Netherlands - Council of State, Administrative Law section, 22 April 2020, 201904529/1/V3
Country of Decision:
Country of Applicant:
Date of Decision:
22-04-2020
Citation:
201904529/1/V3
Additional Citation:
ECLI:NL:RVS:2020:1087
Court Name:
Council of State
Keywords:
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
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 - Charter of Fundamental Rights of the European Union > Article 4
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 33
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 35
Council of Europe Instruments
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 - Charter of Fundamental Rights of the European Union > Article 4
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 33
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 35
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Headnote:
The Council of State applies the reasoning of ECtHR and CJEU jurisprudence to the reception conditions in Hungary to conclude that there may be a risk of ill-treatment upon return (Article 3 ECHR / Article 4 CFREU infringement) when a particularly vulnerable person who is fully dependent on state support will be confronted with "official indifference in a situation of serious deprivation or want incompatible with human dignity” upon return to Hungary.
Facts:
The applicant is an Iranian woman, mother of two minor children. She is a beneficiary of international protection in Hungary. She submitted a second request for international protection in the Netherlands.
The State Secretary did not take into consideration this application because they were already beneficiaries of international protection in another Member State (Article 33 Asylum Procedures Directive). The State Secretary argued that the applicant did not run a risk of treatment contrary to Article 3 ECHR / Article 4 CFREU upon return to Hungary.
The appeal Court stated that, notwithstanding the principle of mutual trust between EU Member States, there can still be a risk of Article 3 ECHR / Article 4 CFREU infringement when a person who is fully dependent on state support is confronted with "official indifference in a situation of serious deprivation or want incompatible with human dignity”.
The Court concluded that, given the vulnerability of the applicant and reports on reception conditions in Hungary, the State Secretary had not acted with due diligence. It is necessary to obtain concrete, individual guarantees from the Hungarian State to ensure that the applicant does not risk treatment contrary to Article 3 ECHR / Article 4 CFREU upon return to Hungary.
The State Secretary appealed this judgment before the Council of State.
Decision & Reasoning:
The Council refers to its interpretation of the CJEU Ibrahim judgment (Council of State, Administrative Law section, 15 July 2019, 201902302/1/V3): the return of a beneficiary of international protection to the Member State where he has received this protection can expose him to a risk of inhuman or degrading treatment if the consequence would be a situation of extreme material poverty due to the applicant’s particular vulnerability.
The suffering has to reach a minimum level of severity before Article 3 ECHR / Article 4 CFREU can be invoked. The threshold is reached when a person finds himself in “a situation of extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity.” (cfr. CJEU, Ibrahim).
The State Secretary has not denied that the applicant can be considered a particularly vulnerable person in the sense of the ECtHR Tarakhel and Popov judgments. Therefore, the reasoning of the CJEU Ibrahim judgment should be applied.
The Council then refers to the (European Parliament, UNHCR, AIDA, …) reports about the reception conditions and general human rights situation in Hungary that the applicant has submitted. These reports provide evidence of serious shortcomings in the treatment of beneficiaries of international protection in Hungary and of the poor human rights record of Hungary more generally.
The Council concludes that the State Secretary has not sufficiently motivated why the applicant does not risk inhuman and degrading treatment upon return to Hungary and does not grant the higher appeal.
Outcome:
Higher appeal not granted.
Subsequent Proceedings :
The State Secretary has to take a new decision, taking into account the decision of the Council of State.
Observations/Comments:
The Council confirms the jurisprudence of the CJEU (Ibrahim) and ECtHR (E.T. and N.T. v Switzerland and Italy). The principle of mutual trust underpins the EU asylum system. The Council makes clear that Member States must not trust each other blindly. There is a clear risk of refoulement when the reception conditions do not meet the international and EU standards, as is the case in Hungary.
This summary was written by Roel Stynen, Law student at Ghent University.
Other sources cited:
ECtHR, Tarakhel v Switserland, 29217/12, 4 November 2012
ECtHR, E.T. and N.T. v Switzerland and Italy, 79480/13, 30 May 2017
Netherlands - Council of State, Administrative Law section, 10 October 2018, 201806712/1/V3
Netherlands - Council of State, Administrative Law section, 15 July 2019, 201902302/1/V3
European Parliament, 'Integration of Refugees in Greece, Hungary and Italy: Comparative analysis', 20 December 2017
Asylum Information Database (AIDA), 'Country Report: Hungary, 2018 Update', 31 December 2018
Hungarian Helsinki Committee, ‘Two years after. What’s left of Refugee Protection in Hungary’, September 2017
Hungarian Helsinki Committee, 'Attacking the Last Line of Defence', 15 June 2018
Hungarian Helsinki Committee, 'The constitutional court has failed to protect human right defender', 6 March 2019
Hungarian Helsinki Committee and Hungarian Civil Liberty Union, 'Operation Starve & Strangle: How the government uses the law to repress Hungary's civic spirit', 1 February 2018
Hungarian Helsinki Committee, Amnesty International and Hungarian Civil Liberty Union, 'Orban's Government Heads Towards Arbitrary Rule'
UNHCR, 'Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights', May 2016
Dunja Mijatovic, 'Commissioner for Human Rights of the Council of Europe: report following her visit to Hungary from 4 to 8 February 2019', 21 May 2019
V4NIEM: Visegrad Countries National Integration Evaluation Mechanism Report 2019, ‘Asylum Seekers and Beneficiaries of International Protection in Hungary (Updated Report)'
Responses to questions from the Foreign Affairs office by the Hungarian 'Immigration and Asylum Office' on 27 June 2018 and the 'Ministry of Human Capacities' on 11 September 2018
