Austria- Constitutional Court, 13 December 2011, U1907/10
Keywords:
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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Revocation of protection status
Description
In the EU context, the decision by a competent authority to revoke, end or refuse to renew the protection status of a person including inter alia: in relation to refugee status cessation in accordance with the Geneva Convention; misrepresentation or omission of facts, including the use of false documents, which were decisive for the granting of refugee status; or if they have been convicted by a final judgement of a particularly serious crime, which constitutes a danger to the community of a Member State; in relation to subsidiary protection status cessation in accordance with QD Art. 16, exclusion per Art.17 or on any of the grounds set out in Art. 19 |
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Serious non-political crime
Description
"This category does not cover minor crimes nor prohibitions on the legitimate exercise of human rights. In determining whether a particular offence is sufficiently serious, international rather than local standards are relevant. The following factors should be taken into account: the nature of the act, the actual harm inflicted, the form of procedure used to prosecute the crime, the nature of the penalty, and whether most jurisdictions would consider it a serious crime. Thus, for example, murder, rape and armed robbery would undoubtedly qualify as serious offences, whereas petty theft would obviously not. A serious crime should be considered non-political when other motives (such as personal reasons or gain) are the predominant feature of the specific crime committed. Where no clear link exists between the crime and its alleged political objective or when the act in question is disproportionate to the alleged political objective, non-political motives are predominant. The motivation, context, methods and proportionality of a crime to its objectives are important factors in evaluating its political nature. The fact that a particular crime is designated as non-political in an extradition treaty is of significance, but not conclusive in itself. Egregious acts of violence, such as those commonly considered to be of a ‘terrorist’ nature, will almost certainly fail the predominance test, being wholly disproportionate to any political objective. Furthermore, for a crime to be regarded as political in nature, the political objectives should be consistent with human rights principles." |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
As a result of six convictions owing to trivial offences against property, subsidiary protection was withdrawn from the Applicant, as he would represent a danger to the general public. The Constitutional Court revoked this decision as unconstitutional: the Asylum Court had not interpreted the corresponding national stipulation in accordance with the Directives as the crimes committed were not of the seriousness required in Art 17 Qualification Directive.
Facts:
The Applicant submitted an application for asylum in Austria on 17.08.2004. The Federal Asylum Agency rejected this application for asylum, against which the Applicant lodged an appeal. The independent Federal Asylum Board did not grant asylum to the Applicant; owing to the poor security situation in the Republic of Chechnya, he was however granted subsidiary protection (for one year). Subsidiary protection was withdrawn from him on the second application for an extension of subsidiary protection and deportation to the Russian Federation was declared unlawful. This decision was justified by the Federal Asylum Agency owing to the six enforceable criminal sentences (theft, attempted theft, incitement to or involvement in theft, embezzlement, attempted petty theft).
The Applicant lodged an appeal against the withdrawal of subsidiary protection to the Asylum Court. The Asylum Court rejected this appeal, amongst other things as the Applicant was a repeat offender for whom no change to more positive behaviour could be anticipated. The nature and number of crimes indicated a negative attitude towards the Austrian legal system. When considered overall, the Applicant represented a danger to the general public within the meaning of § 9 Para.1 Z 2 Asylum Act2005 (in the version of Federal Law Gazette (BGBl.) I No. 122/2009) with regard to the number of sentences.
The Applicant lodged an appeal against this decision by the Asylum Court at the Constitutional Court. In this he pleaded that the Asylum Court had not interpreted§ 9 Para. 1 Z 2 Asylum Act in accordance with regulations, as according to Art 17 of the Qualification Directive only “serious crimes” could lead to the withdrawal of subsidiary protection, but not several trivial offences against property; the Asylum Court had acted arbitrarily through such a misinterpretation of the national stipulation. In addition, the Applicant pleaded that the statutory provision applied by the Asylum Court (regarding the withdrawal) was unconstitutional.
Decision & reasoning:
The Constitutional Court gave the reasons for its decision as follows:
Although the Applicant had been sentenced for the basic offences, he had not been sentenced for more serious offences that would therefore have a more severe punishment. The crimes committed by the Applicant had been threatened with a prison sentence of a maximum of six months in each case.
The “withdrawal” contained in § 9 Para. 2 Asylum Act 2005 implements the “exclusion”/”withdrawal” set out in Art 19 Para. 3 in conjunction with Art 17 Para. 1 of the Qualification Directive. When applying national law, which implements directives, authorities and courts are obliged to interpret national law in the light of and in accordance with the objective of the Directive.
According to Art 17 Para. 1 of the Qualification Directive, persons are to be excluded from subsidiary protection if they have committed crimes against peace, war crimes, crimes against humanity (para a) or serious crimes (para b) or have been involved in acts contrary to the purposes and principles of the United Nations (para c). Based on the seriousness of the facts relating to the exclusion or withdrawal, in accordance with the principle of interpretation in accordance with Directives, Art 17(1)(d)of the Qualification Directive could be understood only to the effect that a crime of at least comparable severity to the actions mentioned in paragraphs a to c must exist for this provision to apply. This view is also confirmed because the Qualification Directive together with the documentation belonging to it refers to the Geneva Refugee Convention. It emerges from the case law on this subject as well as literature that a danger to security or the general public exists only if the existence or territorial integrity of a country is endangered or if particularly specified criminal offences (e.g. homicide, rape, drug dealing, armed robbery) exist.
For the purposes of the principle of interpretation in accordance with Directives, the crimes committed by the Applicant – contrary to the view of the Asylum Court – could in any case not be referred to as constituting a “danger to the general public” in accordance with § 9 Para. 1 Z 2 Asylum Act 2005. The Asylum Court therefore cumulatively misjudged the law and violated the Applicant’s right granted under constitutional law to equal treatment of foreigners (and therefore acted arbitrarily).
The Constitutional Court had no concerns under constitutional law against the provision that had been applied.
Outcome:
The appeal was granted and the decision of the Asylum Court that had been challenged was revoked.
Subsequent proceedings:
The Asylum Court granted the appeal against the decision by the Federal Asylum Agency and revoked the latter without substitution (see Asylum Court (AsylGH) 24.02.2012, D3 301.752). This granted the Applicant subsidiary protection status once again.
Observations/comments:
Until 30.06.2008 the independent Federal Asylum Board was responsible in an appellate capacity for asylum issues. As of 01.07.2008 it is the Asylum Court (an explanation why the Applicant first lodged an appeal to the independent Federal Asylum Board, later to the Asylum Court).
Subsidiary protection is granted in Austria for one year in each case and persons eligible for subsidiary protection must request an extension to the status on an annual basis. If there is a reason for withdrawal, subsidiary protection is not extended, but withdrawn.
If subsidiary protection is withdrawn but deportation to the country of origin would involve a real danger of violations of Art 2 or 3 ECHR or of the 6th or 13thAdditional Protocols to the ECHR or would mean a serious threat to the life or integrity of the person concerned as a civilian as a result of indiscriminate violence as part of an international or internal armed conflict, then deportation is to be declared unlawful. These persons are then “tolerated” (within the meaning of § 46a Aliens Police Act 2005) in Austria.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Documentation cited on the Qualification Directive:
European Commission, 12.9.2001, COM [2001], 510 final; Council of the European Union, 30.10.2002, 13623/02 ASILE 59
Literature cited:
Rohrböck, Das Bundesgesetz über die Gewährung von Asyl (The Federal Act on granting asylum), Comments, 1999, margin note 453 ff.