Germany - Administrative Court of Cologne, 02 June 2015, case no. 16 K 2829/14.A
Keywords:
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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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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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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." |
Headnote:
When enforcing the Dublin III Regulation, the deporting country must verify whether the asylum procedure in the intermediary country sufficiently guarantees that the applicant will not be subject to a treatment which violates Article 3 of the European Convention on Human Rights. The deportation order was illegitimate due to inadequate conditions for the reception of asylum seekers and recognised refugees in Greece and the serious risk of inhuman or degrading treatment for asylum seekers and recognised refugees in Greece.
Facts:
The Applicants applied for asylum in Germany on 28 October 2013. Applicant 1 has previously applied for asylum in Italy and Norway and Applicant 2 has previously applied for asylum in Greece, The Netherlands and Norway. It is unclear if and where Applicant 3 has previously applied for asylum. The Applicants filed a claim on 19 May 2014, reporting that their refugee and residency statuses in Greece were unclear and they had not even had a personal interview with the Greek authorities. However, according to an e-mail from the Greek Federal Office dated 8 August 2014, the Applicants were recognised as refugees in Greece and hold Greek residency permits valid until 30 July 2017. On 27 October 2014, the German Federal Office for Migration and Refugees denied the application for asylum in Germany and ordered the deportation of the Applicants to Greece on the basis that Greece is a safe third country. The Applicants challenged the administrative decision of 27 October 2014.
Decision & reasoning:
The Court acknowledged that Greece is a Member State of the European Union and as such considered to be a safe third country in accordance with the German Asylum Procedure Act. However, the Court held that due to the poor conditions for the reception of refugees in Greece, it couldn’t be excluded with the required certainty that the Applicants wouldn’t be exposed to inhuman or degrading treatment within the meaning of Article 3 of the European Convention on Human Rights. Therefore, the deportation order was unlawful.
Outcome:
The Applicants succeeded in their action. The Federal Office’s deportation order of 27 October 2014 was rescinded.
Subsequent proceedings:
The mere fact that a country has legal arrangements in place and has signed up to international treaties which provide guarantees in respect of human rights does not mean that the country has adequate protection against the risk of mistreatment. In this case, there was sufficient evidence to establish that the Greek authorities do not enforce the laws which aim to set the minimum standards for the reception of asylum seekers, as provided for in the Directive 2003/09/EG. In the case of the deportation of an asylum seeker to an intermediary country, the deporting country is responsible to verify whether the applicant will be at risk of torture or inhuman or degrading treatment in the country of destination.
Observations/comments:
This case summary was written by Linklaters LLP.
This case summary was proof read by Julia Oberndorfer, a law student at Leibniz Universität Hannover.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| ECtHR - Tarakhel v. Switzerland, Application no. 29217/12 |