Netherlands – Court of the Hague, 13 May 2016, 16/7663 and 16/7665
| Country of Decision: | Netherlands |
| Country of applicant: | Iraq |
| Court name: | Court of The Hague |
| Date of decision: | 13-05-2016 |
| Citation: | 16/7663 and 16/7665 |
Keywords:
| Keywords |
|
Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
|
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." |
|
Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
|
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." |
|
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." |
|
Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
Headnote:
In the case of a claimant whose first asylum application would be viewed as being withdrawn by Bulgarian authorities, it cannot be ruled out that upon return to Bulgaria under a take back request the applicant would not be detained. In light of reported detention conditions the Secretary of State should have investigated the risk of a potential Article 3 violation if the applicant were to be returned to Bulgaria.
Facts:
Pursuant to Article 18(1)(b) of the Dublin III Regulation, the Netherlands requested Bulgaria to take the applicant back. This request was accepted by the Bulgarian authorities on the basis of Article 20(5) of the Regulation. The Secretary of State therefore refused to assess the asylum application. This decision was appealed by the applicant who submitted that he will be viewed as a subsequent applicant and that there is a risk of detention upon return to Bulgaria. Any remedy against the imposition of detention is ineffective given the lack of legal aid. Indeed, the applicant had already been subject to detention in conditions which amounted to an Article 3 breach.
Conversely the defendant advanced that detention is a future uncertain event which can be subject to judicial review. Similarly, whilst disconcerting, the conditions of detention do not amount to an Article 3 violation.
Decision & reasoning:
First the Court considered M.S.S v Belgium and Greece underlying that whilst interstate protection means that the applicant has to provide reasons as to why the proposed receiving country does not comply with its treaty obligations, this can be rebutted when assessed against detention and/or living conditions and the quality of the asylum procedure in the receiving country.
Given that the Bulgarian authorities accepted the take back request under Article 20(5) it follows that Bulgaria views the application lodged in the country to have been revoked. Thus the defendant’s submission that the applicant’s asylum procedure is still running in Bulgaria is erroneous. As the Court explains, with reference to the AIDA Country report on Bulgaria and the ECRE/ELENA note on reception and procedural conditions in the country, it is unclear what the status is of an applicant whose application has been withdrawn in Bulgaria and whether they would be subject to detention upon return. Moreover from the evidence presented detention conditions are insalubrious, over-crowded and there is a lack of legal interpretation and legal aid by which to judicially review the legality of detention.
According to the Court, the national authority had the duty to investigate whether the transfer of the applicant to Bulgaria would give rise to an Article 3 violation. Assumptions in this regard leads to an unsubstantiated decision which results in its invalidity.
Outcome:
Appeal valid, contested decision over ruled and an order to the Secretary of State to take a new decision within six weeks.
Subsequent proceedings:
It is important to state the diverging amount of case law on transfers to Bulgaria within the Netherlands.
In cases 16/7451, 16.1081 and 16.1082 from May and June 2016 respectively the Hague Court found that the applicant could access asylum procedures upon return and, therefore, that transfer to Bulgaria would not amount to an Article 3 violation. This has been confirmed by a Council of State ruling on the 15 July, 201603752/1 / V3, which looked specifically at the provision of legal aid. The Council found that given neither the Asylum Procedures Directive nor the Dublin Regulation oblige Member States to provide free legal assistance in the administrative phase a transfer would not breach Article 3.
Conversely the Court of the Hague has on 20 June 2016, 16.1197 and 16.1198, reiterated the rationae in this summarised judgment from 13 May 2016. The Court confirmed the risk of detention upon return and the need to further investigate the risk of an Article 3 violation if transferred back to Bulgaria.
Observations/comments:
An unofficial full English translation of the case can be found at the top of the page.
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-411-10 and C-493-10, Joined cases of N.S. v United Kingdom and M.E. v Ireland |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |