The applicant, an Afghan national, was apprehended in Austria in September 2022 and lodged an application for international protection on the same day. A hit report in Eurodac showed that he had previously lodged an application for international protection in Bulgaria. The Federal Office for Immigration and Asylum (BFA) therefore dismissed the complainant's application for international protection, determining that Bulgaria was responsible for examining the application.
The applicant appealed the decision, claiming that in Bulgaria he had been homeless and starving. The Federal Administrative Court rejected the appeal. It based its decision on country reports and stated that it was not apparent that the applicant would be at risk of a violation of his rights guaranteed under the ECHR in Bulgaria. The court stated that, in Bulgaria, asylum seekers are entitled to an asylum procedure based on the rule of law with the possibility of judicial review, in which the requirements for granting asylum and protection against deportation are in line with international obligations, in particular the Geneva Convention on Refugees and the ECHR. It stated that it has not been demonstrated that there were systemic deficiencies in the asylum procedure and in the reception of asylum applicants.
The applicant appealed the decision of the Federal Administrative Court and claimed that the decision violated constitutionally guaranteed rights, in particular the right to equal treatment of foreigners and the right to a fair trial. Furthermore, the applicant claimed that despite some improvements in Bulgaria's refugee camps, there were still many problems for asylum seekers, in particular as a result of the acceleration of asylum procedures. Affected people were often left to homelessness, unemployment, poverty and social isolation, and living conditions in asylum shelters that were inadequate.
The Constitutional Court cited Article 1 of the Federal Constitutional Act on the Implementation of the International Convention on the Elimination of All Forms of Racial Discrimination, Federal Law Gazette No. 390/1973. The court stated that this provision protected foreigners from authorities exercising arbitrariness when issuing a decision. The court stated that such arbitrary conduct could be, among other things, the omission of investigative activity on a decisive point or the omission of a proper investigation procedure at all, in particular in connection with ignoring an applicant’s submissions and carelessly departing from the content of the files or disregarding the specific facts of the case. The court further noted that the lower court had made such an error. The court noted that an authority cannot be unaware of whether systemic weaknesses of the asylum procedure and the reception conditions for asylum seekers in a Member State constitute serious and factual grounds for presuming that an applicant was genuinely at risk of being subjected to inhuman or degrading treatment within the meaning of Article 3(2) of the Dublin III Regulation. Furthermore, authorities are obliged to assess, on the basis of objective, reliable, accurate and duly updated information and in the light of the standard of protection of fundamental rights guaranteed by EU law, whether there are either systemic or general weaknesses or weaknesses affecting certain categories of persons. The court cited the judgment of the CJEU in Jawo.
The Court also referred to M.S.S. v Belgium and Greece, application No. 30696/09 (ECtHR), and stated that Member States are obliged to verify, when applying the Dublin III Regulation, whether asylum seekers have access to a proper asylum procedure in the responsible Member State, including respect for the principle of non-refoulement, which guarantees protection against infringements of their rights under Article 3 of the ECHR.
Moreover, the court stated that authorities are also obliged to examine whether asylum seekers in the responsible Member State are at risk of arbitrary chain refoulement to a country where they would be exposed to the risk of a violation of Article 3 of the ECHR.
The court concluded that, in view of the described caselaw and available country reports, the Federal Administrative Court was obliged to examine more closely whether the applicant would have access to a proper asylum procedure in Bulgaria without being exposed to the risk of chain refoulement to a country in which he could be threatened with the violation of his rights guaranteed under Article 3 of the ECHR and Article 4 of the Charter.
The Constitutional Court decided to annul the transfer decision, stating that, since the Federal Administrative Court failed to carry out the necessary investigation on a crucial point, the appealed decision was burdened with arbitrariness.