Austria - Constitutional Court, 27 June 2012, U462/12
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Constitutional Court |
| Date of decision: | 27-06-2012 |
| Citation: | U462/12 |
Keywords:
| Keywords |
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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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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." |
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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 |
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Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
Headnote:
A decision to transfer the applicant to Italy, solely based on Italy’s failure to respond to a request to take back the applicant, was insufficient, arbitrary and violated the applicant’s right to equal treatment. The Asylum Court had neither listed any criteria of the Dublin II Regulation that would indicate that Italy was responsible nor addressed the issues concerning the travel route of the applicant and his long stay in Greece.
Facts:
The applicant entered the European Union via Greece in 2005 and continued to Belgium. The applicant was rejected by Belgium and taken back by Greece. From March 2006 until November 2011 the applicant lived in Greece. He then went to Italy, where he applied for asylum. Shortly afterwards, the applicant entered Austria and applied for asylum again. The Austrian Federal Asylum Office sent a request to Italy to take responsibility of the applicant. Italy, however, did not respond within the time limit. The application was rejected and the applicant received an expulsion order to Italy. The Asylum Court agreed with this decision. The applicant then appealed to the Constitutional Court.
Decision & reasoning:
The Constitutional Court accepted the appeal.
The Court stated that the decision by the Asylum Court is arbitrary and violates the right to equal treatment for foreigners. The Asylum Court had not listed any criteria of the Dublin II Regulation that would indicate that Italy was responsible for the asylum procedure. A discussion of the issues concerning the travel route of the applicant and his long stay in Greece was also lacking. Furthermore, the Asylum Court based its decision only on the argument that Italy did not respond to the request to take responsibility of the applicant, which is considered insufficient for a take back procedure. The reasons for the decision were not sufficient and the Asylum Court’s decision constitutes a violation of the applicant’s right to equal treatment.
Outcome:
The appeal was accepted.
Observations/comments:
It is clear that Austrian asylum authorities must consider both the Dublin II Regulation and its hierarchy of criteria and all circumstances of the case. Austrian asylum authorities must not arbitrarily focus on one aspect of a given asylum case without exploring other issues, such as travel route and duration of stay.
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.
