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(Request for a preliminary ruling – Common European Asylum System – Regulation (EC) No 343/2003 – Determination of the Member State responsible for examining an asylum application – Review of compliance with the criteria for determining responsibility for examining the asylum application – Scope of judicial review)

Facts of the case

UNHCR has acknowledged in its December update note that Hungary does no longer deny in-merit examination of asylum claims where the applicants have previously transited through Serbia or Ukraine, and consequently has amended its previous position from October 2012 where it urged Member States to stop sending back to Hungary applicants who had transited Serbia. According to UNHCR, those applicants have ceased to be detained or returned to Serbia or Ukraine.

In two cases this week, the European Court of Human Rights (ECtHR) condemned Hungary for unlawfully detaining at the Debrecen Reception Centre for Refugees asylum seekers, pending the outcome of their asylum claims, without effective judicial review of their detention. Both cases concerned complaints under Article 5§ 1 of the European Convention on Human Rights (ECHR) (right to liberty and security).

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.