Austria – Asylum Court, 3 February 2012, S1 424.088-1/2012/2E
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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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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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. |
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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:
This was an appeal against the decision to transfer the applicant to Hungary despite the applicant’s claim that he had first applied for asylum in Greece. The fact that there were no fingerprints on EURODAC did not prove the applicant had never been to Greece and according to Article 16(3) Dublin regulation Greece’s responsibility for the application would only expire if the applicant left the European Union for more than 3 months. However, since a deportation to Greece would violate Art 3 ECHR, the applicant should be admitted to the asylum procedure in Austria.
Facts:
The applicant entered the European Union through Greece in the summer of 2011 and applied for asylum. However, the applicant left Greece at the end of September 2011 because he did not see any chance of being granted refugee status in that State. He passed through Macedonia, crossed Serbia and arrived in Hungary at the beginning of November. Hungary immediately deported him back to Serbia.
The next day the applicant entered Hungary once again, without being caught by the Hungarian police. He crossed Hungary and arrived in Austria, where he applied for asylum. His fingerprints had not yet been stored in the EURODAC-system. The Austrian Federal Asylum Office held consultations with Hungary based on Art 10 of the Dublin II regulation. The Federal Asylum Office explained to the Hungarian “Dublin” authorities that the applicant had passed Greece and Hungary but did not inform the Hungarian authorities that the applicant had applied for asylum in Greece. Hungary agreed to take him back.
In his interview at the Austrian Federal Asylum Office, the applicant repeated that he had applied for asylum in Greece. The Federal Asylum Office rejected his application and issued an expulsion order to Hungary. The applicant appealed against this decision, pointing out that Greece was responsible for his application, not Hungary. As it is against Art 3 ECHR to transfer a person to Greece, Austria would have to use the sovereignty clause and admit him to the procedure in merits in Austria.
Decision & reasoning:
The Asylum Court allowed the appeal and returned the case to the Federal Asylum Office.
The applicant's statements about his application for asylum in Greece were not disputed as he recounted what had happened in Greece and on his journey to Austria with great detail. The fact that there are no fingerprints from Greece in the EURODAC-system does not prove that he has not been to Greece, as mentioned in the European Commission’s Annual Report of 2010. Greece, therefore, seems to be the responsible Member State according to Art 16(1) Dublin II regulation.
According to Art 16(3) Dublin II regulation, Greece’s responsibility would only expire if the applicant had been outside of the European Union for more than three months. Since he left the European Union for only two months, Greece still seems to be responsible for the assessment of the applicant’s asylum application. This responsibility is valid despite the fact that expulsions to Greece are not allowed in order to protect the asylum seeker’s human rights.
Although the consultations between Hungary and Austria did not include all the relevant information, Greece still seems to be the responsible state. An expulsion to Greece, however, violates the applicant’s human rights and the applicant, therefore, should be admitted to the procedure on the merits in Austria.
Outcome:
The application was returned to the Federal Asylum Office for further investigation and to inform Hungarian authorities about the fact that the applicant had applied for asylum in Greece.
Subsequent proceedings:
The Federal Asylum Office once again decided to expel the applicant. This decision was based on the same reasoning as the first inadmissibility decision. The applicant appealed the decision. The Asylum Court accepted the appeal once more (AsylGH 20 April 2012, S1 424.088-2/2012/2E) and emphasised the arguments from the decision discussed above.
The Federal Asylum Office, finally conducting a procedure on the merits, rejected the application for asylum and issued an expulsion order to India. The applicant appealed against the decision.
Observations/comments:
This decision is only relevant to applicants who applied for asylum in a Member State. If a person passed a Member State without applying for asylum, Art 16(3) Dublin II regulation does not apply.
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.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Austria - Asylgesetz (Asylum Act) 2005 - § 10 |
| Austria - Asylgesetz (Asylum Act) 2005 - § 5 |
Other sources:
European Union: European Commission, Report from the Commission to the European Parliament and the Council: Annual report to the European Parliament and the Council on the activities of the EURODAC Central Unit in 2009, 2 August 2010, COM(2010)415.
Hungarian Helsinki Committee, Stuck in Jail: Immigration Detention in Hungary (2010), April 2011.
European Migration Network: Annual Policy Report (2010), October 2011.
United States Department of State, 2010 Country Reports on Human Rights Practices - Hungary, 8 April 2011.