Third Party Intervention H.T. v. Germany and Greece, Application no. 13337/19, October 2020

Written Submission on behalf of Advice on Individual Rights in Europe (the Aire Centre), the European Council on Refugees and Exiles (ECRE) and the Dutch Council for Refugees (DCR).

I. The interveners submit that to comply with non-refoulement obligations under Articles 3 and 13 ECHR, the authorities of a transferring Contracting Party must conduct an effective investigation into the real time conditions in the receiving country. The automatic reliance on a bilateral arrangement considering a particular receiving country to be safe can never be sufficient and is capable of breaching Convention obligations particularly without an individualised assessment of all the facts and circumstances of the case. An individual assurance of Convention-compliant treatment, able to prevent potential violations of the Convention and applied in light of this Court’s case law on the matter, cannot be guaranteed in case of an automatic removal.

II. The prohibition of refoulement applies to any act or omission resulting in transfer from the territory of a Contracting Party of individuals under its jurisdiction. The interveners submit that the Contracting Parties cannot evade responsibility – whether through bilateral arrangements or other means - under the Convention. When the Contracting Party is also bound by EU law, guarantees under the Convention shall include state obligations under the Common European Asylum System, including the Dublin III Regulation, by virtue of Article 53 ECHR. The responsibility under EU law is engaged in relation to any individual who in any form expressed a wish to seek international protection.

III. Specific vulnerabilities of asylum seekersshould be taken into account at allstages ofremoval proceedings in order to guarantee enhanced safeguards afforded to them under international and EU law including access to clear information, to interpreters allowing applicants to communicate in a language they understand, to a lawyer, and to effective remedies capable ofsuspending and halting theirremovalshould their extra vulnerabilities require so.

IV. In light of the obligations of EU Member States under EU law, including the recast Reception Conditions Directive, and Article 53 ECHR, the interveners submit that detention of asylum seekers falling within the scope of that Directive will be unlawful and arbitrary where it isimposed automatically or lacks procedural safeguards for detainees, including judicial review and access to legal advice. Detention will be arbitrary where it is not a measure of last resort but is imposed without consideration of less onerous alternatives

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