3. Also the Court of Justice of the EU argued in its jurisprudence, that the European Asylum System was drafted in a context, which allowed for the assumption, that all participating Member States respected fundamental rights. Insofar the assumptation, that the treatment in each single Member State of the EU would be in line with the requirements of the Charter and the Geneva Convention on Refugees and the ECHR applies. However it can not be exluded, that this system has to deal with severe failures in the functioning in a specific Member State, so that sever danger exists, that asylum seekers transferred to this state would be treated in a way that is incompatible with their fundamental rights. If there is severe apprehension that the asylum system and the reception conditions in the responsible state would suffer systemic deficits, which imply inhuman or degrading treatment of the transferred asylum seekers in the undersatnding of Art. 4 of the Charter, a transfer would be incompatible with this provision (see CJEU of 21 December 2011, N.S. et al, C-411/10, C-493/10, as well as CJEU of 14 November 2013, Puid, C-4/11 and 10 December 2013, Abdullahi, C-394/12).

4. Art. 3 (2) second sentence of the Dublin III Directive - new in comparison to Dublin II - contains a provision for the case where the asylum procedure and acceptance conditions in the Member State inititially competent show systemic weaknesses, which pose a threat to inhuman or degrading traetment in the understanding of Art. 4 of the Charter. In this case, the Member State has to continue to determine the criteria of Chapter III of Dublin III to assess, whether another member state can be identified as competent. In case a transfer to such an identified Member State cannot be conducted, the State conducting the determination is competent itself. Furthermore, Art. 17 (1) Dublin III Directive foresees the possibilty of a determining Member State to decide to become the Member State competent, even if it is not competent according to the criteria of the Dublin III Directive (Selbsteintritt).

5. [...] The ECtHR in the last time supported this view in its judgement of 4 November 2014, No. 29217/12, Tarakhel/Switzerland. It argued, that it followed from its previous judgement of 21 January 2011, No. 30696/09, M.S.S./Belgium and Greece, that the assumption, that a Member State participating in the Dublin system would fulfill its fundamental rights guaranteed by the ECHR, is not apodictic. The CJEU ruled that the assumption that a Dublin State fulfills ist obligations under Art. 4 of the Charter is rebutted if there are systemic deficits in the asylum procedure and the reception conditions for asylum seekers in the Member State, which lead to an inhuman or degrading treament in the meaning of Art. 4 of the Charter for persons transferred to the territory of this Member State. A transfer according to Dublin can be performed under the assumption that the Member State being the Receiving State respects Art. 3 ECHR; if there are valid reasons for the assumption („substantial grounds have been shown“) that the affected persons to be transfered would be at real risk to be treated in the receiving state against these provisions, the transfer canno tbe carried out. The reason for danger is irrelevant for the extent of protection guaranteed by the ECHR and the obligations of the sending state. It does not discharge this state to assess the situation of the affected persons thoroughly and individually and to refrain from transfer, if this danger of inhuman or degrading treatment is proven (Marginal notes 103 to 105). The ECtHR came to the conclusion that the structure and general reception conditions in the Member State in question would not – as such – be opposed to transfer. Still, according to the information presented by the court there are severe doubts regarding the capacity to receive persons and there is the possibility that a significant number of asylum seekers would be without housing or would be placed in overcrowded facilities (marginal note 115). In this case – assessed together with the vulnerability of the claimaint – the approval of transfer led to a violation of Art. 3 ECHR.

6. The Highest Administrative Court comes to the conlcusion, based on the things said so far, that its previous jurisprudence (see point III.2.) is also applicable in the area of application of the Dublin III Directive. When there is a real risk that a violation of Art. 3 EHCR (or Art. 4 of the Charter) might occur if an asylum seeker is sent to another Member State of the Dublin system, this leads to an inadmissability of transfer to this Member State. Other views would be contrary to the absolute character of the level of protection offered by Art. 3 ECHR (or Art. 4 of the Charter) and to the (fundamental rights) obligations taken up by Austria.

7. For the present case the following can be deducted:

7.1. In its judgement of 3 July 2014, Nr. 71932/12, Mohammadi/Austria, the ECtHR denied a violation of Art. 3 ECHR in the case that a young, single asylum seeker would be transferred by Austrian authorities to Hungary. Irregardless of the proven deficits in the Hungarian detainment system, the reports do not show any longer a systematic detenction of asylum seekers in Hungary and there are legal alternatives to detenction, which are restricted for those cases to a maximum of six months. Detenction conditions had improved according to the material available at the time. Furthermore, UNHCR – differently than of Greece – did not recommend to refrain from transfers to Hungary in the Dublin system. Based on this, the ECtHR considered that the affected asylum seeker at this time would not be subject to individual danger at the point of transfer and would be treated contrary to Art. 3 ECHR.

7.2. Inhowfar as the Federal Administrative Court (Bundesveraltungsgericht, BVwg) (also) referred to this ECtHR judgement, it is necessary to state for reasons of clarification, that it only judged a specific case (single young asylum seeker) at a certain point of time (that of the time of judgement in July 2014) regarding a violation of Art. 3 ECHR. To reference to this judgement as proof for its own assessment, the BWvG had to judge, whether the present case is comparable to the ECtHR case. This necessitates answering the question of whether the situation for „Dublin returnees“ to Hungary detoriated so much since July 2014, that asylum seeking parties during a transfer to Hungary would be at risk to be treated contrary to Art. 3 ECHR (or Art. 4 7. For the present case the following can be deducted:

7.1. In its judgement of 3 July 2014, Nr. 71932/12, Mohammadi/Austria the ECtHR negated a violation of Art. 3 ECHR through a transfer of a young, single asylum seeker by Austrian authorities to Hungary. Irregardless of proven deficits in the Hungarian detainment system the reports do not show any longer a systematic detainment of asylum seekers in Hungary and there are legal alternatives to detainment, which are restricted for those cases to a maximum of six months. Detainment conditions had improvent according to material then available. Furthermore UNHCR – different to the case of Greece – did not recommend to refrain from transfers to Hungary in the Dublin system. Based on this the ECtHR considered that the affected asylum seeker at this time would not be subject to individual danger at the point of transfer and would be treated contrary to Art. 3 ECHR.

7.2. Inhowfar the Federal Administrative Court (Bundesveraltungsgericht, BVwg) (also) referenced to this ECtHR judgement, it is necessary to state for reasons of clarification, that it only judged a specific case (single young asylum seeker) at a certain point of time (that of the time of judgement in July 2014) regarding a violation of Art. 3 ECHR. To reference to this judgement as proof for its own assessment, the BWvG had to judge, whether the present case is comparable to the ECtHR case. This necessitates answering the question, whether the situation for „Dublin returnees“ to Hungary detoriated so much since July 2014, that asylum seeking parties during a transfer to Hungary would be at risk, to be treated contrary to Art. 3 ECHR (or Art. 4 CFR).  Based on the case the special situation of a family with several minor children had to be taken into account. This fact – as cited by the ECtHR in case Tarakhel (Side note 119) is of high relevance, due to the special needs and extreme vulnerability of children. The reasoning of the claimaints asking for revision is to be followed and the claimaint is to be seen as especially vulnerable with her minor children and is member of the group of (especially) those who are in need of protection. The stated illnesses might aggravate this vulnerability, but do not lead – as shall be stated for reasons of clarification – as such to a severity to justify special vulnerability (see Art. 21 of Directive 2013/33/EU oft he European Parliament and the Council of 26 June 2013).

7.5. The Highest Administrative Court does not overlook that until now – as evident – no other European Highest Court ruled, that a transfer of asylum seeking parties to Hungary in the Dublin procedure due to a violation of Art. 3 or Art. 4 CFR has to be refrained from generally. There is also no recommendation by the UNHCR to refrain from transfers to Hungary due to reasons of fundamental rights; a reasons, which the ECtHR in its jurisprudence also puts weight on. The present judgement can also not be understood in the way that it finally decides on the questions, whether the actual situation in Hungary is opposed to a transfer of an asylum seeking party in general.

Still the Highest Administrative Court sees the security assumption of § 5 (3) Asylum Act 2005 for Hungary as rebutted, due to notorical changes of the situation together with the substantiated critics of the claimaints seeking revision. The Court would have expected, that the BVwG dealt with the recent situation in Hungary based on recent reports, taking into account recent developments, and - based on this - decides on the question, whether systemic deficits are present and the self-comptence (Selbsteintritt) of Austria to hinder a human rights violation according to Art. 3 ECHR (or Art. 4 of the Charter).  Based on the case the special situation of a family with several minor children had to be taken into account. This fact – as cited by the ECtHR in the case Tarakhel (Side note 119) is of high relevance, due to the special needs and extreme vulnerability of children. The reasoning of the claimaints asking for revision is to be followed and the claimaint is to be seen as especially vulnerable with her minor children and is member of the group of (especially) those who are in need of protection. The stated illnesses might aggravate this vulnerability, but do not lead – as shall be stated for reasons of clarification – to such a severity to justify special vulnerability (see Art. 21 of Directive 2013/33/EU oft he European Parliament and the Council of 26 June 2013).

7.5. The Highest Administrative Court does not overlook that until now – as evident – no other European Highest Court ruled, that a transfer of asylum seeking parties to Hungary in the Dublin procedure due to a violation of Art. 3 or Art. 4 of the Charter has to be refrained from generally. There is also no recommendation by the UNHCR to refrain from transfers to Hungary due to reasons of fundamental rights; a reasons, which the ECtHR in its jurisprudence also puts weight on. The present judgement can not be understood either in the way that it finally decides on the questions, whether the actual situation in Hungary is opposed to a transfer of an asylum seeking party in general.

Still the Highest Administrative Court sees the security assumption of § 5 (3) Asylum Act 2005 for Hungary as rebutted, due to the notorical changes of the situation together with the substantiated critics of the claimaints seeking revision. The Court would have expected that the BVwG dealt with the recent situation in Hungary based on recent reports, taking into account recent developments, and - based on this - decides on the question, whether systemic deficits are present and the self-comptence (Selbsteintritt) of Austria to hinder a human rights violation according to Art. 3 ECHR (or Art. 4 of the Charter) would have been necessary.