Austria condemned for not providing effective remedy to challenge Dublin transfers

The European Court of Human Rights (ECtHR) has found that Austria violated an asylum seeker’s right to an effective remedy (Article 13 of the European Convention on Human Rights) against the decision to be sent back to Hungary under the Dublin regulation.

Austria decided to send a Sudanese asylum seeker back to Hungary in spite of the fact that he had filed a non-abusive second asylum application and had presented a credible claim of possible ill-treatment and refoulement in Hungary, in 2011. According to the ECtHR, the fact that the second application did not have suspensive effect and that he did not have the possibility to apply for the re-examination of the decision to be sent back to Hungary had deprived him of an effective remedy against the transfer.

The Court noted the alarming nature of the reports published in 2011 and 2012 by UNHCR and the Hungarian Helsinki Committee regarding the situation of asylum seekers returned to Hungary under the Dublin Regulation. These reports highlighted a real risk of refoulement, the prolonged administrative detention of asylum seekers, and the harsh conditions they face. It also noted with particular concern reports of violent abuse by guards and the systematic treatment of detained asylum-seekers with tranquilisers, causing them to develop addictions,

However, the Court found that as a result of new legislation that provides asylum seekers with sufficient access to the asylum procedure upon return, and the abolishment of automatic detention of asylum seekers returned to Hungary under the Dublin regulation, the applicant would not be at risk of ill-treatment or refoulement if he were transferred.