Austria - Constitutional Court, 17 June 2005, B 336/05

Facts:

The applicant entered Austria in January 2005 and applied for asylum. He subsequently left Austria and entered Slovakia, where he also applied for asylum. The applicant then left Slovakia because he said he did not expect a fair asylum procedure and was even hit by the police. In February 2005, during consultation procedures initiated by Austria, Slovakia agreed to take the applicant back. The Federal Asylum Office therefore rejected the application and expelled him to Slovakia.

The applicant appealed against this decision, pointing out that he did not expect a fair asylum procedure if he returned to Slovakia. He claimed that the Constitutional Court, in several other cases, had held Slovakia was not a safe country for asylum applicants. The Asylum Board (Unabhängiger Bundesasylsenat) did not accept the appeal. The applicant’s claim did not show that Slovakia in general does not respect human rights and the rights of refugees. The fact that only seven applicants had been granted refugee status the previous year does not prove the applicant will not receive a fair asylum procedure in Slovakia. The applicant appealed to the Constitutional Court and requested that, if the outcome was negative, the case would be assigned to the Administrative Court.

Decision & reasoning:

Although Slovakia is a Member State of the Dublin Regulation, the Austrian authorities must, in each case, examine whether there is a possibility of a violation of Art 3 ECHR through indirect refoulement. If such a possibility exists, Austria must use the sovereignty clause. The Asylum Board argued that, based only on general reports and the low recognition rate, there is no threat of a violation of Art 3 ECHR. While the reasoning for the Asylum Board’s decision might not have been very detailed, it was, in the Constitutional Court's view, not arbitrary to the extent that the Asylum Board did not respond to the applicant’s arguments at all. Due to the fact that the applicant’s rights might still be violated, the case was assigned to the Administrative Court for further examination.

Outcome:

The Constitutional Court assigned the case to the Administrative Court.

Subsequent proceedings:

The Administrative Court accepted the appeal and decided on 8 June 2006 (Case No. 2005/01/0317) to quash the Asylum Board’s decision for being unlawful. The Asylum Board argued there is no need to verify the lack of a real risk of a violation of the applicant’s human rights in case of a transfer to the responsible member state in every single case. This argument was contrary to Austrian jurisprudence (see Administrative Court 31 March 2005, 2002/20/0582 and others) and the Asylum Board’s decision was therefore unlawful. The applicant’s rights were violated and the Asylum Board’s decision was quashed. 

Observations/comments:

Slovakia is not generally seen as an unsafe Member State. The respective decision is 7 years old (and can be seen as out-dated). Nevertheless, the decision is still relevant for Member States where a deterioration of the asylum system can be observed and for Member States that have only recently started to implement the Dublin Regulation. 

This decision dates from a time when Austria had an Asylum Board, which has since then been changed to the Asylum Court. At this time, it was possible to appeal to the Administrative Court. The distinction between an appeal to Constitutional Court and an appeal to the Administrative Court is that the Constitutional Court is only responsible for decisions about violations of rights guaranteed by the Constitution, while the Administrative Court is responsible for violations of any other law. It was technically possible to appeal to the Constitutional Court and to have the appeal assigned to the Administrative Court in case of a rejection by the Constitutional Court. Following changes of the asylum law in 2008, however, direct appeals to the Administrative Court in case of an unfavourable decision by the Asylum Court, and applications to assign the appeal to the Administrative Court in case of a rejection by the Constitutional Court, are no longer possible. In any other kind of administrative procedure appeals to the Administrative Court and the Constitutional Court have to be made according to the requirements explained above. If the procedural steps were not taken or the decision is not based on the information provided during the procedure, the decision can be quashed and returned to Federal Asylum Office.

Concerning the Constitutional Court’s right to assess the violation of constitutional rights, it has to be mentioned that Austrian constitutional law includes the constitution (B-VG), ECHR and other constitutional laws, including other human rights (e.g. Constitutional Right of Personal Freedom). 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 and there is a prohibition against introducing new facts or circumstances.

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.