ECtHR - Mohammadi v Austria, Application No. 71932/12
| Country of applicant: | Afghanistan |
| Court name: | European Court of Human Rights; First Section |
| Date of decision: | 03-07-2014 |
| Citation: | 71932/12 |
| Additional citation: | 71932/12 |
Keywords:
| Keywords |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Indirect refoulement
Description
The duty of a State of non-refoulement under Article 33 of the 1951 Convention can include “indirect” or “chain-refoulement” via an alleged “safe third county”. According to the UNHCR,“indirect removal of a refugee from one county to a third country which subsequently will send the refugee onward to the place of feared persecution constitutes refoulement, for which both countries would bear joint responsibility.” |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
The Dublin transfer of the applicant to Hungary will not violate Article 3 of the Convention.
Facts:
The applicant, Qadam Shah Mohammadi, is an Afghan national who was born in 1995 and currently lives in Rein (Austria). Mr Mohammadi entered Austria in October 2011 and lodged an asylum application. He had left his village in Afghanistan three months earlier and had travelled via Iran, Turkey, Greece, the Former Yugoslav Republic of Macedonia, Serbia and Hungary. The Austrian Asylum Office, the Asylum Court and finally, in October 2012, the Constitutional Court all rejected his asylum request and ordered his transfer to Hungary under the Dublin II procedure (a European Union regulation which requires EU member States to determine which member State is responsible for examining an asylum application lodged on their territory). Mr Mohammadi’s removal was, however, suspended in November 2012 on the basis of an interim measure granted by the European Court of Human Rights (under Rule 39 of its Rules of Court) requesting the Austrian Government to stay his transfer to Hungary until further notice.
Relying in particular on Article 3 (prohibition of inhuman or degrading treatment), Mr Mohammadi alleges that, if forcibly transferred to Hungary, where asylum seekers are systematically detained, he would be at risk of imprisonment under deplorable conditions. He further complains that he would be at risk of refoulement to a third country, possibly Serbia (the country he travelled through before arriving in Hungary), without his asylum claim being examined on the merits in Hungary.
Decision & reasoning:
In the specific context of the application of the Dublin Regulation, the Court has found before that indirect removal leaves the responsibility of the transferring State intact, and that State is required, in accordance with the Court’s well-established case-law, not to transfer a person where substantial grounds had been shown for believing that the person in question, if transferred, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country.
When they apply the Dublin Regulation the States must make sure that the intermediary country’s asylum procedure affords sufficient guarantees to avoid an asylum-seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces from the standpoint of Article 3 of the Convention.
The assessment of whether there are substantial grounds for believing that the applicant faces a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention.
These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3.
At the outset, the Court notes that the applicant in the instant case was still a minor when the Austrian authorities intended to transfer him to Hungary. However, because the relevant time of the assessment is that of the proceedings before the Court, and the applicant in the meantime has attained full age, the legal regime applicable to minor asylum-seekers in Hungary is not to be addressed in the instant case.
The country reports showed that there is still a practice of detaining asylum-seekers, and that so-called asylum detention is also applicable to Dublin returnees. The grounds for detention are vaguely formulated, and there is no legal remedy against asylum detention. However, the reports also showed that there is no systematic detention of asylum-seekers anymore, and that alternatives to detention are now provided for by law. The maximum period of detention has been limited to six months. Turning to the conditions of detention, it is noted that while there are still reports of shortcomings in the detention system, from an overall view there seem to have been improvements.
Moreover, the Court notes that the UNHCR never issued a position paper requesting EU member States to refrain from transferring asylum‑seekers to Hungary under the Dublin II or Dublin III Regulation.
Under those circumstances and as regards the possible detention of the applicant and the related complaints, the Court concludes that in view of the recent reports, the applicant would currently not be at a real and individual risk of being subjected to treatment in violation of Article 3 of the Convention upon a transfer to Hungary under the Dublin Regulation.
The issue of sufficient access to asylum proceedings allowing an examination of the merits of the applicant’s claim in Hungary and the consequent risk of refoulement to a third country raises different issues.
Concerning the question whether the applicant would have access to asylum proceedings on the merits if returned to Hungary, the Court observes that both the UNHCR as well as the Hungarian Helsinki Committee in their latest reports stated that since the changes in legislation, those asylum‑seekers transferred to Hungary under the Dublin system whose claims had not been examined and decided in Hungary had access to an examination of the merits of their claims upon their return. According to the information provided by the Hungarian Government, the applicant has not yet had a decision on the merits of his case. Therefore, the Court notes that he will have the chance to reapply for asylum if returned to Hungary and to have his application for international protection duly examined.
When it comes to the alleged risk of refoulement to Serbia, recent reports by the UNHCR and the Hungarian Helsinki Committee consistently confirmed that Hungary no longer relied on the safe third country concept and in particular examined asylum applications by Dublin returnees on the merits, as long as there had not yet been a decision on the case. Following the changes in legislation which took effect in January 2013, deportation could no longer be imposed on asylum-seekers during the asylum procedure.
The Court considers that the relevant country reports on the situation in Hungary for asylum-seekers, and Dublin returnees in particular, do not indicate systematic deficiencies in the Hungarian asylum and asylum detention system.
The Court therefore concludes that the applicant would currently not be at a real, individual risk of being subject to treatment in contrary to Article 3 of the Convention if expelled to Hungary.
Outcome:
No violation of Article 3 ECHR
The Court has decided to maintain the indication made to the Government under Rule 39 of the Rules of Court until the judgment becomes final or until further order.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Austria - Asylgesetz (Asylum Act) 2005 |
| Abs 2 |
Cited Cases:
| Cited Cases |
| ECtHR - Jabari v Turkey, 11 July 2000, (Application no. 40035/98) |
| ECtHR - KRS v United Kingdom (Application no. 32733/08) |
| ECtHR - T.I. v United Kingdom (Application no. 43844/98) |
| ECtHR - Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09 |
| ECtHR - Samsam Mohammed Hussein and Others v the Netherlands and Italy, Application No. 27725/10 - Admissibility Decision |
| ECtHR - Mohammed v Austria, Application No. 2283/12 |
| ECtHR - Sharifi v. Austria, Application No. 60104/08 |
Follower Cases:
| Follower Cases |
| Germany - Administrative Court of Oldenburg, 12th Chamber, 2 October 2015, 12 A 2572/15 |
| Austria – Supreme Administrative Court, 08 September 2015, Ra 2015/18/0113 |
Other sources:
Note on Dublin transfers to Hungary of people who have transited through Serbia, UNHCR, October 2012, updated in December 2012
Hungarian Helsinki Committee:
- Statement on the Status of the Asylum Processes of Asylum-seekers returned under the Dublin II Regulations, 8 April 2013
- Brief information note on the main asylum-related legal changes in Hungary as of 1 July 2013, 28 June 2013
Protection Interrupted – Jesuit Refugee Service Europe, DIASP national Report: Hungary, June 2013
Country Report: Hungary, update of 30 April 2014, published on the Asylum Information Database (AIDA), ECRE
Statement on the conclusion of its visit to Hungary from 23 September to 2 October 2013, the UN Working Group on Arbitrary Detention