Germany - Administrative Court of Minden, 2 October 2015, case no. 10 L 923/15.A

The court noted that, under Subparagraph 2 of Article 3(2) of the Dublin III Regulation, an asylum seeker cannot be deported to a Member State whose asylum system is affected by systemic flaws resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union (“CFREU”). 

It explained that systemic flaws are structural, significant malfunctions  that may be rooted in any stage of the asylum procedure. According to the court, the personal experiences of the Applicant are irrelevant to assessing systemic flaws, however, they must be taken into account in the context of the overall assessment. The court emphasised that systemic flaws can be rooted in the asylum and reception system itself. Applying this to Hungary, the court stated that the flaws were neither accidental nor occurrent in isolated cases but instead were predictable and occurred regularly. The court also stated that factual circumstances may constitute systemic flaws if they affect a theoretically well-conceived asylum and reception system. Finally, the court noted that the number of affected individuals is irrelevant as long as the flaw is predictable and occurs regularly.

According to Subparagraph 2 of Article 3(2) of the Dublin III Regulation, these flaws must result in a risk of inhuman or degrading treatment within the meaning of Article 4 of the CFREU. Thus, the court next assessed the standard for “inhuman or degrading treatment”.  It stated that “inhuman or degrading treatment” exists if asylum seekers who depend entirely on state aid and are exposed to serious deprivations and distress are faced with indifference from the authorities. It further explained that “inhuman or degrading treatment” results less from legal provisions and more from how they are implemented.

Applying these standards to the case, the court first found that the amendments to Hungary’s asylum law  that came into effect on 1 August 2015 create a risk that the Applicant will be deported to Serbia, Macedonia or Greece without substantive examination of his grounds for seeking asylum because the Hungarian authorities deem these countries to be safe third countries and therefore may deport asylum applicants to them without giving applicants access to the Hungarian asylum procedure.  The court held that the asylum systems of these three states are defective. It further held that the risk of multiple deportations itself infringes the principle of non-refoulement and thus violates Article 18 of the CFREU   if read in conjunction with Paragraph 1 of Article 33 of the 1951 Convention relating to the Status of Refugees.

Second, the court found that there were serious indications that, in the event of a rejection of their applications, certain groups of asylum seekers would not benefit from effective  access to asylum procedures in Hungary. The court noted that the Hungarian asylum system provides a short three-day period for filing an appeal of a decision on asylum status. However, the court  stated that, on its own, the short delay does not suffice to deny effective access to procedures in Hungary. Instead, the court held that all conditions for filing a suit must be assessed in determining effective access.

Third, the court found that there are serious indications that the recent amendments to asylum legislation in Hungary have extended the grounds on which asylum seekers can be imprisoned. Furthermore, the court noted that some facts indicate that all asylum seekers might be imprisoned in the future, as was the case in Hungary until 2012.

Finally, the court found that public sources reveal that the Hungarian authorities might be unable to adequately provide asylum seekers with basic amenities. However, the court noted that a capacity problem cannot be deduced from the existing discrepancy in numbers between applicants and housing alone (67,000 applications for asylum in the first half of 2015 compared to 2,500 places of accommodation), because most asylum seekers consider Hungary only as a country of transit.

The Administrative Court reserved an extensive examination of these issues for consideration in the principal proceedings but, based on them, it reasoned that the Hungarian asylum system currently demonstrates serious indications of systemic flaws.  The court held that the deportation of the Applicant to Hungary may place him at risk of inhuman or degrading treatment (contrary to both Article 4 of the CFREU as well as Article 3 of the European Convention on Human Rights). Consequently, the court held that, pursuant to Subparagraph 2 of Article 3(2) of the Dublin III Regulation, the Applicant’s deportation was impossible because the asylum system of the Member State to which the Applicant would be deported may be affected by systemic flaws resulting in inhuman or degrading treatment.

As a result of the above, the court held that the Applicant’s application was admissible and founded and declared the suspensive effect of the suit.

The court’s decision on condition of Hungary’s asylum procedures departed from previous decisions of the court which had rejected the argument that there are systemic flaws in the Hungarian asylum system.