Austria - Constitutional Court, 14 June 2012, 2011/21/0278

Facts:

The Applicant has been living in Austria since the age of 13 or since 2001 and has held a residence permit referred to as “lawful permanent residency” or “EC permanent residence” since 2005 (since 01.01.2006 lawful permanent residency is considered to be “EC permanent residence” within the meaning of Directive 2003/109/EC of the Council of 25 November 2003 regarding the status of third-country nationals who are long-term residents).

Between 2007 and 2008 the Applicant was sentenced several times, partly for serious crimes. The responsible authorities initiated proceedings to issue an exclusion order. The Applicant pleaded during the latter that his life had changed since the last conviction: he was now looking for work and was leading an orderly life. Despite this, a ten-year exclusion order was issued against the Applicant in 2011.

The Applicant lodged an appeal against this decision. He was not represented in his appeal proceedings. The responsible Independent Administrative Chamber reduced the exclusion order to five years. In doing so the responsible Independent Administrative Chamber failed to undertake an oral hearing, as the facts of the case relevant to the decision had already been ascertained.

The Applicant lodged an appeal against this decision by the Independent Administrative Chamber at the Constitutional Court. 

Decision & reasoning:

The disputed decision by the Independent Administrative Chamber was annulled owing to illegality as a result of a breach of procedural rules. The Constitutional Court gave the following reasons for this:

Although there were actual indications on the basis of the sentences that the Applicant represented a current, sufficiently serious danger to public order and safety, an assessment of prospects should be undertaken, which did not merely depend on criminal sentences as such.  Owing to the overall view of the personality of the Applicant on the one hand and the impression of one of the authority’s employees given in the file on the other hand, according to which the Applicant had changed, the Independent Administrative Chamber should not have waived holding an oral hearing.

The issue of the exclusion order was a measure within the meaning of the Returns Directive (and also one in accordance with the Permanent Residence Directive). This means that the Independent Administrative Chamber had acted in the implementation of Union law within the meaning of Art 51 Para. 1 of the Charter of Fundamental Rights of the European Union. This is why Art 47 Para. 2 of the Charter of Fundamental Rights of the European Union should be taken into consideration, according to which everyone is entitled to a fair and public hearing within a reasonable time by an independent and

impartial tribunal previously established by law. In principle there is therefore an entitlement to a public oral hearing of an appeal in the appeal procedure of the Aliens Police such as in this one. Art 47 Para. 2 of the Charter of Fundamental Rights of the European Union has the same scope and significance as Art 6 of the European Convention on Human Rights in the area of application of the latter; ; beyond this area of application, the latter the guarantees in Art 6 of the European Convention on Human Rights apply correspondingly to the area of application of Art 47 Para. 2 of the Charter of Fundamental Rights of the European Union.

In the area of application of Art 47 Para. 2 of the Charter of Fundamental Rights of the European Union the existence of a waiver of an oral hearing could be assumed for an unrepresented party only if the latter had been instructed on the option granted by law of holding such a hearing or if there is evidence that the party should have been aware of this option. In this case neither the one nor the other is apparent.

Therefore the procedure is burdened with a major deficiency, which is why the disputed decision was revoked owing to illegality following the breach of procedural rules.

Outcome:

The disputed decision was revoked.

Observations/comments:

Although the summarised finding has no reference to refugee or asylum law, it can however be used to interpret Art 47 of the Charter of Fundamental Rights of the European Union in connection with the obligation to undertake an oral hearing in asylum matters.

With regard to the obligation to hold a hearing and the Charter of Fundamental Rights of the European Union, see also Constitutional Court (VfGH) 14.03.2012, U 466/11 amongst others.