Germany – Federal Constitutional Court, 30 April 2015, 2 BvR 746/15
Keywords:
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this 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.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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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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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
Upon preliminary examination, it cannot be excluded that a decision of an administrative court, limited to making a Dublin transfer conditional upon the assurance of the competent authorities in the country of destination that accommodation will be provided for the family in question, violates the right to an effective remedy under Art. 19(4)(1) of the Basic Law.
Since the removal might lead to severe disadvantages for the applicants which cannot easily be compensated for and which outweigh the consequences of a preliminarily prolonged presence of the persons concerned, the removal has to be suspended until the Federal Constitutional Court has reached its final decision.
Facts:
The applicants, a Syrian family with five children, aged seven to twenty years, claim a violation of their rights to an effective remedy under Art. 19(4)(1) of the Basic Law.
The Federal Agency for Migration and Refugees rejected their asylum applications as inadmissible on the grounds that they already have been registered as asylum seekers in Italy. Furthermore, it ordered their deportation to Italy after the Italian authorities did not respond to the request to take back the applicants within two months.
The competent administrative court then rejected their request for their appeal to have suspensive effect subject to the condition that the Federal Agency obtains an assurance from the competent Italian authorities that accommodation will be provided for to the family, prior to removal.
As a result, the applicants petitioned the constitutional court and lodged an application for a temporary injunction.
Decision & reasoning:
The application for temporary injunction was granted.
The applicants claim that the decision of the administrative court to reject their application on the condition that the Federal Agency obtains an assurance from the competent Italian authorities that accommodation will be provided for the family prior to removal violates their right to an effective remedy under Art. 19(4)(1) of the Basic Law.
Art. 19(4)(1) of the Basic Law guarantees access to the courts and to an effective judicial control throughout all instances provided by the rules of procedure to everyone who claims to be violated in his own rights by the public authority (Federal Constitutional Court, 29 October 1975, 2 BvR 630/73; 18 July 2005, 2 BvR 2236/04; 31 May 2011, 1 BvR 857/07; established case law). As a result, courts are obliged to fully examine the acts of a public authority in law and fact (Federal Constitutional Court, 31 May 2011, 1 BvR 857/07).
Upon preliminary examination, it cannot be excluded that the decision in question does not meet these requirements. Therefore, the complaint is not evidently unfounded.
In a case like the present where the complaint is not a priori inadmissible or evidently unfounded, the examination of an application for a temporary injunction according to § 32(1) Federal Constitutional Court Act requires weighing up the consequences of not granting the application in case of a successful outcome of the main proceedings against those of granting the application where the final decision is not in favour of the applicant (compare Federal Constitutional Court, 15 December 1992, 1 BvR 1534/92; 6 August 1993, 2 BvR 1654/93; established case-law).
The removal of the applicants, which are, at least primarily, particularly vulnerable persons within the meaning of the case-law of the European Court of Human Rights (ECtHR, Tarakhel v Switzerland, Judgement of 4 November 2014, Application No. 29217/12) might lead to severe disadvantages that cannot easily be compensated for and which outweigh the consequences of a preliminary prolonged presence of the persons concerned, even where the time limit for transfers under the Dublin-III-Regulation (604/2013) are consequently exceeded. These considerations result in the granting of a temporary injunction.
Outcome:
The application for temporary injunction is admissible and well founded. The deportation to Italy has to be suspended until the court has reached its final decision.
Subsequent proceedings:
Germany – Federal Constitutional Court, 22 July 2015, 2 BvR 746/15 (final decision on the constitutional complaint).
Observations/comments:
The Federal Constitutional Court closed the proceedings on 22 July 2015 since there was no need to adjudicate after the Federal Agency had rescinded the removal order.
The Federal Agency based its decision on the fact that Italy was currently not issuing any such concrete assurances on a case-by-case basis regarding the accommodation of families.
This case summary was written by Ann-Christin Bölter, an Immigration Law LLM-student at Queen Mary University of London.
The summary was proof read by Ana-Maria Bucataru, an Immigration Law LLM-student at Queen Mary University of London.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Germany - Basic Law - Article 19(4) |
| Germany - BVerfGG (Federal Constitutional Court Act) - Para 32 Abs.1 |
Cited Cases:
| Cited Cases |
| ECtHR - Tarakhel v. Switzerland, Application no. 29217/12 |
Follower Cases:
| Follower Cases |
| Germany- Administrative Court Braunschweig, 12th of October 2016, 5 A 332/ 15 |