Austria – Constitutional Court – 11. Juni 2018, E 4317/2017-11
Keywords:
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
Courts must establish the current situation of the region from which the complainant originates or which can be considered as an internal flight alternative and relate it to the individual situation of the complainant in the grounds of the decision.
In the case of a Sunni Iraqi, the lower instance court did not sufficiently consider the complainant’s region of origin, the possibility of return to that region or the possibility of internal flight. Thereby the court violated the right to equal treatment among foreigners.
Facts:
By decision of June 30, 2017, the Federal Office for Foreign Affairs and Asylum (Bundesamt für Fremdwesen und Asyl) rejected the complainant’s application for international protection both for asylum and subsidiary protection regarding his state of origin Iraq.
The appeal was dismissed as unfounded by the lower instance by decision of 3 November 2017 without an oral hearing being held. The lower instance described the situation in Iraq as follows:
There are widespread and systematic human rights violations in Iraq by both, the I.S. and Shiite militias. In particular in regions reconquered by the I.S., the Sunni population is subject to blanket discrimination and is the victim of expulsions, kidnapping, arrests, torture and mass executions. The Shiite militias are particularly violent towards people of other denominations because of their reactionary image of society. Some claim their violence is comparable to the IS’ violence.
Therefore, 3.2 million people from inside Iraq (IDPs) have been displaced within Iraq since January 2014. The IDPs are exposed to dangers from military operations and armed control of key routes. The arrival of IDPs always leads to increased sectarian tension. In violation of international standards, many IDPs are restricted in their freedom of movement by being denied access to safe regions due to their origin. The restrictions on access are mostly based on sectarian tensions, but also on family ties, religious and ethnic background, place of origin, age or absorption capacities. However, the criteria are constantly changing and are therefore not predictable. In 2015, in most provinces, a law was also passed that only allows IDPs access with a so-called "sponsor". A "sponsor" is a reference person living in the target area to whom the IDPs must refer. Even after access has been granted, IDPs face considerable obstacles. Often they are held in their thousands in so-called “security zones”. Registration in the target area is hardly possible, which means that basic services are not accessible. More than 10 million people therefore need humanitarian assistance, and there is a regular threat of water and food insecurity and medical undersupply. Humanitarian aid does not have secure access to all areas. In addition, some 245,000 people have fled Syria to Iraq.
Decision & reasoning:
In its ruling, the Constitutional Court examines whether the lower instance’s decision not to grant subsidiary protection status was arbitrary. However, the Constitutional Court does not deal with the question of granting asylum status, as this is not a constitutional issue.
Article 1.1 of the Federal Constitutional Act on the Implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (Bundesverfassungsgesetz zur Durchführung des Internationalen Übereinkommens über die Beseitigung aller Formen rassischer Diskriminierung (BGBl. 390/1973)) contains the prohibition on making objectively unjustifiable distinctions between strangers, that is, a requirement of equal treatment of strangers among themselves. Unequal treatment among strangers is only permissible if and to the extent that there is a reasonable reason for it and the unequal treatment is not disproportionate. A court’s decision violates, inter alia, the principle of equal treatment if the court exercised arbitrariness in its decision. Arbitrary conduct is, among other things, a multiple misjudgment of the legal situation, but also a failure to identify an important circumstance. Such an omission exists in particular in the case of ignoring a party's presentation and a thoughtless deviation from the content of the files or failure to take the concrete facts of the case into account.
The lower court does not comment on the concrete situation in the complainant's country of origin. It merely states in general terms that the complainant is a young man who is capable of working, with sufficient schooling and professional experience, and that he is therefore in a position to have a sufficient income in his country of origin to ensure his own subsistence. These statements contradicted the circumstances set out in the facts. According to these facts, the Sunni complainant's freedom of movement would be severely restricted due to sectarian conflicts. In many areas, the complainant would have to show a reference person for access. Access to basic services and humanitarian aid would be severely restricted.
The lower instance has therefore insufficiently considered the situation of the Sunni complainant in his country of origin by failing to investigate the complainant's region of origin and his internal flight alternatives. Failure to do so is arbitrary and thus a violation of the right to equal treatment among strangers.
Outcome:
Application partially granted; revocation of the decision; remittal to the Administrative Court.
Observations/comments:
This summary was written by Anne Dewey. She is a doctoral student at the University of Bonn and is involved in the research group of the Refugee Law Clinic Cologne.
Cited National Legislation:
Other sources:
Domestic Case Law cited
VfSlg. 13.636/1994
VfSlg. 14.650/1996
VfSlg. 16.080/2001
VfSlg. 17.026/2003
VfSlg. 16.214/2001
VfSlg. 14.393/1995
VfSlg. 16.314/2001
VfSlg. 15.451/1999
VfSlg. 16.297/2001
VfSlg. 16.354/2001
VfSlg. 18.614/2008
VfSlg. 15.743/2001
VfSlg. 16.383/2001
VfGH 27.2.2018 – E 2927/2017
VfGH 7.3.2017 – E 2100/2016
VfGH 7.3.2017 – E 1848/2015
VfGH 9.6.2017 – E 566/2017