ECHR Article 3
Proposed transfer of Sudanese asylum-seeker from Austria to Hungary under the Dublin II Regulation: transfer would not constitute a violation
Facts – The applicant was a Sudanese national who arrived in Austria via Greece and Hungary in October 2010 and applied for asylum. His application was rejected in January 2011 under the European Union Dublin II Regulation (‘Dublin Regulation’) and an order was made for his forced transfer to Hungary. In December 2011 the applicant lodged a second application for asylum (which had no suspensive effect) following adverse reports by the UNHCR on the conditions of asylum-seekers in Hungary and a recent decision of the Austrian Asylum Court to grant suspensive effect to an appeal in another case in view of the risks of a possible violation of the Convention that had been identified in those reports. The second application for asylum was still pending at the date of the Court’s judgment.
Law – Article 3: Reports published in 2011 and 2012 on Hungary as a country of asylum and in particular as regards transferees under the Dublin Regulation were alarming. The UNHCR had identified areas of deficiency relating in particular to (i) prolonged administrative detention of asylum-seekers and the conditions of their detention and (ii) the treatment of asylum applications by transferees.
The Court noted that there was seemingly a general practice of detaining asylum-seekers for a considerable time, partly under conditions that fell short of international and EU standards, and with deficient review procedures. There were also reports of abuse of detained asylum-seekers by officials and of forced medication. Nevertheless, although the UNHCR had advised the Austrian authorities of these problems in a letter of 17 October 2011 and had issued a comprehensive report in April 2012, it had never issued a position paper requesting European Union Member States to refrain from transferring asylum-seekers to Hungary under the Dublin Regulation (as it had done with respect to Greece, see M.S.S. v. Belgium and Greece [GS], no. 30696/09, 21 January 2011, Information Note no. 137). Furthermore, in a more recent note on the subject issued in December 2012, the UNHCR had appreciatively acknowledged the changes to the law planned by the Hungarian Government and made particular reference to the fact that transferees who applied for asylum immediately upon their arrival in Hungary would no longer be subject to detention. It had also remarked on the reported intention of the Hungarian authorities to introduce additional legal guarantees concerning detention and to ensure unhindered access to basic facilities. Indeed, the number of detained asylum-seekers had declined significantly in 2012. The Court therefore concluded that the applicant would no longer be at a real and individual risk of proscribed treatment in respect of detention if transferred to Hungary.
As to the issue of sufficient access to asylum proceedings in Hungary and the risk of refoulement to a third country, the Court took particular note of reports that asylum-seekers transferred there under the Dublin Regulation had to reapply for asylum upon arrival and that such a renewed application was treated as a second asylum application without suspensive effect. There was also a seemingly automatic process of handing out deportation orders upon entry and thus a real risk of refoulement without the merits of the asylum claim being examined. However, the applicant had not substantiated any individual risk of being subjected to treatment contrary to Article 3 if he returned to Sudan and in any event, as the transferring State, Austria was not required to conduct an analysis of the underlying flight reasons, but only to establish whether another EU Member State had jurisdiction under the Dublin Regulation and to examine whether there were any general reasons or other obstacles that would require a stay of transfer. Lastly, it appeared that under the changes that had been made to Hungarian law and practice transferees now had sufficient access to and could await the outcome of asylum proceedings in Hungary, provided they applied for asylum immediately.
Conclusion: no violation in the event of deportation (unanimously).
Article 13 in conjunction with Article 3: The applicant had made two applications for asylum in Austria. At the time of the first application in 2010, he did not have an arguable claim under Article 3 of the Convention, since the criticism voiced with regard to the situation of asylum-seekers in Hungary was not widely known at that time. However, the order for the applicant’s transfer to Hungary was not scheduled to be enforced until almost a year after it was made, by which time the applicant had (in December 2011) lodged a second application for asylum in the light of the reports on the situation of asylum-seekers in Hungary that had come to light in the meantime. Under Austrian law, that second asylum application did not have suspensive effect. In the Court’s view, however, in view of the passage of time before it was lodged and the intervening change of circumstances, that second application could not prima facie be considered abusively repetitive or entirely manifestly ill-founded and its lack of suspensive effect meant that the applicant had been denied access to an effective remedy against the enforcement of the order for his forced transfer.
Conclusion: violation (unanimously).
Article 41: finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage; no claim made in respect of pecuniary damage.
Human Rights, Immigration
Updated: 18 November 2021; Ref: scu.514307