Austria - Constitutional Court, 15 June 2012, G41/12
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." |
Headnote:
The application by the Applicant for the assignment of a legal adviser for the appeal proceedings was rejected by the Asylum Court because it was late, as the Applicant had only submitted the application after the expiry of the one-month transition period. The Constitutional Court annulled the corresponding transitional regulation on grounds of unconstitutionality: a deadline of only one month was too short to deal with the lack of understanding of asylum seekers of the language and law.
Facts:
The Applicant submitted an application for protection on 01.04.2009. The Federal Asylum Agency rejected the application in full with a decision of 29.09.2009. The Applicant lodged an appeal against this decision at the Asylum Court. On 10.11.2011 the application for the assignment of a legal adviser reached the Asylum Court. The Asylum Court denied the appeal in full and in the same decision rejected the application for the assignment of a legal adviser because it was too late.
The legal position applicable at this time with regard to legal advice was as follows:
As a result of a judgment by the Constitutional Court on 02.10.2010 in case number U3078/09, the Asylum Act 2005 was amended by Federal Law Gazette (BGBl.) I No. 38/2011. The amended § 66 Para. 1 of the Asylum Act that entered into force on 01.10.2011 provides that an asylum seeker in appeal proceedings before the Asylum Court against rejected or denied decisions on applications for protection, which are not subsequent applications, is to be provided with an ex officio legal adviser free of charge. However, in accordance with the corresponding transitional regulation (§ 75 Para. 16 Asylum Act), this applies only to those procedures that were still pending at the Federal Asylum Agency on 30. 09.2011 and were or will be decided only after 01.10.2011. Asylum seekers, whose proceedings were already pending at the Asylum Court on 30.09.2011, must apply for the assignment of a legal adviser to support them no later than 31.10.2011 according to the transitional regulation. If they miss this deadline, they forfeit their right to the assignment of a legal adviser for the entire remaining asylum proceedings.
The Applicant lodged an appeal in the Constitutional Court against the decision of the Asylum Court. With regard to the application for the assignment of a legal adviser, the Applicant made an application for the initiation of a procedure to review the legislation: she had not been made aware of the one-month deadline for submitting such an application and the deadline was in any case too short for proceedings that could last several years.
The Constitutional Court then initiated a procedure to review legislation.
Decision & reasoning:
The Federal Government or the Asylum Court respectively pleaded the following arguments amongst others against the unconstitutionality of the one-month deadline in their statements of views as part of the procedure to review legislation:
The main task of the legal adviser was to support the submission of the appeal or provide information on the prospects of success for the latter; people whose proceedings were already pending at the Asylum Court would require only a limited amount of legal advice. In addition, the persons concerned had had approximately five months from the time the law was announced to become aware of the transition period (between 23 May 2011 – the time the new provisions were announced in the Federal Law Gazette – and 31 October 2011 – the expiry of the transition period); the deadline was sufficient, as the Constitutional Court itself had considered one week as a permissible minimum period of time for the appeals deadlines in asylum proceedings in its earlier case law.
These arguments could not be dispelled the concerns of the Constitutional Court; it gave the reasons for its decision to annul the transitional regulations that had been challenged, amongst other things, as follows:
Contrary to the opinion of the Federal Government and the Asylum Court, legal advisers within the meaning of § 66 of the Asylum Act are to support asylum seekers not only in the submission of the appeal, but also support them in the appeal proceedings before the Asylum Court. Furthermore, the period of only one month from the entry into force of the amended §66 of the Asylum Act was in any case too short in light of the lack of legal knowledge and, often,language difficulties of the asylum seekers making applications. Precisely in view of the assumed lack of legal and language knowledge of asylum seekers it should also not be expected that they understand the transitional regulation and already prepare a corresponding application in the period between the order and the entry into force of the rule of law. Lastly, the period for the assignment of a legal adviser had come into effect without those asylum seekers whose proceedings were pending at the Asylum Court (some for several years), having been made aware of this in a specificmanner. There was, therefore, no comparison with deadlines for legal remedies that were referred to separately in every notification.
The deadline stipulated in §75 Para. 16 of the Asylum Act 2005 in the version of BGBl. I 38/2011 for the application for the assignment of a legal adviser was therefore contrary to the right guaranteed by the constitution to the equal treatment of foreigners.
Outcome:
The wording “by no later than 31 October 2011” in § 75 Para. 16 of the Asylum Act 2005 in the version BGBl. I No. 38/2011 was annulled owing to unconstitutionality.