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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
Please cite the abstract as follows:
Abstract of the German Federal Constitutional Court’s Order of 8 May 2017, 2 BvR 157/17 [CODICES]
When referring to the original decision, please follow the suggested form of citation for decisions of the Court.
Second Senate
Order of 8 May 2017
2 BvR 157/17

Headnotes (non-official):

1. Where there are indications suggesting that the conditions under which beneficiaries of international protection are received in a third country could amount to inhuman and degrading treatment within the meaning of Art. 3 ECHR, thus calling into question the principle of mutual confidence between Member States of the European Union (EU), the regular courts must investigate the relevant facts in a manner that is sufficiently reliable and satisfactory in scope.


2. If these relevant facts, pertaining to reception conditions in a third country, are neither available nor to be obtained in the course of proceedings for preliminary legal protection sought against a notice of deportation, the principle of effective legal protection requires that a preliminary injunction be granted.


I. The applicant is a Syrian national who entered the territory of the Federal Republic of Germany in July 2015. His subsequent application for asylum in Germany was rejected by the Federal Office for Migration and Refugees (hereinafter, the “Office”) due to the fact that he had already been granted international protection in Greece. During the German asylum proceedings, the applicant submitted that he had not received any form of support from the Greek authorities and, as a result, had been forced to live on the streets. His application for a preliminary injunction before the German administrative courts, directed against the rejection of his asylum request and against the deportation notice regarding his imminent transfer back to Greece, was unsuccessful. The administrative court held that, based on the information available during the expedited proceedings, there was no reason to believe that beneficiaries of protection in Greece were systematically subjected to less favourable treatment than Greek citizens. Furthermore, the administrative court assumed that the situation of recognised refugees in Greece had considerably improved in recent months.

With his constitutional complaint, the applicant primarily claims a violation of his right to effective legal protection (first sentence of Article 19.4 of the Basic Law).


II. The First Chamber of the Second Senate of the Federal Constitutional Court held that the constitutional complaint is manifestly well-founded and granted the relief sought.

The decision is based on the following considerations:

The procedural guarantee laid down in the first sentence of Article 19.4 of the Basic Law confers a right to effective judicial review. In cases involving a review of whether the reception conditions of beneficiaries of international protection in a third country constitute inhuman and degrading treatment, the procedural duty to sufficiently investigate the facts of the case has a constitutional dimension. At least in the event that there are indications of a risk of inhuman and degrading treatment, the review conducted by the regular courts must be based on facts that have been established in a sufficiently reliable manner and are satisfactory in scope. Before a deportation to a third country is permissible, the competent authorities and courts may be required to investigate the situation on the ground and, if appropriate, obtain relevant assurances from the competent authorities abroad.

If the relevant information or assurances, respectively, cannot be obtained in the course of expedited proceedings, an order of suspensive effect must be granted in relation to the asylum and deportation proceedings in order to ensure effective legal protection.

The challenged decisions do not satisfy these requirements. The administrative court’s conclusions are essentially based on the assumption that the conditions under which the applicant, as a recognised beneficiary of protection, will be received differ from how refugees are received in Greece. In the view of the administrative court, the applicable requirements under EU law were met, given that recognised beneficiaries of international protection hosted in Greece are entitled to national treatment under the Convention Relating to the Status of Refugees.

However, the Federal Constitutional Court held that the administrative court failed to consider that any social benefits available in Greece are subject, in practice, to legal residency requirements of up to 20 years, thus essentially excluding beneficiaries of international protection from eligibility. Moreover, it would have been necessary to take into account the assessment that, in accordance with the view of the European Court of Human Rights, both recognised beneficiaries of protection as well as asylum-seekers are to be considered most vulnerable groups, which are dependent on state support facilitating integration in the receiving state; such support is required for a transitional period at least.

Therefore, in the applicant’s case, the administrative court should have assessed if, and to what extent, the applicant is guaranteed access to accommodation, food and sanitation, at least for a minimum period following arrival. In the proceedings in question, Greek authorities did not offer any assurances as regards securing accommodation for the applicant during a minimum transitional period, nor does it appear that the Office or the Federal Government had requested any such assurance. Rather, the Office based the reasoning for its decision refusing asylum solely on the assumption that Greece would comply with the applicable provisions of EU law.

The Federal Constitutional Court remanded the matter to the administrative court for a new decision. In this respect, the administrative court must assess to what extent the general social benefits in Greece, as recently introduced effective 1 January 2017, are in fact available to beneficiaries of international protection.

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