Key facts of the case:
The appellant, an Afghan citizen, applied for international protection on 28 June 2016. He entered the federal territory after passing through Iran, Turkey, Bulgaria, Serbia and Hungary. According to a Eurodac registry, his fingerprints and a photograph were taken in Hungary on 24 June 2016. In his first interview at the Federal Office for Immigration and Asylum (BFA) the appellant stated that he was verbally and physically abused in Hungary. By a decision of 10 October 2016, the BFA rejected the appellant’s application for international protection, without going into the matter, as inadmissible pursuant to Article 5 (1) of the Asylum Act 2005 and stated that Hungary was responsible for the examination of the application for international protection. In addition, the BFA ordered the expulsion. The appellant then lodged an appeal to the Federal Administrative Court (Bundesverwaltungsgericht, BVwG), alleging that an expulsion to Hungary would violate Article 4 CFR and Article 3 ECHR. However, on 19 January 2017, the appellant was transferred to Hungary by air. The appellant then lodged an appeal to the Constitutional Court, alleging that the decision violates his constitutionally guaranteed rights and claiming the annulment of the contested findings. The Constitutional Court referred to Article 1 BVG-Rassendiskriminierung, Article 3, Article 18 and Article 25 Dublin III Regulation, §5 AsylG 2005, §61 FremdenpolizeiG, §21 BFA-VG.
Outcome of the case:
The Constitutional Court found that the applicant was infringed by the contested decision in his constitutionally guaranteed right to equal treatment of aliens, and repealed the decision by the BVwG. The federal government (Federal Minister of the Interior) is obliged to refund the applicant with his proceeding costs (€ 2.616, within 14 days, otherwise facing executions). The Constitutional Court found that, in view of certain developments in Hungary, a substantial change in the state of affairs occurred in the Hungarian asylum system. More concretely, on 7 March 2017, the Hungarian Parliament passed a law amending the legal position concerning the internment of asylum seekers in Hungary. According to the new Hungarian Asylum Law, asylum seekers, including many children, are to be interned during their asylum procedure in Hungary. In practice, this means that all asylum seekers who are staying in Hungary should be placed in containers for the duration of their asylum procedure. Since the Federal Administrative Court had not taken certain reports (including evidence) into account sufficiently when making its decision, the Constitutional Court found the decision to be burdened with arbitrariness.
2. The decision to expel an alien or to remove him from the country in another form can justify the responsibility of the state under the ECHR or CFR if there are valid grounds for believing that the alien would be in danger of being subjected to torture or inhuman or degrading punishment or treatment in the country he/she is being expelled to (see VfSlg 13.837 / 1994, 14.119 / 1995, 14.998 / 1997).
2. Die Entscheidung, einen Fremden auszuweisen oder in anderer Form außer Landes zu schaffen, kann die Verantwortlichkeit des Staates nach der EMRK bzw. der GRC begründen, wenn stichhaltige Gründe für die Annahme glaubhaft gemacht worden sind, dass der Fremde konkret Gefahr liefe, in dem Land, in das er ausgewiesen werden soll, Folter oder unmenschlicher oder erniedrigender Strafe oder Behandlung unterworfen zu werden (vgl. VfSlg 13.837/1994, 14.119/1995, 14.998/1997).