CEDH · CASELAW;CLIN;ENG — 8 décembre 2015

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law 191 December 2015 Z.H. and R.H. v. Switzerland - 60119/12 Judgment 8.12.2015 [Section III] Article 8 Article 8-1 Respect for family life Removal of husband under Dublin Convention following refusal to recognise his alleged marriage to 14-year-old bride: no violation Facts – The applicants, who were Afghan nationals, requested asylum in Switzerland after previously registering as asylum-seekers in Italy. They presented themselves to the Swiss asylum authorities as a married couple, saying they had been married at a religious ceremony in Iran when the first applicant was 14 and her husband, the second applicant, 18. They did not produce a marriage certificate. Their request for asylum was rejected. The second applicant was removed to Italy, but managed to return illegally three days later and was allowed to remain. In the appeal proceedings against the refusal, the domestic courts found, among other things, that the applicants’ marriage was incompatible on grounds of public policy given that sexual intercourse with a child under the age of 16 was a criminal offence under Swiss law. The applicants could not therefore claim any right to family life under Article   8 of the Convention. In the Convention proceedings, the applicants alleged that the second applicant’s expulsion to Italy in 2012 had violated Article   8 of the Convention and that there would be a further violation if he was expelled again. Law – Article 8: The Court saw no reason to depart from the Swiss Federal Administrative Court’s findings that the applicants’ religious marriage was invalid under Afghan law and was in any case incompatible with Swiss ordre public owing to the first applicant’s young age. Article   8 of the Convention could not be interpreted as imposing on any State party to the Convention an obligation to recognise a marriage, religious or otherwise, contracted by a 14-year-old child. Nor could such obligation be derived from Article   12 of the Convention. Article   12 expressly provided for regulation of marriage by national law and given the sensitive moral choices concerned and the importance to be attached to the protection of children and the fostering of secure family environments, the Court should not rush to substitute its own judgment for that of the national authorities. The national authorities had therefore been justified in considering that the applicants, who had taken no steps to seek recognition of their religious marriage in Switzerland, were not married. In any event, even if their relationship had qualified as “family life” under Article   8, the second applicant had returned to Switzerland just three days later and had been allowed to remain in Switzerland and to request a re-examination of his asylum application, which had eventually succeeded. Nor was the first applicant ever prevented from joining the second applicant after his expulsion to Italy. Bearing in mind the margin of appreciation afforded to States in immigration matters, a fair balance had been struck between, on the one hand, the personal interests of the applicants in remaining together in Switzerland while awaiting the outcome of the first applicant’s asylum application, and, on the other, the Swiss Government’s interests in controlling immigration. Conclusion : no violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes