Austria - Constitutional Court (VfGH), 25 September 2013, U1937-1938/2012

Facts:

The Applicants are a mother and her daughter, who is a minor, who, after an application for entry as family members of a person entitled to subsidiary protection (the husband/father of the Applicants) at the Embassy in May 2010, entered Austria and lodged an application for international protection. Asked about the reasons for fleeing, the Applicants stated both as part of the initial questioning as well as the hearing that they wanted to come to their father/husband because they could not live without a man in the household as women in Afghanistan, although they had not had any problems personally.

The Applicants were then granted subsidiary protection status by the Federal Asylum Agency. The Applicants lodged an appeal to the Asylum Court against the refusal of refugee status.

As part of an oral hearing in March 2012, the Applicants were again asked about their reasons for fleeing. In response to the representative, the Applicants finally stated at the end of the hearing that as women on their own –  assuming they would have to return without the father/husband – they would be subject to asylum-related persecution in the form of the threat of a forced marriage and systematic discrimination regarding dress code as well as a restriction on freedom of movement. The main part of the submissions on this subject were made by the representative.

The Asylum Court refused the appeal. The reasons given for this were that the Applicants had not pleaded any grounds for fleeing that were specific to women during the entire proceedings and there were otherwise also no indications of this. The overall behaviour within the oral hearing does also not indicate that the traditional image of the Afghan female would have represented a personal problem for the Applicants or that they would have been women who would generally be described as “Western”. More detailed information been provided only from the details provided by the representative or the supplementary questions he had asked the Applicants.   

The Applicants lodged an appeal against these findings by the Asylum Court to the Constitutional Court and asserted, amongst other things, a violation of the right to asylum as well as the rights to an effective remedy and a fair trial (Art 18, Art 47 Charter of Fundamental Rights of the European Union). It was alleged that no legal advice was provided in the Appellants’ proceedings before the Federal Asylum Agency but only during the appeal proceedings (Art 15 (2) Asylum Procedure Guideline). Furthermore, the Applicants considered the ban on the introduction of new matters in § 40(1) of the Asylum Act to be contrary to Art 47 of the CFREU and encouraged the initiation of a judicial review of legislation to this extent.

Decision & reasoning:

In principle, the Charter of Fundamental Rights of the European Unionandin particular Art 47, is also to be applied in asylum proceedings. The relationship between the ban on the introduction of new matters and the full cognizable authority of the court required by Art 47 of the CFREU should be considered.

Restrictions which merely contribute to a rapid determination of the facts by the parties do not generally stand in the way of the effectiveness of legal protection. Ultimately,  it is in the hands of the parties themselves to participate effectively in the proceedings and to provide their evidence as comprehensively and promptly as possible in order to avoid legal disadvantages. A prerequisite, however, is the guarantee that the party can actually take advantage effectively of this opportunity in the proceedings. The asylum proceedings do have certain special features (lack of understanding of the German language, translation problems, special physical and mental situations), on the basis of which there is no guarantee that an asylum seeker, who is willing to be involved in the determination of the facts of the case, will already plead all the facts relevant to him in the court of first instance. In these cases, a subjective accusation cannot be made that an asylum seeker is refusing to be involved with the determination of the facts.

The Asylum Act does not contain a fundamental ban on the introduction of new matters, but includes only those submissions which an Applicant provides merely with the conscious intention of delaying proceedings. Such a narrowly delimited regulation of the ban on the introduction of new matters is not inconsistent with the right to access to the courts in accordance with Art 47 of the CFREU because such a restriction pursues a legitimate aim and, as such, is also proportionate.

The requirement of full cognisable authority of the court is linked to the relevant subject of the trial and means that the court is obliged, as part of the latter, to deal with all the legal and factual questions relevant to the decision. As the Asylum Court has to officially examine all the questions on the facts in an individual case in the investigative proceedings and as there is also no restriction on the Asylum Court in the decision on the legal issues, there is also no violation of Art 47 of the CFREU from this perspective.

The Asylum Court considered the submissions pleaded only in the appeal proceedings as an unlawful attempt to supplement the previous information. Regardless of this, the Asylum Court nevertheless deals in detail with the situation of the Applicants in Afghanistan or their position as women in the event of their return there. This assessment is unproblematic from the perspective of constitutional law. Also, the complaint that, in the absence of legal advice before the Federal Asylum Agency, the Applicants had been able to compile the submissions regarding their persecution as women only as part of their appeal proceedings before the Asylum Court, does not change this at all.

Outcome:

The appeal was refused.

Observations/comments:

Disputed findings of the Asylum Court:

AsylGH 06.08.2012, C9 415.948-1/2010/11E

AsylGH 06.08.2012, C9 415.951-1/2010/4E

Other sources:

Grabenwarter/Pabel: Europäische Menschenrechtskonvention (European Convention on Human Rights), 5th edition (2012)