CASE OF SAFAII v. AUSTRIA
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Greece)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1983. His address is unknown. 6. The applicant and his wife came to Austria in August 2008 and applied for asylum on 19 August 2008. They had travelled from Afghanistan via Iran to Greece. When the applicant and his wife first arrived in Greece they lived in a camp. They subsequently lived with people traffickers for approximately three months, and then in public parks. The applicant claimed that he had queued to apply for asylum in Greece, but had been beaten by the police and driven away. He and his wife had no access to financial support and had had to live in the parks after their money had run out. After four failed attempts, the traffickers managed to take the applicant and his wife to Austria. 7. In his request for asylum in Austria the applicant claimed in substance to have had problems with the Taliban in Afghanistan. He submitted inter alia that eight years earlier the Taliban had kidnapped two of his brothers. 8. On 14 October 2008, the Federal Asylum Office East (Bundesasylamt Erstaufnahmestelle Ost) rejected the applicant’s asylum application on the grounds that Greece was responsible for examining it, pursuant to section 5 of the 2005 Asylum Act (Asylgesetz 2005) in connection with Article 10 § 1 of Council Regulation (EC) No. 343/2003 (“Dublin II Regulation”, hereinafter “the Dublin Regulation”), and ordered his expulsion to Greece. It found that the applicant was not facing any real risk of illtreatment within the meaning of Article 3 of the Convention upon his return to Greece. The authority referred to a number of country reports, in particular those of the UNHCR of April 2008 and of the Swedish Migration Board. It acknowledged the ongoing criticism with regard to proceedings and treatment of asylum-seekers in Greece, but did not consider the applicant’s story of his experiences in Greece credible. The Asylum Office noted the UNHCR’s concern about the difficulties with which many asylum-seekers in Greece were confronted. This applied particularly to the facilities for asylum-seekers, access to asylum proceedings and the quality of the proceedings. On the other hand, the Asylum Office noted that Norway was the only country to have declared that it would no longer transfer asylum-seekers to Greece under the Dublin Regulation. The Asylum Office also mentioned a recent decision by the Aliens Litigation Council, according to which there was no reason to suspend further transfers to Greece. The Asylum Office quoted the UNHCR position paper, which welcomed Greece’s reform attempts aimed at strengthening its asylum system. It further noted that a working group had been established, including members of the Greek authorities and the UNHCR, to tackle the “most burning” problems with the asylum system. Furthermore, the Asylum Office held that the relevant European directives were binding for Greece. Lastly, the Asylum Office referred to a fact-finding mission conducted by the Swedish Migration Board in April 2008 reacting to the harsh criticism voiced by various NGOs. The final report of that mission had concluded that there were no humanitarian or other reasons to refrain from returning asylum-seekers to Greece under the Dublin Regulation. In view of the fact that the asylum authorities of the other EU countries had not stopped transferring asylum-seekers back to Greece, the Asylum Office concluded that it was not necessary to make use of the sovereignty clause in the present case. It further noted that people who had never before lodged an asylum application in Greece and had been transferred to Greece under the Dublin Regulation had full access to asylum proceedings. 9. The applicant lodged a complaint against that decision, referring again to the deficiencies of the Greek asylum system, the danger of refoulement to Afghanistan and the lack of subsistence for asylum-seekers. 10. On 11 November 2008, the Asylum Court (Asylgerichtshof) dismissed the applicant’s complaint as unfounded. It found that an accumulation of proceedings under the sovereignty clause would endanger the “effet utile” principle of Community law. Furthermore, the Dublin Regulation was based on the assumption that all member States were safe countries and that a deportation to one of them could not constitute a human-rights violation. Therefore, arguments against such a deportation would need to be especially substantiated. Referring to the report of a mission of the Swedish Migration Board to Greece in April 2008 that showed that all twenty-six monitored cases had had access to Greek asylum proceedings, it found that there were no deficiencies in the conditions of access to asylum proceedings in Greece. With regard to the present case, the Greek authorities had already stated that the applicant would have access to asylum proceedings once he returned to Greece. Again referring to the mission report of the Swedish Migration Board, it found that the support of asylum-seekers in Greece was acceptable. Asylum-seekers were allowed to work in Greece. Lastly, there would be no risk of refoulement. In conclusion, the applicant would not be at real risk of treatment contrary to Article 3 on being returned to Greece. 11. On 30 January 2009, the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. 12. That decision was served on the applicant’s counsel on 11 February 2009. 13. The applicant’s wife was expelled to Greece on 25 November 2008. 14. The applicant was expelled to Greece on 8 April 2009. 15. At the Court’s request, on 4 August 2011 the applicant’s representative informed the Court of the exact date of the applicant’s transfer to Greece, namely 8 April 2009. He stated that despite being his counsel, he had not received any further information about his client since then. In later submissions he stated that he could establish contact with the applicant, if necessary, via trustworthy persons the applicant still knew in Vienna. He did not, however, provide the applicant’s current address to the Court.