Austria - Constitutional Court, 13 March 2013, U1175/12
| Country of Decision: | Austria |
| Country of applicant: | Uzbekistan |
| Court name: | Constitutional Court |
| Date of decision: | 13-03-2013 |
| Citation: | U1175/12 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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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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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
There has been a violation of Article 47 (2) of the Charter of Fundamental Rights of the European Union if there is a failure to hold a hearing at the Asylum Court, notwithstanding that the facts of the case are not sufficiently clear. Merely general statements without reference to the case in point do not represent sufficient grounds for the lack of credibility of the submission.
Facts:
The Applicant travelled to Austria with his wife and their child in 2011 and applied for international protection. He stated that he had worked as a chauffeur for a Turkish businessman, who operated a chain of supermarkets. The latter was suspected of supporting the banned Islamic "Nurchilar" movement. The Applicant himself had been subject to the same suspicions owing to his close working relationship with his boss. The Applicant and his employer had then hidden from the police for approximately six months. Shortly before his departure searches had been made for the Applicant, and his wife was threatened with imprisonment unless he gave himself up. As a result the Applicant and his family left the country.
The Federal Asylum Agency refused the applications for international protection. The Applicant lodged an appeal against this and applied for an oral hearing. As part of the notice of appeal to the Asylum Court numerous current reports on events in Uzbekistan in connection with the supermarket chain mentioned by the Applicant were submitted.
The Asylum Court refused the appeal without holding an oral hearing. The Asylum Court denied that the Applicant was threatened with persecution owing to his job as a chauffeur as he was not involved in the activities for which his employer was being sought (tax evasion, misuse of the favourable investment climate and "brotherly relationships"). At the same time, referring to the general statements, the Asylum Court did not consider it credible that the Applicant had worked as a chauffeur for the company. It was an extremely responsible job and the Applicant was still too young and inexperienced for this.
The Applicant appealed against these decisions to the Constitutional Court and pleaded a violation of Article 3 ECHR and Article 47 (2) Charter of Fundamental Rights of the European Union.
Decision & reasoning:
The Constitutional Court came to the conclusion that the decision by the Asylum Court had violated the right of the Applicant to equal treatment of foreigners and his right granted under constitutional law to an oral hearing in accordance with Article 47(2) of the Charter of Fundamental Rights of the European Union.
According to the Constitutional Court, the statements by the Asylum Court on the lack of credibility are general and do not refer to the personal circumstances of the Applicant. The general statements on local knowledge, the clothing and punctuality of chauffeurs did not have any weight in this particular case and can also not have an adverse effect on the credibility of the Applicant, in particular because there are no definite statements relating to Uzbekistan. The contradictions identified by the Asylum Court concern mere nuances of the otherwise coherent submission.
Article 47 (2) of the Charter of Fundamental Rights of the European Union is also applicable in asylum proceedings. Section 41 (7) Asylum Act (AsylG) regulates the failure to hold an oral hearing before the Asylum Court in those cases in which the Parties have already been heard in the Court of First Instance and the facts of the case from the state of the file including the appeal seem to have been resolved or it is clear without any doubt from the investigations that the submission is contrary to the facts.
However, in this case the facts presented were not sufficiently resolved. An oral hearing should therefore have been held. The Applicant’s right was therefore violated with regard to Article 47 (2) of the Charter of Fundamental Rights of the European Union.
Outcome:
The appeal was upheld and the disputed findings withdrawn.
Subsequent proceedings:
Status on 04.08.2013: no further decision
Observations/comments:
Withdrawal of findings by the Asylum Court: AsylGH 31.05.2012, D18 423335-1/2011