Austria, Consitutional Court, 24 September 2021, E 3047/2021-11
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Consitutional Court (Verfassungsgerichtshof) |
| Date of decision: | 24-09-2021 |
| Citation: | E 3047/2021-11 |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Terrorism
Description
Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature and context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
With regard to the granting of subsidiary protection, the existence of real risks to the rights under Art. 2, 3 ECHR must be examined, which includes the obligation to consider ongoing developments on the basis of available information. If a deterioration of the security situation is disregarded, this could be seen as arbitrariness.
Facts:
The complainant is an Afghan national, who belongs to the Tajik ethnic group and is a Sunni Muslim. In 2017, he applied for international protection in Austria. The Federal Office for Foreign Affairs and Asylum rejected the application for subsidiary protection, issued a return decision and determined the admissibility of the deportation to Afghanistan. The Federal Administrative Court (hereafter FAC) denied his appeal in July 2021, due to an alternative escape route within the country. The complainant requests the annulment of the contested decision, since the security situation in Afghanistan has recently deteriorated.
Decision & reasoning:
Art. I para. 1 Federal Constitutional Act prohibits unjustifiable distinctions between foreigners. Accordingly, the exercise of arbitrariness is prohibited for administrative courts. This includes the misjudgement of the legal situation, but also the omission of any investigative activity in a decisive point, in particular by ignoring the submissions of the parties or the concrete case facts.
According to § 8 para. 1 Asylum Act 2005, a foreigner is to be granted subsidiary protection if a deportation would entail a real risk of a violation of Art. 2 or 3 ECHR or Protocols No. 6 or No. 13 to the ECHR, or if, as a civilian, the foreigner would face a serious threat to life or mental/physical integrity as a result of indiscriminate violence in the context of an domestic conflict.
In its judgement, the FAC assumed that the complainant had the possibility of (re)settling in the cities of Ma-zar-e Sharif and Herat, because the level of arbitrary violence had not reached the required level to violate Art. 2 or 3 ECHR. The FAC regards the risks cited by the complainant, associated with the announced withdrawal of US troops, as mere speculation about possible future developments. The mentioned cities were not currently under the control or other influence of the Taliban.
In doing so, the FAC fails to recognise its obligation under Art. 2 and 3 of the ECHR to assess whether the complainant would face a real risk of these rights in case of return. Due to the information available at that time, in particular given by a country information sheet (“Länderinformationsblatt”), which has been known by the FAC, it was recognizable, that there was a danger of a war affecting the entire country and thus a serious threat to life or integrity, also for civilians. This information sheet stated that due to the troop withdrawal, a new phase of conflict was to be feared, as well as the power takeover by the Taliban, which was reinforced by actual conquests of several districts. Also due to the broad media coverage of the developments, the court had to assume that the security situation must be classified as extremely volatile.
Therefore, the FAC was obliged to examine in detail the existence of a real risk of a violation of Art. 2 or 3 ECHR in case of the complainant's return in view of the armed conflict. Moreover the FAC was obliged to include ongoing developments in this context. However, the FAC did not focus on the rapidly changing security situation. Instead, it denied at a given time the possibility of armed conflict in certain locations. Due to this failure, the judgement of the FAC is arbitrary, and constitutes a violation of the complainant's right granted by Art. I para. 1 Federal Constitutional Act.
Outcome:
Application partially granted; revocation of the decision; remittal to the Administrative Court.
Observations/comments:
In a similar case, the Constitutional Court (E 3445/2021-8, 30-09-2021) ruled that due to the volatile security situation in Afghanistan, the non-granting of subsidiary protection and the resulting return decision, including the determination of the admissibility of deportation to Afghanistan, constituted a violation of Art. 2 and Art. 3 ECHR.
This case summary was written by Isabel Carmona-Schneider, PhD-student at Cologne University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Austria - Federal Constitutional Law (B-GV) - Art. 144 |
| Austria, Asylum Act (Asylgesetz), 2005 |
Cited Cases:
| Cited Cases |
| F.G. v. Sweden, no. 43611/11, 23 March 2016 |
Other sources:
Country information sheet of the state documentation as of 11.06.2021 (Länderinformationsblatt der Staatendoku-mentation)