PROCEDURE

1.  The case originated in an application (no. 2283/12) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Sudanese national, Mr Salaheldin Mohammed (“the applicant”), on 11 January 2012.

[…]

3.  The applicant alleged under Article 3 of the Convention that his forced transfer to Hungary under the Dublin Regulation would breach that provision and under Article 13 of the Convention that he had lacked an effective remedy in the proceedings concerning his second asylum application made in Austria that would have put a stay on his transfer to Hungary.

4.  On 11 January 2012 the Court decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to expel the applicant until further notice.

[…]

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

[…]

7.  On 9 October 2010 [the applicant] arrived in Austria via Greece and Hungary and lodged an asylum application.

8.  On 5 January 2011 the Federal Asylum Office (Bundesasylamt) declared that Hungary had jurisdiction regarding the asylum proceedings pursuant to Council Regulation (EC) No 343/2003 (the “Dublin II Regulation”, hereinafter the “Dublin Regulation”) and therefore rejected the applicant’s asylum application under section 5 of the Asylum Act 2005. It also ordered the applicant’s transfer to Hungary. The applicant did not lodge an appeal against that decision.

[…]

10.  [...] on 21 December 2011 the applicant was detained in Vienna. […]

11.  On 30 December 2011 the applicant lodged a second asylum application that had no suspensive effect in relation to the valid transfer order. He referred to the Asylum Court’s own practice at that time as regards the transfer of asylum-seekers to Hungary and to the pertinent reports on reception conditions and access to asylum proceedings there (see below).

[...]

16.  The applicant also lodged an application for the transfer order to be lifted with the immigration police. Those proceedings are still pending, as are two further sets of proceedings: one concerns the applicant’s detention with a view to his forced transfer and is pending before the Administrative Court, the other concerns his second asylum application and is pending before the Federal Asylum Office.

17.  The applicant’s forced transfer to Hungary was again scheduled for 12 January 2012. On 11 January 2012 the Court applied an interim measure under Rule 39 of the Rules of Court and requested the Austrian Government to stay the applicant’s transfer to Hungary until further notice.

 

II.  RELEVANT DOMESTIC LAW AND INTERNATIONAL INFORMATION

A.  Relevant domestic law

1.  Council Regulation (EC) No 343/2003 (“the Dublin Regulation”)

[…]

19.  Where it is established that an asylum-seeker has irregularly crossed the border into a Member State having come from a third country, the Member State thus entered is responsible for examining the application for asylum (Article 10 § 1). […]

[…]

21.  Article 19 § 2 provides that appeals and reviews concerning a decision of a requesting Member State in which an applicant is informed that his or her request is not being examined by the requesting Member State and that he will be transferred to the responsible Member State shall not suspend the implementation of the transfer unless the courts and competent bodies so decide on a case-by-case basis.

2.  The Asylum Act

22.  Section 5 of the Asylum Act 2005 (Asylgesetz) provides that an asylum application shall be rejected as inadmissible if, under treaty provisions or pursuant to the Dublin Regulation, another State has jurisdiction to examine the application for asylum. […]

23.  Section 12 establishes – with the exception of cases falling under section 12a – de-facto protection against deportation (faktischer Abschiebeschutz) for aliens who have lodged an application for asylum. However, section 12a provides that a person whose asylum application has been rejected pursuant to lack of jurisdiction under the Dublin Regulation (section 5 of the Asylum Act) is not entitled to such de-facto protection against deportation in the event that he or she lodges a second asylum application.

24.  Asylum-seekers can lodge an appeal with the Asylum Court against decisions rejecting their application rendered by the Federal Asylum Office as the first-instance asylum authority within one week of the decision (see section 22(12)). However, section 36(1) stipulates that such an appeal shall not have suspensive effect. Section 37 allows the Asylum Court to grant suspensive effect to such an appeal […] if it is reasonable to believe that the individual’s deportation would give rise to: (i) a real risk of a violation of Articles 2 or 3 of the Convention […].

[…]

3.  Immigration Police Act

     […]

4.  Relevant domestic practice

 […]

 

B. Relevant domestic and international information on Hungary

 

[...]

THE LAW

[…]

B.  Merits

1.  Alleged violation of Article 13 of the Convention

(a)  The parties’ submissions

64.  The applicant observed that his second asylum application had not had suspensive effect […]. The applicant could therefore have been transferred to Hungary without any additional substantive judicial or administrative review of the case having taken place and thus without a change of circumstances being taken into account by the domestic authorities.

[...]

66.  The Government reiterated that in their opinion the applicant had not exhausted domestic remedies, given that he had not lodged an appeal against the decision of the Federal Asylum Office in the first set of proceedings. […]

Acknowledging that an appeal lodged against such a decision had no automatic suspensive effect, but that it could be awarded such effect, they explained that even though a deportation or transfer order might be legally enforceable, the authorities were barred from executing it until the seven-day period in which the Asylum Court could award suspensive effect to an appeal lodged with it had passed. […] The Government concluded that the remedies provided in Austrian law successfully balanced the various interests involved and had provided the applicant with an effective avenue of appeal, one which had allowed for the award of suspensive effect if there had been a real risk of a violation of Article 3 of the Convention upon his transfer […].

     67. Turning then to proceedings concerning second asylum applications, the Government explained that an applicant against whom a negative decision based on the Dublin Regulation had already entered into force did not benefit from de-facto protection against transfer when he or she filed a second asylum application in Austria. In such case, a transfer to the responsible Member State was possible even prior to a decision on the second asylum application being taken at first instance

68.  However, the Government emphasised that the principle of non?refoulement had in any event to be respected by the immigration police when they sought to enforce a transfer order. […]

(b)  The Court’s assessment

(i)  General principles

69.  The Court has held on many occasions that Article 13 of the Convention guarantees the availability at national level of a remedy with which to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law […].

[…]

72.  Lastly, in view of the importance which the Court attaches to Article 3 of the Convention and the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises, the effectiveness of a remedy within the meaning of Article 13 imperatively requires close scrutiny by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005?III), independent and rigorous scrutiny of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (see Jabari, cited above, § 50), and a particularly prompt response (see Bat? and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004?IV (extracts)). It also requires that the person concerned should have access to a remedy with automatic suspensive effect […].

                        (ii)  Application of those principles to the present case

73. In the present case, the question of an effective remedy refers to a remedy that would have been able to stay the execution of the January 2011 transfer [...]

 […]

(α)  The first set of asylum proceedings

74.  The Government contended that the applicant had failed to exhaust domestic remedies, as he had not lodged an appeal against the decision of the Federal Asylum Office of 5 January 2011 in which his asylum application had been rejected under the Dublin Regulation and his transfer to Hungary ordered. However, the Court notes that, as argued by the applicant (see paragraph 61 above), the criticism raised with regard to the detention practices affecting asylum-seekers in Hungary […] only became widely known after the decision on the applicant’s application had been rendered. […] The Court is therefore able to subscribe to the applicant’s argument that at the relevant time, when he would have been able to lodge an appeal against the first-instance asylum decision and the transfer order, he was not aware of the problems that asylum-seekers faced in Hungary which were later raised by the reports mentioned above. (...) an appeal against the decision of 5 January 2011 rejecting his first asylum application would clearly not have been an effective remedy. The Court therefore rejects the Government’s contention that the applicant failed to exhaust domestic remedies in this regard.

 (β)  The second set of asylum proceedings

76.  […] This second asylum application did not, according to the domestic law, grant the applicant de?facto protection from forced transfer. Consequently, the applicant […] could have been forcibly transferred to Hungary at any time, even though his second asylum application was still pending at first instance.

77.  In this connection, the Court refers to the fact that it finds as a result of its examination of the applicant’s complaint under Article 3 (see paragraph 103 below) that the applicant […] had an arguable claim under Article 3 of the Convention.

78. […] It remains to be examined whether the second asylum application can be considered an effective remedy under Article 13 of the Convention in respect of the applicant’s complaint that he would be subjected to treatment contrary to Article 3 upon being forcibly transferred to Hungary.

[...]

80.  […] the Court has found in no uncertain terms that where an applicant makes an arguable claim under Article 3 of the Convention, he or she should have access to a remedy with automatic suspensive effect, meaning a stay on a potential deportation. The Court observes that, in the present case, the applicant had access to asylum proceedings allowing an examination of the merits within the scope of the Dublin Regulation in the course of the first set of proceedings which ended in January 2011. In that first set of proceedings, the situation in Hungary as the receiving State would have been examined in substance. However, in the applicant’s case, almost a year passed until the transfer order was scheduled to be enforced and the applicant lodged a second application. Consequently, according to the reported information on the situation of asylum-seekers’ in Hungary and the Austrian Asylum Court’s own practice at the relevant time, that second application cannot prima facie be considered abusively repetitive or entirely manifestly ill?founded. On the contrary, the Court establishes below that the applicant had – at that time – an arguable claim, as regards his complaints directed against Hungary as the receiving State.

a81.  In the specific circumstances of the present case, especially having regard to the period of time elapsed between the transfer order and its enforcement and the change of circumstances manifesting itself during that time, the law as it has been applied to the applicant, which did not afford protection from forced transfer and thus deprived him of a meaningfulsubstantive examination of both the changed situation and his arguable claim under Article 3 concerning the situation of asylum-seekers in Hungary, denied the applicant access to an effective remedy against the enforcement of the order for his forced transfer.

(γ)  The examination of the issue of refoulement by the Austrian immigration police

82.  The Court now turns to the question of whether the examination of the issue of refoulement by the immigration police in the event of the applicant’s forced transfer might counterbalance the lack of de-facto protection against forced transfer in the proceedings concerning the second asylum application.

83.  […] After such proceedings are concluded and the case moves to the enforcement stage – as was the case as regards the applicant – an asylum claimant does not have the “right” to have the immigration police issue a formal decision on the issue of refoulement. It follows that that the examination provided for in the Immigration Police Act remains at the sole discretion of the authority and is not subject to any further review.

84.  Consequently, the examination of the issue of refoulement by the immigration police at the time of a forced transfer cannot be considered an effective remedy within the meaning of Article 13 of the Convention in connection with the applicant’s complaints under Article 3 linked to his forced transfer to Hungary.

(δ)  Conclusion

85.  It follows that in the specific circumstances of the case the applicant was deprived of de-facto protection against forced transfer in the course of the proceedings concerning his second asylum application while having – at the relevant time – an arguable claim under Article 3 of the Convention in respect of his forced transfer to Hungary. There was therefore a violation of Article 13 in conjunction with Article 3 of the Convention.

2.  Alleged violation of Article 3 of the Convention

(a)  The parties’ submissions

86.  As concerns the applicant’s complaint under Article 3 of the Convention, he claimed in particular that, upon being transferred to Hungary, he would be detained in detention facilities that were not appropriate for long-term detention, that he would be subjected to police violence and forced medication with tranquilisers, and that he would lack an effective avenue of appeal in any asylum proceedings in Hungary.

[…]

88.  The Government contested those arguments and stated that in the course of proceedings under the Dublin Regulation the Austrian authorities were required to examine whether an applicant would face a real risk under Article 3 of the Convention upon a transfer. […]

89.  The Government further noted that the situation of asylum-seekers in other EU Member States was constantly monitored and that assessments were made on the basis of current developments. […]

90.  […] The Government finally observed that there was constant evaluation of the situation by the domestic asylum authority and referred to the fact that the UNHCR’s report of April 2012 on Hungary as a country of asylum had not included a recommendation to refrain from transfers to Hungary.

(b)  The Court’s assessment

[…]

 (ii)  Application of those principles to the present case

97. The Court takes note of the various reports on Hungary as a country of asylum [...]

98.  It acknowledges that three main areas of deficiency were identified in those reports that relate to (i) prolonged administrative detention of asylum-seekers and the conditions of their detention, (ii) the treatment of asylum applications pending in respect of or lodged by transferees and their lack of suspensive effect, and (iii) the risk of refoulement to Serbia.

[…]

102.  In view of the above, the Court acknowledges the alarming nature of the reports published in 2011 and 2012 in respect of Hungary as a country of asylum and in particular as regards transferees. Whether the applicant had a case under Article 3 of the Convention with regard to his individual situation will be examined in the following paragraphs.

(α)  The applicant’s complaints related to the detention of asylum-seekers in Hungary and the reception conditions

103.  As regards the applicant’s complaints directed against the detention practices applicable to and the reception conditions for asylum-seekers in Hungary, the Court, referring to the information before it in that respect, has no difficulty acknowledging that they were, at the very least, arguable. […]

105.  However, the Court notes that the UNHCR never issued a position paper requesting European Union Member States to refrain from transferring asylum-seekers to Hungary under the Dublin Regulation (compare the situation of Greece discussed in M.S.S. v. Belgium and Greece, cited above, § 195). Furthermore, the Court reiterates that the time of the assessment of whether the applicant would be at a real risk of suffering treatment contrary to Article 3 of the Convention upon a transfer to Hungary is that of the proceedings before it. With that in mind, the Court refers to the most recent note issued by the UNHCR in which it appreciatively acknowledges the planned changes to the law by the Hungarian Government and makes particular reference to the fact that transferees that immediately apply for asylum upon their arrival in Hungary will no longer be subject to detention. […]

106.  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 report made by the UNHCR, the applicant would no longer 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.

(β)  The applicant’s complaints related to asylum proceedings in Hungary and possible refoulement

[…]

108. The Court notes that nothing is known concerning the applicant’s reasons for leaving his country of origin, Sudan [...]. The Court further observers that the procedure under the Dublin Regulation does not require the transferring State to conduct any analysis of the underlying flight reasons of an asylum-seeker [...]

109.  The Court has no difficulty in believing that the security and human rights situation in Sudan is generally alarming and has seemingly not improved of late (see paragraphs 51-56 above). However, the Court notes that the applicant has not substantiated any individual risk of being subjected to treatment contrary to Article 3 of the Convention if returned to Sudan. […]

110. In any event, the Court again refers to the UNHCR’s recenctly provided information on changes to Hungarian law and practice envisaged and already brought about and notes that it would appear that transferees now have sufficient access to aylum proceedings in Hungary and may await the outcome of the proceedings in Hungary [...]

 (γ)  Conclusion

111.  For the reasons set out above the Court therefore concludes that the applicant’s transfer to Hungary would not violate Article 3 of the Convention.

[...]

FOR THESE REASONS, THE COURT

1.  Joins to the merits by a majority the objection raised by the Government concerning the non-exhaustion of domestic remedies and rejects it;

2.  Declares by a majority the application admissible;

3.  Holds unanimously that there has been a violation of Article 13 in conjunction with Article 3 of the Convention;

4.  Holds unanimously that the applicant’s transfer to Hungary would not violate Article 3 of the Convention;

5.  Decides to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to transfer the applicant until such time as the present judgment becomes final or until further order;

[…]