Austria - Constitutional Court, 11 June 2012, U 1092/11

Facts:

The applicant admitted amongst other things that he had voluntarily become a member of the Taliban during the period from 1998 until 2002. He had been a bodyguard to one of the Taliban commanders, had participated in acts of war and battles as well as in the implementation of rules set up by the Taliban. In 2003 the applicant applied for asylum in Austria.

The BAA rejected his application, granted him neither refugee nor subsidiary protection status and expelled him to Afghanistan. The applicant appealed against this decision, which was subsequently dealt with by the Asylum Court.

The Asylum Court acted on the assumption of the existence of a ground for exclusion from asylum through (at least) involvement in crimes against humanity. For this reason the Asylum Court granted neither refugee status, nor the status of subsidiary protection. However, the expulsion set aside owing to the threat of an infringement of Art 3 European Convention on Human Rights (ECHR) due to the general situation in Afghanistan.

The applicant lodged an appeal against this decision at the Constitutional Court owing, amongst other things, to the breach of his constitutional right to equal treatment of aliens. As the Asylum Court had assumed the existence of the ground for exclusion from asylum in accordance with Article 1 F (a) of the Geneva Convention on the Status of Refugees, the Asylum Court had broadly misinterpreted the law and therefore acted arbitrarily. The facts of the case that were established were not sufficient to be able to assume with sufficient probability that the applicant had participated in crimes against humanity.

Decision & reasoning:

The right of the applicant to equal treatment of aliens has been infringed by the contested decision of the Asylum Court to the extent that the appeal against the refusal to grant asylum as well as subsidiary protection was rejected.

The Constitutional Court therefore granted the appeal insofar as the Asylum Court had acted arbitrarily to the extent that these errors would violate the applicant’s constitutional rights. With reference to the judgement by the European Court of Justice (ECJ) on 9.11.2010, C-57/09 and C-101/09, B and D v Federal Republic of Germany/B and D, the Constitutional Court stated argued that the specific actions of the applicant, which represent a crime against humanity in the view of the Asylum Court, had been made out to an insufficient extent. This is because the Asylum Court had assumed solely on the basis of the statement by the appellant of the existence of a ground for exclusion, without making further inquiries as to what actions are to be attributed to the commander of the applicant during the Taliban’s rule or what position and responsibilities were assigned to the ”bodyguard“ of a commander within the Taliban system. The Asylum Court therefore did not comply with the requirements for evidence when accepting a ground for exclusion from asylum stipulated in Art 12(2) Qualification Directive and also expressed by the ECJ in the judgement cited. The decision being challenged therefore breaches the applicant’s constitutional right to equal treatment of aliens through Point I (failure to grant asylum) and II (failure to grant subsidiary protection).

Outcome:

The appeal was granted in part, in the points indicated above and the decision by the Asylum Court was revoked owing to unconstitutionality.