Austria - Asylum Court (AsylGH), 27 July 2010, S8 413923-1/2010

Country of Decision:
Country of Applicant:
Date of Decision:
27-07-2010
Citation:
AsylGH S8 413923-1/2010
Court Name:
Asylum Court (AsylGH)
Relevant Legislative Provisions:
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005
European Union Law > EN - Charter of Fundamental Rights of the European Union
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 17
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 13
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 3
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 3 > 2.
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 5
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 6
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 7
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 8
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 9
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 24
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 10
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 24 > Art 24.2
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 11
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 12
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 13
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 14
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 15
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 16
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 16 > 1. (c)
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 19
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 20
National / Other Legislative Provisions:
TFEU - Art 78
Austria - Asylgesetz (Asylum Act) 2005 - § 10
Austria - Asylgesetz (Asylum Act) 2005 - § 4
Austria - Asylgesetz (Asylum Act) 2005 - § 5
Austria - Asylgesetz (Asylum Act) 2005 - § 29
Austria - Asylgesetz (Asylum Act) 2005 - § 41
Austria - Asylgesetz (Asylum Act) 2005 - § 64
Austria - Allgemeines Verwaltungsverfahrensgesetz (General Administrative Procedure Act) 1991 - § 66 Abs 2
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Headnote: 

In a decision on whether the return of an unaccompanied minor to Hungary under the Dublin Regulation is unlawful in light of Art. 3 ECHR and therefore the sovereignty clause should be used, Art. 24(2) of the Charter of Fundamental Rights of the European Union(CFRU – best interest of the child as a primary consideration for authorities) is significant.

Facts: 

The minor Applicant submitted an application for asylum in Hungary on 16.03.2010 and an application for international protection in Austria on 08.04.2010.

The Applicant put forward the following against his expulsion to Hungary: that he had not been cared for sufficiently in Hungary and that the proceedings there were not fair. Owing to a lack of sufficient understanding with an interpreter, it had been assumed in error in Hungary that he had reached full age. As a result he had been accommodated in an adult camp (Debrecen). The conditions were reported to be terrible there. He had been raped in the camp and he was afraid that if he returned to Hungary he would be raped again. As a result of these incidents, he did not want to return to Hungary.

A specialist for neurology and psychiatry came to the conclusion that it would be advisable for the Applicant to receive therapeutic, medical or medicinal treatment. A transfer to Hungary without appropriate therapy or treatment could in particular lead to an exacerbation of the symptoms with the danger of permanent damage or breakdown.

The legally appointed representative for the Applicant therefore applied for the substantive proceedings to take place  in Austria owing to the risk of a breach of Art. 3 ECHR.

The Federal Asylum Agency made inquiries via the Austrian Embassy in Hungary with the Hungarian authorities regarding accommodation at a different location than the Debrecen refugee camp as well as the possibility of therapeutic treatment. The first part of the inquiry was answered to the effect that the Austrian asylum authorities could contact the Hungarian partner organisations directly. With regard to the second question, it was stated that this could be answered by the Hungarian authorities only after an inquiry by the Applicant, namely when the age of the Appellant could be confirmed with certainty and he could in fact be classified as a minor.

The Federal Asylum Agency rejected the application for international protection made by the Applicant owing to the responsibility of Hungary to conduct the asylum proceedings and determined that the expulsion of the Applicant was lawful.

The Applicant lodged an appeal against this through his legally appointed representative.

The Asylum Court granted the appeal suspensive effect.

Decision & Reasoning: 

In principle, the Asylum Court agreed with the Federal Asylum Agency’s acceptance of the responsibility of Hungary. The Federal Asylum Agency had not used the option of exercising the sovereignty clause in accordance with Art. 3(2) of the Dublin Regulation.

Referring to earlier decisions of the Constitutional and Administrative Courts, the Asylum Court maintained that in principle it is generally to be presumed that the Member States are safe and the mere possibility of treatment contrary to Art. 3 ECHR in a Member State is not sufficient to make deportation to a Member State unlawful. On the contrary, this would require circumstances specific to the foreigner in question which would make such a danger likely especially in his case in the event of his deportation. The submission of general reports will not usually replace this requirement, nor does a submission with regard to a low recognition rate, possible arrest in the event of a transfer or a possible shortfall in procedural standards the standards of Art. 13 ECHR. On the other hand, representations related, for example, to special legal positions in a Member State which are indefensible under the Geneva Convention on Refugees or the existence of a procedure which is substantially unlawful in the individual case when the asylum application has already been refused in the responsible Member State are relevant. An express declaration of responsibility by the other Member State should be taken into consideration, as well as other assurances by European partner countries. With a corresponding accumulation of the use of the sovereignty clause, the effet utile of Union law is jeopardised. However, it was lawful under Union law to review the effects of a transfer in an individual case from the perspective of fundamental rights and, in the event of affirmation, the use of the sovereignty clause is absolutely required. Union law therefore requires an argument which is substantiated to a particular degree and the existence of special exception circumstances of which evidence is provided by the Applicant in order to  dislodge the fundamental presumption under European law of the “safety” of partner countries of the European Union as a community of law in an individual case. This is not altered by the fact that applicants for asylum often actually have no opportunity to submit evidence.

Furthermore the Asylum Court in applying Union law should take the CFRUinto account. In accordance with Art 24 (2) CFRU, all public agencies or private institutions must give primary consideration to the best interest of the child when taking measures concerning children.

According to the current status of proceedings, it should be assumed that the Applicant is a minor. According to the opinion of the specialist for neurology and psychiatry, in the event of a transfer there would be a risk of permanent damage or breakdown, unless it is ensured that appropriate therapy or treatment are provided. According to the response of the Hungarian asylum authorities, it is not however certain that the Appellant would be accommodated in a camp for minors and that he would receive appropriate treatment.

The Federal Asylum Agency should therefore conduct supplementary investigations with regard to the examination of a possible requirement to apply the sovereignty clause. At present it does not seem certain that the Applicant would receive appropriate accommodation and treatment for his special protection needs in Hungary as the fact he is a minor will not be assumed there.

Outcome: 

The appeal was upheld and the contested decision was annuled.

Other sources cited: 

Filzwieser, Subjective legal protection and enforcement of the Dublin II Regulation – Community Law and Human Rights, migraLex, 1/2007

Filzwieser/Sprung, Dublin II Regulation, 3rd edition

Case Law Cited: 

Austria - Administrative Court (VwGH), 25 April 2006, 2006/19/0673

Austria - Administrative Court (VwGH), 31 May 2005, 2005/20/0025

Austria - Administrative Court (VwGH), 31 March 2005, 2002/20/0582

Austria - Administrative Court (VwGH), 17 February 1998, 96/18/0379

Austria - Administrative Court (VwGH), 23 January 2007, 2006/01/0949

Austria - Administrative Court (VwGH), 16 July 2003, 2003/01/0059

Austria - Administrative Court (VwGH), 09 May 2003, 98/18/0317

Austria - Administrative Court (VwGH), 26 November 1999, 96/21/0499

VwGH 27 September 2005, 2005/01/0313

VfSlg 17.586/2005

ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99