Austria - Constitutional Court, 28 June 2011, B4/11
Keywords:
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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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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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Request that charge be taken
Description
Formal request by one Member State in which an application for asylum has been lodged, where it considers that another Member State is responsible for examining the application, calling upon that other Member State to take charge of the applicant. It should be made as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4(2) Dublin II Regulation and subject to the conditions laid down in Articles 17 to 19. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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Final decision
Description
A decision on whether the third-country national or stateless person be granted refugee status by virtue of the Qualification Directive and which is no longer subject to a remedy within the framework of the Asylum Procedures Directive Chapter V (concerning appeals procedures and the right to an effective remedy) irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome (subject to Annex III which is particular to Spain). |
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Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
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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:
Legality of detention in the event of imminent deportation to Greece, if the detention was imposed before the judgment by the ECtHR in the case M.S.S. v Belgium and Greece (application no. 30696/09) and there is an enforceable expulsion decision.
Facts:
The Applicant entered Austria, where he submitted an application for protection in May 2009, via Greece. Consultation proceedings were initiated with Greece and Greece was responsible as the deadline for agreement or refusal had expired. The Applicant left the reception facility assigned to him and his whereabouts were then unknown.
The Federal Asylum Agency rejected his application owing to the lack of jurisdiction of Austria and expelled the Applicant to Greece. The decision was enforceable.
In June 2010 the Applicant was arrested during a routine check and he was taken into detention. He went on hunger strike and was therefore released from detention owing to lack of fitness for a custodial sentence. Only after a further detention was he finally deported to Greece in October 2010.
In December the Applicant was found to be in possession of a French passport during a house search in connection with drug dealing. Detention was imposed on him again.
The Applicant submitted a further application for protection and Dublin consultations were again conducted with Greece. His application was not granted practical protection from deportation as a matter of law. This meant that deportation was lawful already as of the agreement of Greece or the expiry of the period to respond to the request to take back.
The Applicant lodged an appeal against the detention. In this it was stated that it was unlawful because deportation to Greece was unlawful owing to the conditions for asylum seekers there and he was in danger of treatment conflicting with Art 3 ECHR.
The Independent Administrative Chamber denied the appeal. In the decision it was argued that based on the Applicant’s previous behaviour there was a security requirement for the implementation of the asylum proceedings and the issue of an expulsion order to Greece. Doubts were raised about the conditions contrary to human rights in Greece with reference to the case law of the Asylum Court.
The Applicant lodged an appeal against this decision at the Constitutional Court.
Decision & reasoning:
The appeal was rejected.
At the time the Applicant was taken into detention according to the applicable case law of the Constitutional Court in Austria only the expulsion of vulnerable persons to Greece was unlawful. Persons who were not vulnerable were allowed to be expelled. The decision by the Independent Administrative Chamber was issued before the judgment by the ECtHR in the case M.S.S. v.Belgium and Greece (application no. 30696/09) and therefore decided within the meaning of the applicable law that an expulsion of a person who was not vulnerable to Greece was in principle lawful.
Owing to the previous behaviour of the Applicant there was a security requirement. At the time of the decision by the Independent Administrative Chamber an enforceable expulsion was already in place. This meant that there was also a legal basis for imposing as well as maintaining the detention.
As a result there was no violation of the Applicant’s right to the equal treatment of foreigners granted under constitutional law or to personal freedom.
Outcome:
Appeal rejected
Observations/comments:
In principle when assessing the legality of the detention it should also be taken into consideration whether a person is threatened with a violation of Art 3 ECHR in the event of deportation to the responsible Dublin state. If there is a significant likelihood of this, the imposition of detention is also unlawful (see also Independent Administrative Chamber Vienna 31.10.2012, independent administrative board (UVS)-01/61/15001/2012; 30.04.2012, UVS-01/50/5371/2012-12).
This is also confirmed by the Constitutional Court itself in the decision as it states that in accordance with the judgment of the ECtHR in the case M.S.S. v.Belgium and Greece (application no. 30696/09) in more recent proceedings the current case law must be taken into account.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Press information from Manfred Nowak of 20.10.2010
Press information of 1.9.2010 from the Commissioner for Human Rights of the Council of Europe, Thomas Hammarberg
Request by the ECHR to Austria at the end of October 2010, to refrain from undertaking deportations to Greece on the basis of the Dublin II Regulation