Mohammadi v Austria

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Respondent/Defendant:Austria
Citation/s:Application No. 71932/12
Nature of Proceedings:Appeal
Judgment Date/s:03 Jul 2014
Judge:European Court of Human Rights (First Section)
Category:Refugee Law
Keywords:Asylum, Dublin Regulation, Refoulement, Refugee
URL:http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-145233#{%22fulltext%22:[%22Mohammadi%20v%20Austria%22],%22itemid%22:[%22001-145233%22]}
Geographic Focus:Europe

Facts:
The applicant was an Afghan national. He applied for asylum in Austria. His application was transferred to Hungary under the Dublin II Regulation. His removal was suspended on the basis of an interim measure granted by the European Court of Human Rights (ECHR). The applicant contended that, if transferred to Hungary, he would be at risk of imprisonment in atrocious conditions, and at risk of chain refoulement to Serbia, through which he travelled en route to Hungary, without his asylum claim being examined on the merits.

The European Court held that his transfer to Hungary would not violate his rights under article 3 ECHR.

Reasoning:
The European Court held that a Contracting State was precluded under the ECHR from transferring a person where substantial grounds had been shown for believing that he would face a real risk of being subjected to treatment contrary to article 3 ECHR in the receiving country. In applying the Dublin II Regulation, the Contracting States were obliged to ensure that the receiving country’s asylum procedure afforded sufficient guarantees to avoid the removal of an asylum-seeker, directly or indirectly, to his country of origin without any evaluation of the risks he faced under article 3 ECHR.

The European Court noted that the information showed that, in Hungary, there was still a practice of detaining asylum-seekers, including Dublin II Regulation returnees. However, there was no systematic detention of asylum-seekers, and alternatives to detention were provided for by law. There had also been improvements in the detention system. It also noted that the UNHCR had never issued a position paper requesting EU Member States to refrain from transferring asylum seekers to Hungary under the Dublin II or Dublin III Regulation. Accordingly, it concluded that the applicant would be exposed to a real and individual risk of being subjected to treatment in violation of article 3 ECHR if transferred to Hungary under the Dublin II Regulation.

The European Court also considered the issue of sufficient access to asylum proceedings allowing an examination of the merits of the applicant’s claim in Hungary and the alleged risk of chain refoulement to a third country.

It observed that inter alia the UNHCR in its latest report had stated that Dublin Regulation returnees to Hungary whose claims had not been examined and decided there had access to an examination of the merits of their claims upon their return. The European Court therefore concluded that he would have the chance to reapply for asylum if returned to Hungary and to have his application duly examined.

As regards the alleged risk of refoulement to Serbia, the European Court noted that recent reports, including a report by the UNHCR, confirmed that Hungary no longer relied on the safe third country concept and, in particular, examined asylum applications by Dublin returnees on the merits, as long as there had not yet been a decision on the case. Following changes in legislation, deportation could no longer be imposed on asylum-seekers during the asylum procedure.

The European Court accordingly concluded that the information on the situation in Hungary for asylum-seekers, and Dublin II Regulation returnees in particular, did not indicate systematic deficiencies in the Hungarian asylum and asylum detention system. It therefore concluded that the applicant would not be at a real, individual risk of being subject to treatment in contrary to article 3 ECHR if returned to Hungary.

Decision:
The European Court therefore rejected the applicant’s contention that returning him to Hungary under the Dublin II Regulation would breach his rights under article 3 ECHR.

Principles:

An EU Member State which is, therefore, a  Contracting State to the ECHR, is precluded under the ECHR from transferring a person to another State under the Dublin II Regulation where substantial grounds have been shown for believing that he would face a real risk of being subjected to treatment contrary to article 3 ECHR in the receiving country. In deciding whether a real risk exists, regard must be had to the laws of the receiving State, reception conditions there, whether it is possible for the returnee to have his or her application for asylum examined there, and whether or not the UNHCR has issued a position paper requesting the cessation of returns to that country.

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