CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 juin 2013

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font-size:14pt } .sB73D4BBA { margin:12pt 35.4pt 0pt 42.55pt; text-indent:14.2pt; text-align:justify } .s5E26538D { margin:0pt 35.4pt 0pt 42.55pt; text-indent:14.2pt; text-align:justify }       FIRST SECTION             CASE OF MOHAMMED v. AUSTRIA   (Application no. 2283/12)         JUDGMENT     STRASBOURG   6 June 2013     FINAL   06/09/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Mohammed v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Elisabeth Steiner,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Linos-Alexandre Sicilianos,   Erik Møse, judges, and André Wampach, Deputy Section Registrar , Having deliberated in private on 14 May 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 2283/12) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Sudanese national, Mr Salaheldin Mohammed (“the applicant”), on 11 January 2012. 2.     The applicant was represented by Mr E.W. Daigneault, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs. 3.     The applicant alleged under Article 3 of the Convention that his forced transfer to Hungary under the Dublin Regulation would breach that provision and under Article 13 of the Convention that he had lacked an effective remedy in the proceedings concerning his second asylum application made in Austria that would have put a stay on his transfer to Hungary. 4.     On 11 January 2012 the Court decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to expel the applicant until further notice. 5.     On the same date the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1981 and at present lives in Vienna. 7.     On 9 October 2010 he arrived in Austria via Greece and Hungary and lodged an asylum application. 8.     On 5 January 2011 the Federal Asylum Office ( Bundesasylamt ) declared that Hungary had jurisdiction regarding the asylum proceedings pursuant to Council Regulation (EC) No 343/2003 (the “Dublin II Regulation”, hereinafter the “Dublin Regulation”) and therefore rejected the applicant’s asylum application under section 5 of the Asylum Act 2005. It also ordered the applicant’s transfer to Hungary. The applicant did not lodge an appeal against that decision. 9.     Subsequently, the applicant went into hiding and thwarted an attempt to detain and forcibly transfer him planned for 5 May 2011. 10.     However, on 21 December 2011 the applicant was detained in Vienna. On 22 December 2011 the Vienna Federal Police Authority ( Bundespolizeidirektion Wien ) ordered the applicant’s detention with a view to his forced transfer to Hungary. 11.     On 30 December 2011 the applicant lodged a second asylum application that had no suspensive effect in relation to the valid transfer order. He referred to the Asylum Court’s own practice at that time as regards the transfer of asylum-seekers to Hungary and to the pertinent reports on reception conditions and access to asylum proceedings there (see below). 12.     On 2 January 2012 he also lodged a complaint against the detention order, referring to his second asylum application. He referred to a decision of the Austrian Asylum Court ( Asylgerichtshof ) of 1 December 2011 in which the Asylum Court had granted suspensive effect to an appeal lodged by an Algerian asylum-seeker, stating that a real risk of a violation of the European Convention on Human Rights could not be excluded in case of the transfer of asylum-seekers to Hungary under the Dublin Regulation. The Asylum Court had based its reasoning on a letter from the Austrian office of the United Nations High Commissioner for Refugees (“UNHCR”) dated 17   October 2011 concerning detention conditions for asylum-seekers in Hungary and the risk of refoulement to Serbia (see paragraphs 32-36 below). 13.     On 5 January 2012 the Vienna Independent Administrative Panel ( Unabhängiger Verwaltungssenat Wien ) dismissed the complaint against the detention order as unfounded. It stated that the order for the applicant’s detention with a view to his transfer had been issued in accordance with the law. 14.     On 10 January 2012 the Administrative Court ( Verwaltungsgerichtshof ) dismissed the applicant’s motion for his complaint to be granted suspensive effect. It stated that it would only decide upon a complaint against an order for detention with a view to forced transfer and not on the lawfulness of any transfer to Hungary. However, it concluded that the immigration police ( Fremdenpolizei ) would in any event have to refrain from transferring the applicant to Hungary – even if the order was itself valid – if the current situation in Hungary for individuals transferred there under the Dublin Regulation would breach Article 3 of the Convention. 15.     On 9 January 2012 the applicant also lodged an application with the Vienna Federal Police Directorate ( Bundespolizeidirektion Wien ) as the competent immigration police authority, asking it to establish that his transfer to Hungary would constitute a risk for him within the meaning of section 50(1) or (2) of the Immigration Police Act ( Fremdenpolizeigesetz , see paragraph 26 below). On the same date, the Federal Police Directorate rejected the application under section 51 of the Immigration Police Act, stating that such an application would only be allowed in the course of proceedings in which an order prohibiting the recipient from returning to Austria ( Rückkehrentscheidung ), an order for deportation ( Ausweisung ) or an order prohibiting the recipient from residing in the country ( Aufenthaltsverbot ) had been rendered. However, no such proceedings were currently pending against the applicant, which was why the request had to be rejected. 16.     The applicant also lodged an application for the transfer order to be lifted with the immigration police. Those proceedings are still pending, as are two further sets of proceedings: one concerns the applicant’s detention with a view to his forced transfer and is pending before the Administrative Court, the other concerns his second asylum application and is pending before the Federal Asylum Office. 17.     The applicant’s forced transfer to Hungary was again scheduled for 12 January 2012. On 11 January 2012 the Court applied an interim measure under Rule 39 of the Rules of Court and requested the Austrian Government to stay the applicant’s transfer to Hungary until further notice. II.     RELEVANT DOMESTIC LAW AND INTERNATIONAL INFORMATION A.     Relevant domestic law 1.     Council Regulation (EC) No 343/2003 (“the Dublin Regulation”) 18.     Under the Dublin Regulation, the Member States must determine, based on a hierarchy of objective criteria (Articles 5 to 14), which Member State bears responsibility for examining an asylum application lodged on their territory. The aim is to avoid multiple applications and to guarantee that each asylum-seeker’s case is dealt with by a single Member State. 19.     Where it is established that an asylum-seeker has irregularly crossed the border into a Member State having come from a third country, the Member State thus entered is responsible for examining the application for asylum (Article 10 § 1). This responsibility ceases twelve months after the date on which the irregular border crossing took place. Where the criteria in the regulation indicate that another Member State is responsible, that State may be asked to take charge of the asylum-seeker and examine the application for asylum. The requested State must answer the request within two months from the date of receipt of the request. Failure to reply within two months is stipulated to mean that the request to take charge of the person has been accepted (Articles 17 and 18 §§ 1 and 7). 20.     By way of derogation from the general rule, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in the Regulation (Article 3 § 2). This is called the “sovereignty” clause. In such cases the State concerned becomes the Member State responsible and assumes the obligations associated with that responsibility. 21.     Article 19 § 2 provides that appeals and reviews concerning a decision of a requesting Member State in which an applicant is informed that his or her request is not being examined by the requesting Member State and that he will be transferred to the responsible Member State shall not suspend the implementation of the transfer unless the courts and competent bodies so decide on a case-by-case basis. 2.     The Asylum Act 22.     Section 5 of the Asylum Act 2005 ( Asylgesetz ) provides that an asylum application shall be rejected as inadmissible if, under treaty provisions or pursuant to the Dublin Regulation, another State has jurisdiction to examine the application for asylum. When rendering a decision rejecting an application, the authority shall specify which State has jurisdiction in the matter. 23.     Section 12 establishes – with the exception of cases falling under section 12a – de-facto protection against deportation ( faktischer Abschiebeschutz ) for aliens who have lodged an application for asylum. However, section 12a provides that a person whose asylum application has been rejected pursuant to lack of jurisdiction under the Dublin Regulation (section 5 of the Asylum Act) is not entitled to such de-facto protection against deportation in the event that he or she lodges a second asylum application. 24.     Asylum-seekers can lodge an appeal with the Asylum Court against decisions rejecting their application rendered by the Federal Asylum Office as the first-instance asylum authority within one week of the decision (see section 22(12)). However, section 36(1) stipulates that such an appeal shall not have suspensive effect. Section 37 allows the Asylum Court to grant suspensive effect to such an appeal, or to an appeal against a deportation order issued in conjunction with the rejection of an asylum application, within one week, if it is reasonable to believe that the individual’s deportation would give rise to: (i) a real risk of a violation of Articles 2 or 3 of the Convention or of Protocol 6 or Protocol 13 to the Convention; or (ii)   a serious threat to his or her life or person as a result of arbitrary violence in connection with an international or internal conflict in relation to which the applicant is a civilian. 25.     The Asylum Court is required to decide upon appeals against decisions rejecting an asylum claim within eight weeks (see section 41(2)). 3.     Immigration Police Act 26.     Section 50(1) and (2) of the Immigration Police Act ( Fremdenpolizeigesetz ) contains a prohibition on refoulement arising from the enforcement of deportation orders. Amongst other things, it states that the deportation of an alien to a country of destination is unlawful if it violates Articles 2 and 3 of the Convention or Protocols 6 or 13 to the Convention or if it gives rise to a real threat to the life or the physical integrity of a civilian due to arbitrary violence in the course of an international or internal conflict. 27.     During proceedings regarding a prohibition on returning to Austria, deportation or a residence prohibition, the individual concerned was entitled to lodge an application asking the immigration police to determine whether the alien’s deportation to a country other than his or her country of origin would be unlawful under section 50 of the Immigration Police Act (see section 51(1) of the Immigration Police Act, as in force at the relevant time). If such an application concerned the deportation of the alien to his or her country of origin, the application was considered an asylum application (section 51(2)). Until a final decision on the application had been taken, he or she could not be deported to the country he or she had specified in making the application under section 51(1), unless the application fell to be rejected as res judicata . The proceedings were to be discontinued in the event of the alien’s deportation to a third country (section 51(3)). 4.     Relevant domestic practice 28.     On 31 October 2011 the Austrian Asylum Court quashed a decision of the Federal Asylum Office dismissing an asylum claim in which it had ordered an Afghan national to be transferred to Hungary under the Dublin Regulation. The Asylum Court allowed the asylum proceedings to proceed in Austria. It stated as follows (see Asylum Court decision of 31 October 2011, No. S4 422020-1/2011/5E): “The UNHCR report of 17 October 2011 ... refers to ‘general detention of asylum-seekers’, adding that judicial review of their detention is ‘a mere formality’. Besides this, the report states that the ‘main problem’ is ‘ill-treatment by the police in detention facilities’ and that ‘it appears that ill-treatment and harassment by the police are a daily occurrence’. These serious allegations support the conclusion that assaults by the police on asylum-seekers are not merely isolated incidents. The existence of such reports by the UNHCR – which in any event carries weight as the designated authority in assessing such matters – indicates the need for closer investigation of the issues they raise in relation to the European Convention on Human Rights. This will involve determining which specific and verifiable cases form the basis for the UNHCR’s finding that there is a general practice of detaining asylum-seekers (specifically, returnees within the meaning of the Dublin II Regulation); to that end, in so far as these can be ascertained, statistical data and the views of the Hungarian authorities may also be useful in investigating the situation. In addition, there is a need for further investigations regarding the number and nature of assaults by police officers on asylum-seekers in detention pending deportation (measured in relation to the number of asylum-seekers in Hungary), and also whether officials involved in assaults of this kind face any legal consequences, and whether such consequences have had any practical effect. The UNHCR mentions as a further problem the fact that, under the Dublin II Regulation, Hungary treats returning asylum-seekers as repeat applicants; this means that appeals against negative decisions concerning them do not have automatic suspensive effect, and the Hungarian authorities send any asylum-seekers who have entered Hungary via Serbia ... back to Serbia, as a safe third country. In the light of the Hungarian Helsinki Committee’s report of September 2011, the criticisms expressed by the UNHCR cannot be dismissed as irrelevant from the outset; as a result, it appears necessary to establish – for example, through statistical data – the extent to which asylum-seekers who are returned to Hungary by Austria under the Dublin II Regulation, having previously entered Hungary via Serbia, are able in practice to secure proceedings on the merits there or a substantive review of their grounds for protection against refoulement , coupled with access to an effective legal remedy. ...” 29.     On 28 November 2011 the Asylum Court quashed the dismissal of an asylum application made under the Dublin Regulation by the Federal Asylum Office and an associated order for the claimant to be transferred to Hungary. It stated that it held the view that forced transfer to Hungary was, in general, lawful, after having conducted an individual examination of the case. However, it noted that in the case before it the Federal Asylum Office had based its evaluation of the situation of asylum-seekers in Hungary on outdated reports and had not taken into consideration newer sources, including documents such as a letter from the UNHCR dated 17 October 2011, a report by the Hungarian Helsinki Committee dated April 2011 on detention conditions in Hungary and another report from that body dated September 2011 on the issue of whether Serbia could be considered a safe third country. It confirmed that the Federal Asylum Office would have to investigate the issue of the detention in Hungary of individuals transferred there under the Dublin Regulation, including the conditions of their detention, allegations of police violence in detention centres that had been made, and their access to asylum proceedings and effective legal remedies (see Asylum Court decision of 28 November 2011, No.   S16   422704 ‑ 1/20110). 30.     The Asylum Court took similar decisions in a number of other cases: for example, on 30 November 2011 (No. S4 422775-1/2011/2E), on 1   December 2011 (No. S21 422754 ‑ 1/2011) and on 5 December 2011 (Nos.   S7 422195-1/2011; S7 422194-1/2011; S7 422197-1/2011). 31.     In a number of cases the Asylum Court awarded suspensive effect to complaints against decisions of the Federal Asylum Office ordering transfer to Hungary under the Dublin Regulation, for example on 1 December 2011 (Nos. S15 422847-1/2011 and S3 422772-1/2011) and on 12 December 2011 (No. S6 422809-1/2011). B.     Relevant domestic and international information on Hungary 1.     Letter from the Austrian office of the United Nations High Commissioner for Refugees dated 17 October 2011 and subsequent developments 32.     Upon a request of the Asylum Court, the Austrian office of the United Nations High Commissioner for Refugees (“UNHCR”) made the following statements regarding the situation of asylum-seekers in and individuals transferred under the Dublin Regulation (“transferees”) to Hungary. 33.     Asylum-seekers and transferees were taken into detention immediately after their arrest for illegal entry or residence in Hungary. Only unaccompanied minors were not detained. The detention of asylum-seekers had become increasingly commonplace since April 2010. Following an amendment of the law, detention could also be ordered during the conduct of substantive asylum proceedings and could last for up to twelve months. Detention orders needed to be judicially approved. However, the results of the UNHCR’s investigation showed that judicial review was only a formality and did not lead to a substantive review of the grounds for detention. 34.     The facilities used for the detention of asylum-seekers partly operated under a high-security regime, including, for example, furniture which was fixed in place, barred cells and visiting regulations. Depending on the facility, privileges were granted, such as only being locked in the cell during the night, and access to outside activities, sanitary facilities and common areas. Furthermore, social workers were employed and internet access was granted. However, the main problem that had been established after interviews were conducted by the UNHCR with detainees in September 2011 related to allegations of abuse by police officers in the detention facilities. It thus seemed that abuse and harassment by the authorities occurred on a daily basis. A Syrian asylum-seeker had been brutally beaten up on the day of the UNHCR visit; another asylum-seeker had been the victim of a different incident only days before the visit. All the asylum-seekers interviewed had complained of police brutality. According to their statements, not all police officers were violent, but a number of officers began by provoking the detainees and proceeded to beat them up and to abuse them verbally. Asylum-seekers also reported having been systematically drugged with tranquilisers, even occasionally to the extent of the development of an addiction. That last piece of information was confirmed by employees of refugee centres to which asylum-seekers had been sent after their detention was lifted. Finally, detained asylum-seekers were forced to conduct their administrative dealings in handcuffs, even though their detention was only the result of illegal entry to or residence in the country. 35.     Contrary to UNHCR recommendations, Hungary still viewed Serbia as a safe third country and expelled asylum-seekers and transferees who had come into Hungary from Serbia back to Serbia without them having access to substantive asylum proceedings. The Hungarian authorities conducted substantive proceedings examining the asylum-seekers’ original flight reasons in only 20% of all asylum applications. The practice of Hungarian courts concerning appeals differed widely: whilst the court in Budapest had ordered the substantive examination of an asylum application in several cases following UNHCR recommendations, appeals decided by the Szeged court, which had jurisdiction over most asylum-seekers travelling via Serbia, were usually dismissed without a thorough examination. Based on the information available to the UNHCR, Hungary did not transfer asylum ‑ seekers to Greece at the present time. 36.     Finally, transferees were considered applicants lodging second asylum applications, which led to their appeals against decisions dismissing their asylum claims not automatically being given suspensive effect. Furthermore, access to other services was limited in comparison to new applicants. 2.     UNHCR: Hungary as a country of asylum, April 2012 37.     The UNHCR report stated as regards access to asylum proceedings that such access was, in general, available in Hungary for applicants, both in-country and at the airport. However, access had proven problematic for those in detention, for transferees and for those entering Hungary via Serbia (paragraph 19 of the report. All references in this section are to paragraphs of the report unless otherwise stated). As regards access for transferees, the report highlighted that asylum-seekers transferred to Hungary under the Dublin Regulation were not automatically considered to be asylum-seekers by the Hungarian authorities. They therefore had to reapply for asylum once they had been transferred to Hungary, even if they had previously sought asylum in another EU Member State, and irrespective of the fact that they had been transferred in accordance with the Dublin Regulation. These applications were considered second applications. In most cases, upon return to Hungary, the issuance of a deportation order was automatically followed by placement in administrative detention. Applicants were required to show new elements in support of their claims which were additional to those raised in their initial applications. Following legislative amendments in December 2010, second applications did not have automatic suspensive effect on deportation orders in all cases. As a result, asylum ‑ seekers transferred to Hungary under the Dublin Regulation were generally not protected against deportation to third countries, even if the merits of their asylum claims had not yet been examined. In sum, the report stated that applicants subject to the Dublin Regulation might not have access to asylum proceedings (paragraph 20). The report recommended that Hungary ensure full access to asylum proceedings in all circumstances envisaged by applicable international standards. 38.     As regards the reception conditions for asylum-seekers in Hungary, the report observed that its reception system was camp-based. Asylum ‑ seekers and refugees had in the past been hosted in open reception centres run by the Office for Immigration and Nationality (hereinafter “OIN”) and provided with in-kind assistance. By 2010, that practice was superseded by a policy of extensive detention of asylum-seekers unlawfully entering or staying in the country. Most asylum-seekers were accommodated in one of the four permanent administrative detention facilities run by the police in Budapest, Győr, Kiskunhalas and Nyirbátor. Families with children, married couples and single women were accommodated in a temporary detention facility in Békéscsaba. Unaccompanied children were hosted in the Home for Separated Children in Fót. Recognized refugees and individuals benefiting from subsidiary protection status were accommodated in the OIN’s open reception centre in Bicske. Asylum-seekers who had spent 12 months in detention and submitted second applications were, since June 2011, placed in the OIN open reception centre in Balassagyarmat (paragraphs 28 and 29). 39.     The report noted that the reception conditions and services in place at that time in Hungary continued to fall short of international and European Union reception standards. Persons of concern were kept in isolation in OIN reception centres during often lengthy asylum proceedings. Limited access to language learning and the isolation of the facilities prevented them from establishing contact with society in the host country (paragraph 31). Persons of concern in Debrecen and Balassagyarmat complained of insufficient medical services, citing superficial medical examinations, the lack of specialised services, difficulties repairing and replacing broken glasses and prohibitively expensive dental treatment. Different health problems were often treated with the same generic medication, and there were reports that medical problems were often not fully addressed. Heavily medicated in detention, by the time they arrived in Balassagyarmat some had become practically dependent on tranquilisers. There had been reported cases of hepatitis and drug addiction and many suffered from psychological problems that were inadequately addressed (paragraph 33). 40.     The facility in Debrecen was considered particularly problematic, with residents reporting toilets and bathrooms in poor condition, buildings infested with cockroaches despite regular fumigation, frequent shortages of hot water in the building housing vulnerable people, and the insufficient quality and quantity of hygiene packages. Further information concerned insufficient attention being paid to dietary needs, a lack of flexibility in the provision of meals and the poor quality of meals provided in Balassagyarmat (paragraph 34). The report also referred to tensions between different groups of asylum-seekers and serious security threats arising from fights breaking out between residents from different ethnic groups (paragraph 35). Also, nightly police checks in the Debrecen facility were often conducted in a harsh manner without respect for privacy and dignity. The atmosphere in Balassagyarmat was tense, with many verbal arguments reported. Security checks had had a particularly negative impact on patients treated for post-traumatic stress disorder (paragraph 37). Asylum-seekers in Debrecen reported that they were not given sufficient information about the asylum procedures governing their individual cases. In Balassagyarmat, residents also reported that neither the grounds for their detention nor the next steps in their cases were adequately explained. Finally, there was no external oversight or quality control monitoring mechanism in place with regard to reception conditions in Hungary (paragraphs 40 and 41). 41.     As regards the detention of asylum-seekers, the UNHCR noted that since April 2010, detention had become the rule rather than the exception in Hungary. On 24 December 2010 amendments of the legislation relevant to asylum-seekers and refugees had entered into force, making it possible to detain asylum-seekers while the merits of their cases were being reviewed, increasing the maximum length of administrative detention to twelve months and authorising the detention of families with children for up to thirty days (paragraph 43). Hungary had imposed prolonged periods of administrative detention upon asylum-seekers without providing avenues to effectively challenge the detention once ordered or considering alternatives to detention. Judicial review of administrative detention of asylum-seekers was ineffective in Hungary in many instances, as courts failed to address the lawfulness of detention in individual cases, or to provide individualised reasoning based upon the specific facts of the case and the circumstances of the applicant (see paragraph 46). The report also referred to the issue of the legal aim of administrative detention – to ensure the availability of the person in case of deportation – and the Court’s case-law in this regard (see Lokpo and Touré v. Hungary , no. 10816/10, §§ 22 et seq., 20 September 2011). 42.     Permanent detention facilities had been renovated and applied a high-security regime, even where residents had only committed the minor offence of illegal entry or stay. Detained asylum-seekers vehemently complained of the violent behaviour of the guards. While not every guard behaved in an inappropriate manner, some particular guards and indeed entire shifts allegedly harassed detainees verbally and even physically. Detained asylum-seekers also complained of having been systematically given drugs/tranquilisers, resulting in some of them becoming addicted by the end of their detention terms. When escorted from the facility to court or administrative hearings, detained asylum-seekers were handcuffed and led in chains, methods which were normally used on the accused in criminal proceedings (paragraph 50). 3.     Reports by the Hungarian Helsinki Committee (a)     Stuck in Jail – Immigration Detention in Hungary (2010), April 2011 43.     The report was published in the furtherance of the NGO’s mandate to regularly monitor detention facilities in Hungary. It noted firstly that until 2010, four immigration detention centres were operational in Hungary, namely Kiskunhalas, Nyíbátor, Győr and Budapest Airport. Between April and July 2010, eleven new immigration detention centres were opened in different locations, including in Baja, Debrecen, Kiskunhalas, Nyíbátor, Salgótárján, Sopron. Nine of these facilities had been operated as jails; many had been closed down years ago and had not been used since. The report published the NGO’s findings after visiting the nine new, temporary immigration detention centres in August 2010. 44.     The Hungarian Helsinki Committee remarked on the fact that the recently established detention scheme for immigrants treated them as criminals, even though illegal border-crossing was considered a petty offence in Hungarian law. It further noted a high-security regime was in operation in some of the detention facilities visited, such as those in Kiskunhalas, Nyíbátor and Salgótárján. As regards the Salgótárján, Nyíbátor and Baja facilities, the report also observed unacceptable physical and hygiene conditions. It further noted a lack of necessary medical and psychological care in almost all detention facilities visited and a general problem of forced inactivity and deprivation of time outdoors. Furthermore, in almost all detention centres visited, the detainees reported that they were not receiving a sufficient amount of food. A major shortcoming was detected in that Hungarian legislation concerning the immigration police did not set forth different rules to be applied to vulnerable people with specific needs. The Hungarian Helsinki Committee also stated that it had found two unlawfully detained minors upon its visits, even though immigration detention of unaccompanied minors was explicitly prohibited by the Immigration Act. It also remarked on the fact that legal challenges to their detention brought by asylum-seekers had often failed, as courts reviewing detention matters appeared to carry out a purely formal assessment of whether there was a legal basis for it, without examining if detention was “lawful” within the meaning of Article 5 of the Convention. Finally, it observed that protests, violent acts and self-harm had frequently occurred at some immigration detention centres since the opening of those facilities, which showed, according to the NGO, a clear correlation with the physical conditions and the detention regime applied in the various detention centres. (b)     Serbia as a Safe Third Country: A Wrong Assumption, September 2011 45.     The report was triggered by a significant increase in the number of asylum-seekers returned by the Hungarian authorities to Serbia in 2011. In its executive summary it concluded that there was only limited access to asylum proceedings for asylum-seekers in Serbia; that asylum-seekers returned to Serbia were at risk of refoulement ; and that assistance and reception conditions in Serbia did not meet the needs of asylum-seekers. Overall, the Hungarian Helsinki Committee stated that Serbia could not be regarded as a safe third country for asylum-seekers. (c)     Access to protection jeopardised; Information note on the treatment of Dublin returnees in Hungary, December 2011 46.     The Hungarian Helsinki Committee summarised its report by stating that in its opinion, Hungary at that time did not provide appropriate reception conditions and access to asylum proceedings to asylum-seekers transferred to it under the Dublin procedure. This assessment was based on the practice that asylum-seekers transferred under the Dublin procedure were, in general, immediately issued with a deportation order, irrespective of their wish to seek asylum. Transferees who had previously submitted an asylum claim in Hungary could not continue their previous (discontinued) asylum proceedings. If they wished to maintain their claim, it would be considered as a second application for asylum, which had no suspensive effect on deportation measures. Based on the automatically-issued deportation order, the majority of transferees were routinely placed in immigration detention without consideration of their individual circumstances or alternatives to detention. Finally, transferees who were not detained were deprived of proper reception conditions, as their “second” asylum claim did not entitle them to accommodation and support services normally provided to asylum-seekers. 4.     UNHCR: Notes on Dublin transfers to Hungary of people who have transited through Serbia, observations on Hungary as a country of asylum of October 2012 and December 2012 47.     In October 2012 the UNHCR published a note on Hungary and Serbia as countries of asylum and concluded that it maintained its previously-expressed concerns regarding Hungary’s ongoing practice of treating the asylum claims of most Dublin transferees as second applications, without guaranteed protection from removal to third countries before an examination of the merits of the asylum claims. The UNHCR was also particularly concerned about Hungary’s continuing policy and practice of considering Serbia as a safe third country and returning asylum-seekers to that country without conducting an examination of the merits of their claims. 48.     In an update to that note dated December 2012 the UNHCR observed that in November 2012 the Hungarian Parliament had adopted a comprehensive package of legislative amendments, and the UNHCR welcomed these initiatives and the amendments’ reported aim of ensuring that asylum-seekers whose claims had not yet been decided might remain in Hungary pending an examination of the merits of their claims, and would not be subject to detention, as long as they applied for asylum immediately. Furthermore, the UNHCR appreciated the State’s reported intention to introduce additional legal guarantees concerning detention to ensure, inter alia , unhindered access to basic facilities, such as toilets, and access for detainees with special needs to appropriate treatment. 49.     The UNHCR further observed that Hungary no longer denied an examination on the merits of asylum claims where asylum-seekers had transited via Serbia or Ukraine prior to their arrival in Hungary. Such asylum-seekers were no longer returned to Serbia or Ukraine. In addition, access to asylum proceedings in Hungary had improved for those asylum ‑ seekers transferred to Hungary under the Dublin system whose claims had not been examined and decided in Hungary (in other words, those for whom no final decision on the substance of the asylum claim had been taken). Such asylum-seekers had access to an examination of the merits of their claims upon their return, provided they made a formal application to (re-) initiate the examination of the previously made asylum claim. They would then not be detained and might await the outcome of the proceedings in Hungary. 50.     Some improvements had also been observed with regard to the detention of asylum-seekers. The UNHCR noted that the number of asylum ‑ seekers detained had significantly declined in 2012. Asylum-seekers who applied for asylum immediately upon their arrival, or at the latest during their first interview with the immigration police, were no longer detained. People who failed to apply immediately, or who otherwise failed to communicate such an intention, continued to be subject to detention for the duration of the entire asylum proceedings. C.     Relevant international information on Sudan 51.     The Country Report on Human Rights Practices for 2011 in respect of Sudan issued by the United States Department of State stated in its Executive Summary that Sudan was a republic transitioning, after the secession of South Sudan, toward a new constitution from a power-sharing arrangement established by the 2005 Comprehensive Peace Agreement. The National Congress Party controlled the government. In April 2010 the country had held its first national, multiparty elections in twenty-four years. However, the elections had not met international standards. In January 2011 ninety-eight percent of eligible voters voting in a referendum concerning the secession of South Sudan from Sudan had voted in favour of secession. The Republic of South Sudan had formally gained its independence in July 2011. A referendum on the status of Abyei which had been planned to be held simultaneously with the secession referendum had not been held, and consultations in Southern Kordofan had been postponed. Blue Nile consultations had been concluded, but the recommendations had not been implemented by year’s end. Conflict had continued in Darfur and in the three border areas of Abyei, Southern Kordofan and Blue Nile – termed the “Three Areas”. 52.     The main human rights abuses documented included government forces and government aligned groups committing extrajudicial and other unlawful killings, security forces committing torture, beatings, rape and other cruel and inhuman treatment or punishment, and prison and detention conditions being harsh and life-threatening. Other major abuses concerned arbitrary arrests and arbitrary, incommunicado, and prolonged pre-trial detention, executive interference with the judiciary and denial of due process, obstruction of humanitarian assistance, restrictions of freedoms of speech, press, assembly, association, religion and movement, harassment of internally displaced persons, restrictions on privacy, violence against women including female genital mutilation, child abuse including sexual violence and recruitment of child soldiers, human trafficking, violence against ethnic minorities and forced and child labour. Except in rare cases, the government did not take any steps to prosecute or punish officials in the security services and elsewhere in the government who committed abuses. The impunity of security forces remained a serious problem. Rebels in Darfur and the Three Areas also committed abuses during the year 2011. 53.     The Amnesty International Annual Report 2012 on Sudan also referred to widespread human rights abuses in the course of the armed conflicts in Darfur and the Three Areas. Attacks in Darfur including aerial bombardments had been carried out by government forces and allied militia and there had been ground attacks in and around towns and villages, including camps for internally displaced people. The UN Humanitarian Coordinator estimated that over 70,000 people had been displaced by the fighting since December 2010. The government restricted access to UNAMID and humanitarian organisations, preventing them from carrying out monitoring and from providing essential services to civilians. 54.     As regards the Three Areas, the report stated that in May 2011 the Sudanese Armed Forces (“SAF”) overran Abyei town. Those attacks forcibly displaced the entire population of the town and the surrounding villages, over 100,000 people, to South Sudan. The attack followed a series of armed clashes between the SAF and the Sudan People’s Liberation Army between January and May. In June 2011 a UN Interim Security Force for Abyei was established to demilitarise the area. Its mandate was prolonged in December 2011. Conflict also erupted in Southern Kordofan in June between the SAF and an armed opposition group. The Sudanese government repeatedly carried out indiscriminate aerial bombardments, killing and wounding civilians. A report published in August 2011 by the Office of the High Commissioner for Human Rights detailed unlawful killings, mass destruction and looting of civilian property and other allegations that would amount to war crimes and crimes against humanity. In September conflict spread to Blue Nile State and President al-Bashir declared a state of emergency, replacing the governor with a military governor. People displaced by the fighting, ov