Austria - Constitutional Court, V 152-153/2015-19, Decision dated 13 June 2016
Keywords:
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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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:
The Constitutional Court rules that the doubts of the Federal Administrative Court about the legality of Section 9a(4) and Section 21(9) FPG-DVO as amended by BGBl. II 143/2015, which defines the term “risk of absconding” in the context of detention pending deportation pursuant to Section 76 FPG, are unfounded. The Court finds that Section 9a(4) FPG-DVO was adopted on a sufficient legal basis.
Facts:
The appellants in the initial proceedings before the Federal Administrative Court (BVG) had appealed against the orders of the Federal Agency for Foreigners and Asylum (BFA) dated 13 June 2015 and 14 July 2015 to detain the appellants to secure the deportation procedure. The detention ended with the deportation of the appellants to Italy on 3 July 2015 and 22 July 2015.
Despite the deportation having taken place already, the BVG requested the Constitutional Court to examine the legality of Section 9a(4) and Section 21(9) of the Executive Order to the Aliens Police Act 2005 (FPG-DVO), BGBL. II 450/2005 as amended by BGBl. II 143/2015.
The BVG expressed doubts regarding the competence of the Ministry of internal affairs to adopt Section 9a(4) FPG-DVO as well as regarding the existence of a sufficient legal basis for the executive order. It claims that Section 9a(4) FPG-DVO only ‘appears’ to transpose Section 76 FPG (old version) while in reality it transposes Art. 2 lit. n Dublin-III-Regulation. This raises the question whether the transposition of EU Regulations would have required a formal law instead of an executive order. According to settled case-law of the Constitutional Court, the transposition via an executive order is only admissible if the executive order is based on a formal law basis. Moreover, it is argued that Section 9a(4) FPG-DVO violates Art. 1 Constitutional law for the protection of personal liberty (Bundesverfassungsgesetz zum Schutz der persönlichen Freiheit [PersFrBVG]) and Art. 5 European Convention of Human Rights (ECHR).
Decision & reasoning:
Section 76 Aliens Police Act (FPG) (old version, in force until 19 July 2015) sets out the conditions under which foreigners may be detained pending deportation. The concrete criteria to assess whether a person poses a risk of absconding were not expressly defined in Section 76 FPG itself, but instead Section 9a(4) FPG-DVO (in force since 29 May 2015) provided for clarification in that respect (N.B.: the risk of absconding was not expressly mentioned in Section 76 FPG). Pursuant to Section 21(9) FPG-DVO, Section 9a(4) entered into force on 29 May 2015 and should only be in force until 19 July 2015. The amended version of Section 76 FPG, which entered into force on 20 July 2015, now provides for a list of criteria to assess whether a person poses a risk of absconding.
Admissibility
In a first step, the Constitutional Court addresses the question whether the requests of the BVG were admissible. The objection made by the Ministry of internal affairs, that Section 9a(4) FPG-DVO was no longer in force at the time when the BVG had to deal with the second appeal (22 July 2015, i.e. one week after the detention order on 14 July 2015) was rejected by the Court. It held that at the time of the issuance of the detention orders, which is the relevant moment, Section 9a(4) FPG-DVO was still in force.
Legality of Section 9a(4) FPG-DVO
The Court first assesses whether Austria has complied with its obligation to correctly transpose Art. 2 lit. n Dublin-III-Regulation in Austrian law. The provision defines the risk of absconding as ‘the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant […] who is subject to a transfer procedure may abscond’. Whether this definition has been transposed by Section 76 FPG (old version) has been subject to a decision of the Supreme Administrative Court dated 19 February 2015 (Ro 2014/21/0075), where it was found that Section 76(2) Nr. 2 and 4 FPG (old version) do not in itself contain ‘objective criteria defined by law’ and thus do not assists when assessing the risk of absconding of a person. The transposition, hence, requires criteria set out in a law, it is no longer sufficient to rely on criteria developed in the jurisprudence.
The Ministry of internal affairs reacted upon the decision with a legislative amendment to Section 76 FPG, which was adopted by the National Assembly on 21 May 2015 and entered into force on 20 July 2015. Only after the adoption by the National Assembly, the Ministry announced the amendment of the FPG-DVO, inserting Section 9a(4) FPG-DVO. The new provision mirrored verbatim the new definition in Section 76 FPG. The provisional character of Section 9a(4) was clarified by Section 21(9) which stipulated that the provision will cease to be in force on 19 July 2015 (one day before the amended Section 76 FPG entered into force).
The Court then went on to assess whether Section 76 FPG (old version) could be seen as a sufficient legal basis for Section 9a(4) FPG-DVO. It held, that although the former provision does not explicitly define the term risk of absconding, it determines that detention may be ordered where it is necessary to secure the procedure and if there exist indicators that the person will abscond. Essentially, the Court held, these conditions mirror the definition as set out in Art. 2 lit. n Dublin-III-Regulation. Section 76 FPG (old version) can thus be considered to be the legal basis for Section 9a(4) FPG-DVO.
A similar conclusion is reached by the Court when examining the conditions of Section 76(2a) FPG (old version), according to which, detention may be imposed on asylum seekers, if this is considered to be necessary to secure the procedure. The necessity could equally be described as the situation where the person would otherwise abscond from the procedure. In conclusion, also Section 76(2a) FPG (old version) logically requires a risk of absconding to impose detention and thus provides for a legal basis.
From these findings, the Court concludes that Section 76 FPG (old version) provides for a sufficient legal basis to adopt the executive order FPG-DVO. Whether the Ministry of internal affairs also intended to transpose the Dublin-III-Regulation, when adopting Section 9a(4) FPG-DVO is irrelevant.
The Constitutional Court rules the concerns regarding the legality of Section 9a(4) and Section 21(9) FPG-DVO as amended by BGBl. II 143/2015 to be unfounded.
Outcome:
The Constitutional Court disallows the request by the Federal Administrative Court as unfounded. It rules the concerns regarding the legality of Section 9a(4) and Section 21(9) FPG-DVO as amended by BGBl. II 143/2015 to be unfounded.
Observations/comments:
Case summary written by Chad Heimrich (LLM candidate, Queen Mary University of London).