ECtHR - Mohammadi v Austria, Application No. 71932/12

In the specific context of the application of the Dublin Regulation, the Court has found before that indirect removal leaves the responsibility of the transferring State intact, and that State is required, in accordance with the Court’s well-established case-law, not to transfer a person where substantial grounds had been shown for believing that the person in question, if transferred, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country.

When they apply the Dublin Regulation the States must make sure that the intermediary country’s asylum procedure affords sufficient guarantees to avoid an asylum-seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces from the standpoint of Article 3 of the Convention.

The assessment of whether there are substantial grounds for believing that the applicant faces a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention.

These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. 

At the outset, the Court notes that the applicant in the instant case was still a minor when the Austrian authorities intended to transfer him to Hungary. However, because the relevant time of the assessment is that of the proceedings before the Court, and the applicant in the meantime has attained full age, the legal regime applicable to minor asylum-seekers in Hungary is not to be addressed in the instant case.

The country reports showed that there is still a practice of detaining asylum-seekers, and that so-called asylum detention is also applicable to Dublin returnees. The grounds for detention are vaguely formulated, and there is no legal remedy against asylum detention. However, the reports also showed that there is no systematic detention of asylum-seekers anymore, and that alternatives to detention are now provided for by law. The maximum period of detention has been limited to six months. Turning to the conditions of detention, it is noted that while there are still reports of shortcomings in the detention system, from an overall view there seem to have been improvements.

 Moreover, the Court notes that the UNHCR never issued a position paper requesting EU member States to refrain from transferring asylum‑seekers to Hungary under the Dublin II or Dublin III Regulation.

Under those circumstances and as regards the possible detention of the applicant and the related complaints, the Court concludes that in view of the recent reports, the applicant would currently not be at a real and individual risk of being subjected to treatment in violation of Article 3 of the Convention upon a transfer to Hungary under the Dublin Regulation.

The issue of sufficient access to asylum proceedings allowing an examination of the merits of the applicant’s claim in Hungary and the consequent risk of refoulement to a third country raises different issues.

Concerning the question whether the applicant would have access to asylum proceedings on the merits if returned to Hungary, the Court observes that both the UNHCR as well as the Hungarian Helsinki Committee in their latest reports stated that since the changes in legislation, those asylum‑seekers transferred to Hungary under the Dublin system whose claims had not been examined and decided in Hungary had access to an examination of the merits of their claims upon their return. According to the information provided by the Hungarian Government, the applicant has not yet had a decision on the merits of his case. Therefore, the Court notes that he will have the chance to reapply for asylum if returned to Hungary and to have his application for international protection duly examined.

When it comes to the alleged risk of refoulement to Serbia, recent reports by the UNHCR and the Hungarian Helsinki Committee consistently confirmed that Hungary no longer relied on the safe third country concept and in particular examined asylum applications by Dublin returnees on the merits, as long as there had not yet been a decision on the case. Following the changes in legislation which took effect in January 2013, deportation could no longer be imposed on asylum-seekers during the asylum procedure.

The Court considers that the relevant country reports on the situation in Hungary for asylum-seekers, and Dublin returnees in particular, do not indicate systematic deficiencies in the Hungarian asylum and asylum detention system.

The Court therefore concludes that the applicant would currently not be at a real, individual risk of being subject to treatment in contrary to Article 3 of the Convention if expelled to Hungary.