Italy - Council of State, 27 September 2016, No- RG 731/2016

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Headnote: 

Hungary does not guarantee the respect of asylum procedures. The transfer must be halted in accordance with article 3 of the Dublin Regulation (EU) No 604/2013.

The judgment’s motivation must be based on more than one source if others are available.

Facts: 

The appellant had already applied for international protection in Hungary.

The Italian administration ordered the applicant’s transfer to Hungary on account of the latter’s responsibility as established by the Dublin Regulation (art. 18 comma, paragraph 1, lett. B, EU no. 604/2013). Hungary recognised its jurisdiction.

The appellant asked the Regional Administrative Tribunal (TAR) of Lazio to declare that order invalid, but the TAR rejected the request considering Hungary as a safe country, on the basis of an ECRI report. Moreover, the Court stated that the right to information which the applicant claimed had been violated was relevant only for the application.

The appellant appealed against the decision before the Council of State, highlighting that the Italian administration had not correctly applied the Dublin Regulation (EU) No 604/2013. In particular, the applicant claimed that the TAR’s judgement was based only on one source and was not motivated sufficiently. Moreover, several independent sources reported that since 2015, Hungary has   substantial flaws in the asylum procedure and in the reception conditions for asylum seekers, 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. Lastly, the right to information concerns additionally the “take back” procedure under the Dublin Regulation.

The appeal was granted on the basis of flaws in the Hungarian asylum procedure and in the reception conditions for applicants in the country.

Decision & Reasoning: 

The reasoning of a judgement must be clear and cannot be based on a sole and unique source.

The Council of State ruled that there are flaws in Hungary’s asylum procedure and reception conditions, 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

In particular the Court highlighted the fact that, in July 2015, the Hungarian Parliament approved a new migration law that was accused to be racist. The most dangerous provisions of the new law are:

  • The introduction of an accelerated expulsion procedure;
  • the fact that the right of asylum was limited because the new law allows authorities to consider the  asylum requests as withdrawn if asylum seekers leave their assigned residence in Hungary without authorization for more than 48 hours;
  • the extension of the use of detention of asylum seekers and the possibility to force them to perform services for the benefit of the community in order to pay for their support;
  • The fact that detention of asylum seekers does not take into account gender, age, physical conditions and applies also to pregnant women and unaccompanied minors;
  • the fact that is not possible to present new facts or circumstances during the appeal and the appeal has no automatic suspensive effect (this last aspect was retrieved from the report on the European Commission’s infringement procedure against Hungary);
  • The fact that Hungary was planning the construction of an “anti-migrant” wall: a barbed wire wall in order keep migrants out of the country.
Outcome: 

Appeal granted.

Observations/Comments: 

This case is interesting because it is based on the recent developments of the Hungarian political and legal system. The first Italian judgement that prevented a transfer to Hungary was the one issued by the Council of State, n. 4004/2016.

There is also a recent judgement concerning the Hungarian situation: Council of State, N. 02272/2017, 15 May 2017, which highlights that the situation in Hungary, at least since June 2015, has deteriorated to such an extent that the Court believes that “asylum seekers’ fundamental rights in Hungary are strongly compromised, and their reception conditions, even considering all the difficulties related to migration flows in Eastern Europe, do not meet the minimum standards of international protection, and in any case those provided for by art. 3(2) of the aforementioned EU Regulation 604/2013 and art. 4 of the Charter of Fundamental Rights of the European Union “.

This case summary was written by Anna Ferretti, Doctor in Law, member of the Clinic of Human Rights and Migration Law (Torino)

Other sources cited: 

Reports of:

Ecri (2015);

UNHCR (2015);

Amnesty International;

Human Rights Watch;

The Italian newspaper of UN July 2015;

La Repubblica (Italian newspaper), 3rd  December 2015;

Eunews (online newspaper), 10th December 2015.