ECtHR - Sharifi v. Austria, Application No. 60104/08

Facts:

The Applicant is an Afghan national who currently lives in Greece. In November 2007 he left Afghanistan and travelled through Pakistan, Iran, Turkey, Greece and Italy to Austria, where he was arrested. His application for asylum was rejected by the Austrian authorities in August 2008 on the ground that Greece, being the first EU state of entry, was responsible for examining his application under the Dublin II Regulation. His transfer to Greece was ordered. After appealing twice unsuccessfully, he was transferred to Greece in October 2008.

He complained before the ECtHR that his transfer violated his rights under Article 3 (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 actual expulsion to Greece on 20 October 2008 violated Article 3' [33].

The Court noted that 'at the relevant time, the information available to the Austrian authorities was ample, but also partly conflicting in their recommendations and results' [34], 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, and unlike Belgium in M.S.S. v. Belgium and Greece [GC] (no. 30696/09), Austria had not received any UNHCR letter unequivocally asking for transfers to be suspended to Greece.

Finally, the court was satisfied by the Austrian authorities' 'sufficient reasoning' motivating their decision to transfer the Applicant to Greece [37].

The ECtHR concluded as follows: 'While the Court considers it established that in autumn 2008 the Austrian authorities would have been aware of 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 reached the Article 3 threshold' [38].

In a related Article 6 challenge, the Court summarily declared it inadmissible due to the established position that 'decisions regarding the entry, stay and deportation of aliens do not concern the determination of an Applicant’s civil rights or obligations' [41].

Outcome:

The ECtHR found no violation of Article 3, and declared the Article 6 complaint inadmissible.

Other sources:

• UNHCR, “Position on the return of asylum-seekers to Greece under the Dublin Regulation” dated 15 April 2008;
• European Committee for the Prevention of Torture (CPT), December 2006 and February 2008 following visits to Greece examining, inter alia, the detention conditions of foreigners in specific holding facilities;
• Pro Asyl, October 2007, “The Truth may be bitter but it must be told”; Amnesty International, 27 February 2008 “Greece: no place for asylum-seekers”;
• Amnesty International Report 2008 – Greece of 28 May 2008;
• UNHCR November 2007 “Asylum in the European Union. A study of the Implementation of the Qualification Directive”;
• “Stuck in a Revolving Door” Human Rights Watch, November 2008;
• Swedish Migration Board report on a delegation’s visit to Greece between 21 and 23 April 2008 (Rapport från besök i Grekland den 21 – 23 april 2008);
• Swedish director general’s guidelines of 7 May 2008 (Generaldirektörens riktlinjer avseende tillämpningen av Dublinförordningen i förhållande till Grekland)