Austria – Supreme Administrative Court, 08 September 2015, Ra 2015/18/0113

The complaint at the Supreme Administrative Court was successful.

The ECHR is classified at the same level as the constitution in Austria. This means that the current Austrian Asylum Law (AsylG 2005) has to be interpreted according to the provisions of the ECHR. If there are substantial grounds for a real risk of a breach of Art. 3 ECHR Austrian asylum authorities are required to make use of the sovereignty clause of Art. 17 I Dublin-III-Regulation and examine the asylum request themselves.

§ 5 III AsylG 2005 contains a legal presumption that all states participating in the Dublin system can be considered as safe states. This presumption is rebuttable if there are particular reasons that suggest that the asylum seeker has to fear a real risk of lacking protection against persecution in the receiving state.

Basically, the applicant has to prove that there are such particular reasons. Only if the claimed reasons are obvious (“offenkundig”), no prove is needed. The applicant has to provide sufficiently specific information in order to support his claim. But the authority also has to consider the special situation of asylum seekers, that often have no means to gather evidence.

According to the case law of the CJEU there is a presumption that asylum seekers are treated in conformity with the CFREU, the Geneva Convention on Refugees (GCR) and the ECHR in every Member State. This presumption is rebuttable, if there are systemic flaws in the asylum system of the receiving state that lead to a breach of Art. 4 CFREU (which corresponds with Art. 3 ECHR).

According to the UK Supreme Court and the ECHR in the case of Tarakhel the reason for a real risk of a breach of Art. 3 ECHR is irrelevant, also individual circumstances of the applicant can be considered.

The VwGH concludes from this case law that the Austrian asylum authorities have to consider every possible breach of Art. 3 ECHR (or Art. 4 CFREU respectively). If there is a real risk of such a violation, a Dublin transfer is prohibited. This ensues from the absolute nature of Art. 3 ECHR (or Art. 4 CFREU respectively) and the Austrian obligation to respect fundamental rights.

The case Mohammadi/Austria of the ECtHR shows that there are no systematic detentions of asylum seekers in Hungary anymore and that prison conditions have improved. In this case the ECtHR decided that a Dublin transfer of a single young man from Austria to Hungary does not constitute a breach of Art. 3 ECHR.

The VwGH stated that the BVwG failed to examine if the reasoning in Mohammadi v. Austria (71932/12) was comparable to the present case, despite being obliged to do so in the previous instance.

The applicants in the present case are a single mother and her minor children that have to be considered as particularly vulnerable. Whereas their claimed diseases intensify the vulnerability, taken alone, they are not sufficiently severe in order to justify a particular vulnerability.

The past experiences of the applicants in the receiving state can only be considered as an indication of the future treatment there. The treatment the applicants could possibly face in the receiving state has to be drawn from recent reports about this state and from the individual circumstances of the persons concerned. The BVwG did not use the most current reports and did not adequately consider the situation of the applicants.