Austria: Constitutional Court, 3. July 2015, U 32/2014-12

Facts:

The complainant is an Afghan national and has been granted subsidiary protection in Austria.

After his subsidiary protection status was confirmed, the complainant was convicted of attempted aggravated bodily harm in Austria, and the Federal Asylum Office initiated proceedings to withdraw his subsidiary protection status. Nevertheless, the complainant was deprived of his residence permit pursuant to §9 para 4 Asylum Act 2005 (AsylG) on the basis of a final conviction of a crime within the meaning of §17 StGB. Even though his status was withdrawn, his deportation to Afghanistan was not found to be possible.

In his appeal the complainant claimed that § 9 para. 2 no. 3 AsylG has to be interpreted in conformity with Directive 2004/83/EC. Not every crime but only the ones constituting a 'serious crime' within the meaning of Article 17 of that Directive should be able to lead to the withdrawal of the residence permit.

The Asylum Court confirmed the decision of the Federal Asylum Office and stated that in Austria a final conviction of a crime pursuant to Art. 17 StGB is considered a “serious crime” within the meaning of the Directive.

Further indications such as the relevance of a future danger are not required.

The complainant appealed this judgment and claimed, inter alia, a violation of his right to equal treatment (Article I. 1 of the Federal Constitutional Act implementing the International Convention on the Elimination of All Forms of Racial Discrimination).

After the complaint had been filed, a psychiatric report was received stating that despite the criminal conduct shown by the complainant, no future danger to public order and security is expected.

Decision & reasoning:

The Court suspended the proceedings in order to examine the constitutionality of §9 para 2 no 3 AsylG.

The concerns are justified by the fact that the principle of equality prohibits the Court from treating essentially equal subjects or situations in an unequal manner without objective justification. With recourse to case law, the Court states that severe penalties must be in reasonable proportion to the circumstances of the individual case. In the present case, the complainant would be deprived of the status of subsidiary protection, with the result that the complainant would suffer serious legal consequences. The Court questions whether the law is unconstitutional in that it merely refers to the threat of a criminal prosecution, and not to the punishment actually imposed.

In defining the term "serious crime" pursuant to Art. 17 para 1 lit b Directive 2004/83/EC, Member States have a margin of appreciation. The Court recognised the margin of appreciation but expressed reservations regarding the legislature's exclusive focus on the amount of the level of the penalty without any differentiation.

The proceedings will be resumed after the constitutionality of §9 para 2 no 3 AsylG has been assessed.

Outcome:

Decision suspended

Subsequent proceedings:

The Constitutional Court will assess the constitutionality of §9 para 2 no 3 Asylum Act 2005 (AsylG). Afterwards the assessment of the appeal will be resumed.

Observations/comments:

In a later decision of 8 March 2016 (G 440/2015-14), the Court ruled that §9 para 2 no 3 AsylG is constitutional, dispelling former doubts about its unconstitutionality.

In September 2018, the Court of Justice of the European Union ruled on the seriousness of crimes in the context of exclusion from subsidiary protection in C-369/17. It found that Hungarian national law, which defines ‘serious crime’ as a crime with a possible custodial sentence of 5 years, is incompatible with the Qualification Directive. Instead, each crime must be looked at on an individual basis to ascertain its “seriousness”.

This summary was written by Theresa Richter, LLM-student at Queen Mary University (London).