Austria - Constitutional Court (VfGH), 05 December 2011, U2018/11
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." |
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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. |
Headnote:
Because the Asylum Court refused the appeal only one day after service of the ruling on the appointment of a legal advisor, the Applicant was not granted an appropriate period of time to use the legal advice and any representation in the proceedings and it was therefore made impossible for him to exercise his rights effectively in the proceedings.
Facts:
The Applicant lodged an application for asylum in Austria on 01.10.2002. The application for asylum was refused in a decision by the Federal Asylum Agency on 21.12.2005 and a decision for expulsion was issued. The Applicant lodged an appeal against this. The Asylum Court informed the Applicant in a letter of 09.08.2011 of the result of the hearing of evidence and of the option of submitting a written statement within two weeks. In the same letter the Applicant was made aware that he could make use of a legal advisor to prepare a statement, the latter should amongst other things inform and advise him if requested to do so. However, he was not assigned a legal advisor with this letter. The Applicant drew up a provisional statement within this two-week period and applied for the assignment of a legal advisor. The Applicant was assigned a legal advisor in a ruling of 07.09.2011. As a supplement to the provisional statement, the Applicant submitted several documents on 07.09. and 12.09.2011. The ruling by the Asylum Court on the assignment of a legal advisor was notified to the representative of the Applicant, a non-profit association, and the appointed legal advisor on 14.09.2011. In a decision of 15.09.2011 the Asylum Court refused the appeal against the decision by the Federal Asylum Agency in full on the merits.
The Applicant lodged an appeal against this decision by the Asylum Court to the Constitutional Court.
Decision & reasoning:
The Constitutional Court stated that owing to the specific requirement for legal protection of asylum seekers, the Asylum Court must ensure that the rights, to which the former are entitled, could actually be asserted. Even if the Asylum Court had appointed a legal advisor to represent the asylum seeker in the proceedings in the asylum courts, the asylum seeker nevertheless did not however have effective legal protection available.
In this case the Asylum Court had served the ruling on the provision of legal advice to the representative of the Applicant, a non-profit association, and the appointed legal advisor in each case on 14.09.2011. On 15.09.2011 and therefore only one day later the Asylum Court had made a decision on the Appellant’s appeal. As a result, the Asylum Court had not granted the Applicant an appropriate period of time to make use of the legal advice in the proceedings and any representation by the legal advisor and therefore to assert his rights effectively in the proceedings. This action disregarded the right of an asylum seeker to make use of a legal advisor in asylum proceedings to provide legal advice and if need be representation, which, in the opinion of the Constitutional Court, should be assessed as an arbitrary manipulation of the law, which violated the right to equal treatment of foreigners.
Outcome:
The appeal was upheld and the disputed decision was revoked on grounds of unconstitutionality.
Subsequent proceedings:
The Asylum Court refused the appeal on 14.12.2012 under number E13 267203-0/2008-15E and issued a decision for expulsion.
Observations/comments:
Disputed decision of the Asylum Court:
AsylGH 15.09.2011, E13 267203-0/2008
In the meantime the legal advice system has been restructured and asylum seekers are made aware of who is their legal advisory organisation with their negative decision by the Federal Asylum Agency.