Germany - Administrative Court of Oldenburg, 12th Chamber, 2 October 2015, 12 A 2572/15

Facts:

The applicant an Iraqi national is appealing the decision of the German Federal Office for Migration and Refugees (Federal Office) to order his transfer from Germany to Hungary. According to the provisions of Regulation (Dublin III) Hungary is the responsible EU State for processing the applicant's asylum application.

Decision & reasoning:

The Court noted that under the Common European Asylum System (CEAS) there is a presumption that every asylum seeker will enjoy treatment that accords with the guarantees of the ECHR, the CFR and the Geneva Refugee Convention. The Court noted that this “principle of mutual trust” (Puid, N.S) is to be regarded as rebutted where the Member State which should carry out the transfer cannot be unaware that systemic flaws in the asylum procedure and in the reception conditions in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter. If, after examining the responsibility criteria, no responsible State can be designated the Member State in which the asylum seeker is present must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time (N.S. and Others). If necessary, that Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) Dublin III.

In interpreting the elements of Article 4 CFR the court followed the decision of the ECtHR in M.S.S. v Belgium and Greece.  [Treatment is considered to be inhuman when it was premeditated, was applied for hours at a time and caused either actual bodily injury or serious physical or mental suffering. Treatment is considered to be “degrading” when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance. To fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative; depending on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim.]

The standard for systemic flaws is a substantial likelihood that the asylum seeker will be at risk of inhuman or degrading treatment. A systematic flaw can be rooted in the national asylum system itself which affects asylum seekers in a manner that is neither accidental nor isolated and is objectively predictable or may arise due to an implementation of the system which in practice renders partially or wholly inoperable.

The Court referring to the findings of the Administrative Court Oldenburg 12 Chamber Decision 18 June 2014 12 B 1238/14, which declared that a systemic flaw existed in Hungary at the end of 2012, added that due to current evidence showing a worsening of the situation in Hungary over the last number of months, the Court is further convinced that the asylum procedure and reception conditions for asylum seekers in Hungary shows systemic flaws, in the sense of Art 3 Para 2 Dublin III.

These systemic flaws are as follows:

Firstly, under the Receptions Directive 2013/33/EU of 26 June 2013 (Receptions Directive), Hungary is required to provide basic amenities for all asylum seekers. Hungary has stated that it has capacity for 2, 500, however, in 2015 Hungary received 98,072 asylum applications and in the first 8 months of 2015, detected 145,000.  The figures show an obvious capacity problem; however, this capacity problem alone would not amount to a systemic flaw. For the existence of a systemic flaw, it must be shown that Hungary is not alone unable but also unwilling to ensure the provision of basic amenities for the asylum seekers. The Court expressed the view that the fortress politics of the Hungarian government continues and found that this inability and unwillingness can be seen in the end of May 2015 announcement by Hungary that they would cease to accept asylum seekers in the context of Dublin transfers until 5 August due to limited capacity. The Court also agreed with the finding of the Administrative Court of Oldenburg and its decision of 2 July 2015 13 A 384/15, in which it doubted the existence of a functioning, well rehearsed transfer system between Germany and Hungary and found that in such a case the respondent State is under an obligation pursuant to Article 17 (1) Dublin III to exercise its discretionary right to examine the application.

Secondly, the Court looked at the amendments in Hungarian asylum law which came into effect on 1 August 2015, whereby there is a risk that an applicant could be deported to a country which Hungary has designated as a “safe third state”, such as Serbia, without examining whether such a State will carry out further deportation to other countries to whom they see as “safe third countries” e.g. deportation to Greece or even to the persecuting State. This risk of multiple deportations, itself infringes the principle of non-refoulment.

Finally, based on the findings of the reports of the UNHCR and PRO ASYL, the Court found that systematic flaws are present in the Hungarian incarceration process, whereby Dublin returnees are regularly and indiscriminately incarcerated. Hungarian Asylum law enables the imprisonment of asylum seekers of up to 6 months. Grounds for possible incarceration are broadly and vaguely formulated and the order for imprisonment from the administrative authorities does not provide grounds. This leads to a practice whereby Dublin returnees are generally assumed to be a flight risk and immediately imprisoned upon return, with the exception of vulnerable persons and families.

Although the Receptions directive provides for the imprisonment of asylum seekers in cases of flight risk pursuant to Article 8 (2) and (3), this blanket approach in the absence of a case by case examination and where an alternative to prison is rarely considered, violates the proportionality principle. The Court again notes the findings of the UNHCR report, detailing that Hungarian courts generally impose the maximum 60 day detention and an asylum detainee’s hearing generally lasts less than 3 minutes.

Thus, not only a violation of Article 6 ECHR exists, but also due to the duration of the imprisonment and the conditions of detention (UNHCR and PRO ASYL report that the conditions of detention do not comply with the minimum standards of a humane detention and treatment, for example asylum detainees are handcuffed while attending doctors’ appointments) a potential breach of Article 3 ECHR and Article 4 CFR may exist.

As the claimant is at risk of being subjected to treatment that is substantially likely to be inhuman or degraded in the sense of Article 4 CFR due to the systemic flaws in the Hungarian asylum procedure and reception conditions; the legal basis for the removal to Hungary is illegal.

Outcome:

Appeal granted - decision of the German Federal Office for Migration and Refugees  repealed.

Observations/comments:

This case follows a line of German decisions on the state of asylum procedures and reception conditions in Hungary. 

This case summary was written by Avril Rushe, a BPTC student at BPP University.

Other sources:

Amnesty International, 30. July 2015, available at https://www.amnesty.de/2015/7/30/fluechtlinge-ungarn-verschaerft-asylrecht

Bordermonitoring.eu, 25. June 2015,  ungarn.bordermonitoring.eu/2015/06/25/ungarn-das neue-griechenland

Die Welt (German Newspaper),   25. June 2015, Ungarns Zick-Zack-Kurs, available at http://www.welt.de/print/welt_kompakt/print_politik/article143027960/Ungarns-Zick-Zack-Kurs-mit-Migranten.html)

Die Welt (German Newspaper), 6. July 2015 „Ungarn zieht Grenzzaun gegen Flüchtlinge hoch“

Die Welt( German Newspaper), 24. June 2015 „Flüchtlingskrise: Warum Ungarn Angst vor zu vielen Asylbewerbern hat“

European Commission, report 9. September 2015, available via http://europa.eu/rapid/press-release

Frankfurter Allgemeine Zeitung (German Newspaper), 1. September 2015 „ Ungarn schottet sich mit Stacheldraht ab“.

Frankfurter Allgemeine Zeitung (German Newspaper), 7. July 2015 „Ungarn will Grenzzaun bauen“

Frankfurter Allgemeine Zeitung (German Newspaper),  1. September 2015 „Großes Polizeiaufgebot am Budapester Bahnhof“

FR, 23. September 2015 „Die Verachtung ist in die Politik eingedrungen“

Hruschka, Constantin / Roland Bank, 2012, Die EuGH-Entscheidung zu Überstellungen nach Griechenland und ihre Folgen für Dublin-Verfahren (nicht nur) in Deutschland, Zentrum für Angewandte Rechtswissenschaft

Hungarian Helsinki Committee (HHC), 4. March 2015, Media Information Note, available at http://www.helsinki.hu/wp-content/uploads/Asylum-2015-Hungary-press-info-4March2015.pdf

Muiznieks, Nils, 16 December 2014, Report on a visit to Hungary

N-tv ,  29. August 2015 „Stacheldraht gegen Flüchtlinge - Ungarn stellt erste Grenz-Sperranlage fertig“

N-tv, 27. August 2015 „Flüchtlingssituation eskaliert - Bahnhof in Budapest wird zur Notunterkunft“

Spiegel online(German Newspaper), 6. July 2015 „Überlastetes Asylsystem: Ungarn verschärft Gesetz zur Aufnahme von Flüchtlingen“

Spiegel online  ( German Newspaper) 1. September 2015 „Ungarn sperrt seinen wichtigsten Bahnhof für Flüchtlinge“

Süddeutsche Zeitung ( German Newspaper), 24. June 2015 „Die ungarische Regierung will Flüchtlinge ab sofort aussperren“

Süddeutsche Zeitung ( German Newspaper), 24. June 2015, Ungarn rudert bei Aufnahmestopp für Asylsuchende zurück, available at http://www.sueddeutsche.de/politik/nach-kritik-aus-bruessel-ungarn-rudert-bei-aufnahmestopp-fuer-asylsuchende-zurueck-1.2536039;

 Tageszeitung ( German Newspaper), 2. July 2015 „Flüchtlinge abwehren um jeden Preis“