Austria - Administrative Court (VwGH), 19 March 2013, 2011/21/0267
Keywords:
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Legal assistance / Legal representation / Legal aid
Description
Legal assistance: "practical help in bringing about desired outcomes within a legal framework. Assistance can take many forms, ranging from the preparation of paperwork, through to the conduct of negotiation and representation in courts and tribunals.” Legal aid: state funded assistance, for those on low incomes, to cover legal fees." |
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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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:
The Charter of Fundamental Rights of the European Union is also applicable to proceedings to issue a return decision and requires a hearing. With regard to an Applicant who is not represented by anyone legally qualified, such an obligation also exists in cases in which an application for an oral hearing was not expressly lodged. This applies in particular when considering questions concerning private and family life in Austria.
Facts:
The Applicant travelled to Austria in 2002 and immediately made an application for asylum. A negative decision was eventually made on his application in October 2010. As a result, the Aliens’ Police Authority issued a decision for expulsion in November 2010. The unrepresented Applicant lodged an appeal against this decision.
This appeal was refused in September 2011 by the Independent Administrative Board without holding an oral hearing and the decision of the court of first instance was confirmed. The decision considered this a return decision which was not associated with an entry ban.
The Applicant lodged an appeal against this decision to the Administrative Court, in which amongst other things it was argued that an oral hearing should have been held.
Decision & reasoning:
The Charter of Fundamental Rights is also applicable in proceedings to issue a return decision, together with the provisions requiring an oral hearing. The Austrian legal system also envisages an entitlement to an oral hearing in § 9 of the Aliens’ Police Actand § 67d of the General Administrative Procedure Act.
Although it is possible to waive this entitlement, which is assumed for example if the Appellant does not lodge an application for a hearing; however, in the area of application of Art 47(2) of the Charter of Fundamental Rights, the existence of such a – conclusive – waiver can only be assumed for a party that is not represented by anyone legally qualified if they have been instructed on the opportunity granted to them to lodge an application for such a hearing or if there are indications that they should have known about this opportunity. In the case in point, it could however not be assumed that there would have been a waiver of the hearing.
The Administrative Court rejected the reasoning of the Independent Administrative Board that it was not necessary to hold an oral hearing because the facts of the case relevant to a decision were unequivocally clear from the files, the proceedings concerned for the most part disputes as to the law, and because the files showed that a further oral examination was not likely to lead to a more extensive clarification of the case.. The matters concerning private and family ties in Austria which should have been examined in particular must not be reduced to a mere assessment of legal issues.
Outcome:
The appeal was upheld.
Observations/comments:
In these proceedings, owing to the timing of the application, the old legislation of the Asylum Act (Asylum Act 1997) was applied. This did not envisage that the legality of expulsion within the meaning of Art. 8 ECHR could be considered at the same time as a rejection of the asylum application, but rather, in addition to the question of recognition of refugee status, only a consideration of non-refoulement was carried out.
According to this legislation, it was only after the final decision in the asylum proceedings that the Aliens’ Police Authority investigated whether an expulsion breached Art. 8 ECHR and any expulsion decision would be taken. The legal consequences of the expulsion decision for the most part correspond to those of a return decision.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Austria - Constitutional Court, 14 June 2012, 2011/21/0278 |
| Austria - Constitutional Court, 14 March 2012, U466/11 ua |