In the case of Mohammed v. Austria,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 14 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
2283/12) against the Republic of Austria lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Sudanese national, Mr Salaheldin Mohammed (“the
applicant”), on 11 January 2012.
The applicant was represented by Mr E.W. Daigneault,
a lawyer practising in Vienna. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador H. Tichy, Head of the International Law
Department at the Federal Ministry of European and International Affairs.
The applicant alleged under Article 3 of the
Convention that his forced transfer to Hungary under the Dublin Regulation
would breach that provision and under Article 13 of the Convention that he had
lacked an effective remedy in the proceedings concerning his second asylum application
made in Austria that would have put a stay on his transfer to Hungary.
On 11 January 2012 the Court decided to apply
Rule 39 of the Rules of Court, indicating to the Government that it was
desirable in the interests of the parties and the proper conduct of the
proceedings not to expel the applicant until further notice.
On the same date the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1981 and at present lives
in Vienna.
On 9 October 2010 he arrived in Austria via Greece and Hungary and lodged an asylum application.
On 5 January 2011 the Federal Asylum Office (Bundesasylamt)
declared that Hungary had jurisdiction regarding the asylum proceedings
pursuant to Council Regulation (EC) No 343/2003 (the “Dublin II Regulation”,
hereinafter the “Dublin Regulation”) and therefore rejected the applicant’s asylum
application under section 5 of the Asylum Act 2005. It also ordered the
applicant’s transfer to Hungary. The applicant did not lodge an appeal against
that decision.
Subsequently, the applicant went into hiding and
thwarted an attempt to detain and forcibly transfer him planned for 5 May 2011.
However, on 21 December 2011 the applicant was
detained in Vienna. On 22 December 2011 the Vienna Federal Police Authority (Bundespolizeidirektion
Wien) ordered the applicant’s detention with a view to his forced transfer
to Hungary.
On 30 December 2011 the applicant lodged a second
asylum application that had no suspensive effect in relation to the valid transfer
order. He referred to the Asylum Court’s own practice at that time as regards the
transfer of asylum-seekers to Hungary and to the pertinent reports on reception
conditions and access to asylum proceedings there (see below).
On 2 January 2012 he also lodged a complaint
against the detention order, referring to his second asylum application. He referred
to a decision of the Austrian Asylum Court (Asylgerichtshof) of 1
December 2011 in which the Asylum Court had granted suspensive effect to an appeal
lodged by an Algerian asylum-seeker, stating that a real risk of a violation of
the European Convention on Human Rights could not be excluded in case of the
transfer of asylum-seekers to Hungary under the Dublin Regulation. The Asylum
Court had based its reasoning on a letter from the Austrian office of the
United Nations High Commissioner for Refugees (“UNHCR”) dated 17 October
2011 concerning detention conditions for asylum-seekers in Hungary and the risk
of refoulement to Serbia (see paragraphs 32-36 below).
On 5 January 2012 the Vienna Independent
Administrative Panel (Unabhängiger Verwaltungssenat Wien) dismissed the
complaint against the detention order as unfounded. It stated that the order for
the applicant’s detention with a view to his transfer had been issued in
accordance with the law.
On 10 January 2012 the Administrative Court (Verwaltungsgerichtshof)
dismissed the applicant’s motion for his complaint to be granted suspensive
effect. It stated that it would only decide upon a complaint against an order for
detention with a view to forced transfer and not on the lawfulness of any transfer
to Hungary. However, it concluded that the immigration police (Fremdenpolizei)
would in any event have to refrain from transferring the applicant to Hungary - even if the order was itself valid - if the current situation in Hungary for individuals transferred there under the Dublin Regulation would breach Article 3 of the
Convention.
On 9 January 2012 the applicant also lodged an
application with the Vienna Federal Police Directorate (Bundespolizeidirektion
Wien) as the competent immigration police authority, asking it to establish
that his transfer to Hungary would constitute a risk for him within the meaning
of section 50(1) or (2) of the Immigration Police Act (Fremdenpolizeigesetz,
see paragraph 26 below). On the same date, the Federal Police Directorate
rejected the application under section 51 of the Immigration Police Act,
stating that such an application would only be allowed in the course of
proceedings in which an order prohibiting the recipient from returning to
Austria (Rückkehrentscheidung), an order for deportation (Ausweisung)
or an order prohibiting the recipient from residing in the country (Aufenthaltsverbot)
had been rendered. However, no such proceedings were currently pending against
the applicant, which was why the request had to be rejected.
The applicant also lodged an application for the
transfer order to be lifted with the immigration police. Those proceedings are
still pending, as are two further sets of proceedings: one concerns the
applicant’s detention with a view to his forced transfer and is pending before
the Administrative Court, the other concerns his second asylum application and
is pending before the Federal Asylum Office.
The applicant’s forced transfer to Hungary was again scheduled for 12 January 2012. On 11 January 2012 the Court applied an interim
measure under Rule 39 of the Rules of Court and requested the Austrian
Government to stay the applicant’s transfer to Hungary until further notice.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL
INFORMATION
A. Relevant domestic law
1. Council Regulation (EC) No 343/2003 (“the Dublin Regulation”)
Under the Dublin Regulation,
the Member States must determine, based on a hierarchy of objective criteria
(Articles 5 to 14), which Member State bears responsibility for examining an
asylum application lodged on their territory. The aim is to avoid multiple
applications and to guarantee that each asylum-seeker’s case is dealt with by a
single Member State.
. Where
it is established that an asylum-seeker has irregularly crossed the border into
a Member State having come from a third country, the Member State thus entered
is responsible for examining the application for asylum (Article 10 § 1). This
responsibility ceases twelve months after the date on which the irregular
border crossing took place. Where the criteria in the regulation indicate that another
Member State is responsible, that State may be asked to take charge of the asylum-seeker
and examine the application for asylum. The requested State must answer the
request within two months from the date of receipt of the request. Failure to
reply within two months is stipulated to mean that the request to take charge
of the person has been accepted (Articles 17 and 18 §§ 1 and 7).
. By
way of derogation from the general rule, each Member State may examine an
application for asylum lodged with it by a third-country national, even if such
examination is not its responsibility under the criteria laid down in the
Regulation (Article 3 § 2). This is called the “sovereignty” clause. In such
cases the State concerned becomes the Member State responsible and assumes the
obligations associated with that responsibility.
. Article
19 § 2 provides that appeals and reviews concerning a decision of a requesting
Member State in which an applicant is informed that his or her request is not
being examined by the requesting Member State and that he will be transferred
to the responsible Member State shall not suspend the implementation of the
transfer unless the courts and competent bodies so decide on a case-by-case
basis.
2. The Asylum Act
Section 5 of the Asylum Act 2005 (Asylgesetz)
provides that an asylum application shall be rejected as inadmissible if, under
treaty provisions or pursuant to the Dublin Regulation, another State has
jurisdiction to examine the application for asylum. When rendering a decision rejecting
an application, the authority shall specify which State has jurisdiction in the
matter.
Section 12 establishes - with the exception of cases
falling under section 12a - de-facto protection against deportation (faktischer
Abschiebeschutz) for aliens who have lodged an application for asylum.
However, section 12a provides that a person whose asylum application has been
rejected pursuant to lack of jurisdiction under the Dublin Regulation (section
5 of the Asylum Act) is not entitled to such de-facto protection against
deportation in the event that he or she lodges a second asylum application.
Asylum-seekers can lodge an appeal with the
Asylum Court against decisions rejecting their application rendered by the
Federal Asylum Office as the first-instance asylum authority within one week of
the decision (see section 22(12)). However, section 36(1) stipulates that such an appeal shall not have
suspensive effect. Section 37 allows the Asylum Court to grant suspensive
effect to such an appeal, or to an appeal against a deportation order issued in
conjunction with the rejection of an asylum application, within one week, if it
is reasonable to believe that the individual’s deportation would give rise to:
(i) a real risk of a violation of Articles 2 or 3 of the Convention or of
Protocol 6 or Protocol 13 to the Convention; or (ii) a serious threat to
his or her life or person as a result of arbitrary violence in connection with
an international or internal conflict in relation to which the applicant is a
civilian.
. The
Asylum Court is required to decide upon appeals against decisions rejecting
an asylum claim within eight weeks (see section 41(2)).
3. Immigration Police Act
. Section
50(1) and (2) of the Immigration Police Act (Fremdenpolizeigesetz) contains
a prohibition on refoulement arising from the enforcement of deportation
orders. Amongst other things, it states that the deportation of an alien to a
country of destination is unlawful if it violates Articles 2 and 3 of the
Convention or Protocols 6 or 13 to the Convention or if it gives rise to a real
threat to the life or the physical integrity of a civilian due to arbitrary
violence in the course of an international or internal conflict.
. During
proceedings regarding a prohibition on returning to Austria, deportation or a
residence prohibition, the individual concerned was entitled to lodge an
application asking the immigration police to determine whether the alien’s deportation
to a country other than his or her country of origin would be unlawful under
section 50 of the Immigration Police Act (see section 51(1) of the Immigration Police
Act, as in force at the relevant time). If such an application concerned the deportation
of the alien to his or her country of origin, the application was considered an
asylum application (section 51(2)). Until a final decision on the application
had been taken, he or she could not be deported to the country he or she had specified
in making the application under section 51(1), unless the application fell to
be rejected as res judicata. The proceedings were to be discontinued in the
event of the alien’s deportation to a third country (section 51(3)).
4. Relevant domestic practice
On 31 October 2011 the Austrian Asylum Court
quashed a decision of the Federal Asylum Office dismissing an asylum claim in
which it had ordered an Afghan national to be transferred to Hungary under the Dublin Regulation. The Asylum Court allowed the asylum proceedings to proceed in Austria. It stated as follows (see Asylum Court decision of 31 October 2011, No. S4
422020-1/2011/5E):
“The UNHCR report of 17 October 2011 ... refers to ‘general
detention of asylum-seekers’, adding that judicial review of their detention is
‘a mere formality’. Besides this, the report states that the ‘main problem’ is ‘ill-treatment
by the police in detention facilities’ and that ‘it appears that ill-treatment
and harassment by the police are a daily occurrence’.
These serious allegations support the conclusion that assaults
by the police on asylum-seekers are not merely isolated incidents. The
existence of such reports by the UNHCR - which in any event carries weight as
the designated authority in assessing such matters - indicates the need for
closer investigation of the issues they raise in relation to the European
Convention on Human Rights.
This will involve determining which specific and verifiable cases
form the basis for the UNHCR’s finding that there is a general practice of
detaining asylum-seekers (specifically, returnees within the meaning of the Dublin
II Regulation); to that end, in so far as these can be ascertained, statistical
data and the views of the Hungarian authorities may also be useful in
investigating the situation. In addition, there is a need for further
investigations regarding the number and nature of assaults by police officers
on asylum-seekers in detention pending deportation (measured in relation to the
number of asylum-seekers in Hungary), and also whether officials involved in
assaults of this kind face any legal consequences, and whether such
consequences have had any practical effect.
The UNHCR mentions as a further problem the fact that, under
the Dublin II Regulation, Hungary treats returning asylum-seekers as repeat
applicants; this means that appeals against negative decisions concerning them
do not have automatic suspensive effect, and the Hungarian authorities send any
asylum-seekers who have entered Hungary via Serbia ... back to Serbia, as a
safe third country. In the light of the Hungarian Helsinki Committee’s report
of September 2011, the criticisms expressed by the UNHCR cannot be dismissed as
irrelevant from the outset; as a result, it appears necessary to establish - for
example, through statistical data - the extent to which asylum-seekers who are
returned to Hungary by Austria under the Dublin II Regulation, having
previously entered Hungary via Serbia, are able in practice to secure
proceedings on the merits there or a substantive review of their grounds for
protection against refoulement, coupled with access to an effective legal
remedy. ...”
On 28 November 2011 the Asylum Court quashed the
dismissal of an asylum application made under the Dublin Regulation by the
Federal Asylum Office and an associated order for the claimant to be transferred
to Hungary. It stated that it held the view that forced transfer to Hungary was, in general, lawful, after having conducted an individual examination of the
case. However, it noted that in the case before it the Federal Asylum Office
had based its evaluation of the situation of asylum-seekers in Hungary on outdated
reports and had not taken into consideration newer sources, including documents
such as a letter from the UNHCR dated 17 October 2011, a report by the
Hungarian Helsinki Committee dated April 2011 on detention conditions in
Hungary and another report from that body dated September 2011 on the issue of whether
Serbia could be considered a safe third country. It confirmed that the Federal
Asylum Office would have to investigate the issue of the detention in Hungary
of individuals transferred there under the Dublin Regulation, including the conditions
of their detention, allegations of police violence in detention centres that
had been made, and their access to asylum proceedings and effective legal
remedies (see Asylum Court decision of 28 November 2011, No. S16 422704-1/20110).
The Asylum Court took similar decisions in a
number of other cases: for example, on 30 November 2011 (No. S4
422775-1/2011/2E), on 1 December 2011 (No. S21 422754-1/2011) and on
5 December 2011 (Nos. S7 422195-1/2011; S7 422194-1/2011; S7
422197-1/2011).
In a number of cases the Asylum Court awarded
suspensive effect to complaints against decisions of the Federal Asylum Office
ordering transfer to Hungary under the Dublin Regulation, for example on 1 December
2011 (Nos. S15 422847-1/2011 and S3 422772-1/2011) and on 12 December 2011 (No.
S6 422809-1/2011).
B. Relevant domestic and international information on
Hungary
1. Letter from the Austrian office of the United
Nations High Commissioner for Refugees dated 17 October 2011 and subsequent
developments
Upon a request of the Asylum Court, the Austrian
office of the United Nations High Commissioner for Refugees (“UNHCR”) made the
following statements regarding the situation of asylum-seekers in and individuals
transferred under the Dublin Regulation (“transferees”) to Hungary.
Asylum-seekers and transferees were taken into
detention immediately after their arrest for illegal entry or residence in Hungary. Only unaccompanied minors were not detained. The detention of asylum-seekers had
become increasingly commonplace since April 2010. Following an amendment of the
law, detention could also be ordered during the conduct of substantive asylum
proceedings and could last for up to twelve months. Detention orders needed to
be judicially approved. However, the results of the UNHCR’s investigation showed
that judicial review was only a formality and did not lead to a substantive review
of the grounds for detention.
The facilities used for the detention of asylum-seekers
partly operated under a high-security regime, including, for example, furniture
which was fixed in place, barred cells and visiting regulations. Depending on
the facility, privileges were granted, such as only being locked in the cell
during the night, and access to outside activities, sanitary facilities and
common areas. Furthermore, social workers were employed and internet access was
granted. However, the main problem that had been established after interviews were
conducted by the UNHCR with detainees in September 2011 related to allegations
of abuse by police officers in the detention facilities. It thus seemed that
abuse and harassment by the authorities occurred on a daily basis. A Syrian asylum-seeker
had been brutally beaten up on the day of the UNHCR visit; another asylum-seeker
had been the victim of a different incident only days before the visit. All the
asylum-seekers interviewed had complained of police brutality. According to
their statements, not all police officers were violent, but a number of
officers began by provoking the detainees and proceeded to beat them up and to
abuse them verbally. Asylum-seekers also reported having been systematically drugged
with tranquilisers, even occasionally to the extent of the development of an
addiction. That last piece of information was confirmed by employees of refugee
centres to which asylum-seekers had been sent after their detention was lifted.
Finally, detained asylum-seekers were forced to conduct their administrative
dealings in handcuffs, even though their detention was only the result of
illegal entry to or residence in the country.
Contrary to UNHCR recommendations, Hungary still viewed Serbia as a safe third country and expelled asylum-seekers and transferees who
had come into Hungary from Serbia back to Serbia without them having access to substantive
asylum proceedings. The Hungarian authorities conducted substantive proceedings
examining the asylum-seekers’ original flight reasons in only 20% of all asylum
applications. The practice of Hungarian courts concerning appeals differed
widely: whilst the court in Budapest had ordered the substantive examination of
an asylum application in several cases following UNHCR recommendations, appeals
decided by the Szeged court, which had jurisdiction over most asylum-seekers
travelling via Serbia, were usually dismissed without a thorough examination. Based
on the information available to the UNHCR, Hungary did not transfer asylum-seekers
to Greece at the present time.
Finally, transferees were considered applicants
lodging second asylum applications, which led to their appeals against
decisions dismissing their asylum claims not automatically being given suspensive
effect. Furthermore, access to other services was limited in comparison to new applicants.
2. UNHCR: Hungary as a country of asylum, April 2012
The UNHCR report stated as regards access to
asylum proceedings that such access was, in general, available in Hungary for applicants, both in-country and at the airport. However, access had proven
problematic for those in detention, for transferees and for those entering Hungary via Serbia (paragraph 19 of the report. All references in this section are to paragraphs of
the report unless otherwise stated). As regards access for transferees, the
report highlighted that asylum-seekers transferred to Hungary under the Dublin Regulation were not automatically considered to be asylum-seekers by the
Hungarian authorities. They therefore had to reapply for asylum once they had
been transferred to Hungary, even if they had previously sought asylum in
another EU Member State, and irrespective of the fact that they had been
transferred in accordance with the Dublin Regulation. These applications were
considered second applications. In most cases, upon return to Hungary, the issuance of a deportation order was automatically followed by placement in
administrative detention. Applicants were required to show new elements in
support of their claims which were additional to those raised in their initial
applications. Following legislative amendments in December 2010, second applications
did not have automatic suspensive effect on deportation orders in all cases. As
a result, asylum-seekers transferred to Hungary under the Dublin Regulation
were generally not protected against deportation to third countries, even if
the merits of their asylum claims had not yet been examined. In sum, the report
stated that applicants subject to the Dublin Regulation might not have access
to asylum proceedings (paragraph 20). The report recommended that Hungary ensure full access to asylum proceedings in all circumstances envisaged by
applicable international standards.
As regards the reception conditions for asylum-seekers
in Hungary, the report observed that its reception system was camp-based. Asylum-seekers
and refugees had in the past been hosted in open reception centres run by the
Office for Immigration and Nationality (hereinafter “OIN”) and provided with in-kind
assistance. By 2010, that practice was superseded by a policy of extensive
detention of asylum-seekers unlawfully entering or staying in the country. Most
asylum-seekers were accommodated in one of the four permanent administrative
detention facilities run by the police in Budapest, Győr, Kiskunhalas and
Nyirbátor. Families with children, married couples and single women were
accommodated in a temporary detention facility in Békéscsaba. Unaccompanied
children were hosted in the Home for Separated Children in Fót. Recognized
refugees and individuals benefiting from subsidiary protection status were accommodated
in the OIN’s open reception centre in Bicske. Asylum-seekers who had spent 12
months in detention and submitted second applications were, since June 2011,
placed in the OIN open reception centre in Balassagyarmat (paragraphs 28 and
29).
The report noted that the reception conditions
and services in place at that time in Hungary continued to fall short of
international and European Union reception standards. Persons of concern were
kept in isolation in OIN reception centres during often lengthy asylum proceedings.
Limited access to language learning and the isolation of the facilities
prevented them from establishing contact with society in the host country (paragraph
31). Persons of concern in Debrecen and Balassagyarmat complained of
insufficient medical services, citing superficial medical examinations, the
lack of specialised services, difficulties repairing and replacing broken
glasses and prohibitively expensive dental treatment. Different health problems
were often treated with the same generic medication, and there were reports that
medical problems were often not fully addressed. Heavily medicated in
detention, by the time they arrived in Balassagyarmat some had become
practically dependent on tranquilisers. There had been reported cases of
hepatitis and drug addiction and many suffered from psychological problems that
were inadequately addressed (paragraph 33).
The facility in Debrecen was considered
particularly problematic, with residents reporting toilets and bathrooms in
poor condition, buildings infested with cockroaches despite regular fumigation,
frequent shortages of hot water in the building housing vulnerable people, and
the insufficient quality and quantity of hygiene packages. Further information
concerned insufficient attention being paid to dietary needs, a lack of
flexibility in the provision of meals and the poor quality of meals provided in
Balassagyarmat (paragraph 34). The report also referred to tensions between
different groups of asylum-seekers and serious security threats arising from fights
breaking out between residents from different ethnic groups (paragraph 35).
Also, nightly police checks in the Debrecen facility were often conducted in a
harsh manner without respect for privacy and dignity. The atmosphere in
Balassagyarmat was tense, with many verbal arguments reported. Security checks
had had a particularly negative impact on patients treated for post-traumatic
stress disorder (paragraph 37). Asylum-seekers in Debrecen reported that they
were not given sufficient information about the asylum procedures governing their
individual cases. In Balassagyarmat, residents also reported that neither the
grounds for their detention nor the next steps in their cases were adequately
explained. Finally, there was no external oversight or quality control
monitoring mechanism in place with regard to reception conditions in Hungary (paragraphs 40 and 41).
As regards the detention of asylum-seekers, the
UNHCR noted that since April 2010, detention had become the rule rather than
the exception in Hungary. On 24 December 2010 amendments of the legislation
relevant to asylum-seekers and refugees had entered into force, making it
possible to detain asylum-seekers while the merits of their cases were being
reviewed, increasing the maximum length of administrative detention to twelve
months and authorising the detention of families with children for up to thirty
days (paragraph 43). Hungary had imposed prolonged periods of administrative
detention upon asylum-seekers without providing avenues to effectively
challenge the detention once ordered or considering alternatives to detention.
Judicial review of administrative detention of asylum-seekers was ineffective
in Hungary in many instances, as courts failed to address the lawfulness of
detention in individual cases, or to provide individualised reasoning based
upon the specific facts of the case and the circumstances of the applicant (see
paragraph 46). The report also referred to the issue of the legal aim of
administrative detention - to ensure the availability of the person in case of deportation
- and the Court’s case-law in this regard (see Lokpo and Touré v. Hungary, no. 10816/10, §§ 22 et seq., 20 September
2011).
. Permanent detention facilities had
been renovated and applied a high-security regime, even where residents had
only committed the minor offence of illegal entry or stay. Detained asylum-seekers
vehemently complained of the violent behaviour of the guards. While not every
guard behaved in an inappropriate manner, some particular guards and indeed
entire shifts allegedly harassed detainees verbally and even physically.
Detained asylum-seekers also complained of having been systematically given
drugs/tranquilisers, resulting in some of them becoming addicted by the end of
their detention terms. When escorted from the facility to court or
administrative hearings, detained asylum-seekers were handcuffed and led in chains,
methods which were normally used on the accused in criminal proceedings
(paragraph 50).
3. Reports by the Hungarian Helsinki Committee
(a) Stuck in Jail - Immigration Detention in Hungary (2010), April 2011
The report was published in the furtherance of
the NGO’s mandate to regularly monitor detention facilities in Hungary. It noted firstly that until 2010, four immigration detention centres were
operational in Hungary, namely Kiskunhalas, Nyíbátor, Győr and Budapest Airport. Between April and July 2010, eleven new immigration detention centres were
opened in different locations, including in Baja, Debrecen, Kiskunhalas,
Nyíbátor, Salgótárján, Sopron. Nine of these facilities had been operated as
jails; many had been closed down years ago and had not been used since. The
report published the NGO’s findings after visiting the nine new, temporary
immigration detention centres in August 2010.
The Hungarian Helsinki Committee remarked on the
fact that the recently established detention scheme for immigrants treated them
as criminals, even though illegal border-crossing was considered a petty
offence in Hungarian law. It further noted a high-security regime was in
operation in some of the detention facilities visited, such as those in
Kiskunhalas, Nyíbátor and Salgótárján. As regards the Salgótárján, Nyíbátor and
Baja facilities, the report also observed unacceptable physical and hygiene conditions.
It further noted a lack of necessary medical and psychological care in almost
all detention facilities visited and a general problem of forced inactivity and
deprivation of time outdoors. Furthermore, in almost all detention centres visited,
the detainees reported that they were not receiving a sufficient amount of food.
A major shortcoming was detected in that Hungarian legislation concerning the
immigration police did not set forth different rules to be applied to
vulnerable people with specific needs. The Hungarian Helsinki Committee also stated
that it had found two unlawfully detained minors upon its visits, even though
immigration detention of unaccompanied minors was explicitly prohibited by the Immigration
Act. It also remarked on the fact that legal challenges to their detention
brought by asylum-seekers had often failed, as courts reviewing detention
matters appeared to carry out a purely formal assessment of whether there was a
legal basis for it, without examining if detention was “lawful” within the
meaning of Article 5 of the Convention. Finally, it observed that protests,
violent acts and self-harm had frequently occurred at some immigration detention
centres since the opening of those facilities, which showed, according to the
NGO, a clear correlation with the physical conditions and the detention regime
applied in the various detention centres.
(b) Serbia as a Safe Third Country: A Wrong Assumption,
September 2011
The report was triggered by a significant
increase in the number of asylum-seekers returned by the Hungarian authorities
to Serbia in 2011. In its executive summary it concluded that there was only
limited access to asylum proceedings for asylum-seekers in Serbia; that asylum-seekers returned to Serbia were at risk of refoulement; and that
assistance and reception conditions in Serbia did not meet the needs of asylum-seekers.
Overall, the Hungarian Helsinki Committee stated that Serbia could not be regarded as a safe third country for asylum-seekers.
(c) Access to protection jeopardised; Information
note on the treatment of Dublin returnees in Hungary, December 2011
The Hungarian Helsinki Committee summarised its
report by stating that in its opinion, Hungary at that time did not provide
appropriate reception conditions and access to asylum proceedings to asylum-seekers
transferred to it under the Dublin procedure. This assessment was based on the
practice that asylum-seekers transferred under the Dublin procedure were, in
general, immediately issued with a deportation order, irrespective of their
wish to seek asylum. Transferees who had previously submitted an asylum claim
in Hungary could not continue their previous (discontinued) asylum proceedings.
If they wished to maintain their claim, it would be considered as a second application
for asylum, which had no suspensive effect on deportation measures. Based on
the automatically-issued deportation order, the majority of transferees were
routinely placed in immigration detention without consideration of their
individual circumstances or alternatives to detention. Finally, transferees who
were not detained were deprived of proper reception conditions, as their “second”
asylum claim did not entitle them to accommodation and support services
normally provided to asylum-seekers.
4. UNHCR: Notes on Dublin transfers to Hungary of people who have transited through Serbia, observations on Hungary as a country of asylum
of October 2012 and December 2012
In October 2012 the UNHCR published a note on Hungary and Serbia as countries of asylum and concluded that it maintained its previously-expressed
concerns regarding Hungary’s ongoing practice of treating the asylum claims of
most Dublin transferees as second applications, without guaranteed protection
from removal to third countries before an examination of the merits of the asylum
claims. The UNHCR was also particularly concerned about Hungary’s continuing
policy and practice of considering Serbia as a safe third country and returning
asylum-seekers to that country without conducting an examination of the merits
of their claims.
In an update to that note dated December 2012
the UNHCR observed that in November 2012 the Hungarian Parliament had adopted a
comprehensive package of legislative amendments, and the UNHCR welcomed these
initiatives and the amendments’ reported aim of ensuring that asylum-seekers
whose claims had not yet been decided might remain in Hungary pending an examination
of the merits of their claims, and would not be subject to detention, as long
as they applied for asylum immediately. Furthermore, the UNHCR appreciated the State’s
reported intention to introduce additional legal guarantees concerning
detention to ensure, inter alia, unhindered access to basic facilities,
such as toilets, and access for detainees with special needs to appropriate
treatment.
The UNHCR further observed that Hungary no longer denied an examination on the merits of asylum claims where asylum-seekers had transited
via Serbia or Ukraine prior to their arrival in Hungary. Such asylum-seekers
were no longer returned to Serbia or Ukraine. In addition, access to asylum proceedings
in Hungary had improved for those asylum-seekers transferred to Hungary
under the Dublin system whose claims had not been examined and decided in
Hungary (in other words, those for whom no final decision on the substance of
the asylum claim had been taken). Such asylum-seekers had access to an
examination of the merits of their claims upon their return, provided they made
a formal application to (re-) initiate the examination of the previously made
asylum claim. They would then not be detained and might await the outcome of the
proceedings in Hungary.
Some improvements had also been observed with
regard to the detention of asylum-seekers. The UNHCR noted that the number of asylum-seekers
detained had significantly declined in 2012. Asylum-seekers who applied for
asylum immediately upon their arrival, or at the latest during their first
interview with the immigration police, were no longer detained. People who
failed to apply immediately, or who otherwise failed to communicate such an intention,
continued to be subject to detention for the duration of the entire asylum proceedings.
C. Relevant international information on
Sudan
The Country Report on Human Rights Practices for
2011 in respect of Sudan issued by the United States Department of State stated
in its Executive Summary that Sudan was a republic transitioning, after the
secession of South Sudan, toward a new constitution from a power-sharing
arrangement established by the 2005 Comprehensive Peace Agreement. The National
Congress Party controlled the government. In April 2010 the country had held
its first national, multiparty elections in twenty-four years. However, the
elections had not met international standards. In January 2011 ninety-eight
percent of eligible voters voting in a referendum concerning the secession of
South Sudan from Sudan had voted in favour of secession. The Republic of South Sudan had formally gained its independence in July 2011. A referendum on the
status of Abyei which had been planned to be held simultaneously with the secession
referendum had not been held, and consultations in Southern Kordofan had been
postponed. Blue Nile consultations had been concluded, but the recommendations
had not been implemented by year’s end. Conflict had continued in Darfur and in
the three border areas of Abyei, Southern Kordofan and Blue Nile - termed the “Three
Areas”.
The main human rights abuses documented included
government forces and government aligned groups committing extrajudicial and
other unlawful killings, security forces committing torture, beatings, rape and
other cruel and inhuman treatment or punishment, and prison and detention
conditions being harsh and life-threatening. Other major abuses concerned arbitrary
arrests and arbitrary, incommunicado, and prolonged pre-trial detention,
executive interference with the judiciary and denial of due process,
obstruction of humanitarian assistance, restrictions of freedoms of speech,
press, assembly, association, religion and movement, harassment of internally
displaced persons, restrictions on privacy, violence against women including
female genital mutilation, child abuse including sexual violence and
recruitment of child soldiers, human trafficking, violence against ethnic
minorities and forced and child labour. Except in rare cases, the government
did not take any steps to prosecute or punish officials in the security
services and elsewhere in the government who committed abuses. The impunity of
security forces remained a serious problem. Rebels in Darfur and the Three
Areas also committed abuses during the year 2011.
The Amnesty International Annual Report 2012 on Sudan also referred to widespread human rights abuses in the course of the armed conflicts in Darfur and the Three Areas. Attacks in Darfur including aerial bombardments had been
carried out by government forces and allied militia and there had been ground
attacks in and around towns and villages, including camps for internally
displaced people. The UN Humanitarian Coordinator estimated that over 70,000
people had been displaced by the fighting since December 2010. The government
restricted access to UNAMID and humanitarian organisations, preventing them
from carrying out monitoring and from providing essential services to
civilians.
As regards the Three Areas, the report stated
that in May 2011 the Sudanese Armed Forces (“SAF”) overran Abyei town. Those
attacks forcibly displaced the entire population of the town and the
surrounding villages, over 100,000 people, to South Sudan. The attack followed
a series of armed clashes between the SAF and the Sudan People’s Liberation
Army between January and May. In June 2011 a UN Interim Security Force for
Abyei was established to demilitarise the area. Its mandate was prolonged in
December 2011. Conflict also erupted in Southern Kordofan in June between the
SAF and an armed opposition group. The Sudanese government repeatedly carried
out indiscriminate aerial bombardments, killing and wounding civilians. A
report published in August 2011 by the Office of the High Commissioner for
Human Rights detailed unlawful killings, mass destruction and looting of
civilian property and other allegations that would amount to war crimes and
crimes against humanity. In September conflict spread to Blue Nile State and President al-Bashir declared a state of emergency, replacing the governor with a
military governor. People displaced by the fighting, over 300,000 from Southern
Kordofan and over 55,000 from Blue Nile, were forced to seek refuge in other
areas, including western Ethiopia, Yida in South Sudan’s Unity State, and Upper
Nile State. However, on 8 and 10 November 2011, SAF forces bombed the Upper Nile and Yida areas. The Sudanese Government denied access to international human
rights and humanitarian organisations throughout the year.
Inter-communal violence also continued in
southern Sudan. The high prevalence of small arms exacerbated clashes and human
rights abuses against civilians by armed opposition groups and government
forces.
The Human Rights Watch World Report 2013 on Sudan stated in its executive summary paragraphs that Sudan’s relations with South Sudan had deteriorated
in early 2012, leading to clashes along the shared border in April 2012.
Although the two governments had signed an agreement in September to allow for
the resumption of oil production, fighting between Sudanese government forces
and rebel movements had continued in Darfur, as well as in Southern Kordofan
and Blue Nile states where Sudan’s indiscriminate bombardment and obstruction
of humanitarian assistance had forced more than 170,000 people to flee to
refugee camps in South Sudan. Student-led protests in Sudan’s university towns had
intensified in response to wide-ranging austerity measures and political
grievances. From June to August, riot police and national security officials had
violently dispersed a wave of protests, with hundreds arrested, at least twelve
protestors shot dead and others detained and subjected to harsh interrogations,
ill-treatment and torture. Sudanese authorities had also harassed and
arbitrarily arrested and detained other perceived opponents of the government,
including suspected members of the Sudan People’s Liberation Movement/North,
which was banned in September 2011, members of other opposition parties, civil
society leaders and journalists.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 AND ARTICLE 13
OF THE CONVENTION
The applicant complained that his forced
transfer to Hungary would subject him to treatment contrary to Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
He further complained of a violation of Article 13
of the Convention, which provides as follows:
“Everyone whose rights and freedoms as set forth in [the]
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.”
A. Admissibility
The Government submitted that the application
was inadmissible because domestic remedies had not been exhausted. Firstly, the
applicant had failed to lodge an appeal with the Asylum Court against the
decision of the Federal Asylum Office of 5 January 2011. The applicant could
have lodged a complaint against a decision of the Asylum Court with the Constitutional Court and could have asked the Constitutional Court to grant suspensive
effect to the proceedings. However, the applicant had failed to lodge an appeal
against that first-instance asylum decision.
Secondly, the proceedings concerning the applicant’s
second asylum application were still pending at first instance. In that connection,
the applicant had also not exhausted the domestic remedies available to him.
The applicant contested the Government’s
conclusions and stated that the reports raising awareness of the deterioration
of reception conditions and detention practice in Hungary had only begun to be
published from April 2011 onwards. In this respect, the applicant referred to
the relevant reports by the Hungarian Helsinki Committee of April 2011 and
September 2011, the Court’s judgment in Lokpo and Touré (cited above) of
September 2011 and the letter from the UNHCR’s Austrian office of October 2011.
However, when that alarming information had become known to the applicant, the deadline
of one week to lodge an appeal against the decision of the Federal Asylum
Office of 5 January 2011 had long since passed. The Asylum Court would also only
have had one week to decide on a request to grant suspensive effect, and it was
unlikely that suspensive effect would have been granted to any appeal brought
by the applicant on the basis of the information available at the relevant time
in early 2011.
The applicant further maintained that the
present pending asylum proceedings were not an effective domestic remedy
considering the lack of protection against deportation or forced transfer.
The Court considers that there is a close
connection between the Government’s argument as to the
exhaustion of domestic remedies and the merits of the complaints made by the
applicant under Article 13 of the Convention. It therefore finds it necessary
to join this objection to the merits. Furthermore, the Court finds that
the application is not manifestly ill-founded within the meaning of Article 35
§ 3 (a) of the Convention and that no other reasons for declaring the
application inadmissible have been established. It must therefore be declared
admissible.
B. Merits
1. Alleged violation of Article 13 of the Convention
(a) The parties’ submissions
The applicant observed that his second asylum
application had not had suspensive effect on any steps taken in furtherance of
the Dublin Regulation transfer order originating from the proceedings
concerning his first asylum application. The applicant could therefore have
been transferred to Hungary without any additional substantive judicial or
administrative review of the case having taken place and thus without a change
of circumstances being taken into account by the domestic authorities.
The applicant asserted that - in the course of
the proceedings concerning his second asylum application - he had availed
himself of every remedy available and had tried to stop his transfer to Hungary. However, on 9 January 2012 the immigration police had rejected his application by
which he had sought to have them examine the lawfulness of his forced transfer
to Hungary, which had proved that there had been no effective “non-refoulement”
procedure as described by the Government (see paragraph 68 below). The decision
as to whether to conduct the foregoing examination had been wholly
discretionary on the part of the immigration police. Such a decision had also
not been subject to judicial review.
The Government reiterated that in their opinion
the applicant had not exhausted domestic remedies, given that he had not lodged
an appeal against the decision of the Federal Asylum Office in the first set of
proceedings. The Government referred to the Asylum Act 2005 and the legal
remedies established therein against a decision rendered by the Federal Asylum
Office at first instance. Acknowledging that an appeal lodged against such a
decision had no automatic suspensive effect, but that it could be awarded such effect,
they explained that even though a deportation or transfer order might be
legally enforceable, the authorities were barred from executing it until the
seven-day period in which the Asylum Court could award suspensive effect to an
appeal lodged with it had passed. Furthermore, current Austrian law reflected
the principles and provisions laid out in the Dublin Regulation itself, in
particular in its Article 19 § 2. Finally as regards legal remedies, the Asylum Court had to take a decision on an appeal for which suspensive effect had been
granted within two weeks. The Government concluded that the remedies provided
in Austrian law successfully balanced the various interests involved and had
provided the applicant with an effective avenue of appeal, one which had
allowed for the award of suspensive effect if there had been a real risk of a
violation of Article 3 of the Convention upon his transfer, combined with a
guarantee of a speedy appeal decision.
Turning then to proceedings concerning second
asylum applications, the Government explained that an applicant against whom a
negative decision based on the Dublin Regulation had already entered into force
did not benefit from de-facto protection against transfer when he or she
filed a second asylum application in Austria. In such a case, a transfer to the
responsible Member State was possible even prior to a decision on the second
asylum application being taken at first instance.
However, the Government emphasised that the
principle of non-refoulement had in any event to be respected by
the immigration police when they sought to enforce a transfer order.
Furthermore, the Federal Asylum Office and the Asylum Court had to inform the
immigration police of the filing of a second asylum application and any issues
concerning de-facto protection against transfer in order to ensure
that the immigration police were informed at all times of the actual status of
an applicant’s case and any possible issues regarding protection against forced
transfer. The Immigration Police Act therefore guaranteed an automatic
examination of the issue of refoulement prior to any transfer being
executed by the immigration police. In that examination, the authorities were
also able to take into account a change of situation that could not, because of
the time of its occurrence, have been taken into consideration by the asylum
authorities in the prior proceedings. If the application of the principle of
non-refoulement forbade the transfer of an applicant, the
applicant’s presence in Austria would be tolerated and he or she would be
issued a permit. In sum, the Government considered that the additional layer of
examination concerning the issue of refoulement had provided the
applicant with an effective remedy within the meaning of Article 13 of the
Convention.
(b) The Court’s assessment
(i) General principles
The Court has held on many occasions that
Article 13 of the Convention guarantees the availability at national level of a
remedy with which to enforce the substance of the Convention rights and
freedoms in whatever form they may happen to be secured in the domestic legal
order. The effect of Article 13 is thus to require the
provision of a domestic remedy to deal with the substance of an “arguable
complaint” under the Convention and to grant appropriate relief. The scope of
the Contracting States’ obligations under Article 13 varies depending on the
nature of the applicant’s complaint; however, the remedy required by Article 13
must be “effective” in practice as well as in law (see Kudła v.
Poland [GC], no. 30210/96, § 157, ECHR 2000-XI; M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 288, ECHR 2011; and I.M. v. France, no. 9152/09, § 128, 2 February 2012).
. The
Court has further specified that the “effectiveness” of a “remedy” within the
meaning of Article 13 does not depend on the certainty of a favourable outcome
for the applicant. Nor does the “authority” referred to in that provision
necessarily have to be a judicial authority; but if it is not, its powers and
the guarantees which it affords are relevant in determining whether the remedy
before it is effective. Also, even if a single remedy does not by itself
entirely satisfy the requirements of Article 13, the aggregate of the remedies
provided for under domestic law may do so (see Gebremedhin [Gaberamadhien]
v. France, no. 25389/05, § 53, ECHR 2007-V § 53; M.S.S. v.
Belgium and Greece, cited above, § 289; and I.M. v. France, cited
above, § 129).
. As
noted above, in order to be effective the remedy required by Article 13 must be
available in practice as well as in law. In particular, this requires
availability in the sense that its exercise must not be unjustifiably hindered
by the acts or omissions of the authorities of the respondent State (see Çakıcı
v. Turkey [GC], no. 23657/94, § 112, ECHR 1999-IV). Article 13
requires the provision of a domestic remedy allowing the competent national
authority both to deal with the substance of the relevant Convention complaint and
to grant appropriate relief, although Contracting States are afforded some
discretion as to the manner in which they conform to their obligations under
this provision (see Jabari v. Turkey, no. 40035/98, § 48, ECHR 2000-VIII).
Particular attention should be paid to the speed of the remedial action itself,
it not being excluded that the adequate nature of a remedy can be undermined by
its excessive duration (see Doran v. Ireland, no. 50389/99, § 57, ECHR
2003-X).
. Lastly,
in view of the importance which the Court attaches to Article 3 of the
Convention and the irreversible nature of the damage which may result if the
risk of torture or ill-treatment materialises, the effectiveness of a remedy
within the meaning of Article 13 imperatively requires close scrutiny by a
national authority (see Shamayev and Others v. Georgia and Russia,
no. 36378/02, § 448, ECHR 2005-III), independent and rigorous scrutiny of
any claim that there exist substantial grounds for fearing a real risk of treatment
contrary to Article 3 (see Jabari, cited above, § 50), and a
particularly prompt response (see Batı and Others v. Turkey, nos.
33097/96 and 57834/00, § 136, ECHR 2004-IV (extracts)). It also requires
that the person concerned should have access to a remedy with automatic
suspensive effect (see Čonka v. Belgium, no. 51564/99, §§ 81-83,
ECHR 2002-I; Gebremedhin [Gaberamadhien], cited above, § 66; M.S.S. v. Belgium
and Greece, cited above, §§ 290-293; and I.M. v. France, cited
above, §§ 132-134).
(ii) Application of those principles to the present
case
In the present case, the question of an
effective remedy refers to a remedy that would have been able to stay the
execution of the January 2011 transfer order while the claim made by the
applicant after his apprehension in December 2011 that his forced transfer to
Hungary would breach his rights under Article 3 of the Convention was examined
on its merits. The Court notes that the Government made submissions with regard
to three different parts of the proceedings and will now examine those
different stages in turn.
(α) The first set of asylum proceedings
The Government contended that the applicant had
failed to exhaust domestic remedies, as he had not lodged an appeal against the
decision of the Federal Asylum Office of 5 January 2011 in which his asylum
application had been rejected under the Dublin Regulation and his transfer to Hungary ordered. However, the Court notes that, as argued by the applicant (see paragraph 61
above), the criticism raised with regard to the detention practices affecting
asylum-seekers in Hungary, the conditions of their detention and the problems
in relation to transferees’ access to asylum proceedings and the risk of refoulement
only became widely known after the decision on the applicant’s application had
been rendered. The first report of the Hungarian Helsinki Committee as regards
immigration detention dated from April 2011, the UNHCR Regional Office’s letter
from 17 October 2011 and the UNHCR report on Hungary as a country of asylum
from April 2012. The Austrian Asylum Court’s practice of staying transfers to Hungary and seeking an update on the country of origin information concerning Hungary maintained by the Federal Asylum Office spanned the period from the end of October until
December 2011. The Court is therefore able to subscribe to the applicant’s
argument that at the relevant time, when he would have been able to lodge an
appeal against the first-instance asylum decision and the transfer order, he
was not aware of the problems that asylum-seekers faced in Hungary which were later raised by the reports mentioned above. The Court reiterates that the only
remedies which are required to be exhausted under Article 35 § 1 of the
Convention are those that relate to the breach alleged and are available and
effective (see Diallo v. the Czech Republic, no. 20493/07, § 54, 23 June 2011). In view of the
specific complaints raised by the applicant in the course of the proceedings
before the Court, namely the use of immigration detention in Hungary, the
conditions of detention there, the treatment of detained asylum-seekers and the
lack of access to appeal proceedings, an appeal against the decision of
5 January 2011 rejecting his first asylum application would clearly not
have been an effective remedy. The Court therefore rejects the Government’s
contention that the applicant failed to exhaust domestic remedies in this
regard.
The circumstances outlined above also lead to
the result that the applicant, during the period of time in which he could have
lodged an appeal in the first set of asylum proceedings, lacked an arguable
claim under Article 3 of the Convention, since the criticism voiced with regard
to the situation of asylum-seekers in Hungary was not widely known at that
time. As the Court does not examine domestic law in the abstract (see, mutatis
mutandis, P., C. and S. v. the United Kingdom, no. 56547/00, § 122,
ECHR 2002-VI; Piechowicz v. Poland, no. 20071/07, § 168 in fine, 17 April 2012; and Julin
v. Estonia, nos. 16563/08, 40841/08, 8192/10 and 18656/10, § 126, 29 May 2012), it will therefore refrain from an
examination of the effectiveness of the appeal procedure in Austrian asylum
proceedings in the absence of automatic suspensive effect, but seemingly in
line with the relevant EU provisions.
(β) The second set of asylum proceedings
Next, the Court turns to the second set of
asylum proceedings conducted in Austria after the applicant’s apprehension and
detention with a view to his forced transfer. The Court notes that that
detention was based on the existing transfer order of January 2011, and that
the applicant lodged a second asylum application on 30 December 2011. This
second asylum application did not, according to the domestic law, grant the
applicant de-facto protection from forced transfer. Consequently,
the applicant, who now relied heavily on recent alarming information concerning
the situation of asylum-seekers in Hungary and the Austrian Asylum Court’s own
practice in autumn 2011 of staying transfers to Hungary and seeking updated
information, could have been forcibly transferred to Hungary at any time, even
though his second asylum application was still pending at first instance.
In this connection, the Court refers to the fact
that it finds as a result of its examination of the applicant’s complaint under
Article 3 (see paragraph 103 below) that the applicant, at least as regards his
complaints concerning the use of administrative detention and the conditions of
detention in Hungary, had an arguable claim under Article 3 of the Convention.
In view of the applicant’s arguable complaints
under Article 3 of the Convention related to his forced transfer to Hungary and
the lack of de-facto protection against such transfer in the second set
of asylum proceedings, the Government’s contention that the applicant had
failed to exhaust domestic remedies because those proceedings were still
pending at first instance must be rejected (see, inter alia, Sultani
v. France, no. 45223/05, § 50, ECHR 2007-IV (extracts)). It
remains to be examined whether the second asylum application can be considered
an effective remedy under Article 13 of the Convention in respect of the
applicant’s complaint that he would be subjected to treatment contrary to
Article 3 upon being forcibly transferred to Hungary.
The Court has found on previous occasions that
accelerated asylum proceedings, as practiced in a number of European countries,
make it easier for those countries to process asylum applications that are of a
clearly unreasonable nature or manifestly ill-founded. In this connection, the
Court has also found that if an asylum claimant has had access to a substantive
examination of his asylum claim at first instance, re-examination in an
accelerated procedure does not in itself deprive the claimant of a rigorous
review of his or her claims in relation to Article 3 of the Convention (see, mutatis
mutandis, Sultani, cited above, §§ 64-65, and I.M. v. France,
cited above, § 142).
. The Court acknowledges the need of
EU Member States to ease the strain of the number of asylum applications
received by them and in particular to find a way to deal with repetitive and
clearly abusive or manifestly ill-founded applications for asylum. On the other
hand, the Court has found in no uncertain terms that where an applicant makes
an arguable claim under Article 3 of the Convention, he or she should have
access to a remedy with automatic suspensive effect, meaning a stay on a
potential deportation. The Court observes that, in the present case, the
applicant had access to asylum proceedings allowing an examination of the
merits within the scope of the Dublin Regulation in the course of the first set
of proceedings which ended in January 2011. In that first set of proceedings,
the situation in Hungary as the receiving State would have been examined in
substance. However, in the applicant’s case, almost a year passed until the
transfer order was scheduled to be enforced and the applicant lodged a second
application. Consequently, according to the reported information on the
situation of asylum-seekers’ in Hungary and the Austrian Asylum Court’s own
practice at the relevant time, that second application cannot prima facie
be considered abusively repetitive or entirely manifestly ill-founded. On
the contrary, the Court establishes below that the applicant had - at that time
- an arguable claim, as regards his complaints directed against Hungary as the receiving State.
. In the specific circumstances
of the present case, especially having regard to the period of time elapsed
between the transfer order and its enforcement and the change of circumstances
manifesting itself during that time, the law as it has been applied to the
applicant, which did not afford protection from forced transfer and thus
deprived him of a meaningful substantive examination of both the changed
situation and his arguable claim under Article 3 concerning the situation of
asylum-seekers in Hungary, denied the applicant access to an effective remedy
against the enforcement of the order for his forced transfer.
(γ) The examination of the issue of refoulement
by the Austrian immigration police
The Court now turns to the question of whether
the examination of the issue of refoulement by the immigration police in
the event of the applicant’s forced transfer might counterbalance the lack of de-facto
protection against forced transfer in the proceedings concerning the second
asylum application.
However, the Court notes that an asylum claimant
only has locus standi to apply to the immigration police for a formal
decision on the question of refoulement when such an application is made
during proceedings in which a deportation (or transfer) order has been
rendered. After such proceedings are concluded and the case moves to the
enforcement stage - as was the case as regards the applicant - an asylum claimant
does not have the “right” to have the immigration police issue a formal
decision on the issue of refoulement. It follows that that the
examination provided for in the Immigration Police Act remains at the sole
discretion of the authority and is not subject to any further review.
Consequently, the examination of the issue of refoulement
by the immigration police at the time of a forced transfer cannot be considered
an effective remedy within the meaning of Article 13 of the Convention in
connection with the applicant’s complaints under Article 3 linked to his forced
transfer to Hungary.
(δ) Conclusion
It follows that in the specific circumstances of
the case the applicant was deprived of de-facto protection against
forced transfer in the course of the proceedings concerning his second asylum
application while having - at the relevant time - an arguable claim under
Article 3 of the Convention in respect of his forced transfer to Hungary. There was therefore a violation of Article 13 in conjunction with Article 3 of the
Convention.
2. Alleged violation of Article 3 of the Convention
(a) The parties’ submissions
As concerns the applicant’s complaint under
Article 3 of the Convention, he claimed in particular that, upon being
transferred to Hungary, he would be detained in detention facilities that were
not appropriate for long-term detention, that he would be subjected to police
violence and forced medication with tranquilisers, and that he would lack an effective
avenue of appeal in any asylum proceedings in Hungary.
The applicant acknowledged that the Asylum Court
had allowed transfers to Hungary under the Dublin Regulation to recommence (see
paragraph 90 below), but nevertheless stated, referring to the UNHCR report on
Hungary as a country of asylum of April 2012, that there had not in fact been
any improvement in the situation of asylum-seekers who were transferred to
Hungary under the Dublin Regulation. The applicant asserted that it was deplorable
that the Austrian authorities continued under those circumstances to transfer asylum-seekers
to Hungary whilst being aware of abusive and excessive detention practices there,
inhuman conditions and the existence of a real risk of refoulement.
The Government contested those arguments and
stated that in the course of proceedings under the Dublin Regulation the
Austrian authorities were required to examine whether an applicant would face a
real risk under Article 3 of the Convention upon a transfer. Should the
authority find that there was a danger that the applicant might be exposed to
human rights violations in the event of his or her transfer, it was required to
make use of the sovereignty clause. The Government referred to the fact that
the Austrian authorities had repeatedly made use of the sovereignty clause in
practice in respect of vulnerable people.
The Government further noted that the situation
of asylum-seekers in other EU Member States was constantly monitored and that assessments
were made on the basis of current developments. There was a regular exchange of
information between the Federal Asylum Office and liaison officers in Hungary, which also ensured the possibility of conducting individual investigations, where
necessary. With reference to the pending proceedings concerning the applicant’s
second asylum claim, the Government considered that the issue of whether the
applicant’s transfer to Hungary would be in compliance with Article 3 of the
Convention could not be answered in abstract terms.
Turning to the practice of the Austrian asylum
authorities in autumn 2011 (see paragraphs 28-31 above), the Government firstly
emphasised that the letter from the UNHCR’s Austrian office dated 17 October
2011 had not been an official position paper of the organisation. It confirmed
that the Asylum Court had found in some cases - at that time - that the Federal
Asylum Office as the first-instance authority had not sufficiently considered
the criticism voiced in relevant reports and the UNHCR’s letter. Therefore, a
number of decisions rejecting asylum applications had been quashed and the
proceedings referred back to the Federal Asylum Office for further
investigation or retained by the Asylum Court to be dealt by it. The Government
pointed out that similar decisions had been rendered by the Asylum Court between
October and December 2011, while it had to be kept in mind that the Asylum Court only had eight weeks to decide on such appeals. Subsequently, the Federal
Asylum Office had examined in detail whether transfers to Hungary under the Dublin Regulation were compatible with human rights standards. It had maintained
close contact with the Hungarian liaison officers and had updated the relevant
country information following changes to the law in Hungary. By letter of 11
November 2011 the Hungarian asylum authority had given credible assurances to
the Federal Asylum Office that the information contained in the letter from the
UNHCR’s Austrian office had been partly based on incorrect information. The
Federal Asylum Office had been left secure in its belief that the Hungarian
authorities were compliant with their international obligations and with human
rights standards at all stages of the proceedings. Thereupon, the Federal
Asylum Office had based its decisions in respect of Hungary on the new and
updated findings as regards detention conditions and proceedings in Hungary. The Asylum Court had thus decided that general concerns about transfers to Hungary were no longer justified, while examining each individual case against the background of the
applicant’s specific situation and the current factual and legal situation in Hungary. The Government finally observed that there was constant evaluation of the
situation by the domestic asylum authority and referred to the fact that the UNHCR’s
report of April 2012 on Hungary as a country of asylum had not included a
recommendation to refrain from transfers to Hungary.
(b) The Court’s assessment
(i) General principles
According to the Court’s established case-law,
Contracting States have the right, as a matter of well-established
international law and subject to their treaty obligations, including the
Convention, to control the entry, residence and expulsion of aliens (see, among
many other authorities, Abdulaziz, Cabales and Balkandali v. the United
Kingdom, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France,
21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). The
Court also notes that the right to political asylum is not contained in either
the Convention or its Protocols (see Vilvarajah and Others v. the United
Kingdom, 30 October 1991, § 102, Series A no. 215, and Ahmed v. Austria,
17 December 1996, § 38, Reports 1996-VI).
However, deportation, extradition or any other
measure to remove an alien may give rise to an issue under Article 3, and hence
engage the responsibility of the Contracting State under the Convention, where
substantial grounds have been shown for believing that the person in question,
if removed, would face a real risk of being subjected to treatment contrary to
Article 3 in the receiving country. In such circumstances, Article 3 implies an
obligation not to remove the individual to that country (see Soering v. the
United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161; Vilvarajah and
Others, cited above, § 103; Ahmed, cited above, § 39; H.L.R. v.
France, 29 April 1997, § 34, Reports 1997-III; Jabari v. Turkey,
cited above, § 38; Salah Sheekh v. the Netherlands, no. 1948/04, § 135,
11 January 2007; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 114, ECHR 2012).
In the specific context of
the application of the Dublin Regulation, the Court has found before that
indirect removal, in other words, removal to an intermediary country which is also
a Contracting State, leaves the responsibility of the transferring State
intact, and that State is required, in accordance with the Court’s
well-established case-law, not to transfer a person where substantial grounds
had been shown for believing that the person in question, if transferred, would
face a real risk of being subjected to treatment contrary to Article 3 in the
receiving country. Furthermore, the Court has reiterated that where States
cooperate in an area where there might be implications for the protection of
fundamental rights, it would be incompatible with the purpose and object of the
Convention if they were absolved of all responsibility vis-à-vis the Convention in the
area concerned (see, among other authorities, Waite
and Kennedy v. Germany [GC], no. 26083/94,
§ 67, ECHR 1999-I). When they apply the Dublin Regulation, therefore, the
States must make sure that the intermediary country’s asylum procedure affords
sufficient guarantees to avoid an asylum-seeker being removed, directly or
indirectly, to his country of origin without any evaluation of the risks he
faces from the standpoint of Article 3 of the Convention (see T.I. v.
the United Kingdom (dec.), no. 43844/98, ECHR 2000-III, and K.R.S. v.
the United Kingdom (dec.), no. 32733/08, 2 December 2008, both
summarised in M.S.S. v. Belgium and Greece, cited above, §§ 342 et seq.).
The assessment of whether there are substantial
grounds for believing that the applicant faces a real risk inevitably requires
that the Court assess the conditions in the receiving country against the
standards of Article 3 of the Convention (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards
imply that the ill-treatment the applicant alleges he will face if returned
must attain a minimum level of severity if it is to fall within the scope of
Article 3. The assessment of this is relative, depending on all the
circumstances of the case (see Hilal v. the United Kingdom, no.
45276/99, § 60, ECHR 2001-II).
In order to determine whether there is a real
risk of ill-treatment in the present case, the Court must examine the
foreseeable consequences of sending the applicant to Hungary, bearing in mind
the general situation there and his personal circumstances (see Vilvarajah
and Others, cited above, § 108 in fine). It will do so by assessing
the issue in the light of all material placed before it, or, if necessary,
obtained proprio motu (see H.L.R., cited above, § 37, and Hirsi
Jamaa and Others, cited above, § 116).
. If the applicant has not yet been removed
when the Court examines the case, the relevant time will be that of the
proceedings before the Court (see Saadi v. Italy [GC], no.
37201/06, § 133, ECHR 2008, and A.L. v. Austria, no. 7788/11, § 58, 10 May 2012). A full assessment is called for, as the situation in a country
of destination may change over the course of time (see Salah Sheekh,
cited above, § 136).
(ii) Application of those principles to the present
case
The Court takes note of the various reports on Hungary as a country of asylum either referred to by the parties in the application and during
the domestic proceedings or obtained proprio motu.
It acknowledges that three main areas of deficiency
were identified in those reports that relate to (i) prolonged administrative
detention of asylum-seekers and the conditions of their detention, (ii) the
treatment of asylum applications pending in respect of or lodged by transferees
and their lack of suspensive effect, and (iii) the risk of refoulement
to Serbia.
The UNHCR dedicated a large part of its April
2012 report to asylum-seekers’ conditions of detention in Hungary. The Court notes with particular concern the reports of specific hygiene failings in the
Debrecen facility, the seemingly systematic treatment of detained asylum-seekers
with tranquilisers causing them to develop addictions, of violent abuse by
guards and the practice of taking asylum-seekers handcuffed and in chains to court
or administrative hearings (see paragraphs 39-42 above).
As regards asylum proceedings in Hungary, the Court takes particular note of reports that asylum-seekers being transferred to Hungary under the Dublin Regulation had to reapply for asylum in Hungary upon arrival and that such
a renewed application was treated as a second asylum application without
suspensive effect. Together with the seemingly automatic process of handing out
a deportation order upon entry, this resulted in a real risk of refoulement
without the transferee having effective access to an examination of the merits
of his or her underlying asylum claim.
Finally, the Court observes that the Austrian
Asylum Court took the information contained in the UNHCR Regional Office’s letter
of 17 October 2011 seriously enough to request the first-instance authority
confirm or rebut the criticism voiced in that letter and to bring its country
of origin information in respect of Hungary up-to-date.
In view of the above, the Court acknowledges
the alarming nature of the reports published in 2011 and 2012 in respect of Hungary
as a country of asylum and in particular as regards transferees. Whether the
applicant had a case under Article 3 of the Convention with regard to his
individual situation will be examined in the following paragraphs.
(α) The applicant’s complaints related to the
detention of asylum-seekers in Hungary and the reception conditions
As regards the applicant’s complaints directed
against the detention practices applicable to and the reception conditions for asylum-seekers
in Hungary, the Court, referring to the information before it in that respect,
has no difficulty acknowledging that they were, at the very least, arguable.
The Court notes the seemingly general practice of detaining asylum-seekers for a
considerable time and partly under conditions that fell short of international
and EU standards, which, in conjunction with the repeatedly reported
deficiencies in review proceedings for administrative detention, depicted a
situation raising serious concern. Note is further taken of the reports of
abuse of detained asylum-seekers by officials and of forced medication.
The Austrian asylum authorities were made aware
of those problem areas at the latest by the UNHCR Regional Office’s letter
dated 17 October 2011 that concisely, but clearly summarised the relevant issues
as regards Hungary as a receiving country for transferees. That letter was
followed by a comprehensive report on Hungary as a country of asylum in April
2012, again by the UNHCR. The Hungarian Helsinki Committee had previously remarked
in April 2011 on the detention conditions in nine temporary immigration detention
centres and had repeated its concerns regarding routine placement in
administrative detention in December 2011.
However, the Court notes that the UNHCR never
issued a position paper requesting European Union Member States to refrain from
transferring asylum-seekers to Hungary under the Dublin Regulation (compare the
situation of Greece discussed in M.S.S. v. Belgium and Greece, cited
above, § 195). Furthermore, the Court reiterates that the time of the
assessment of whether the applicant would be at a real risk of suffering treatment
contrary to Article 3 of the Convention upon a transfer to Hungary is that of the proceedings before it. With that in mind, the Court refers to the most recent
note issued by the UNHCR in which it appreciatively acknowledges the planned changes
to the law by the Hungarian Government and makes particular reference to the
fact that transferees that immediately apply for asylum upon their arrival in Hungary will no longer be subject to detention. Moreover, the UNHCR also remarked on the
reported intention of the Hungarian authorities to introduce additional legal
guarantees concerning detention and to ensure unhindered access to basic
facilities. It finally noted that the number of detained asylum-seekers
declined significantly in 2012 (see paragraphs 48-50 above).
Under those circumstances and as regards the possible
detention of the applicant and the related complaints, the Court concludes that
in view of the recent report made by the UNHCR, the applicant would no longer
be at a real and individual risk of being subjected to treatment in violation
of Article 3 of the Convention upon a transfer to Hungary under the Dublin
Regulation.
(β) The applicant’s complaints related to asylum
proceedings in Hungary and possible refoulement
The issue of sufficient access to asylum
proceedings allowing an examination of the merits of the applicant’s claim in Hungary and the consequent risk of refoulement to a third country raises different
questions.
The Court notes that nothing is known
concerning the applicant’s reasons for leaving his country of origin, Sudan, and seeking asylum in the first place. In the present case, the applicant did not
submit any information or documentation that would help the Court to establish
a prima facie reason for him to make an asylum application (see, in
contrast, M.S.S. v. Belgium and Greece, cited above, §§ 295-296).
The Court further observes that the procedure under the Dublin Regulation does
not require the transferring State to conduct any analysis of the underlying
flight reasons of an asylum-seeker, but only to establish whether another EU
Member State has jurisdiction under the Regulation and to examine whether there
are any general reasons or other obstacles concerning the Member State with jurisdiction
that would require a stay of the transfer or application of the sovereignty
clause.
The Court has no difficulty in believing that
the security and human rights situation in Sudan is generally alarming and has seemingly
not improved of late (see paragraphs 51-56 above). However, the Court notes
that the applicant has not substantiated any individual risk of being subjected
to treatment contrary to Article 3 of the Convention if returned to Sudan. While the Court has never excluded the possibility of a situation of general violence
in a country of origin triggering the application, and subsequently a breach,
of Article 3 upon the deportation of an applicant to the said county, such an
approach would only be adopted in the most extreme cases (see, mutatis
mutandis, NA. v. the United Kingdom, no. 25904/07, § 115, 17
July 2008). Under the present circumstances the Court is not in a position to
assume a real risk for the applicant upon deportation to Sudan in the absence of any information of his own situation and flight reasons. The Court must
therefore conclude that the applicant cannot arguably claim that his
deportation to Sudan would violate Article 3 of the Convention (see, a contrario,
M.S.S. v. Belgium and Greece, cited above, § 344).
In any event, the Court again refers to the
UNHCR’s recently provided information on changes to Hungarian law and practice
envisaged and already brought about and notes that it would appear that transferees
now have sufficient access to asylum proceedings in Hungary and may await the
outcome of the proceedings in Hungary, provided that they apply for asylum
immediately upon their return.
(γ) Conclusion
For the reasons set out above the Court
therefore concludes that the applicant’s transfer to Hungary would not violate
Article 3 of the Convention.
II. RULE 39 OF THE RULES OF COURT
The Court recalls that, in accordance with
Article 44 § 2 of the Convention, the present judgment will not become final
until: (a) the parties declare that they will not request that the case be
referred to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been requested;
or (c) the Panel of the Grand Chamber rejects any request to refer under
Article 43 of the Convention.
It considers that the indication made to the
Government under Rule 39 of the Rules of Court (see paragraph 4 above)
must continue in force until the present judgment becomes final or until the
Court takes a further decision in this connection.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 5,000 euros (EUR) in
respect of non-pecuniary damage.
The Government claimed that the applicant had
not sufficiently demonstrated that there had been damage or that there was a
causal link between the alleged damage and the violation of the Convention.
Furthermore, the Government referred to the fact that the applicant had not in
fact been transferred to Hungary, and that the Court had often found in similar
cases that an award for non-pecuniary damage would be inappropriate.
The Court has found above that the applicant was
deprived of an effective remedy with de-facto protection against forced
transfer in the proceedings concerning his second asylum application while
having - at the relevant time - an arguable claim against his transfer to Hungary. Under these circumstances, the Court believes that the applicant must have
suffered some frustration and anxiety during his apprehension and detention in Austria until the interim measure of the Court was applied. However, the Court also notes
that the applicant has not in fact been transferred to Hungary (see, a contrario,
the situation in Diallo, cited above, §§ 12 and 93). The Court
therefore finds that the finding of a violation of Article 13 in
conjunction with Article 3 of the Convention constitutes sufficient just
satisfaction for the non-pecuniary damage sustained by the applicant (see, mutatis
mutandis, Saadi, cited above, § 188).
B. Costs and expenses
The applicant also claimed EUR 12,918.78 for
costs and expenses incurred both in the domestic proceedings and before the
Court. This sum includes value-added tax (VAT).
The Government contended that the costs claimed
were excessive.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred, are
reasonable as to quantum and concern proceedings that are related to the
violation of the Convention provision found in the present case. Regard being
had to the documents submitted to the Court, it finds that some of the costs
that the applicant claimed to have incurred in the domestic proceedings relate
to proceedings concerning his detention with a view to deportation and
proceedings concerning an administrative fine. However, those proceedings are
not within the scope of examination of the present application before the Court.
The Court therefore finds it reasonable to award the applicant the
reimbursement of the costs incurred in the domestic proceedings regarding the
lifting of the deportation order and in the proceedings before the Court. It
therefore awards the sum of EUR 4,868.28 covering costs under all heads. This
sum includes VAT.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Joins to the merits by a majority the
objection raised by the Government concerning the non-exhaustion of domestic
remedies and rejects it;
2. Declares by a majority the application
admissible;
3. Holds unanimously that there has been a
violation of Article 13 in conjunction with Article 3 of the Convention;
4. Holds unanimously that the applicant’s transfer
to Hungary would not violate Article 3 of the Convention;
5. Decides to continue to indicate to the
Government under Rule 39 of the Rules of Court that it is desirable in the
interests of the proper conduct of the proceedings not to transfer the
applicant until such time as the present judgment becomes final or until
further order;
6. Holds unanimously that the finding of a
violation constitutes sufficient just satisfaction for the non-pecuniary damage
sustained by the applicant;
7. Holds unanimously
(a) that the respondent State is to pay the
applicant, within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 4,868.28
(four thousand eight hundred and sixty eight euros and twenty-eight cents) in
respect of costs and expenses. This sum includes VAT;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
8. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 6 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Isabelle Berro-Lefèvre
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Berro-Lefèvre,
Laffranque, Møse is annexed to this judgment.
I.B.L.
A.M.W.
CONCURRING OPINION BY JUDGES BERRO-LEFÈVRE,
LAFFRANQUE AND MØSE
1. We have voted against
declaring the application admissible but accept - on the basis of the
information which is presently available - that there has been a violation of Article
13 taken in conjunction with Article 3. However, the Chamber’s reasons on the
merits do not fully reflect the way we view the present case.
2. The applicant risks
being returned from Austria to Hungary in pursuance of Council Regulation (EC)
No 343/2003 (the “Dublin Regulation”). The core issue is whether his forced
transfer gives rise to an arguable claim under Article 13 that this would lead
to a violation of Article 3 of the Convention.
3. The applicant did not
refer to the situation in Hungary during the first asylum proceedings. After
the Federal Asylum Office rejected his application on 5 January 2011 the
applicant did not lodge an appeal against that decision but went into hiding
and thwarted an attempt to detain and forcibly transfer him on 5 May 2011 (see
paragraphs 8 and 9 of the judgment). From 21 December 2011 he was detained
with a view to his forced transfer.
4. The applicant’s second
asylum request, of 30 December 2011, made almost one year after the asylum
decision, referred to the Asylum Court’s practice since 31 October 2011
regarding reception conditions in Hungary. That practice was based on a report
by the Austrian Office of the United Nations High Commissioner for Refugees
(UNHCR), dated 17 October 2011, which advised against returning asylum-seekers
to Hungary. The second asylum proceedings are still pending before the Federal
Asylum Office, as are the proceedings before the Administrative Court regarding
the applicant’s detention with a view to his forced transfer and his
application to the immigration police for the transfer order to be lifted (see
paragraphs 11-16 of the judgment).
5. It follows that
neither the Federal Asylum Office nor the Asylum Court has considered the
applicant’s second set of complaints based on the report of 17 October 2011 by
the Austrian Office of the UNHCR. In other cases the Asylum Court has requested
the Federal Asylum Office to investigate the issue of detention in Hungary of
persons transferred there under the Dublin Regulation, including their conditions
of detention, allegations of police violence in detention centres and their
access to effective legal remedies (see paragraphs 28-30 of the judgment).
6. Furthermore, the
domestic authorities have not had occasion to consider more recent reports
issued by the UNHCR - not its Austrian Office - in April, October and December
2012 (see paragraphs 37-42 and 47-50 of the judgment). In particular, the
report issued in December 2012 refers to a comprehensive package of legislative
amendments adopted by the Hungarian Parliament; to the intention to introduce
additional legal guarantees concerning detention; to revised asylum
proceedings; and to improvements with regard to the detention of
asylum-seekers. We also consider it to be an important factor that the UNHCR
has never issued a position paper advising governments to refrain from
transferring asylum seekers to Hungary and take responsibility for examining
the corresponding asylum applications themselves (see paragraph 105 of the
judgment and, mutatis mutandis, M.S.S v. Belgium and Greece,
[GC], no. 30696/09, §§ 194-95. Lastly, we note that in the present case
there are no observations from the Hungarian authorities on the allegations in
the report of 17 October 2011, which are formulated in quite general terms, and
that the Court is unanimous in finding no violation of Article 3.
7. In our view, these
factors weaken the Court’s basis for deciding whether there is a violation of Article
3 or 13. Leaving aside the issue of whether any of the three sets of pending proceedings,
mentioned in paragraph 3 above, should have been exhausted, additional
information emerging from further consideration of the matter by the Austrian
authorities may provide a more complete and updated basis for deciding the case
on the merits. Following the Court’s decision of 11 January 2012 to apply Rule
39 of the Rules of Court, there is no risk that the applicant will be returned
to Hungary, and there is no urgency to deliver judgment now, as the application
was introduced on 11 January 2012. We would therefore have preferred to wait
until the Austrian authorities had examined the applicant’s new submissions.
This would also have ensured greater co-operation between the Court and the
national authorities in terms of shared responsibility as the latter are better
placed to analyse and decide such matters in the first place.
8. This said, and on the
basis of the information which is presently available, we have accepted that
the applicant had an arguable claim and that there was a violation of Article
13.
