Germany – Administrative Court Düsseldorf, 26 October 2017, 12 L 4591/17.A

Country of Decision:
Country of Applicant:
Date of Decision:
26-10-2017
Citation:
12 L 4591/17.A
Additional Citation:
ECLI:DE:VGD:2017:1026.12L4591.17A.00
Court Name:
Administrative Court Düsseldorf (Verwaltungsgericht Düsseldorf)
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Headnote: 

The decision of the Administrative Court of Düsseldorf prohibits a Dublin transfer of an asylum seeker from Germany to Greece stating that there are substantial grounds for believing that systemic flaws in the asylum procedure and reception conditions in Greece could put the applicant at risk of being subjected to inhuman or degrading treatment, in violation of Article 4 of the Charter of Fundamental Rights of the European Union.

Facts: 
The applicant, an Eritrean, had travelled to Germany and requested asylum. As the competent German authority for asylum procedures the Federal Office for Migration and Refugees (BAMF) noted that the applicant had already obtained a visa in Greece.
 
On 16 June 2017 the BAMF issued a take-charge request to Greece which it ac-cepted on 8 August 2017. The BAMF ordered the applicant’s deportation on 5 September 2017.
 
Decision & Reasoning: 
The application was successful. The judge granted suspensive effect to an appeal against the transfer decision.
 
In its reasoning, the Court finds that Greece was competent for the asylum procedure under Art. 12 (2) Dublin III Regulation because it had issued a visa to the applicant. Nevertheless, the applicant could not be transferred to Greece because of systemic flaws in the asylum procedure and reception conditions. Germany is obliged to exercise the sovereignty clause of Art. 3 (2) Dublin III Regulation.
 
Referring to the CJEU-rulings in Abdullahi, Puid and N.S., the Court notes that the Common European Asylum System is based on the assumption that all member states respect human rights. This assumption can only be refuted in cases of sys-temic flaws in the asylum procedure and reception conditions that put the appli-cant in risk of being subjected to inhuman or degrading treatment in violation of Article 4 of the Charter of Fundamental Rights of the European Union.
 
Concerning the situation in Greece the Court states that generally accessible sources show that systemic flaws are still present in this country. Following the ECtHR ruling in M.S.S. v. Greece and Belgium transfers of asylum seekers to Greece under the Dublin III Regulation have not been allowed since 2011. The sources do not show that the systemic shortcomings in the asylum procedure and reception conditions in Greece have been remedied.
 
The Court refers to the European Commission recommendation to resume trans-fers to Greece, which, despite its purpose, also points to the continuation of seri-ous shortcomings in the Greek asylum system. The country is still not able to coordinate the reception of incoming asylum seekers since there is no clear legal framework and a lack of a functioning surveillance system. Greek administration is still looking for competent staff to run the reception centres. Sufficient protection for vulnerable persons cannot be guaranteed.
 
The Court also uses a letter sent by Greece to the European Commission in No-vember 2016 as another source to evaluate the situation. In this letter concerns are raised about the capacity of the Greek asylum system to cope with the re-sumption of Dublin transfers. The Court notes that the requirements of Reception Conditions Directive 2013/33/EU are not met in Greece. Particular concerns are raised about the facilities on the islands and the hotspots, which cannot be considered to be up to standard in terms of sanitary facilities and access to basic services such as health care, especially for vulnerable groups. Most of the reception centres are not winterproof.
 
All this leads to the conclusion that it is impossible to transfer the applicant to Greece.
 
Outcome: 

Suspensive effect granted to an appeal against the transfer decision.

Subsequent Proceedings : 

A similar decision was issued by the Administrative Court of Lüneburg, 2 A 372/17 on the 14 November 2017. Here, the Court prevented the transfer citing, inter alia, that there is considerable evidence that in the years 2011-2016 the reasons for asylum in Greece were not properly examined.

Observations/Comments: 

This case summary was written by Lisa-Marie Lührs, PhD-student at Cologne University.

Other sources cited: 

EU-Commission Recommendation of 8.12.2016 addressed to the Member States on the resumption of transfers to Greece under Regulation (EU) No. 604/2013 - C(2016) 8525 final, available here.

Case Law Cited: