FIRST SECTION
DECISION
Application no. 70162/14
Zahir REZAI 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 31 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 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, Mr Zahir Rezai (“the first applicant”), his wife Hanifa Sadati (“the second applicant”), their adult son Jawed Rezai (“the third applicant”) and their minor children Fereshta Rezai (“the fourth applicant”), Jallal Rezai (“the fifth applicant”) and Zuhra Rezai (“the sixth applicant”), born in 1955, 1958, 1997, 1999, 2001 and 2004 respectively, are Afghan nationals and live in Graz. 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. On 16 June 2013 the third and the fifth applicant applied for international protection in Austria. On 23 July 2013 the remainder of the applicants followed. In their interview with the Traiskirchen Federal Asylum Office (Bundesasylamt), the applicants stated that before arriving in Austria, they had been arrested and had their fingerprints taken in Italy.
5. On 22 October 2013 the Traiskirchen Federal Asylum Office rejected the applicants’ asylum applications and held that Italy was the competent EU Member State under Regulation (EC) No 343/2003 (“the Dublin Regulation”) to examine their claims. It held that there was no evidence that the applicants would run risk of treatment contrary to Article 3 of the Convention in Italy and declared their expulsion admissible.
6. The applicants appealed, quoting country reports concerning the situation of asylum seekers in Italy, claiming that they would run risk of having no subsistence in Italy, no shelter, and no care.
7. On 11 December 2013 their appeals were granted suspensive effect. On 13 May 2014 the Federal Administrative Court (Bundesverwaltungsgericht) dismissed the applicants’ appeals, holding that there was no evidence of systematic deficiencies in the Italian asylum and reception system. It held that relevant country reports had shown that access to asylum proceedings, shelter and education were available in Italy. It further held that a request for revision to the Administrative Court (Verwaltungsgerichtshof) was not admissible.
8. On 27 October 2014 the first and the sixth applicant were arrested and taken to the Vienna Zinnergasse detention centre for families awaiting expulsion (Familienanhaltezentrum Zinnergasse Wien). On 30 October 2014 the remaining applicants were also arrested and taken there.
9. On 31 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.
10. 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.
11. 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.
12. 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.
13. 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
14. 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
15. 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 8 of the Convention they complained that because of the lack of capacities in Italian reception centres, they would run risk of being separated as a family upon return to Italy. They further relied on Articles 5, 13 and 14 of the Convention.
THE LAW
16. 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.”
17. The Court notes that the applicants’ complaints under Articles 3 and 8 of the Convention are based on the possible consequences of their return to Italy, most notably the conditions of reception in that country and the risk of being separated as a family. 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. 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 under Articles 3 and 8 of the Convention 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 complaints under Article 3 and 8 of the Convention out of the Court’s list of cases and to discontinue the application of Rule 39 of the Rules of Court.
18. The applicants’ complaints under Articles 5, 13 and 14 of the Convention remained unsubstantiated. Having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicants’ submissions disclose no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to strike the complaints under Articles 3 and 8 of the Convention out of its list of cases;
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 30 April 2015.
André WampachMirjana Lazarova Trajkovska
Deputy RegistrarPresident
Full & Egal Universal Law Academy