Austria - Constitutional Court, 22 September 2011, U1734/10
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Constitutional Court |
| Date of decision: | 22-09-2011 |
| Citation: | U1734/10 |
Keywords:
| Keywords |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
Prior to the ECtHR’s decision in MSS v Greece and Belgium, the Austrian Asylum authorities generally only used the sovereignty clause in relation to “Dublin cases” concerning Greece and vulnerable persons. The Constitutional Court refused the appeal on the basis that the applicant did not fall within a vulnerable group and because the Asylum Court’s decision was taken prior to MSS v Greece and Belgium.
Facts:
The applicant entered Greece in September 2008. The Greek authorities registered him and his fingerprints were taken. The applicant spent twelve months in Greece and then continued to Slovenia, where he applied for asylum. There were no reasons for his departures from Greece or his following departure from Slovenia. Information on his asylum procedures is not available.
In January 2010 the applicant entered Austria and applied for asylum, claiming that he was a minor. Medical examination was undertaken to determine whether he was a minor and it was decided that he was not. The Federal Asylum Office held consultations with Greece, issued an inadmissibility decision and an expulsion order to Greece. The applicant appealed against this decision. The Asylum Court refused his appeal, arguing the applicant is not part of a vulnerable group and, therefore, Austria does not have to examine the application under Art 3 (2) Dublin II regulation, despite the situation in Greece. The applicant appealed against this decision to the Constitutional Court.
Decision & reasoning:
The Constitutional Court refused the appeal.
The Asylum Court’s decision was released before the ECtHR’s decision MSS vs. Greece and Belgium. Under Austrian jurisprudence, at that time, the sovereignty clause was only generally used in Dublin cases concerning Greece and vulnerable persons. At the moment of the Asylum Court’s decision, therefore, it was in accordance with Austrian and European jurisprudence.
Outcome:
The appeal was refused and the Asylum Court’s decision became legally binding.
Observations/comments:
The Constitutional Court in Austria is only allowed to assess the points of law based on the information given during the procedure before the lower authorities. It is not allowed to introduce new facts or circumstances before the Constitutional Court.
This decision does not have the effect that other asylum seekers can be transferred to Greece, as it only refers to the jurisprudence at the time of the decision by the Asylum Court.
This summary has been reproduced and adapted for inclusion in EDAL with the kind permission of Forum Réfugiés-Cosi, coordinator of Project HOME/2010/ERFX/CA/1721 "European network for technical cooperation on the application of the Dublin II regulation" which received the financial support of the European Refugee Fund.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Austria - Constitutional Court, 7 October 2010, U694/10 |