ECtHR - Safaii v Austria, Application No. 44689/09

Facts:

The applicant is an Afghan national who was transferred under the Dublin II Regulation from Austria to Greece on 8 April 2009 (prior to the judgment of the Grand Chamber in M.S.S. v. Belgium and Greece [GC] (no. 30696/09)). He complained before the ECtHR that his transfer violated his rights under Article 3 ECHR (prohibition of degrading treatment) due to deficiencies in the Greek asylum procedure and reception conditions.

Decision & reasoning:

The court highlighted that ‘the main issue of the present application is whether the Austrian authorities knew or should have known that the applicant’s transfer to Greece on 8 April 2009 would violate Article 3 of the Convention, in that the deficiencies in the detention and reception conditions for asylum-seekers and the shortcomings of the Greek asylum procedure reached the threshold of ill-treatment required by that provision’.

The court noted that ‘at the relevant time, the information available to the Austrian authorities was ample, but also partly conflicting in its recommendations and results', as reflected by the December 2008 decision of the ECtHR in K.R.S. v. the United Kingdom (no. 32733/08), which confirmed a presumption that Greece was compliant with the EU asylum acquis. The court also relied on the fact that, at the relevant time, no Member State had imposed a blanket ban on transfers to Greece. Also, unlike Belgium on 2 April 2009, Austria had not received any UNHCR letter unequivocally asking for transfers to be suspended to Greece. This fact was of critical importance to the Grand Chamber in MSS. Finally, the court was satisfied by the Austrian authorities' 'sufficient reasoning' motivating their decision to transfer the applicant to Greece.

The ECtHR concluded as follows: ‘while the Court considers it established that in spring 2009 the Austrian authorities would have been aware of the serious deficiencies in the Greek asylum procedure and the living and detention conditions for asylum-seekers, it does not find it established that, all circumstances considered, the Austrian authorities ought to have known that those deficiencies had reached the threshold required by Article 3'.

The Court found that the applicant’s transfer to Greece in April 2009 under the Dublin Regulation did not violate Article 3 of the Convention.

Outcome:

No violation of Article 3.

Observations/comments:

The findings in the present cases are similar to the findings in Sharifi v Austria, where the Dublin transfer to Greece occurred in October 2008. Please see the EDAL summary: http://www.asylumlawdatabase.eu/en/content/ecthr-sharifi-v-austria-application-no-6010408

For more information on the Dublin transfers to Greece, please see the AIDA Country Report Greece: http://www.asylumineurope.org/reports/country/greece/asylum-procedure/procedures/dublin

For more information on the ECtHR case law on the Dublin transfers please see the ECtHR non-binding factsheet “Dublin cases”: http://www.echr.coe.int/Documents/FS_Dublin_ENG.pdf

Other sources:

The report “The Truth may be bitter but it must be told”, 2007, Pro Asyl

“Amnesty International Report 2008 – Greece” of 28 May 2008

“Asylum in the European Union. A study of the Implementation of the Qualification Directive”, UNHCR, November 2007

The Swedish Migration Board’s report on a visit to Greece between 21 and 23 April 2008 (Rapport från besök i Grekland den 21- 23 april 2008), 6 May 2008