FIRST SECTION

DECISION

Application no. 17127/10 and other applications Haibatullah ALI ZADA and Others against Austria

(see appendix for other applications)

The European Court of Human Rights ( First Section ), sitting on 5 July 2011 as a Chamber composed of:

Nina Vajić , President, Elisabeth Steiner , Khanlar Hajiyev , George Nicolaou , Mirjana Lazarova Trajkovska , Julia Laffranque , Linos-Alexandre Sicilianos , judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 16 March 2010 ,

Having regard to the interim measure s indicated to the respondent Government unde r Rule 39 of the Rules of Court,

Having regard to the information submitted by the respondent Government and the comments submitted by the applicant s ,

Having deliberated, decides as follows:

THE FACTS

The applicant s ’ personal data and the names of their representatives are listed in the annex to this decision. The Austrian Government (“the Government ” ) were represented by their Agent, Ambassador H. Tichy , Head of the International Law Department at the Ministry for European and International Affairs.

A. The circumstances of the case s

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

The applicants are asylum seekers who entered the European Union via Greece . They arrived in Austria between September 2007 and August 2010 and lodged asylum requests.

The Federal Asylum Office ( Bundesasylamt ) dismissed their asylum requests. Relying on Council Regulation (EC) No 343/2003 (“Dublin II Regulation”, hereinafter “the Dublin Regulation”) it held in each case that Greece was competent to conduct the asylum proceedings. It further declared the applicants ’ expulsion to Greece permissible.

The first, second and sixth applicants were actually expelled to Greece – the first applicant before, the other two applicants after appeals against the Federal Asylum Office ’ s decision had been dismissed - but returned and lodged further asylum requests. These were again dismissed by the Federal Asylum Office on the ground that Greece was competent to conduct the asylum proceedings under the Dublin Regulation. It also confirmed that the applicants ’ expulsion to Greece was permissible.

All applicants lodged appeals against the Federal Asylum Office ’ s decision with the Asylum Court ( Asylgerichtshof ). In the fourth applicant ’ s case it appears that he missed the time-limit for the appeal and subsequently filed a request for leave to appeal out of time with the Asylum Court .

The first applicant ’ s appeal to the Asylum Court remained unsuccessful. In its decision of 23 September 2008, the Asylum Court referred to a report of 15 April 2008 by the United Nations High Commissioner for Refugees (UNHCR) and to a report of a fact finding mission of the Swedish Migration Office of 7 May 2008. It found that both reports supported the conclusion that there was sufficient access to proper asylum proceedings in Greece . It found furthermore that none of the sources available to evaluate the Greek asylum situation confirmed the risk of being summarily removed to a third state in the event of a removal to Greece ( Kettenabschiebung ). Thus, the Asylum Court declared the removal to Greece based on the Dublin Regulation permissible. On 3 September 2009 the Constitutional Court ( Verfassungsgerichthof ) rejected the first applicant ’ s complaint due to the lack of a constitutional issue. That decision was served on the first applicant ’ s counsel on 16 September 2009.

In the second to sixth applicants ’ cases proceedings before the Asylum Court where still pending when they lodged their applications. However, their appeals had not been granted suspensive effect.

B. The Court ’ s Rule 39 indications

On 29 March, 7 September, 27 October, 18 and 22 November 2010, respectively, he President of the First Section decided to apply interim measures under Rule 39 of the Rules of Court in the applicants ’ cases, requesting the Austrian Government to stay the applicants ’ expulsion to Greece until further notice.

The applications were communicated to the Government without questions as to the admissibility and merits pending the outcome of the Grand Chamber proceedings in the case of M.S.S v. Belgium and Greece .

C. The Grand Chamber ’ s judgment of 21 January 2011 in the case of M.S.S . v. Belgium and Greece

On 21 January 2011 the Grand Chamber gave judgment in the case of M.S.S. v. Belgium and Greece (application no. 30696/09) . The case concerned an Afghan national, who entered the European Union through Greece . He travelled on to Belgium where he applied for asylum in February 2009. The Aliens Office decided to return him to Greece under the Dublin Regulation. He was expelled to Greece on 15 June 2009. He was detained there on two occasions, for a few days and a week, respectively, in a detention facility next to Athens airport. The remainder of the time he lived in the street with no means of subsistence.

The Court found violations of Article 3 in respect of the applicant ’ s detention conditions in Greece (§§ 223-234) and in respect of his living conditions (§§ 249-264). In reaching this conclusion, it had regard to a wide range of sources, including reports and submissions from UNHCR and the Council of Europe Commissioner for Human Rights, who had both participated as third party interveners in the proceedings. Furthermore the Court found a violation of Article 13 taken together with Article 3 (§§ 294-322). It noted that it was in the first place for the Greek authorities to examine the risks to which the applicant would be exposed if returned to his country of origin but noted that the Greek asylum procedure was marked by major structural deficiencies. As a result asylum seekers had little chance to have their applications seriously examined. Moreover, there was a danger of forced returns of asylum seekers to high-risk countries.

Regarding Belgium, the Court found a violation of Article 3 in respect of the authorities ’ decision to expose the applicant to the asylum procedure in Greece, whose deficiencies must have been known to them when they issued the expulsion order against the applicant (§§ 338-361). Moreover, the Court found a violation of Article 3 in respect of the Belgian authorities ’ decision to expose the applicant to the detention and living conditions in Greece as the relevant facts were well known and freely ascertainable from a wide number of sources before the applicant ’ s transfer (§§ 362-368). It also found a violation of Article 13 as the applicant did not have an effective remedy under Belgian law against the expulsion order (§§ 385-397).

D. Subsequent developments

On 10 February 2011 the Court requested t he Government to indicate what, if any, practical consequences they would draw from the M.S.S. v. Belgium and Greece judgment.

By letter of 10 March 2011 the Government replied that Austria would exercise its right under the Dublin Convention to assume the examination of the applicants ’ asylum claims.

Subsequently, the applicants ’ representatives were given an opportunity to comment. The first applicant stated that he wished to maintain the application due to the insecurity and stress suffered on account of his imminent expulsion. The second applicant did not make submissions in respect of his complaint under Article 3 of the Convention, but stated that he wished to maintain his application in respect of Article 13. The other applicants confirmed that the Federal Asylum Office was now examining the merits of their asylum claims and stated that they did not have objections to striking off the complaint under Article 3 of the Convention, while they wished to maintain the application in respect of the complaint under Article 13. With one exception, the applicants asked for reimbursement of procedural costs.

COMPLAINTS

The applicant s complained under Articles 2 and 3 of the Convention that their expulsion to Greece constituted a real risk for their lives and a risk of torture and ill-treatment because of the danger of refoulement by the Greek authorities to their counties of origin without proper asylum proceedings. The applicants also complained about the lack of support of asylum seekers in Greece and of a risk of violent treatment by the Greek authorities.

Furthermore the applicants complained under Article 13 that the Austrian authorities had not evaluated in substance the risk of refoulement from Greece to their countries of origin and the risk of a violation of Article 3 in case of a return to those counties. Moreover, they complained about shortcomings in the asylum proceedings and in particular about the absence of a remedy with suspensive effect against the decisions to expel them to Greece .

The first applicant also complained under Article 8 that his expulsion to Greece would violate his right to respect for his private life.

Finally, the first applicant complained under Article 14 taken in conjunction with the other Articles relied on that, following an amendment of the law, he could no longer lodge a complaint with the Administrative Court in asylum proceedings.

THE LAW

Article 37 of the Convention provides:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

In order to determine whether an application should be struck out of the list pursuant to Article 37 § 1 (c) of the Convention, the Court must consider whether “the circumstances lead it to conclude that “for any other reason ... it is not longer justified to continue the examination of [it]”. The Court recalls that it enjoys a wide discretion in identifying grounds capable of being relied upon in a strike out decision on this basis; however, it also recalls that such grounds must reside in the particular circumstances of each case ( Association SOS Attentats and de Boery v. France [GC], ( dec .), no. 76642/01 , § 37 , ECHR 2006 ‑ XIV , and M.H. and A.S. v. the United Kingdom ( dec .), nos. 38267/07 and 14293/07, 16 December 2008 ).

In the Court ’ s view, the particular circumstances of these applications are such that it is no longer justified to continue their examination (see, as a comparable case also relating to an undertaking not to return asylum seekers under the Dublin Regulation, B.S. and 232 other applications v. the United Kingdom ( dec .), no. 7935/09, 30 November 2010).

The applicants ’ complaints under Articles 2, 3 and 8 are based on the consequences of their return to Greece , on the conditions of reception in that country and the risk of expulsion from that country to their countries of origin without a proper examination of their asylum requests. The applicants will now benefit from the undertaking given by the Austrian Government. The practical effect of this undertaking is that they will not be returned to Greece or any other country without a full examination of their asylum claims by the Austrian authorities. Consequently, there is no longer a basis for the applicants ’ complaints under Article 13 either, as these complaints related to the authorities ’ failure to assess the risk of refoulement from Greece to their countries of origin or to the lack of a remedy with suspensive effect against the decision to expel them to Greece , respectively. Nor is there a basis for the first applicant ’ s complaint under Article 14. Moreover, the applicants will have the opportunity to lodge new applications with the Court (including the possibility of requesting an interim measure under Rule 39 of the Rules of Court) should that need arise.

In accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the present applications.

Finally the Court notes that, with one exception, the applicants asked for reimbursement of procedural costs. Pursuant to Rule 43 § 4 of the Rules of Court, the Court has discretion to award costs if a case is struck out of the list. In the present cases, the Court does not consider it appropriate to make such an award.

For the reasons set out above, it is appropriate to lift the interim measures indicated under Rule 39 of the Rules of Court and strike the cases out of the list.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to strike the application s out of its list of cases.

Søren Nielsen Nina Vajić Registrar President

Appendix

Application number

Applicant ’ s name and representative ’ s name

Nationality

Introduction date

17127/10

ALI ZADA Haibatullah

r epresented by

Mr H. Pochieser

Afghan

16/03/2010

51191/10

KHANKHEL Sardar Aga

represented by

Mr K. Kocher

Afghan

06/09/2010

62159/10

MUHAMMAD Usman

represented by

Ms N. Lorenz

Pakistani

26/10/2010

62188/10

ZAKA Tawfik

represented by

Ms N. Lorenz

Algerian

26/10/2010

66829/10

HOSSEINI Ghulam Sakhi

represented by

Ms N. Lorenz

Afghan

17/11/2010

67595/10

MOHAMMAD Sabir

represented by

Ms N. Lorenz

Afghan

19/11/2010