Austria – Constitutional Court, 21 September 2009, U591/09

Facts:

The applicants are a Chechen family with five children, one of which is seriously disabled. The applicants came to Austria in August 2008 via Poland and applied for asylum. They said they left Poland because medical treatment for their disabled child was refused. The Federal Asylum Office and Asylum Court rejected the applications and issued an expulsion order to Poland. The Asylum Court held the child’s condition is not sufficiently serious for an expulsion to Poland to be a violation of Art 2 or Art 3 ECHR. The child’s condition could not be treated in Austria either and the child was only receiving medication in Austria. The Asylum Court pointed out medical treatment is usually available for asylum seekers in Poland according to the general country of origin information, which is used in the Dublin procedure.

In the appeal to the Constitutional Court the applicants argued the child needs medical treatment, otherwise his life would be seriously threatened. If the child was not to receive this medical treatment, consisting of physiotherapy, a special diet and medication, his condition would worsen and he might starve to death. The Asylum Court neither examined the child’s medical condition nor the reasons for the refusal of treatment in Poland adequately.

Decision & reasoning:

The Constitutional Court accepted the appeal. The Constitutional Court stated that the Asylum Court’s decision represents a violation of Art 3 ECHR because the child might die under inhumane circumstances if the child is returned to Poland. The child’s parents said they had been denied medical treatment for their child in Poland. In case this complicated treatment is not assured, there is a real risk of a violation of Art 3 ECHR. The decision also violates the prohibition of arbitrariness by neglecting a life-threatening medical condition and by not making important medical investigations concerning the treatment of the child’s disease and secondary diseases. These investigations would have been necessary to exclude a real risk of a violation of Art 3 ECHR.

Outcome:

The appeal was accepted.

Subsequent proceedings:

The family’s applications were admitted to the procedure on the merits.

Observations/comments:

The Constitutional Court in Austria is only allowed to assess the points of law based on the information given during the procedure before the lower authorities. It is not allowed to introduce new facts or circumstances before the Constitutional Court.

The Federal Asylum Office and the Asylum Court have their own COI, which consist of various reports from different sources. This includes reports from NGOs as well as reports from other countries (especially from the UK Home Office and the German Foreign Ministry) and Austria’s own diplomatic missions. These reports are used in every asylum procedure. In cases where a special issue arises (for instance a certain serious medical condition or another kind of individual threat of a violation of Art 3 ECHR) further investigations have to be undertaken to exclude a risk of a violation of the constitutional rights.

This summary has been reproduced and adapted for inclusion in EDAL with the kind permission of Forum Réfugiés-Cosi, coordinator of Project HOME/2010/ERFX/CA/1721 "European network for technical cooperation on the application of the Dublin II regulation" which received the financial support of the European Refugee Fund.