Judgement of the Supreme Administrative Court, No. 1 Azs 37/2006-64 of 30 November 2006

Judgement of the Supreme Administrative Court, No. 1 Azs 37/2006-64 of 30 November 2006, No. 1 Azs 37/2006-64, Czech Republic: Supreme Administrative Court, 30 November 2006, https://www.refworld.org/jurisprudence/caselaw/czesac/2006/en/46098 [accessed 24 April 2024]
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The Ministerstvo vnitra (Ministry of Interior) discontinued proceedings on application for asylum due to the lack of competence according to § 25 (h) of applicable version of Zakon è. 325/1999 Sb., o azylu (Asylum Law). The Ministry decided that Hungary is responsible for the application of the complainant according to Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national. Transfer of applicant was immediately carried out.

The applicant filed action against decision of the Ministry. The Krajsky soud v Praze Regional Court in Prague) dismissed the action.

The applicant raised objections against the decision of the Ministry and the court of the first instance in her cassational complaint. She claimed to be deprived of effective judicial protection based in Article 13 of the Convention for the Protection of Human Rights and Basic Freedoms. Her transfer to Hungary shall be regarded as infringement of her family life (Art. 8 of the Convention) and torture (Art. 3 of the Convention). Nevertheless, the Nejvyssi spravni soud finds her cassational complaint totally unfounded.

Art. 19 (2) of the Regulation excludes suspending effect of actions expected by § 33 of the Asylum Law. Suspension of the transfer shall be decided by courts on a case by case basis if national legislation allows for this. Therefore, opinion of the Krajsky soud v Praze that suspension is established directly on provisions of the Asylum Law is erroneous.

The Nejvyssi spravni soud emphasizes that automatic suspension of transfer would preclude the purpose of the Regulation no. 343/2003. The regulation encourages fast proceedings on applications of asylum seekers in responsible state. Therefore, transfer does not constitute denial of justice in complainant's case.

Complainant is not barred to enter the Czech Republic due to the transfer to responsible member state for participation in oral proceedings. It must be mentioned that complainant applied for asylum after the decision on her expulsion for her previous illegal residence on the territory of the Czech Republic.

The complainant has not claimed until judicial proceedings that her transfer to responsible member state would infringe her family life due to her Czech fiancé and planned marriage. Therefore, the Ministry cannot be criticized for having no regard for the fact. The applicant must provide the information because there is no other source of information.

Hungary shall be considered as safe country. It is member state of the European Union since 2004. Therefore, complainant's transfer cannot be perceived as exposure to torture. Argumentation based on case law of the European Court of Human Rights is false. Mentioned judgements of the Court reviewed consequences of transfer to countries of origin of refugees due to threat of persecution.

Comments:
Decision on transfer of refugee to member state responsible for examining an asylum application. This unofficial summary translation has been made available by the Supreme Administrative Court, and is also available on the website of the Association of the Councils of State and the Supreme Administrative Jurisdictions of the European Union.
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