issued by the Registrar of the Court
ECHR 386 (2015)
08.12.2015
Switzerland was under no obligation to recognise
the marriage of a 14-year old child
no. 60119/12) the European Court of Human Rights held, unanimously, that there had been:
no violation of Article 8 (right to respect for private and family life) of the European Convention on
Human Rights.
The case concerned the asylum applications of two Afghan nationals, Ms. Z.H. and Mr. R.H., who
married in a religious ceremony in Iran when Ms Z.H. had been a child, and which were considered
separately – the couple not being considered legally married by the Swiss authorities – resulting in
the expulsion of Mr R.H. to Italy. In the proceedings before the European Court, the couple alleged
that the expulsion of Mr R.H. had breached their right to respect for their family life.
The Court found that at the time of the removal of Mr R.H. to Italy, the Swiss authorities had been
justified in considering that the applicants were not married. It held, in particular, that Switzerland
was under no obligation to recognise the marriage of a child, emphasising the importance of the
protection of children and considering the regulation of marriage an issue best addressed by the
national courts.
Principal facts
The applicants, Ms. Z.H. and Mr. R.H. are Afghan nationals who were born in 1996 and 1992
respectively and live in Geneva (Switzerland). The case concerns the applicants’ asylum claims.
The applicants entered Switzerland, via Italy, and, presenting themselves to the authorities as a
married couple, applied for asylum in September 2011. According to the couple they had married in
a religious ceremony in Iran in 2010. At the time, Ms Z.H. was 14 years old and Mr R.H. was 18 years
old.
Their asylum request was rejected in December 2011 and March 2012, the migration authorities
considering that under European Union law (the “Dublin II Regulation”), Italy was responsible for
examining their asylum application as it was the first EU state that they had entered.
In the subsequent appeal proceedings, the domestic courts upheld the rejection of their asylum
request, finding that the couple had failed to submit a certificate of marriage and that in any event
their religious marriage could not be validly recognised in Switzerland because the law in
Afghanistan prohibited marriage for women under the age of 15. Furthermore, the couple’s
marriage was incompatible with Swiss law on grounds of public policy given that sexual intercourse
with a child under the age of 16 was a crime in Switzerland. As such, Ms Z.H. could not be qualified
as a member of Mr R.H’s family under EU law and they could not claim a right to family life under
the European Convention.
Mr R.H. was expelled to Italy on 4 September 2012 but returned to Switzerland illegally a few days
later.
1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,
any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges
considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final
judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.
Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
