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ITALY/HUNGARY: Court annuls Afghan's Dublin II return to Hungary

28 June 2012

28.6.12

On 27 April 2012, the Lazio Tribunale Amministrativo Regionale (TAR, Regional Administrative Court) upheld an appeal (no. 05292/2012) by an Afghan citizen against his return to Hungary in application of the Dublin II Regulation (decision deposited on 15 June 2012). The plaintiff was informed on 25 January 2011 that he would be transferred to Hungary as a result of his having lodged an asylum application there, as it was the state responsible for assessing his application under the Dublin II system. In fact, he had filed for asylum in Hungary on 9 October 2009, prior to his application in Italy on 17 December 2009. This resulted in the Dublin Unit of the Interior Ministry's Department for Civil Liberties and Immigration asking Hungary to take charge of the asylum seeker on 17 November 2010 and Hungary accepted its competence on 23 November 2010, resulting in the Dublin Unit ordering his transfer to Hungary.

His appeal against this measure is based on a number of concerns. Firstly, he argued that the competent country to assess his application would technically be Greece, in view of his having passed through the country to reach Hungary. Secondly, he claimed that the transfer was not motivated because of the applicability of art. 3.2 of the Dublin II Regulation that would allow Italy to take charge of his application, due to his poor health and to the fact that Hungary is not a "safe country" because he had been mistreated there in the past and was at risk of being sent back to Afghanistan, where his physical wellbeing was at risk. He also noted that the failure to translate the measure into a language that he understood contravened art. 10 bis of law 241/1990 concerning administrative proceedings and the right of access to administrative documents.

The case was heard on 27 April 2012, and second "quater" section of the TAR deemed the appeal founded. The claim that Greece is supposedly the country that is responsible for the application because he was stopped there and had his details recorded there in October 2008 was dismissed, in view of his not having any evidence to support the claim. Instead, the court deemed that the procedure was flawed due to a violation of art. 10 bis of law 241/1990 (notification in a language that he understood) that prevented him from submitting information about his poor health conditions and the previous treatment to which he was subjected in Hungary. He was held in a detention centre where he underwent treatment that did not comply with his status as an asylum seeker. Had these elements been taken into account, the sovereignty clause in article 3.2 of EC Regulation 343/2003 (whereby Italy could have claimed responsibility for assessing the application) could have been invoked.

The appellant's account regarding his treatment in Hungary was in line with the treatment of asylum seekers documented by the Council of Europe's Committee for the Prevention of Torture (CPT's) following its visit to the country in 2009 and by UNHCR's latest report on Hungary as a country of asylum, published on 24 April 2012. The UNHCR report confirms the difficult detention conditions experienced by asylum seekers, comparable to prison, they are handcuffed when taken outdoors as if they were charged in penal proceedings, they are sometimes subjected to ill-treatment and risk refoulement to countries from which they have fled due to dangers and persecution.

In reaching a decision, the court referred to a ruling by the European Court of Justice on 21 December 2011 (C-411/10 and C-493/10), whereby it should not be "absolutely" assumed that a member state responsible for assessing an asylum application under the Dublin II regulation necessarily respects fundamental rights, and evidence to the contrary is admissible. In the presence of systemic shortcomings and serious and proven reasons to believe that an applicant is at risk of suffering inhumane and degrading treatment, member states have a duty not to transfer an applicant to the competent member state.

The court also recalled the sentence issued on 21 January 2011 by the European Court of Human Rights in the MSS vs. Belgium and Greece case that recognised that reports by international NGOs and UNHCR, apart from those by the European Commission, represent suitable information to evaluate the functioning of the asylum system in a competent member state. However, single violations of provisions in Directives 2003/9 (minimum standards for the reception of asylum seekers), 2004/83 (minimum standards for qualification as refugees) and 2005/85 (minimum standards in asylum procedures) do not suffice to prohibit tranfers to a country, the shortcomings must be systemic in asylum procedures and the reception conditions of asylum seekers. This would require an evaluation of actual human rights violations against asylum seekers, but in view of the appellant's failure to submit evidence in the proceedings due to the failure to inform him of developments in a language that he understood, the required checks were not carried out.

Moreover, the transfer order was not executed before the applicable six-month deadline following acceptance by Hungary of its responsibility for assessing the application on 23 November 2010, although the applicant was easy to find because he was a guest in a reception centre for asylum seekers in Fidenza (in Emilia Romagna), and the duration of the order was not extended by the public administration.

Thus, the appeal was upheld, the appellant must be refunded his court costs and the impugnated measure was annulled. On 12 April 2012, the Lazio TAR had already ruled on an appeal against the return of a Congolese national to Greece under the Dublin II regulation procedures (see Statewatch news online, June 2012, link below).

Source

Tribunale Amministrativo Regionale del Lazio, Sezione Seconda Quater, N. 05292/2012 REG.PROV.COLL., N. 03310/2011 REG.RIC., 27.4.2012 decision, deposited on 11.6.2012 (Melting Pot website)

Background documents

"Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 24 March to 2 April 2009", Council of Europe, CPT/Inf(2010) 16, Strasbourg 8 June 2010

"Hungary as a country of asylum. Observations on the situation of asylum-seekers and refugees in Hungary", UNHCR, 24.4.12

Previous Statewatch coverage

Italy: Court upholds appeal against Dublin II transfer to Greece, 18.6.12