Zitieren als:
EGMR, Urteil vom 03.07.2014 - 71932/12 (Mohammadi gegen Österreich) - M22062

Der Gerichtshof geht davon aus, dass für den Betroffenen, ausgehend von den jüngsten Berichten, bei einer Rückkehr nach Ungarn keine reale Gefahr besteht, Verletzungen von Art. 3 EMRK durch Inhaftierung zu erleiden.

Auch wenn den Berichten zu entnehmen ist, dass tatsächlich die Praxis der Inhaftierung von Asylsuchenden, auch von Dublin-Rückkehrern, besteht, ist nicht mehr von einer systematischen Inhaftierung von Asylsuchenden auszugehen.

Schlagwörter: Ungarn, Dublinverfahren, UNHCR, Dublin II-VO, Dublin III-Verordnung, Asylverfahren, Zugang zum Asylverfahren, Inhaftierung, Dublin-Rückkehrer, Haftbedingungen, Aufnahmebedingungen, Serbien, Refoulement,
Normen: EMRK Art. 3,


2. The Court’s assessment

(a) General principles

57. The Court reiterates at the outset the relevant general principles under Article 3 of the Convention as set out most recently in its decisions on admissibility in the cases of Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 65-71, 2 April 2013) and Daybetgova and Magomedova v.Austria ((dec.) 6198/12, §§ 58-64, 4 June 2013) as well as in its recent judgments of Sharifi v. Austria (no. 60104/08, § 29, 5 December 2013), and Mohammed (cited above, § 92).

58. According to the Court’s established case-law, Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). The Court also notes that the right to political asylum is not contained in either the Convention or its Protocols (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 102, Series A no. 215, and Ahmed v. Austria, 17 December 1996, § 38, Reports 1996-VI).

59. However, deportation, extradition or any other measure to remove an alien may give rise to an issue under Article 3, and hence engage the responsibility of the Contracting State under the Convention, where substantial grounds have been shown for believing that the person in question, if removed, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to remove the individual to that country (see Soering v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161; Vilvarajah and Others, cited above, § 103; Ahmed, cited above, § 39; H.L.R. v. France, 29 April 1997, § 34, Reports 1997-III; Jabari v. Turkey, cited above, § 38; Salah Sheekh v. the Netherlands, no. 1948/04, § 135, 11 January 2007; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 114, ECHR 2012).

60. In the specific context of the application of the Dublin Regulation, the Court has found before that indirect removal, in other words, removal to an intermediary country which is also a Contracting State, 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. Furthermore, the Court has reiterated that where States cooperate in an area where there might be implications for the protection of fundamental rights, it would be incompatible with the purpose and object of the Convention if they were absolved of all responsibility vis-à-vis the Convention in the area concerned (see, among other authorities, Waite and Kennedy v. Germany [GC], no. 26083/94, § 67, ECHR 1999-I). When they apply the Dublin Regulation, therefore, 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 (see T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR 2000-III, and K.R.S. v. the United Kingdom (dec.), no. 32733/08, 2 December 2008, both summarised in M.S.S. v. Belgium and Greece, cited above, §§ 342 et seq.).

61. 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 (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). 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. The assessment of this is relative, depending on all the circumstances of the case (see Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II).

62. In order to determine whether there is a real risk of ill-treatment in the present case, the Court must examine the foreseeable consequences of sending the applicant to Hungary, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others, cited above, § 108 in fine). It will do so by assessing the issue in the light of all material placed before it, or, if necessary, obtained proprio motu (see H.L.R., cited above, § 37, and Hirsi Jamaa and Others, cited above, § 116).

63. If the applicant has not yet been removed when the Court examines the case, the relevant time of the risk assessment will be that of the proceedings before the Court (see Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008, and A.L. v. Austria, no. 7788/11, § 58, 10 May 2012). A full assessment is called for, as the situation in a country of destination may change over the course of time (see Salah Sheekh, cited above, § 136).

(b) Application of those principles to the present case

64. 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.

65. The Court observes that the subject matter of the present application is similar to that of the above-mentioned Mohammed case. In that judgment of 6 June 2013, the Court came to the conclusion that despite 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, in the light of recent changes to Hungarian legislation pertaining to asylum-seekers, the applicant’s transfer to Hungary under the Dublin II Regulation would not amount to a breach of Article 3 of the Convention (see Mohammed v. Austria, cited above, §§ 102-111). The main question to be considered by the Court is whether there have been significant changes since the adoption of that judgment in the situation for asylum-seekers, and Dublin returnees in particular.

66. The Court therefore takes note of the various reports on Hungary as a country of asylum either referred to by the parties in the application and during the domestic proceedings or obtained proprio motu. It also notes, however, that the Hungarian asylum legislation and practice has significantly changed since the applicant lodged the instant application and the parties made their submissions on the merits of the case. The Court therefore will only take into consideration the most recent reports and respective arguments by the parties.

67. The two main complaints by the applicant relate to (i) the risk of arbitrary detention of asylum-seekers and the detention conditions, and (ii) the risk of refoulement to Serbia without having his asylum claim considered on the merits. The Court will examine each complaint separately in the following paragraphs.

(i) The applicant’s complaints relating to the detention regime and detention conditions for asylum-seekers in Hungary

68. As regards the applicant’s complaints directed against the detention practices applicable and the detention conditions for asylum-seekers in Hungary, the Court, referring to the information before it in that respect, acknowledges that they were at least arguable. 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.

69. 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 (compare the situation relating to Greece discussed in M.S.S. v. Belgium and Greece, cited above, § 195, and the UNHCR recommendation of 2 January 2013 to halt transfers to Bulgaria).

70. 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 cited above, 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.

(ii) The applicant’s complaints relating to access asylum proceedings in Hungary and possible refoulement to Serbia

71. 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.

72. 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 (see paragraphs 31 and 36 above). 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.

73. 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. [...]