FIRST SECTION
DECISION
Application no. 69091/14
E.T. and others
against Austria
The European Court of Human Rights (First Section), sitting on 7 April 2015 as a Committee composed of:
Mirjana Lazarova Trajkovska, President,
Linos-Alexandre Sicilianos,
Ksenija Turković, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 23 October 2014,
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 applicants anonymity,
Having regard to the information submitted by the respondent Government and the comments in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants Mrs E.T., her husband and their three minor children are nationals of the Russian Federation and live in Vienna. The Court of its own motion granted the applicants anonymity (Rule 47 § 4 of the Rules of Court). They were 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.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
4. The applicants first lodged asylum applications in Austria on 29 September 2013. On 16 December 2013 the Federal Asylum Authority (Bundesasylamt) rejected the applications, holding that pursuant to Council Regulation (EC) No 343/2003 (“the Dublin II Regulation”), Italy was the competent EU member State to examine them, as the applicants had previously held a visa there. On 3 February 2014 the Federal Administrative Court (Bundesverwaltungsgericht) dismissed their appeals. On 1 April 2014 the applicants were transferred to Italy. Until 4 August 2014 they were housed in a refugee home near Rome.
5. On 7 August 2014 the applicants returned to Austria and lodged fresh asylum applications. They requested that Austria made use of its right under the Dublin Regulation to examine their applications for international protection, claiming that the situation for asylum-seekers in Italy was difficult and they did not receive the necessary medical treatment. On 11 August 2014 the Federal Office for Migration and Asylum (Bundesamt für Fremdenwesen und Asyl) informed the applicants that it was planned to remove them to Italy under Regulation (EU) No 604/2013 (“the Dublin III Regulation”). An attempt by the authorities to transfer the applicants to Italy on 22 October 2014 was stopped, because E.T. informed them that she was pregnant.
6. On 24 October 2014, upon the applicants’ request, the President of the First Section decided to apply interim measures pursuant to Rule 39 of the Rules of Court, and requested the Austrian Government to stay the applicants’ expulsion to Italy until further notice.
7. On 4 November 2014 the Court gave its judgment in Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)), which concerned the compatibility of the removal of asylum seekers to Italy with the respondent State’s obligations under Article 3 of the Convention.
8. On 2 December 2014 the Court requested the Government to indicate whether they envisaged taking any steps in response to the Tarakhel v. Switzerland judgment, including any that may directly affect the applicants’ status in Austria.
9. By letter of 5 February 2015 the Government informed the Court that Austria would exercise its right under the Dublin Convention to assume the examination of the applicants’ asylum claims.
10. Subsequently, the applicants were given an opportunity to comment. On 17 February 2015 they acknowledged that the measure adopted by the Government was favourable to them, but stated that they nevertheless wished to maintain their application, as the domestic authorities had not expressly acknowledged, nor adequately redressed a violation of the Convention.
B. Relevant domestic law and practice
11. The relevant European, Italian and Austrian law, instruments, principles and practice in respect of asylum proceedings, reception of asylum-seekers and transfers of asylum-seekers under the Dublin Regulation have recently been summarised in Tarakhel v. Switzerland ([GC], no. 29217/12, §§ 28-48, 4 November 2014); Mohammed v. Austria, (no. 2283/12, §§ 18-31, 6 June 2013); Halimi v. Austria and Italy ((dec.), no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013); Abubeker v. Austria and Italy ((dec.), no. 73874/11, §§ 31-34 and §§ 37-41, 18 June 2013); and Daybetgova and Magomedova v. Austria ((dec.), no. 6198/12, §§ 25 29 and §§ 32-39, 4 June 2013).
COMPLAINTS
12. The applicants complained that their removal to Italy would be in breach of Article 3 of the Convention because of the deficiencies in the reception system for asylum-seekers. Under Article 13 of the Convention they complained that they did not have a legal remedy available in Austria with regard to their complaint under Article 3.
THE LAW
13. 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.”
14. The Court notes that the applicants’ complaint under Article 3 of the Convention is based on the possible consequences of their return to Italy, in particular the conditions of reception in that country. It is satisfied that the applicants will now benefit from the undertaking given by the Austrian Government, namely that they will not be returned to Italy or any other country without a full examination of their asylum claims on the merits by the Austrian authorities. Consequently, there is no longer a basis for the applicants’ complaint under Article 13 of the Convention either, as it relates to the lack of a remedy with suspensive effect against the decision to expel them to Italy. Noting that the applicants will have the opportunity to lodge a new application with the Court (including the possibility of requesting an interim measure under Rule 39 of the Rules of Court) should that need arise, the Court finds that the applicants’ complaints must be considered to have been resolved, within the meaning of Article 37 § 1 (b) of the Convention. Moreover, 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 complaint. Accordingly, it is appropriate to strike the application out of the Court’s list of cases and to discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Done in English and notified in writing on 30 April 2015.
André WampachMirjana Lazarova Trajkovska
Deputy RegistrarPresident
Full & Egal Universal Law Academy