report on Italy, 19 December 2012 (“the Dublin II network 2012 report”). ( a) Slowness of the identification procedure 58. The applicants submitted that asylum seekers ’ entitlement to accommodation in the CARAs or in the facilities belonging to the SPRAR network ( Sistema di protezione per richiedenti asilo e rifugiati ) “[took] effect only after” formal registration by the police of the asylum application ( verbalizzazione ). They contended that, in practice, there was sometimes a time lag of several weeks or even several months between the time when the persons concerned reported to the immigration department of the competent police headquarters and the registration of the application. In the meantime, the persons concerned were homeless. In the applicants ’ submission, a formal finding to that effect had been made by the Frankfurt Administrative Court in a judgment of 9 July 2013 (see paragraph 51 above), on the basis of information supplied by the SFH-OSAR and by the organisation Borderline-europe. Hence, in their view, there were shortcomings in the implementation of the administrative procedure laid down by law. They acknowledged, however, that the situation was somewhat different with regard to asylum seekers returned to Italy under the Dublin Regulation, who in theory had immediate access not just to the CARAs and the facilities belonging to the SPRAR, but also to the facilities provided by the municipal authorities and those set up under the projects financed by the 2008-2013 European Refugee Fund (ERF). ( b) Capacity of the reception facilities 59. The applicants acknowledged that the facilities financed by the ERF were intended for persons transferred under the Dublin Regulation, but submitted that the number of places available was insufficient in relation to the number of transferees. Citing the SFH-OSAR report, they contended that in 2012 there had been only 220 places available in total for 3,551 transferees, of whom 2,981 had come from Switzerland. 60. As to availability in the CARAs and in the facilities belonging to the SPRAR, the applicants maintained that it was difficult for “ Dublin ” returnees to gain access to those facilities. 61. With regard to the facilities belonging to the SPRAR network, the applicants – again citing the SFH-OSAR report – maintained that only 5% of the persons housed there in 2012 had been transferred under the Dublin Regulation and that, of those, only 6.5% had come from Switzerland, although transfers from that country accounted for 85% of the total number of “ Dublin ” transfers to Italy. The applicants inferred from this that large numbers of people returned under the “ Dublin ” procedure were left without accommodation. They added that, according to the SFH-OSAR, there had been numerous cases in which families transferred to Italy had not been housed together. 62. The applicants also supplied data concerning the accommodation of asylum seekers in general, irrespective of whether or not they were “ Dublin ” returnees. In that connection they submitted that 34,115 asylum applications had been made in Italy in 2011 and 15,715 in 2012, with a rise in the figures in 2013. According to the SFH-OSAR report there had been 64,000 refugees living in Italy in 2012. According to the same source, there had been only 8,000 places in the CARAs in 2012, with waiting lists so long that the majority of applicants had no realistic prospect of gaining access. 63. As to the facilities belonging to the SPRAR, the SFH-OSAR report stated that the number of places was 4,800 and that 5,000 people were on the waiting list. The same report noted that, according to two other organisations (Caritas and the JRS), only 6% of the persons housed in the SPRAR facilities – where, moreover, the maximum stay was six months – managed to find work and integrate professionally into Italian society. 64. With regard to the accommodation centres run by the municipal authorities, which were open to any person suffering hardship and not just to asylum seekers, the number of places also fell far short of what was needed. According to the SFH-OSAR report there were 1,300 places in Rome, with a waiting list of 1,000 and an average waiting time of three months. In Milan, there were only 400 places and families were systematically split up. The applicants added that, while it was true that some municipal authorities made social housing available to families, the number of places was clearly insufficient and the waiting list was around ten years. The accommodation offered by religious institutions and NGOs was also insufficient to meet demand. Lastly, asylum seekers had no access to private accommodation, as the economic situation in Italy, with rising unemployment, meant that they were unable to find work. 65. In conclusion, the applicants argued that, owing to the shortage of places in the various types of reception facilities, large numbers of asylum seekers, including families with small children, were forced to live in insalubrious squats and other makeshift accommodation, or simply on the streets. By way of example, according to the SFH-OSAR report there were between 1,200 and 1,700 people housed in precarious conditions in Rome, and between 2,300 and 2,800 people sleeping on the streets in Italy as a whole. ( c) Living conditions in the available facilities 66. The applicants contended that conditions in the CARAs in particular were contrary to the provisions of the Reception Directive. They referred to the findings of the organisation Borderline-europe, according to which, in the CARAs in Trapani (Sicily), five or six people shared a space of 15 sq m. and were obliged to sleep on mattresses on the floor. These centres also had inadequate sanitation facilities and lacked privacy. The latter was even a recurring problem in the CARAs and had particularly negative consequences for children, especially when the family unit was broken up as happened systematically in Milan, for instance. In the CARA in Mineo (Sicily), the occupants reportedly received no spending money, the sanitation facilities were poor, there was inadequate access to health care and criminal activity and prostitution were rife. 67. In their observations the applicants referred in particular to the 2012 UNHCR Recommendations and the Human Rights Commissioner ’ s 2012 report. They also attached considerable importance to the fact that the Frankfurt Administrative Court, in its judgment of 9 July 2013 (see paragraph 51 above), had held that 50% of asylum seekers risked being subjected to ill-treatment if returned to Italy, owing to reception conditions that did not comply with the European directives. 68. Lastly, the applicants submitted that the Swiss Government had not produced any document certifying that attempts had been made to find a specific solution for taking charge of the applicants. According to them, no request for minimum guarantees appeared to have been addressed to the Italian authorities, who had not provided any assurances that the applicants would be housed in decent conditions and not separated. They also submitted that the living conditions in the CARA in Bari, where they had spent two days during their stay in Italy, had been unacceptable, particularly owing to the lack of privacy and the violence this caused. 2. The Government ( a) Slowness of the identification procedure 69. The Government did not comment on the difficulties referred to by the applicants with regard to the slowness of the identification procedure. ( b) Capacity of the reception facilities 70. As to the capacity of the reception facilities, the Government submitted that 235 places were reserved in the ERF-financed facilities for asylum seekers facing return under the Dublin Regulation. The Government further stated that the capacity of the SPRAR network would be increased to 16,000 places over the period 2014-2016. They referred mainly to the 2012 UNHCR Recommendations and the Human Rights Commissioner ’ s 2012 report, and to the Court ’ s findings in Mohammed Hussein, cited above, and the follow-up decisions in the same vein ( Daytbegova and Magomedova v. Austria (dec.), no. 6198/12, 4 June 2013; Abubeker v. Austria and Italy (dec.), no. 73874/11, 18 June 2013; Halimi v. Austria and Italy (dec.), no. 53852/11, 18 June 2013; Miruts Hagos v. the Netherlands and Italy (dec.), no. 9053/10, 27 August 2013; Mohammed Hassan and Others v. the Netherlands and Italy (dec.), no. 40524/10, 27 August 2013; and Hussein Diirshi and Others v. the Netherlands and Italy (dec.), no. 2314/10, 10 September 2013). ( c) Living conditions in the available facilities 71. With regard to living conditions in the available facilities, the Government referred again to the 2012 UNHCR Recommendations and the Human Rights Commissioner ’ s 2012 report, submitting that there were no grounds for finding that the Reception Directive was being systematically violated in Italy. They added that they were unaware of any “ Dublin ” States which refused returns to Italy as a general rule and that neither UNHCR nor the Human Rights Commissioner had sought leave to intervene in the present proceedings, unlike in the case of M.S.S. 72. With reference to the applicants ’ specific case the Government stated that on 22 November 2011 the FMO had submitted a request to the Italian authorities to take charge of the applicants in accordance with Article 17 of the Dublin Regulation. No explicit reply had been received within the two months provided for by Article 18(1) of the Regulation; in the Government ’ s submission, this was regarded as implicit acceptance and had been customary at the time between Switzerland and Italy. 73. The practice had since changed and Italy now replied explicitly to requests to take charge emanating from Switzerland. 74. In general, a transfer under the “ Dublin ” procedure was a measure prepared a long time in advance and not one used to deal with an emergency situation, so that it was possible to take account of the situation of persons requiring special protection, such as families with young children, before their arrival on Italian territory. Cooperation with the Italian authorities in this area worked well, owing in particular to the presence of a Swiss liaison officer in the Dublin department of the Italian Ministry of the Interior. Since the beginning of 2013 the Italian authorities had adopted a new practice consisting of indicating, at the same time as agreeing to take charge of the asylum seeker, the airport and reception facility of destination. 75. In any event, at the hearing of 12 February 2014 the Government stated that they had been informed by the Italian authorities that, if returned to Italy, the applicants would be accommodated in an ERF-financed centre in Bologna. They did not provide any further details concerning the arrangements for transfer and the physical reception conditions envisaged by the Italian authorities. 3. Observations of the Italian, Dutch, Swedish, Norwegian and United Kingdom Governments and of the organisations Defence for Children, the AIRE Centre, ECRE and Amnesty International, third ‑ party interveners ( a) Slowness of the identification procedure 76. According to the observations of the Italian Government, under Article 20 of Legislative Decree no. 25/2008 of 28 January 2008, individuals seeking international protection could be provided with accommodation in the CARAs for the time necessary for their identification, that is to say, prior to the registration of their asylum application (for a period not exceeding twenty days), and while the territorial commission examined their application (for a period not exceeding thirty-five days). If their application was granted they had access to the SPRAR centres. That being said, Article 6 of Legislative Decree no. 140/2005 of 30 May 2005 provided that, where it had been established that there was a lack of space in the SPRAR centres, asylum seekers who could demonstrate that they lacked any means of subsistence were entitled to remain in the CARAs. The Italian Government did not provide information on any cases where asylum seekers had been forced to wait several weeks or even months before gaining access to a CARA, either before or after they had been identified. They submitted, however, that the average time taken to examine asylum applications had been 72 days in 2012 and 92 days in 2013. The length of time taken was due to the fact that, since each asylum seeker ’ s interview with the territorial commission had to last at least one hour, each of the ten commissions could not, in practice, process more than ten applications a day. A law that had entered into force on 4 September 2013 (no. 97/2013) had enabled some additional sections to be created within the territorial commissions in order to speed up the examination of asylum applications. 77. In common with the Swiss Government, the remaining third-party interveners did not comment on the practical aspects of this matter. (b) Capacity of the reception facilities 78. In their observations the Italian Government explained that, by a decree of 17 September 2013, the Ministry of the Interior had decided to double the total capacity of the SPRAR network to 16,000 places by the end of the period 2014-2016. The network currently comprised 9,630 places, of which 1,230 had been created since the enactment of the decree. In addition, the prefects of the Sicily region had been requested in a circular of 7 October 2013 to identify additional accommodation facilities for refugees, including in the private sector. To date, approximately forty such facilities had been identified, offering a total of 1,834 places, and a further six were ready to be brought into service in the event of an increase in the influx of refugees. In the first six months of 2013, 14,184 asylum applications had been made (situation at 15 June 2013). Lastly, at the hearing of 12 February 2014, the representative of the Italian Government described the surge in the number of asylum requests registered over the previous two years as “a catastrophic situation”. 79. The Dutch, Swedish, Norwegian and United Kingdom Governments endorsed in substance the position of the Swiss Government. Like the latter they observed that, in contrast to the case of Greece, UNHCR had not called for transfers of certain vulnerable groups to Italy to be halted. 80. The Swedish Government observed that Italy and the European Asylum Support Office (EASO) had signed a Special Support Plan on 4 June 2013 aimed at improving reception conditions for asylum seekers. Furthermore, “ Dublin ” returns to Italy were the subject of a systematic exchange of information between the authorities of the two countries, which was particularly thorough in the case of vulnerable persons and especially unaccompanied children. 81. The United Kingdom Government submitted that the reports to which the applicants referred in their assessment of the situation on the ground, and in particular the PRO ASYL report, often failed to make a distinction between “asylum seekers”, “recognised refugees” and “failed asylum seekers”. This distinction was critical, however, since the Reception Directive applied only to asylum seekers, whose status was inherently temporary, while the Qualification Directive, which applied to refugees, placed the latter on an equal footing with nationals in terms of access to employment, education and social welfare. The data contained in those reports therefore gave a false picture. By way of example, the United Kingdom Government pointed out that the SFH-OSAR report criticised conditions in the Tor Marancia shelter in Rome, while acknowledging that the shelter accommodated Afghan men with recognised refugee status. 82. The organisation Defence for Children shared the applicants ’ view that the capacity to accommodate asylum seekers in Italy was clearly insufficient, arguing that this had particularly serious consequences for children, some of whom were forced to live in squats and other insalubrious accommodation. The NGO referred to the information published in the SFH-OSAR report. (c) Living conditions in the available facilities 83. Like the applicants, the organisation Defence for Children, citing the SFH-OSAR report, contended that several families sent back to Italy under the Dublin Regulation had been separated on their arrival in the reception facilities, particularly in the CARAs. In Milan, this practice was even systematic. In their observations, Defence for Children stressed the concept of the “best interests of the child” as defined by the Convention on the Rights of the Child of 20 November 1989, and submitted that in “ Dublin ” return cases the social and emotional development of children should be a decisive factor in assessing their “ best interests ”. The NGO referred in particular to Article 6 of the Dublin III Regulation, which came into force on 1 January 2014 (see paragraph 3 5 above). 84. Defence for Children stressed, in particular, the importance attached by the United Nations Committee on the Rights of the Child to protecting the family environment, and referred to the Court ’ s case-law on the detention of children, particularly migrants, with regard to living conditions. In conclusion, they requested the Court to prohibit the return of children to Italy on account of the precarious conditions in which asylum seekers were housed there. 85. The AIRE Centre, ECRE and Amnesty International also referred to the concept of the “child ’ s best interests” and submitted that children should only be transferred to other Member States of the European Union if this was in their best interests. 86. The Italian Government confirmed at the hearing of 12 February 2014 that there had been some episodes of violence at the CARA in Bari shortly before the applicants ’ arrival. However, they denied that families of asylum seekers were systematically split up; this occurred only in a few cases and for very short periods during the first few days when asylum seekers were being taken charge of and identified. In their observations they also stated that asylum seekers belonging to a category considered by the Italian authorities to be vulnerable – which was the case of the applicants, as a family with children – were taken charge of within the SPRAR system, which guaranteed them accommodation, food, health care, Italian classes, referral to social services, legal advice, vocational training, apprenticeships and help in finding their own accommodation. B. The Court ’ s assessment 87. The Court notes at the outset that, according to the Swiss Government, if they were returned to Italy the applicants would be accommodated in Bologna in a facility belonging to the network financed by the ERF (see paragraph 7 5 above). Even assuming that this factor raises an issue under Article 37 § 1 ( b) or ( c) of the Convention, the Court considers that it should be included in its examination of the merits of the application (see paragraph 121 below). 1. Switzerland ’ s responsibility under the Convention 88. The Court notes that, in the present case, Switzerland ’ s responsibility under Article 3 of the Convention is not disputed. Nevertheless, the Court considers it relevant to observe that, in the case of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, § 152, ECHR 2005 ‑ VI), it held that the Convention did not prohibit Contracting Parties from transferring sovereign power to an international organisation in order to pursue cooperation in certain fields of activity. The States nevertheless remain responsible under the Convention for all actions and omissions of their bodies under their domestic law or under their international legal obligations (ibid., § 153). State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights in a manner which can be considered at least equivalent to that for which the Convention provides. However, a State will be fully responsible under the Convention for all acts falling outside its strict international legal obligations, notably where it has exercised State discretion (ibid., §§ 155-57; see also Michaud v. France, no. 12323/11, §§ 102-04, ECHR 2012 ). It is true that, unlike Ireland in the Bosphorus case, Switzerland is not a Member State of the European Union. However, under the terms of the association agreement of 26 October 2004 between the Swiss Confederation and the European Community, Switzerland is bound by the Dublin Regulation (see paragraphs 34 to 36 above) and participates in the system established by that instrument. 89. The Court notes that Article 3(2) of the Dublin Regulation provides that, by derogation from the general rule set forth in Article 3(1), each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in the Regulation. This is the so-called “sovereignty” clause (see paragraph 3 2 above). In such a case the State concerned becomes the Member State responsible for examining the asylum application for the purposes of the Regulation and takes on the obligations associated with that responsibility (see M.S.S., cited above, § 339). By virtue of the association agreement, this mechanism applies also to Switzerland. 90. The Court concludes from this that the Swiss authorities could, under the Dublin Regulation, refrain from transferring the applicants to Italy if they considered that the receiving country was not fulfilling its obligations under the Convention. Consequently, it considers that the decision to return the applicants to Italy does not strictly fall within Switzerland ’ s international legal obligations in the context of the system established by the Dublin Regulation. Accordingly, the presumption of equivalent protection does not apply in this case ( see, mutatis mutandis, M.S.S., cited above, § 340). 91. Switzerland must therefore be considered to bear responsibility under Article 3 of the Convention in the present case. 2. Admissibility 92. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It therefore declares it admissible. 3. Merits ( a) Recapitulation of general principles 93. 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 Saadi v. Italy [GC], no. 37201/06, § 152, ECHR 2008; M.S.S., cited above, § 365; 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). 94. The Court has held on numerous occasions that to fall within the scope of Article 3 the ill- treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see, inter alia, Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI, and M.S.S., cited above, § 219). 95. The Court has also ruled that Article 3 cannot be interpreted as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home ( see Chapman v. the United Kingdom [GC], no. 27238/95, § 99, ECHR 2001 ‑ I). Nor does Article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living (see Müslim v. Turkey, no. 53566/99, § 85, 26 April 2005, and M.S.S., cited above, § 249). 96. In the M.S.S. judgment (§ 250), the Court nevertheless took the view that what was at issue in that case could not be considered in those terms. Unlike in the Müslim case ( cited above, §§ 83 and 84), the obligation to provide accommodation and decent material conditions to impoverished asylum seekers had entered into positive law and the Greek authorities were bound to comply with their own legislation transposing European Union law, namely the Reception Directive. What the applicant held against the Greek authorities in that case was that, because of their deliberate actions or omissions, it had been impossible in practice for him to avail himself of those rights and provide for his essential needs. 97. In the same judgment (§ 251), the Court attached considerable importance to the applicant ’ s status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection. It noted the existence of a broad consensus at the international and European level concerning this need for special protection, as evidenced by the Geneva Convention, the remit and the activities of the UNHCR and the standards set out in the European Union Reception Directive. 98. Still in M.S.S. (§§ 252 and 253), having to determine whether a situation of extreme material poverty could raise an issue under Article 3, the Court reiterated that it had not excluded “the possibility that the responsibility of the State [might] be engaged [under Article 3] in respect of treatment where an applicant, who was wholly dependent on State support, found herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity” (see Budina v. Russia (dec.), no. 45603/05, 18 June 2009). 99. With more specific reference to minors, the Court has established that it is important to bear in mind that the child ’ s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant ( see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 55, ECHR 2006 ‑ XI, and Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012 ). Children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status. The Court has also observed that the Convention on the Rights of the Child encourages States to take the appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether the child is alone or accompanied by his or her parents ( see to this effect Popov, cited above, § 91). ( b) Application of these principles to the present case 100. The applicants argued in substance that if they were returned to Italy “ in the absence of individual guarantees concerning their care” they would be subjected to inhuman and degrading treatment linked to the existence of “systemic deficiencies” in the reception arrangements for asylum seekers. 101. In order to examine this complaint the Court considers it necessary to follow an approach similar to that which it adopted in the M.S.S. judgment, cited above, in which it examined the applicant ’ s individual situation in the light of the overall situation prevailing in Greece at the relevant time. 102. It first reiterates its well-established case-law according to which the expulsion of an asylum seeker by a Contracting State may give rise to an issue under Article 3 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 ( see paragraph 9 3 above ). 103. It is also clear from the M.S.S. judgment that the presumption that a State participating in the “ Dublin ” system will respect the fundamental rights laid down by the Convention is not irrebuttable. For its part, the Court of Justice of the European Union has ruled that the presumption that a Dublin State complies with its obligations under Article 4 of the Charter of Fundamental Rights of the European Union is rebutted in the event of “ systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State ” ( see paragraph 3 3 above ). 104. In the case of “ Dublin ” returns, the presumption that a Contracting State which is also the “ receiving ” country will comply with Article 3 of the Convention can therefore validly be rebutted where “substantial grounds have been shown for believing” that the person whose return is being ordered faces a “real risk” of being subjected to treatment contrary to that provision in the receiving country. The source of the risk does nothing to alter the level of protection guaranteed by the Convention or the Convention obligations of the State ordering the person ’ s removal. It does not exempt that State from carrying out a thorough and individualised examination of the situation of the person concerned and from suspending enforcement of the removal order should the risk of inhuman or degrading treatment be established. The Court also notes that this approach was followed by the United Kingdom Supreme Court in its judgment of 19 February 2014 (see paragraph 5 2 above). 105. In the present case the Court must therefore ascertain whether, in view of the overall situation with regard to the reception arrangements for asylum seekers in Italy and the applicants ’ specific situation, substantial grounds have been shown for believing that the applicants would be at risk of treatment contrary to Article 3 if they were returned to Italy. ( i ) Overall situation with regard to the reception arrangements for asylum seekers in Italy 106. As regards the overall situation, in its decision in Mohammed Hussein ( cited above, § 78), the Court noted that the UNHCR Recommendations and the Human Rights Commissioner ’ s report, both published in 2012, referred to a number of failings. According to the applicants, these were “ systemic ” and stemmed from the slowness of the identification procedure, the inadequate capacity of the reception facilities and the living conditions in the available facilities (see paragraphs 5 6 to 6 7 above). ( α) Slowness of the identification procedure 107. As regards the problems allegedly linked to the slowness of the identification procedure, the Court notes that the applicants have already been identified and that the Swiss and Italian authorities now have all the relevant information concerning them. It further observes that it took the Italian authorities only ten days to identify the applicants on their arrival in Stignano, despite the fact that they had supplied a false identity to the police (see paragraph 10 above). Accordingly, this aspect of the applicants ’ complaint is no longer directly relevant to the examination of the case and the Court sees no need to dwell on it further. ( β ) Capacity of the reception facilities 108. With regard to the capacity of the accommodation facilities for asylum seekers, the applicants based their submissions on detailed studies carried out by non-governmental organisations, according to which the number of asylum applications in Italy was 34, 115 in 2011 and 15, 715 in 2012, with the figures rising in 2013. According to the SFH- OSAR report, there were 64,000 refugees living in Italy in 2012; however, in 2012 there were only 8,000 places in the CARAs, with waiting lists so long that the majority of applicants had no realistic prospect of gaining access. As to the facilities belonging to the SPRAR network, the SFH-OSAR report stated that there were 4,800 places and 5,000 people on the waiting list. The same report observed that, according to two other organisations, Caritas and the JRS, only 6% of the persons housed in the SPRAR facilities – where, moreover, the maximum stay was six months – managed to find work and integrate professionally into Italian society. With regard to the accommodation centres run by the municipal authorities, which were open to any person suffering hardship and not just to asylum seekers, the number of places also fell far short of what was needed. According to the SFH ‑ OSAR report there were 1,300 places in Rome, with a waiting list of 1,000 and an average waiting time of three months. In Milan, there were only 400 places and families were systematically split up. 109. The Court notes that these figures were not disputed by the Swiss Government, which simply emphasised the efforts undertaken by the Italian authorities to cope as best they could with the uninterrupted flow of asylum seekers into the country over the past few years. In their observations, the Italian Government stated that the measures being taken by the Italian authorities were focused on increasing reception capacity for asylum seekers. In particular, it had been decided in September 2013 to increase the overall capacity of the SPRAR system to 16,000 places over the period 2014-2016; 1,230 places had already been created, bringing the total of available places to 9,630 (see paragraph 7 8 above). 110. The Court notes that the methods used to calculate the number of asylum seekers without accommodation in Italy are disputed. Without entering into the debate as to the accuracy of the available figures, it is sufficient for the Court to note the glaring discrepancy between the number of asylum applications made in 2013, which according to the Italian Government totalled 14,184 by 15 June 2013 (see paragraph 7 8 above), and the number of places available in the facilities belonging to the SPRAR network (9,630 places), where – again according to the Italian Government – the applicants would be accommodated (see paragraph 7 6 above). Moreover, given that the figure for the number of applications relates only to the first six months of 2013, the figure for the year as a whole is likely to be considerably higher, further weakening the reception capacity of the SPRAR system. The Court further notes that neither the Swiss nor the Italian Government claimed that the combined capacity of the SPRAR system and the CARAs would be capable of absorbing the greater part, still less the entire demand for accommodation. ( γ ) Reception conditions in the available facilities 111. As regards living conditions in the available facilities, the studies cited by the applicants referred to certain accommodation centres where lack of privacy, insalubrious conditions and violence were allegedly widespread (see paragraphs 6 6 to 6 7 above). The applicants themselves also claimed to have witnessed violent incidents during their short stay in the Bari CARA. They further submitted that, in some centres, families of asylum seekers were systematically split up. 112. The Court notes that in its Recommendations for 2013 UNHCR did indeed describe a number of problems, relating in particular to the varying quality of the services provided, depending on the size of the facilities, and to a lack of coordination at national level. However, while it observed a degree of deterioration in reception conditions, particularly in 2011, and a problem of overcrowding in the CARAs, UNHCR did not refer to situations of widespread violence or insalubrious conditions, and even welcomed the efforts undertaken by the Italian authorities to improve reception conditions for asylum seekers. The Human Rights Commissioner, in his 2012 report (see paragraph 4 9 above), also noted the existence of problems in “some of the reception facilities”, voicing particular concern with regard to legal aid, care and psychological assistance in the emergency reception centres, the time taken to identify vulnerable persons and the preservation of family unity during transfers. 113. Lastly, the Court notes that at the hearing of 12 February 2014 the Italian Government confirmed that violent incidents had occurred in the Bari CARA shortly before the applicants ’ arrival. They denied, however, that the families of asylum seekers were systematically separated, stating that this occurred only in a few cases and for very short periods, notably during the identification procedures. 114. In view of the foregoing, the current situation in Italy can in no way be compared to the situation in Greece at the time of the M.S.S. judgment, cited above, where the Court noted in particular that there were fewer than 1,000 places in reception centres to accommodate tens of thousands of asylum seekers and that the conditions of the most extreme poverty described by the applicant existed on a large scale. Hence, the approach in the present case cannot be the same as in M.S.S. 115. While the structure and overall situation of the reception arrangements in Italy cannot therefore in themselves act as a bar to all removals of asylum seekers to that country, the data and information set out above nevertheless raise serious doubts as to the current capacities of the system. Accordingly, in the Court ’ s view, the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, cannot be dismissed as unfounded. ii. The applicants ’ individual situation 116. As regards the applicants ’ individual situation, the Court notes that, according to the findings of the Italian police and the identification forms annexed to the observations of the Italian Government, the couple and their five oldest children landed on the coast of Calabria on 16 July 2011 and were immediately subjected to an identification procedure, having supplied a false identity. The same day, the applicants were placed in a reception facility provided by the municipal authorities of Stignano, where they remained until 26 July 2011. On that date, once their true identity had been established, they were transferred to the CARA in Bari. They left that centre without permission on 28 July 2011, bound for an unknown destination. 117. Accordingly, just as the overall situation of asylum seekers in Italy is not comparable to that of asylum seekers in Greece as analysed in the M.S.S. judgment (see paragraph 11 4 above), the specific situation of the applicants in the present case is different from that of the applicant in M.S.S. Whereas the applicants in the present case were immediately taken charge of by the Italian authorities, the applicant in M.S.S. was first placed in detention and then left to fend for himself, without any means of subsistence. 118. The Court reiterates that to fall within the scope of Article 3 the ill ‑ treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see paragraph 9 4 above). It further reiterates that, as a “particularly underprivileged and vulnerable” population group, asylum seekers require “ special protection ” under that provision (see M.S.S ., cited above, § 251). 119. This requirement of “special protection” of asylum seekers is particularly important when the persons concerned are children, in view of their specific needs and their extreme vulnerability. This applies even when, as in the present case, the children seeking asylum are accompanied by their parents ( see Popov, cited above, § 91). Accordingly, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not “create ... for them a situation of stress and anxiety, with particularly traumatic consequences” ( see, mutatis mutandis, Popov, cited above, § 102). Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention. 120. In the present case, as the Court has already observed (see paragraph 11 5 above), in view of the current situation as regards the reception system in Italy, and although that situation is not comparable to the situation in Greece which the Court examined in M.S.S., the possibility that a significant number of asylum seekers removed to that country may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, is not unfounded. It is therefore incumbent on the Swiss authorities to obtain assurances from their Italian counterparts that on their arrival in Italy the applicants will be received in facilities and in conditions adapted to the age of the children, and that the family will be kept together. 121. The Court notes that, according to the Italian Government, families with children are regarded as a particularly vulnerable category and are normally taken charge of within the SPRAR network. This system apparently guarantees them accommodation, food, health care, Italian classes, referral to social services, legal advice, vocational training, apprenticeships and help in finding their own accommodation (see paragraph 8 6 above). However, in their written and oral observations the Italian Government did not provide any further details on the specific conditions in which the authorities would take charge of the applicants. It is true that at the hearing of 12 February 2014 the Swiss Government stated that the FMO had been informed by the Italian authorities that, if the applicants were returned to Italy, they would be accommodated in Bologna in one of the facilities funded by the ERF (see paragraph 7 5 above). Nevertheless, in the absence of detailed and reliable information concerning the specific facility, the physical reception conditions and the preservation of the family unit, the Court considers that the Swiss authorities do not possess sufficient assurances that, if returned to Italy, the applicants would be taken charge of in a manner adapted to the age of the children. 122. It follows that, were the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together, there would be a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3 123. The applicants complained that the Swiss authorities had not given sufficient consideration to their personal circumstances and had not taken into account their situation as a family in the procedure for their return to Italy, which they considered to be unduly formalistic and automatic, not to say arbitrary. 124. The Swiss Government contested that argument. In their view, the risk of treatment contrary to Article 3 had been duly examined by the Swiss authorities before the applicants ’ removal to Italy had been ordered. At the interview of 15 November 2011, which had been conducted in a language they understood, the applicants had been invited to explain in detail the possible grounds for not returning them to Italy, but had invoked only general economic grounds. Only after their application had been dismissed for the first time by the Federal Administrative Court had they provided further details concerning their reception conditions in Italy. In any event, that new information had not been capable of altering the decision to remove them and had been dismissed by the Federal Administrative Court in its decision of 21 March 2012. 125. At the hearing of 12 February 2014 the Government stated that the Swiss authorities did not hesitate to apply the sovereignty clause provided for by Article 3(2) of the Dublin Regulation where they deemed it necessary. This was borne out by the examples provided by the AIRE Centre, ECRE and Amnesty International, some twenty of which concerned returns to Italy. 126. 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). 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. ). 127. In the present case the Court notes that the applicants were interviewed by the FMO on 15 November 2011, in a language they understood, and asked to explain in detail the possible grounds for not returning them to Italy. 128. Following the decision of the FMO of 24 January 2012 to reject their claim for asylum and return them to Italy, on 2 February 2012 the applicants were able to lodge an application with the Federal Administrative Court. They submitted before that court that the reception conditions in Italy were in breach of the Convention. The Federal Administrative Court ruled promptly on the application and dismissed it on 9 February 2012, that is, seven days after it had been lodged. 129. Following that dismissal the applicants decided to file a request with the FMO “to have the asylum proceedings reopened”. That request, based on a reworded account by the applicants of their stay in Italy, was sent to the Federal Administrative Court, which classified it as a “request for revision” of the judgment of 9 February 2012 and declared it inadmissible on the grounds that it was essentially a reclassification of the facts of the case. 130. The Court notes that it is not disputed that at the time of the Federal Administrative Court ’ s judgment of 9 February 2012 the applicants had not produced any evidence before the national authorities to suggest that their safety would be at risk if they were returned to Italy. It also notes that the aforementioned judgment of the Federal Administrative Court dealt unambiguously with the specific situation of the applicants as a family with young children, addressed in detail the complaints raised by the applicants and was fully reasoned. Furthermore, the Court does not discern the slightest arbitrariness in the Federal Administrative Court ’ s decision not to take account of the reworded description by the applicants of their stay in Italy and to declare their request for revision inadmissible. It also notes that this type of application is lodged in extraordinary proceedings and, with regard to factual considerations, cannot be declared admissible unless “the applicant later discovers relevant facts or conclusive evidence that he or she was unable to rely on in the previous proceedings ” ( section 123 of the Federal Administrative Court Act), which is not the case here. 131. Furthermore, the fact that the Federal Administrative Court has opposed the return of asylum seekers to “Dublin” States in some cases, including that of a family with young children who were to be deported to Italy, or made it subject to conditions (see paragraphs 26 and 27 above), also suggests that that court normally undertakes a thorough examination of each individual situation and, as stressed by the Swiss Government, does not hesitate to invoke the “sovereignty clause” contained in Article 3(2) of the Dublin Regulation. 132. It follows that the applicants had available to them an effective remedy in respect of their Article 3 complaint. Accordingly, their complaint under Article 13 of the Convention taken in conjunction with Article 3 must be rejected as manifestly ill - founded, in accordance with Article 35 §§ 3 ( a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 133. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 134. The applicants did not submit any claim for just satisfaction in respect of pecuniary damage. Accordingly, the Court considers that it is unnecessary to make an award under this head. 135. The applicants claimed the sum of 7,500 euros (EUR) in respect of non-pecuniary damage. 136. The Government stressed that the applicants had not been transferred to Italy and submitted that the finding that such a transfer would be in breach of Article 3 of the Convention would constitute sufficient just satisfaction. 137. The Court considers that its finding in paragraph 122 of the present judgment constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants (see, to this effect, Beldjoudi v. France, 26 March 1992, §§ 79 and 86, Series A no. 234-A; M. and Others v. Bulgaria, no. 41416/08, §§ 105 and 143, 26 July 2011; and Nizamov and Others v. Russia, nos. 22636/13, 24034/13, 24334/13 and 24328/13, § 50, 7 May 2014). B. Costs and expenses 138. Before the Chamber, the applicants had also claimed EUR 3,585 in respect of the fees paid to their representatives and 262 Swiss francs (CHF) (EUR 215) for interpretation costs in connection with their meetings with their representatives. 139. The Government did not object to this claim. 140. On 3 April 2014 the applicants submitted a further claim for just satisfaction in addition to that submitted before the Chamber. The additional claim concerned the cost of preparing for and being represented at the hearing of 12 February 2014. The additional costs totalled CHF 10,196. 141. The Government contested this additional claim, arguing that it had been submitted out of time. 142. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers the sum of EUR 7,000 to be reasonable to cover costs under all heads, and awards it to the applicants. C. Default interest 143. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there would be a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention if the Swiss authorities were to send the applicants back to Italy under the Dublin Regulation without having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together. The Court found in particular that, in view of the current situation regarding the reception system in Italy, and in the absence of detailed and reliable information concerning the specific facility of destination, the Swiss authorities did not possess sufficient assurances that, if returned to Italy, the applicants would be taken charge of in a manner adapted to the age of the children. The Court further considered that the applicants had had available to them an effective remedy in respect of their complaint under Article 3 of the Convention. Accordingly, it rejected their complaint under Article 13 (right to an effective remedy) of the Convention taken in conjunction with Article 3 as manifestly ill-founded.