Statewatch News Online: Italy/Hungary: Court annuls Afghan's Dublin II return to Hungary
28 March 2012
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Italy/Hungary 
Court
annuls Afghan's Dublin II return to Hungary
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, available at: http://www.cpt.coe.int/documents/hun/2010-16-inf-eng.pdf
"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
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