European asylum system – judgment in Shamso Abdullahi v Bundesasylamt (C‑394/12)

Posted by Europe of Human Rights on 11/12/13

Ms Abdullahi, aged 22, was born in Somalia. In 2011 she fled her country and went to Syria. Afterwards, through Turkey she escaped to the EU. First she entered Greece, and then travelled through Macedonia, Serbia to Hungary. After crossing the border between Hungary and Austria she was arrested.

In Austria, Ms Abdullahi lodged an application for international protection. Austria requested that Hungary take charge of Ms Abdullahi and Hungary agreed. Ms Abdullahi appealed that decision. She criticized the asylum situation in Hungary in the light of the European Convention for the Protection of Human Rights and Fundamental Freedoms that prohibits torture and inhuman and degrading treatment. Later Ms Abdullahi argued that actually Greece was responsible for her asylum application, and not Hungary. According to her Greece did not observe human rights in certain respects and that, accordingly, it was for the Austrian authorities to complete the examination of her asylum application.

On 10 December 2013 Court of Justice of the European Union answered question of the Austrian court. The CJEU decided that while it is possible to appeal the decision about a transfer of the asylum seeker to another EU state, the asylum seeker cannot decide on their own which country should examine their application. The Court recalled that the Common European Asylum System was created in order to “to speed up the handling of claims in the interests both of asylum seekers and the participating Member States”. The system is based on the assumption that all the participating States observe fundamental rights.

Ms Abdullah could oppose the transfer only by pleading systemic deficiencies in the asylum system in Hungary, which would mean a real risk of being subjected to inhuman or degrading treatment. According to the CJEU it is apparent from the documents placed before it that “there is nothing to suggest that that is the position in the dispute before the referring court.”

 

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