EGMR

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137. Ilias and Ahmed (cited above, §§ 128-41) concerned the removal of asylum-seekers whose asylum applications had been declared inadmissible by the authorities of the removing State because they had arrived from a neighbouring State, to which they had been removed, and the removing State had designated that neighbouring non-EU State a “safe third country” in its legislation. In that case, the Court set out the relevant principles under Article 3 of the Convention in cases concerning the removal of asylum-seekers to third intermediary countries which were not members of the European Union without an assessment by the authorities of the removing State of the merits of the asylum claim. The Court subsequently also applied these principles to cases in which applicants who had sought to lodge an asylum application with border officials and/or communicated fear for their safety to them had been denied entry to the territory in question and removed in a summary manner to a third country outside the European Union (see M.K. and Others v. Poland, nos. 40503/17, 42902/17 and 43643/14, §§ 171-86, 23 July 2020; D.A. and Others v. Poland, no. 51246/17, §§ 58-70, 8 July 2021; and O.M. and D.S. v. Ukraine, no. 18603/12, §§ 80-98, 15 September 2022).

138. In all cases of removal of an asylum-seeker from a Contracting State to a third intermediary country without examination of the asylum requests on the merits, regardless of whether the receiving third country is an EU member State or not or whether it is a State Party to the Convention or not, it is the duty of the removing State to examine thoroughly the question whether or not there is a real risk of the asylum-seeker being denied access, in the receiving third country, to an adequate asylum procedure, protecting him or her against refoulement (see Ilias and Ahmed, § 134, and M.K. and Others v. Poland, § 173, both cited above). This examination must precede the removal to the third country (see Ilias and Ahmed, § 137, and M.K. and Others v. Poland, § 178, both cited above). If it is established that the existing guarantees in this regard are insufficient, Article 3 implies a duty that the asylum-seekers should not be removed to the third country concerned (see Ilias and Ahmed, § 134, and M.K. and Others v. Poland, § 173, both cited above).

139. In Ilias and Ahmed, which concerned the removal of an asylum-seeker from a Contracting State to a third country which was not an EU member State, the Court further stated that in addition to the main question whether the individual would have access to an adequate asylum procedure in the receiving third country, where the alleged risk of being subjected to treatment contrary to Article 3 concerned, for example, conditions of detention or living conditions for asylum-seekers in the receiving third country, that risk was also to be assessed by the expelling State (see Ilias and Ahmed, cited above, § 131).

140. Failure to discharge the above-mentioned procedural obligation under Article 3 of the Convention to assess the risks of treatment contrary to that provision prior to removing asylum-seekers to a third intermediary country constitutes a violation of Article 3 of the Convention (see Ilias and Ahmed, cited above, §§ 163-64). [...]

141. It is not in dispute between the parties that the applicant expressed his wish to apply for asylum in Germany when he was questioned at Passau police station (see paragraphs 13 and 17 above and compare M.K. and Others v. Poland, §§ 174-76; D.A. and Others v. Poland, §§ 60-62; and O.M. and D.S. v. Ukraine, §§ 85-91, all cited above). The German authorities did not process the applicant’s asylum request before returning him to Greece.

142. The impugned measure and the administrative arrangement on which it was based need to be viewed in the specific context of the developments in the aftermath of the Court’s judgment in M.S.S. v. Belgium and Greece (cited above) in 2011. Following that judgment, transfers to Greece under the “Dublin system” were suspended for a number of years. In late 2016 the European Commission considered that Greece had made significant progress, but that shortcomings in the Greek asylum system remained, and recommended that member States gradually resume transfers to Greece subject to certain conditions, including the exemption of vulnerable asylum applicants (see paragraph 62 above). Concurring in substance with the assessment of the European Commission, the Committee of Ministers of the Council of Europe and UNHCR similarly considered that improvements in the Greek asylum system had been made, but that various challenges persisted (see paragraphs 66 and 69-70 above). The different stakeholders identified challenges and shortcomings in relation to, inter alia, the processing of asylum applications, the capacity and quality of reception facilities, the treatment of vulnerable individuals as well as the conditions of detention of asylum-seekers (see paragraphs 66-73 above).

143. At the relevant time, with regard to transfers of asylum-seekers to Greece (under the Dublin III Regulation), the European Commission made the following recommendation (see paragraph 62 above):

“Before transferring an applicant to Greece, Member State authorities are invited to cooperate closely with the Greek authorities in order to ensure that the conditions indicated in point 9 [of the Recommendation of 8 December 2016] are met and in particular that the applicant will be received in a reception facility meeting the standards set out in EU law, in particular in the Reception Conditions Directive 2013/33/EU, that his or her application will be examined within the deadlines specified in the Asylum Procedures Directive 2013/32/EU, and that he or she will be treated in line with EU legislation in every other relevant respect.”

144. It follows that, on the basis of the information available, the German authorities knew or ought to have known about the above-mentioned general shortcomings in the Greek asylum system (compare Ilias and Ahmed, cited above, § 134).

145. In view of the foregoing particular situation, at that time there was an insufficient basis for a general presumption that the applicant would, following his removal from Germany to Greece, have access to an adequate asylum procedure in Greece, protecting him against refoulement, and that he would not risk being exposed to treatment contrary to Article 3 there.

146. The Court does not overlook the fact that the applicant was removed on the basis of an administrative arrangement between Germany and Greece and that the Greek authorities were notified of his removal (see paragraphs 15 and 63 above). On the one hand, this distinguishes the present case from Ilias and Ahmed, where the applicants were not returned on the basis of an arrangement between the Hungarian and Serbian authorities, but were induced to enter Serbia illegally, which exacerbated the risks of denial of access to an asylum procedure in Serbia (see Ilias and Ahmed, cited above, §§ 161 and 163). On the other hand, the administrative arrangement on the basis of which the applicant was removed from Germany to Greece did not contain any provisions guaranteeing that asylum-seekers removed under that arrangement would, following their removal, have access to an effective asylum procedure in Greece in which the merits of their asylum claim would be assessed, including, if need be, by continuing or reopening an earlier asylum procedure where such a procedure had been terminated without assessment of the asylum claim. Nor did the arrangement contain guarantees that the asylum-seekers removed on the basis of the arrangement would not be exposed to treatment contrary to Article 3 in Greece on account of, for example, conditions of detention or living conditions for asylum-seekers (in respect of the acceptability of guarantees of a more general nature in removal cases, see, for example, J.A. and Others v. the Netherlands (dec.), no. 21459/14, §§ 30-31, 3 November 2015).

147. Nor did the Government submit that the German authorities, prior to removing the applicant, had ensured that he would have access to an adequate asylum procedure in Greece and that he would not be exposed to treatment contrary to Article 3 there on account of conditions of detention or living conditions for asylum-seekers. Moreover, they did not submit that such risks had been assessed before the applicant’s removal to Greece. The order refusing the applicant entry to Germany on the basis of which he was ultimately returned to Greece did not contain an assessment of whether he would, following his removal, run a real risk of being denied access to an asylum procedure in Greece affording sufficient guarantees to avoid him being removed, directly or indirectly, to Syria without a proper evaluation of any risks of treatment contrary to Article 3 which he might face there; nor did it contain an assessment of whether he would face conditions of detention in Greece which might be in breach of Article 3 (see paragraphs 16 and 54 above and the case-law quoted in paragraphs 138-139 above, and compare O.M. and D.S. v. Ukraine, cited above, §§ 96-97).

148. Moreover, as established in paragraph 124 above, the German authorities initially gave the applicant incorrect information about the country to which he was going to be removed, the legal basis for his removal and where to lodge a remedy against that decision. The order on the basis of which the applicant was ultimately removed to Greece was served on him shortly before his departure for the airport and was not given to him in Arabic. In addition, no interpreter was present, and he was not assisted by a lawyer during the short period of time which he spent on German territory.

149. Having regard to the foregoing, the Court finds that the respondent State failed to discharge its procedural obligation under Article 3 of the Convention to satisfy itself, through respective guarantees in the administrative arrangement, or an individualised assessment, that the applicant did not run a real risk of being denied access to an adequate asylum procedure in Greece and would not be detained in conditions contrary to Article 3 there.

150. The above-mentioned considerations are sufficient for the Court to conclude that the applicant’s removal from Germany to Greece was in violation of Article 3 of the Convention – notably the fact that at the relevant time (i) there was an insufficient basis for a general presumption that the applicant would, following his removal from Germany to Greece, have access to an adequate asylum procedure in Greece, protecting him against refoulement, and would not risk being exposed to treatment contrary to Article 3 there; (ii) neither the administrative arrangement on the basis of which the applicant was removed nor an individual assurance provided for any guarantees that asylum-seekers removed under that arrangement would, following their removal, have access to an effective asylum procedure in Greece in which the merits of their asylum claim would be assessed, and that asylum-seekers removed under that arrangement would not be exposed to treatment contrary to Article 3 in Greece on account of, for example, conditions of detention or living conditions for asylum-seekers; (iii) the German authorities had not demonstrated that they had assessed such risks before removing the applicant to Greece; and (iv) the applicant was hastily removed without having access to a lawyer prior to his removal. While the events in Greece which occurred following the applicant’s removal do not alter this finding, the Court observes that the applicant was detained in conditions contrary to Article 3 of the Convention following his removal (see paragraphs 81-85 above; see also, mutatis mutandis, M.S.S. v. Belgium and Greece, cited above, §§ 366-67). Moreover, the applicant, against whom a final removal decision was issued when he was returned to Greece from Germany (see paragraphs 6-7 and 21 above), did not manage to have the decision discontinuing the proceedings concerning his first asylum application in Greece – proceedings in which the merits of his asylum claim had not been assessed – revoked (see paragraphs 9, 22 and 24 above). The applicant later managed to lodge another asylum application in Greece, which was assessed by way of the regular asylum procedure after it had been determined that he was vulnerable, and which led to him being granted refugee status (see paragraphs 25, 31, 34-35 and 52 above). While the applicant thus eventually had access to an effective asylum procedure in Greece, which protected him against refoulement to Syria, this turn of events was neither guaranteed nor reasonably foreseeable when the German authorities removed the applicant to Greece without discharging their procedural obligation under Article 3 of the Convention.

151. It follows that there has been a violation of the procedural limb of this provision. [...]