Hungary - Administrative and Labour Court of Győr, 12 October 2016, 17.Kpk.50.196/2016/4
| Country of Decision: | Hungary |
| Country of applicant: | Afghanistan |
| Court name: | Administrative and Labour Court of Győr |
| Date of decision: | 12-10-2016 |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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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." |
Headnote:
The Court quashed the decision of the Office of Immigration and Nationality (OIN) because it failed to carry out a proper establishment of facts as required by the Dublin III Regulation.
Facts:
The Applicant, a national of Afghanistan, having crossed Greece and Serbia, applied for asylum in Hungary. The Hungarian authorities found a match for his fingerprint in the EURODAC system and issued a take charge request to Greece, which did not respond within the deadline set forth by the Regulation. Following this the OIN declared that Greece was the Member State responsible to examine the Applicant’s claim for asylum. The Applicant challenged the decision.
Decision & reasoning:
The Court issued a very short decision, in which it argued the following:
‘It could be concluded during the administrative procedure that the Applicant entered the territory of the EU through Greece illegally. According to Article 28 (3) of the Regulation, if the Member State requested does not respond within the deadline set by the Regulation, it is equivalent to giving a positive response.
However, Article 3 (2) of the Regulation requires a Member State to examine that the Member State responsible to examine the claim for asylum would provide the Applicant with the appropriate reception conditions and conditions to effectively examine the application.
From the decision of the OIN it cannot be deduced that Article 3 (2) was respected, which violates Section 50 and 72 of the Law on Administrative Procedure as well. The observations submitted by the OIN to the appeal of the Applicant to do substitute the necessary reasoning which should have been part of the administrative procedure.
For these reasons, the OIN’s decision is not fit for substantive revision (…) In the repeated procedure, the OIN will have the duty to apply Article 3 (2) of the Regulation and record its observations relating to this Article in the reasoning of its decision.’
Outcome:
Appeal granted, decision quashed, new procedure ordered.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Hungary - Section 50 and 72 of Act CXL of 2004 on the general rules of administrative proceedings and services |