France - Administrative Tribunal, 29 July 2010, Mr.A., No 1013868/9-1
| Country of Decision: | France |
| Country of applicant: | Afghanistan |
| Court name: | Administrative Tribunal of Paris |
| Date of decision: | 29-07-2010 |
| Citation: | No 1013868/9-1 |
Keywords:
| Keywords |
|
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." |
|
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." |
|
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. |
|
Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
|
Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
|
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 French authorities shall use the sovereignty clause in the Dublin Regulation, under the judge’s supervision, when the rules that determine responsibility of a member state for the asylum procedure may infringe on international and national rights guaranteed to refugees and applicants for asylum. In this case a transfer order to Hungary, where the applicant had on two occasions been detained in unsuitable conditions, was held to be an unlawful infringement of the applicant’s right to asylum.
Facts:
The applicant left Afghanistan in 2008 and arrived in Hungary in January 2009, where he was detained in Gyor’s center. The applicant later entered Switzerland and was detained before being transferred back to Hungary in 2009. The applicant was detained in rough and unsuitable conditions in three different places. He also received death threats from other Muslims in the detention centers when he converted from Islam to Christianity.
The applicant left Hungary for France on May 2010 and applied for a temporary residence permit in order to apply for asylum. On 24 June 2010, the Prefect refused his application and issued a transfer order to Hungary. The applicant made an urgent appeal to the Administrative Court of Paris on 26 July 2010.
Decision & reasoning:
Art 53-1 of the French Constitution and Art 3(2) Dublin Regulation allow the authorities to examine an asylum application even if another member state is technically responsible for the examination. In particular, authorities shall use this possibility, under the judge’s supervision, when rules that determine responsibility of a member state may infringe on international and national rights guaranteed to refugees and applicants for asylum.
In this case, several detailed testimonies described the conditions the applicant was forced to accept during his two stays in detention centers in Hungary. The Administrative Court of Paris considered that, in this case, the Hungarian authorities did not provide the necessary safeguards to protect the applicant’s rights. As a consequence, the transfer order to Hungary on 24 June 2010 represents a serious and clearly unlawful infringement of the right to asylum.
Outcome:
The appeal was allowed.
Observations/comments:
This summary has been reproduced and adapted for inclusion in EDAL with the kind permission of Forum Réfugiés-Cosi, coordinator of Project HOME/2010/ERFX/CA/1721 "European network for technical cooperation on the application of the Dublin II regulation" which received the financial support of the European Refugee Fund.
