CONCURRING OPINION BY JUDGES BERRO-LEFÈVRE, LAFFRANQUE AND MØSE

1. We have voted against declaring the application admissible but accept – on the basis of the information which is presently available – that there has been a violation of Article 13 taken in conjunction with Article 3. However, the Chamber’s reasons on the merits do not fully reflect the way we view the present case.

2. The applicant risks being returned from Austria to Hungary in pursuance of Council Regulation (EC) No 343/2003 (the “Dublin Regulation”). The core issue is whether his forced transfer gives rise to an arguable claim under Article 13 that this would lead to a violation of Article 3 of the Convention.

3. The applicant did not refer to the situation in Hungary during the first asylum proceedings. After the Federal Asylum Office rejected his application on 5 January 2011 the applicant did not lodge an appeal against that decision but went into hiding and thwarted an attempt to detain and forcibly transfer him on 5 May 2011 (see paragraphs 8 and 9 of the judgment). From 21 December 2011 he was detained with a view to his forced transfer.

4. The applicant’s second asylum request, of 30 December 2011, made almost one year after the asylum decision, referred to the Asylum Court’s practice since 31 October 2011 regarding reception conditions in Hungary. That practice was based on a report by the Austrian Office of the United Nations High Commissioner for Refugees (UNHCR), dated 17 October 2011, which advised against returning asylum-seekers to Hungary. The second asylum proceedings are still pending before the Federal Asylum Office, as are the proceedings before the Administrative Court regarding the applicant’s detention with a view to his forced transfer and his application to the immigration police for the transfer order to be lifted (see paragraphs 11-16 of the judgment).

5. It follows that neither the Federal Asylum Office nor the Asylum Court has considered the applicant’s second set of complaints based on the report of 17 October 2011 by the Austrian Office of the UNHCR. In other cases the Asylum Court has requested the Federal Asylum Office to investigate the issue of detention in Hungary of persons transferred there under the Dublin Regulation, including their conditions of detention, allegations of police violence in detention centres and their access to effective legal remedies (see paragraphs 28-30 of the judgment).

6. Furthermore, the domestic authorities have not had occasion to consider more recent reports issued by the UNHCR – not its Austrian Office – in April, October and December 2012 (see paragraphs 37-42 and 47-50 of the judgment). In particular, the report issued in December 2012 refers to a comprehensive package of legislative amendments adopted by the Hungarian Parliament; to the intention to introduce additional legal guarantees concerning detention; to revised asylum proceedings; and to improvements with regard to the detention of asylum-seekers. We also consider it to be an important factor that the UNHCR has never issued a position paper advising governments to refrain from transferring asylum seekers to Hungary and take responsibility for examining the corresponding asylum applications themselves (see paragraph 105 of the judgment and, mutatis mutandis , M.S.S v. Belgium and Greece , [GC], no. 30696/09, §§ 194-95. Lastly, we note that in the present case there are no observations from the Hungarian authorities on the allegations in the report of 17 October 2011, which are formulated in quite general terms, and that the Court is unanimous in finding no violation of Article 3.

7. In our view, these factors weaken the Court’s basis for deciding whether there is a violation of Article 3 or 13. Leaving aside the issue of whether any of the three sets of pending proceedings, mentioned in paragraph 3 above, should have been exhausted, additional information emerging from further consideration of the matter by the Austrian authorities may provide a more complete and updated basis for deciding the case on the merits. Following the Court’s decision of 11 January 2012 to apply Rule 39 of the Rules of Court, there is no risk that the applicant will be returned to Hungary, and there is no urgency to deliver judgment now, as the application was introduced on 11 January 2012. We would therefore have preferred to wait until the Austrian authorities had examined the applicant’s new submissions. This would also have ensured greater co-operation between the Court and the national authorities in terms of shared responsibility as the latter are better placed to analyse and decide such matters in the first place.

8. This said, and on the basis of the information which is presently available, we have accepted that the applicant had an arguable claim and that there was a violation of Article 13.