ECtHR judgment in Mohammed v. Austria (no. 2283/12) [Articles 3 and 13 ECHR]

Friday, October 4, 2013

The applicant is a Sudanese national who arrived in Austria via Greece and Hungary and applied for asylum. His application was rejected under the Dublin Regulation and his transfer to Hungary was ordered. Several months later, he filed a second asylum application, which did not have suspensive effect.  Before the ECtHR, he argued that his transfer to Hungary would expose him to treatment contrary to Article 3. He also relied on Article 13, because his second asylum request in Austria did not have any suspensive effect in relation to the transfer order.

The Court took into account reports concerning Hungary, particularly from UNHCR, attesting to serious hygiene shortcomings in detention facilities for asylum seekers, systematic treatment of asylum seekers with tranquilisers, and violent abuses by guards. Reports also pointed to practices that resulted in real risk of refoulement without the transferred asylum seekers having effective access to an examination of the merits of their claims. The Court concluded then that Mr. Mohammed claims under Article 3 had been arguable and that the Austrian authorities had been aware of the problems of Hungary as a country of asylum.

The Court considered that the applicant's second asylum request could not be considered as abusive. It observed that, owing to the absence of suspensive effect, Mr. Mohammed could have been transferred to Hungary while the application was still being processed in spite of the fact that he had an arguable claim of violation of Article 3. It concluded that the applicant had been deprived of protection against forced transfer in the course of the processing of his second asylum application while having an arguable claim under Article 3. Therefore, it found a violation of Article 13 in conjunction with Article 3.

In contrast, the Court did not find an independent violation of Article 3 in case of transfer to Hungary. It noted in this respect that UNHCR had never requested EU Member States to refrain from transferring asylum seekers to Hungary under the Dublin Regulation and that it had welcomed in December 2012 a package of legislative amendments adopted by the Hungarian Parliament that eliminated detention of asylum seekers who filed their applications immediately upon arrival and introduced guarantees concerning detention. It therefore concluded that Mr. Mohammed would not be subject to treatment in violation to Article 3 in Hungary. Finally, given that the applicant had not submitted his individual reasons to flee his country and seek asylum, the Court was not in a position to assume a real risk for Mr. Mohammed upon deportation to his country of origin.

Read the press release and the full text of the judgment on the website of the European Court of Human Rights.

The Court's information factsheet on Dublin cases has been updated following this judgment.

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Inhuman or degrading treatment or punishment
Dublin Transfer
Right to remain pending a decision (Suspensive effect)
The former Yugoslav Republic of Macedonia