CCPR/C/127/D/2956/2017
4.2
Moreover, the State party notes that the Austrian Federal Office for Immigration and
Asylum Procedure Act stipulates that an appeal against a decision rejecting an asylum
application and providing for a measure to terminate the applicant’s stay only has
suspensive effect if expressly granted by the Federal Administrative Court. Such an effect
may only be granted if it is to be assumed that removal would entail a real risk of a
violation of articles 2, 3 or 8 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (European Convention on Human Rights) or of Protocols No. 6 and
No. 13 to that Convention or that it would entail a serious threat to the person’s life or
integrity as a civil person due to arbitrary violence in situations of an international or
national conflict. Appeals against the decisions of the Federal Administrative Court can be
filed with the Supreme Administrative Court. There is also the possibility of appealing to
the Constitutional Court on the grounds of an alleged violation of constitutionally
guaranteed rights. Appeals before the Supreme Administrative Court and the Constitutional
Court may be supplemented by a request for suspensive effect to prevent removal.
4.3
The State party also refers to Directive 2013/33/EU of the European Parliament and
the Council of 26 June 2013 laying down standards for the reception of applicants for
international protection, which intends to ensure that applicants have a dignified standard of
living that is comparable in all States members of the European Union (Reception
Conditions Directive). The Reception Conditions Directive aims to ensure full respect for
human dignity, having particular regard for persons with special needs and the best interest
of the child. It contains minimum standards for all States members of the European Union
regarding freedom of movement, access to necessary medical treatment, the labour market
and education, adequate and humane accommodation, sufficient food and examination and
consideration of special needs.
4.4
The State party further submits that the communication is inadmissible because the
authors did not exhaust the available domestic remedies. The authors filed the
communication while the decision of the Federal Administrative Court was still pending.
The State party recalls that the decisions of the Court can be challenged both before the
Supreme Administrative Court and before the Constitutional Court, and that authors can
request for such procedures to be accorded suspensive effect. The State party claims that
these remedies are effective also after a Dublin Regulation transfer has been carried out
because the Regulation obliges member States to take an applicant back immediately in
case the proceedings lead to an outcome favourable to the applicant. The State party argues
that removal under the Dublin Regulation therefore does not cause irreparable harm. The
State party mentions that, according to the jurisprudence of the European Court of Human
Rights, international borders are not in and of themselves an obstacle to the exhaustion of
domestic remedies.
4.5
The State party submits that the communication is inadmissible also because it is
insufficiently substantiated.
4.6
In that regard, the State party argues that the Federal Office for Immigration and
Asylum and the Federal Administrative Court examined the authors’ asylum claim
carefully and comprehensively. Both considered in detail the general situation faced by
asylum seekers in Bulgaria and held that the authors’ health conditions did not preclude
their transfer to Bulgaria. In light of the authors’ submissions, their personal circumstances,
including their health conditions, and the situation in Bulgaria at the time, the Federal
Office for Immigration and Asylum and the Federal Administrative Court concluded that
the authors’ removal to Bulgaria did not carry a risk that their human rights would be
violated.
4.7
The State party observes that, in its dismissal of the appeal dated 8 March 2017, the
Federal Administrative Court concluded that the authors had not substantiated their claim
of human rights violations upon return to Bulgaria. The Court acknowledged that criticism
of the Bulgarian asylum and reception system had increased at the beginning of 2014 but
also noted that UNHCR had since lifted its call for a general suspension of Dublin
Regulation transfers to Bulgaria. The Court observed that asylum and reception conditions
in Bulgaria needed to be improved and that the authors, as a family with several small
children, were vulnerable, but that they had access to asylum proceedings and sufficient
care. Furthermore, the Bulgarian authorities still had to decide on the authors’ asylum
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