FOURTH SECTION

DECISION

Application no . 44944/15 A. A . against Austria

The European Court of Human Rights (Fourth Section), sitting on 17 May 2016 as a Committee composed of:

Nona Tsotsoria, President, Krzysztof Wojtyczek, Gabriele Kucsko-Stadlmayer, judges,

and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 14 September 2015,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

Having regard to the decision to grant the applicant anonymity,

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

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr A. A., is an Afghan national who was born in 1994 and is living in Lower Austria. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). He was represented before the Court by Mrs N. Lorenz, a lawyer practising in Vienna.

2. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs .

3. The Hungarian and Serbian Governments decided not to avail themselves of the possibility afforded under Article 36 § 2 of the Convention and Rule 44 § 3 (a) of the Rules of Court to intervene in the case.

4. The Council of Europe Commissioner for Human Rights accepted the Court ’ s invitation to intervene in the proceedings (Article 36 § 3 of the Convention and Rule 44 § 3 of the Rules of Court) and submitted written comments. The United Nations High Commissioner for Refugees declined the Court ’ s invitation to intervene.

5. Having travelled via Greece and Hungary, the applicant entered Austria on 3 March 2015 and applied for international protection. On 1 March 2015 the Federal Office for Migration and Asylum ’ s ( Bundesamt für Fremdenwesen und Asyl ) Initial Reception Centre, East ( Erstaufnahmestelle Ost ) instituted consultation proceedings with Hungary, in accordance with section 18 § 1 (b) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (“Dublin III Regulation”).

6. On 12 May 2015 the applicant had an oral hearing before the Federal Office for Migration and Asylum. He stated, among other things, that he had been ill-treated by the police in Hungary.

7. On 17 June 2015 the Federal Office for Migration and Asylum rejected the applicant ’ s application for asylum and ordered his expulsion to Hungary under the Dublin III Regulation. It stated that there was no indication that the applicant would be a victim of ill-treatment or persecution if expelled to Hungary.

8. On 24 June 2015 the applicant lodged an appeal with the Federal Administrative Court and requested that the expulsion order be suspended. He complained that the conditions for asylum-seekers in Hungary had not been examined properly.

9. On 14 September 2015 the applicant was taken into detention with a view to his expulsion, scheduled for 16 September 2015. On the same day, the applicant filed a request with the Court under Rule 39 of the Rules of Court and sought to have his expulsion stayed. The Court granted the request and the applicant was released.

10. On 14 September 2015 the Federal Administrative Court also granted suspensive effect to the applicant ’ s appeal. However, that decision was not served on the applicant until 17 September 2015. He did not know of its existence when lodging his application with the Court.

11. On 23 September 2015 the Federal Administrative Court quashed the expulsion decision of 17 June 2015 and remitted the case to the Federal Office for Migration and Asylum. It held that the decision had contained statements concerning the situation in Hungary which were no longer valid as the legal framework pertaining to asylum-seekers in that country had changed considerably in the meantime. It therefore could not examine whether asylum-seekers returned to Hungary under the Dublin III Regulation would be subject to systematic violations of Convention rights or whether there was such a risk for the applicant personally.

12. The applicant ’ s asylum application is pending at first instance before the Federal Office for Migration and Asylum.

COMPLAINTS

13. The applicant complained under Article 3 of the Convention that his forced transfer to Hungary under the Dublin III Regulation would subject him to inhuman and degrading treatment and that he would run the risk of refoulement to Serbia. He complained under Article 13 of the Convention that his appeal against the rejection of his asylum application had not had automatic suspensive effect. He further invoked Articles 5 and 6 of the Convention without developing these complaints.

THE LAW

14. The Government requested the Court to strike the case out of its list of cases, in accordance with Article 37 § 1 of the Convention, on the grounds that following the Federal Administrative Court ’ s decision of 23 September 2015 the applicant no longer faced an immediate risk of being expelled to Hungary. In the alternative, the Government requested the Court to reject the application for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention, or for being manifestly ill-founded, pursuant to Article 35 § 3 (a) of the Convention.

15. The applicant contended that even though he was no longer at immediate risk of expulsion, he nonetheless retained victim status as he had not received any compensation for the threat of being expelled to Hungary in violation of Article 3. Additionally, the Austrian authorities had not in any way acknowledged a violation of that provision. The Government had also not demonstrated that he had had an effective remedy against the expulsion order.

16. The Court observes that the applicant ’ s complaint under Article 3 is based on the possible consequences of his being returned to Hungary, the conditions of reception in that country and the risk of refoulement to Serbia. However, the decision to expel him has been quashed and his asylum application is again pending at first instance. There is currently no immediate risk that he will be expelled to Hungary and hence no risk of a violation of Article 3. Consequently, there is no longer a basis for the applicant ’ s complaint under Article 13 of the Convention either, as that relates to the lack of a remedy with suspensive effect against the decision to expel him to Hungary. In any event, the applicant can lodge a new application with the Court (including the possibility of requesting an interim measure under Rule 39) should the need arise.

17. In the light of the above, the Court finds, in accordance with Article 37 § 1 (b), that the threat of a violation of Articles 3 and 13 of the Convention has been removed and that the matter has been resolved. Moreover, it is satisfied that respect for human rights, as defined in the Convention and the Protocols thereto, does not require a continuation of the application by virtue of Article 37 § 1 in fine . Accordingly, it is appropriate to strike the complaints under Articles 3 and 13 of the Convention out of the Court ’ s list of cases and to discontinue the application of Rule 39.

18. The applicant ’ s complaint under Article 5 of the Convention remained unsubstantiated. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

20. The applicant claimed 24,900 euros (EUR) in non-pecuniary damages as well as EUR 1,487.34 for costs and expenses incurred for his legal representation before the Court, in particular the composition and lodging of his application. The latter sum includes value-added tax (VAT). The Government commented that the applicant ’ s claim for non-pecuniary damages was excessive.

21. The Court notes that it is not empowered to award damages if a case is struck out of the list. However, in accordance with Rule 43 § 4 of the Rules of Court, t he Court finds it suitable in the special circumstances of the case to make an award in respect of the costs of the Convention proceedings (see, among many other authorities, Asgari v. Austria (dec.), no. 62154/10, 29 January 2013, and Verlagsgruppe News v. Austria (No. 3) (dec.), no. 43521/06, 20 October 2009). Taking note of the costs genuinely and necessarily incurred in the proceedings before it ( Yelverton Investments B.V. and others v. Latvia (dec.), no. 57566/12, § 47, 18 November 2014), the Court awards the applicant reimbursement for costs and expenses in the amount claimed (EUR 1,487.34). This sum includes VAT.

For these reasons, the Court, unanimously,

Decides to strike the complaints under Articles 3 and 13 of the Convention out of its list of cases;

Decides to discontinue the application of Rule 39 of the Rules of Court;

Declares the remainder of the application inadmissible;

Holds

a) that the respondent State is to pay the applicant, within three months of the date of notification of this decision, EUR 1,487.34 (one thousand four hundred and eighty-seven euros and thirty-four cents), value-added tax included, in respect of costs and expenses;

b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English and notified in writing on 9 June 2016 .

FatoÅŸ Aracı Nona Tsotsoria              Deputy Registrar President