FIRST SECTION

DECISION

Application no . 15974/11 Najibullah EBRAHIMI against Austria

The European Court of Human Rights (First Section), sitting on 1 October 2013 as a Chamber composed of:

Isabelle Berro-Lefèvre, President, Elisabeth Steiner, Khanlar Hajiyev, Mirjana Lazarova Trajkovska, Julia Laffranque, Linos-Alexandre Sicilianos, Erik Møse, judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 11 March 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . Mr Najibullah Ebrahimi referred to as “the applicant” , is an Afghan national who was born in 1992. His current location is unknown. The application was submitted by Mr H. Pochieser referred to as “the applicant ’ s representative” , a lawyer practising in Vienna.

2 . The Austrian Government were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs.

A. The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

1. The domestic proceedings

4 . The applicant lodged an asylum request in Austria on 9 October 2009. He claimed that he had left Afghanistan three or four years earlier and travelled with his father and siblings via Pakistan to Iran. Since his eldest brother already lived in Austria, the applicant wanted to join him there and travelled from Iran via Turkey to Greece with the aid of a trafficker.

5 . In Greece, the applicant spent approximately twenty-five days in Samos on the beach, a few days in Athens, and thirty days in Patras. According to the applicant, he had no support in Greece, and lived in a park and later in a tent in a rundown house. He was given food by a church. In Austria, the applicant received financial and family support from his elder brother, who had been awarded subsidiary protection in Austria.

6 . On 27 April 2010 the Federal Asylum Office ( Bundes ­ asylamt ) rejected the applicant ’ s asylum request under section 5 of the 2005 Asylum Act ( Asylgesetz 2005 ) taken in conjunction with Article 10 § 1 of Council Regulation (EC) No 343/2003 (hereinafter – “the Dublin Regulation”) and ordered his transfer to Greece. The Asylum Office found that the applicant did not face any real risk of ill-treatment within the meaning of Article 3 of the Convention upon his return to Greece. While acknowledging the ongoing criticism with regard to access to asylum proceedings and treatment of asylum seekers in Greece, and referring to a number of country reports in this regard, it focused on recent reform attempts by the Greek authorities.

7 . The applicant lodged an appeal against that decision with the Asylum Court ( Asylgerichtshof ); the appeal was not given suspensive effect.

8 . On 14 June 2010 the applicant was taken into detention with a view to his deportation. He was transferred to Greece on 15 June 2010.

9 . On 22 June 2010 the Asylum Court dismissed the applicant ’ s appeal as unfounded. With regard to the situation in Greece for asylum seekers, it found that an accumulation of proceedings under the sovereignty clause would endanger the “practical effect” principle of Community law. Furthermore, the Dublin Regulation was based on the assumption that all member States were safe countries and that a transfer to one of them could not constitute a human rights violation. Therefore, any arguments against such a transfer would need to be especially well substantiated. With regard to the applicant ’ s individual situation, the Asylum Court remarked that he had already demonstrated that he was able to provide for his most important needs during his first stay in Greece. There was no indication that the applicant would not have access to asylum proceedings upon a return to Greece or that he would be under a real risk of refoulement . Referring to the UNHCR recommendation of 15 April 2008 in which the organisation recommended that States should refrain from transferring asylum seekers back to Greece, the Asylum Court noted the UNHCR ’ s new position paper of December 2009 which identified Greek reform attempts with regard to the situation of asylum seekers. Overall, it found that there was no reason to declare transfers to Greece generally problematic or in violation of the Convention.

10 . On 29 September 2010 the Constitutional Court refused to deal with the applicant ’ s complaint, citing lack of prospects of success. That decision was served on the applicant ’ s counsel on 5 October 2010.

11 . Throughout the asylum proceedings in Austria the applicant was represented by the same representative of his choosing who lodged the present application with the Court. In the domestic proceedings the applicant ’ s representative referred to the granting of a power of attorney, as provided for in the domestic law (see paragraph 13 below).

2. Proceedings before the Court

12 . The applicant ’ s representative lodged the present application on 11 March 2011. By a letter of 31 March 2011 the Court requested the applicant ’ s representative to provide a signed power of attorney, which he had not done.

B. Relevant domestic and European law

1. The Austrian Lawyers Act ( Rechtsanwaltsordnung )

13 . Section 8(1) of the Austrian Lawyers Act provides that a power of attorney granted to a lawyer ( Rechtsanwalt ) includes representation in judicial and extra-judicial proceedings, and in all public and private cases and proceedings. A reference by the lawyer to a power of attorney that has been granted can replace written certification of it.

2. The Dublin Regulation

14 . For detailed information on proceedings under the Dublin Regulation see M.S.S. v. Belgium and Greece ([GC], no. 30696/09, §§ 65 ‑ 75, ECHR 2011).

COMPLAINTS

15 . The applicant complained under Article 3 of the Convention that his transfer to Greece had subjected him to treatment contrary to that provision on account of lack of access to asylum proceedings and subsistence there, and because of a real risk of refoulement to Afghanistan. In this context he also relied on Articles 2 and 8 of the Convention. He further complained, under Article 13, that his appeal lodged with the Asylum Court did not have automatic suspensive effect.

16 . The applicant, relying on Articles 13 and 14, further complained of lack of access to the Administrative Court in asylum proceedings, that the complaint proceedings before the Constitutional Court could not be considered an effective remedy, and of a wrong assessment of evidence by the asylum authorities and a lack of an oral hearing in the proceedings before the Asylum Court.

THE LAW

17 . As regards representation of applicants before the Court, the relevant Rules of the Court, in so far as pertinent, read as follows:

Rule 36 – Representation of applicants

“1. Persons, non-governmental organisations or groups of individuals may initially present applications under Article 34 of the Convention themselves or through a representative. ... ”

and

Rule 45 – Signatures

“ 1. Any application made under Articles 33 or 34 of the Convention shall be submitted in writing and shall be signed by the applicant or by the applicant ’ s representative.

...

3. Where applicants are represented in accordance with Rule 36, a power of attorney or written authority to act shall be supplied by their representative or representatives.”

A. The parties ’ submissions

18 . The Austrian Government contended that the applicant ’ s current whereabouts were unknown and that the applicant ’ s representative had never provided a signed authority form in the proceedings before the Court; the application should therefore either be struck out of the Court ’ s list of cases or declared inadmissible ratione personae .

19 . The applicant ’ s representative stated that according to the latest information he had, the applicant was in Afghanistan, but that his precise location could not be determined within the time-limit in which the observations had to be submitted. The applicant was, however, in contact with his brother who lived in Austria. As concerns the written and signed power of attorney, the applicant ’ s representative stated that owing to the suddenness of the applicant ’ s detention and his ensuing transfer to Greece, it had not been possible for the representative to obtain a signed authority form. However, the option of a complaint to the Court had been discussed several times in meetings he had held with the applicant, in which he had expressed his wish to institute such proceedings as an ultima ratio . The representative stated that he had been asked several times by the applicant to do everything possible to prevent his transfer to Greece or return to Afghanistan. The lack of a signed authority form was therefore neither the applicant ’ s nor his representative ’ s responsibility.

B. The Court ’ s assessment

20 . The Court notes that the present application has been introduced by a lawyer in Austria who represented the applicant throughout the domestic proceedings. The application was lodged after the applicant was transferred to Greece under the Dublin Regulation and after the domestic proceedings had been duly exhausted.

21 . The Court requested the applicant ’ s representative to provide a duly - signed written power of attorney by letter shortly after the application was lodged with it. However, no such power of attorney, or any power of attorney, even one supplied for representation at the domestic level, has been submitted to the Court.

22 . The Court has previously found it essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victims within the meaning of Article 34 of the Convention on whose behalf they purport to act (see Post v. the Netherlands (dec.), no. 21727/08, 21 January 2009; Çetin v. Turkey (dec.), no. 10449/08, 13 September 2011; and Habtemariam and O thers v. Turkey (dec.), no. 22872/11, 3 April 2012). The Court does not take lightly the difficulties that might be entailed by a sudden detention and deportation in asylum cases which might indeed render it impossible to obtain a written power of attorney. However, in the present case the Court notes that the lawyer represented the applicant throughout the entire domestic proceedings, even in the first-instance proceedings during which the applicant was still in Austria (see paragraphs 6 and 8 above) . The lawyer therefore had ample opportunity to obtain a duly signed authority form had the applicant really wished to lodge an application with the Court.

23 . The applicant ’ s current whereabouts are unknown and he has never contacted the Court directly in the course of the proceedings. There is furthermore no indication in the file that the applicant wished to initiate proceedings before the Court. Under these circumstances the Court cannot but conclude that the case must be rejected for want of an “applicant” for the purpose of Article 34 of the Convention (see Post , cited above). Consequently, the application must be rejected as incompatible ratione personae pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Isabelle Berro-Lefèvre Registrar President