Austria: Asylum law in conflict with the Constitution
By Bettina Kotschy*
Decision of the Austrian Constitutional Court of October 15, 20041—asylum—
principle of the rule of law—prohibition of torture or inhuman or degrading
treatment or punishment (article 3 ECHR)2—right to liberty (article 5 ECHR,
article 1 PersonenfreiheitsG)3—right to respect for private and family life
(article 8 ECHR)—right to an effective remedy (article 13 ECHR)—prohibition of
collective expulsion of aliens (article 4 of protocol no. 4 ECHR)—right to the
protection of property (article 1 of protocol no. 1 ECHR)
The Austrian Constitutional Court recently reviewed the 2003 reform of
the Austrian Asylgesetz (law on asylum).4 In its ruling, it annulled several
provisions that restricted judicial review of administrative decisions, provided
for immediate expulsion of asylum seekers, and permitted their detention.
According to the Court, these provisions were unconstitutional because they
violated the principle of the rule of law and the fundamental right to liberty.
This decision is an important landmark, stemming a tide of reforms moving
toward ever more restrictive rules on asylum.
1. Introduction
In line with a generally less welcoming attitude in Europe5 toward asylum
seekers, and in reaction to the sudden wave of refugees that hit Austria
* Legal secretary, Chambers of Judge Peter Jann, European Court of Justice, Luxembourg. The author is
expressing her personal views only. She would like to thank Felix Ronkes Agerbeek, Fabien Zivy, and Ronnie
Graham for their valuable comments. Email: [email protected]
1
Verfassungsgerichtshof [VfGH] [Constitutional Court], Oct. 15, 2004, Erkenntnisse und
Beschlüsse des Verfassungsgerichtshofes [VfSlg] No. 17340, available at Bundeskanzleramt
Rechtsinformationssystem [BKA/RIS] http:www.ris.bka.gv.at.
2
Convention for the Protection of Human Rights and Fundamental Freedoms,
opened for signature 4 November, 1950 [hereinafter European Convention of Human Rights or
ECHR].
3
Bundesverfassungsgesetz über den Schutz der persönlichen Freiheit [PersonenfreiheitsG] [Law
Concerning Personal Freedom], BGBl No. 684/1988 (Austria).
4
Asylgesetz 1997 [AsylG] [Asylum Law], BGBl I No. 76/1997, as amended by BGBl I No. 101/
2003 [entered into force on May 1, 2004] (Austria).
5
See, e.g., the law amending the Grundgesetz für die Bundesrepublik Deutschland [GG] [Federal
Constitution] BGBl 1993 I, 1002 (F.R.G.); Gesetz zur Änderung asylverfahrens-, ausländer- und
staatsangehörigkeitsrechtlicher Vorschriften [Law Amending Regulations Concerning Asylum
Claims, Foreigners and Nationality], June 28, 1993, BGBl 1993 I, 1062 (F.R.G.); Lov nr. 365 af
6. juni 2002 om ændring af udlændingeloven og ægteskabsloven med flere love (Afskaffelse af
ª The Author 2006. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
I·CON, Volume 4, Number 4, 2006, pp. 689–701 doi:10.1093/icon/mol031
689
690 Int’l J Con Law, Vol 4, No 4 (Oct 2006)
B. Kotschy
during the Balkan wars, Austria has—since the beginning of the
1990s—gradually limited its traditionally open-minded and generous
approach. The evolution of this development has been followed closely by
the Constitutional Court. The judgment that will be examined in this note
was the latest in a series of rulings6 on recent reforms on refugee-related
issues.
The Austrian Constitution7 provides for a comprehensive system of
judicial review, including judicial review of the constitutionality of legislative
acts. The Constitutional Court is vested explicitly with the power to
invalidate such acts on grounds of unconstitutionality.8
All provisions of the Constitution may, in principle, form the basis for this
ex post review.9 In this context, the European Convention on Human Rights
(ECHR) is directly applicable and has constitutional status.10 Any legislative
act of the federal government or of one of the Länder (states) may be
reviewed. Applications for constitutional review may be brought by
certain courts and tribunals,11 the federal government, the Länder
governments or a group of members of parliament (on the federal
or Länder level)12 and, in certain circumstances, by individuals as
well.13 Finally, the Constitutional Court can review the constitutionality of
laws ex officio, if this should prove to be relevant for deciding a pending
de facto-flygtningebegrebet, effektivisering af asylsagsbehandlingen, skærpede betingelser for
meddelelse af tidsubegrænset opholdstilladelse og stramning af betingelserne for familiesammenføring m.v.) [Law Amending the Aliens Act] (Lovtidende A 2002) (Denmark); Vreemdelingenwet [Aliens Act] 2000, Stb. 2000, 495 (Neth.).
6
See VfGH, VfSlg Nos. 13834, 15173, 15218, 15369, 15529, 16122, 16192, 16999 (Austria).
7
The Austrian Constitution is made up of the Bundes-Verfassungsgesetz [B-VG], BGBl
No. 1/1930, as amended by BGBl No. 1013/1994, and a number of constitutional laws and
provisions having the same status in the hierarchy of norms. These constitutional laws and
provisions can be adopted with special quora [presence: 1/2 of the Members of Parliament;
consensus: 2/3 of the votes cast]. See art. 44 (1) and (2) B-VG. For more information see
generally ROBERT WALTER & HEINZ MAYER, BUNDESVERFASSUNGSRECHT 49, 214 (Manz’sche Verlagsu. Universitätsbuchhandlung 2000).
8
Art. 140 B-VG.
9
Art. 140 (1) B-VG. See WALTER & MAYER, supra note 7, at 475.
10
See WALTER & MAYER, supra note 7, at 545, 553.
11
Courts of second or last instance and, specifically, the Unabhängige Verwaltungssenate
[Independent Administrative Tribunals], the Unabhängiger Bundesasylsenat [Independent
Federal Asylum Review Board] and the Bundesvergabeamt [Federal Authority for Public
Procurement], in the context of cases brought before them: see arts. 140 (1) and 129/c/ (1)
B-VG.
12
13
Art. 140 (1) B-VG. See WALTER & MAYER, supra note 7, at 476–478.
If the law impinges on their rights and if they are directly concerned: art. 140 (1) B-VG.
See WALTER & MAYER, supra note 7, at 478.
Austria
691
case.14 A law found to be unconstitutional in whole or in part15 will be
annulled by the Court. With the publication of the judgment in the official
journal (the Bundesgesetzblatt), the law is repealed.16 From this moment, it is
no longer part of the Austrian legal order. It remains applicable only to
events that took place before the ruling, with the exception of the case that
gave rise to the proceedings before the Court,17 to which the unconstitutional law will not be applied. Only to this very limited extent can an
annulment be retroactive.
The Asylgesetz is the main legislative text concerning matters of asylum.
It determines the powers of the competent authorities, the rights and
obligations of asylum seekers regarding entry and residence, the administrative procedure for applications for asylum, and the rules on judicial18
review.19
In 2003, the government modified this law, with the aim of curtailing the
rights of asylum seekers in order to streamline the administrative procedures
and to curb abuses. The rules on admissibility and the criteria for
applications for asylum were tightened. Judicial review was restricted.
Coercive measures (detention, search, confiscation) were introduced in order
to speed up fact-finding and to guarantee the expulsion of asylum seekers
who have been turned down.
In the wake of a very lively public reaction to these measures, two Länder
governments—Upper Austria and Vienna—brought proceedings before
the Constitutional Court. They claimed that the new law was unconstitutional because it ran counter to the rule of law20 and several fundamental
14
Art. 140 para. 1 B-VG. See, e.g., VfSlg No. 13834.
15
Verfassungsgerichtshofgesetz [Statute of the Constitutuional Court] BGBl No. 85/1953, x 64
para. 1, as amended by BGBl No. 311/1976 (Austria).
16
Art. 140 para. 5 B-VG.
17
Art. 140 para. 7 B-VG.
18
In Austria, administrative decisions are traditionally subject to review by administrative
authorities of several instances and may only then be brought before a court (i.e. the
Administrative Court or the Constitutional Court). In view of article 6 of the ECHR, however, this
system was changed for decisions concerning ‘‘civil rights and obligations’’ or ‘‘criminal
charges.’’ Hence, for instance, decisions on asylum are now subject to immediate judicial review
by the Unabhängige Bundesasylsenat (x 38 AsylG). See WALTER & MAYER, supra note 7, at 392,
393.
19
See Rudolf Feik, Fremdenrecht, in BESONDERES VERWALTUNGSRECHT 79, 111 (Susanne Bachmann
ed., Springer 2004).
20
Art. 18 para. 1 B-VG.
692 Int’l J Con Law, Vol 4, No 4 (Oct 2006)
B. Kotschy
human rights, namely, the rights to physical and mental integrity,21
liberty,22 family life,23 property,24 and an effective remedy.25
2. Judgment of the Austrian Constitutional Court
In the most important part of its judgment, the Constitutional Court declared
unconstitutional and annulled the provisions of the Asylgesetz that restricted
judicial review of administrative decisions, provided for immediate expulsion
of asylum seekers, and permitted their detention. Also interesting, and worth
a brief examination herein, is the reasoning that led the Court to find that
the remaining applications for review were, in part, inadmissible and, in
part, ill-founded.
2.1. Restricted judicial review
Concerning the provision that confines judicial review of negative asylum
decisions to facts and evidence already submitted before the competent
authority (‘‘unless the appellant was not able to do so before because of
trauma’’),26 the Länder governments of Upper Austria and Vienna invoked
the principle of the rule of law and articles 2,27 3,28 and 1329 of the ECHR.
They claimed that the rule of law requires judicial review to be effective.30
The scope of judicial review may not be restricted to the extent that breaches
of law committed by the competent authority could no longer be
sanctioned.31 Similarly, they argued that article 13 of the ECHR requires
21
Art. 3 ECHR, Art. 4 Protocol No. 4 ECHR.
22
Art. 5 ECHR; PersonenfreiheitsG.
23
Art. 8(1) ECHR.
24
Art. 1 Protocol No. 1 ECHR.
25
Art. 13 ECHR.
26
x 32 (1) AsylG.
27
Article 2(1) of the ECHR provides that ‘‘[e]veryone’s right to life shall be
protected by law. No one shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for which this penalty is provided
by law.’’
28
Article 3 of the ECHR provides that ‘‘[n]o one shall be subjected to torture or to inhuman or
degrading treatment or punishment.’’
29
Article 13 of the ECHR provides that ‘‘[e]veryone 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.’’
30
See VfSlg Nos. 11196, 11590, 12683, 13003, 13182, 13805 and 14765.
31
See VfSlg No. 13834.
Austria
693
an effective remedy32 and appropriate relief.33 Especially in the context of
breaches of article 3 of the ECHR, an appeal restricted to facts and evidence
already submitted before the competent authority does not fulfill the
requirements of such a remedy.34
In the view of the Länder governments, the provision in question
precludes an effective remedy. Unlike applicants in other types of cases,
asylum seekers will not be able to provide, immediately, all relevant elements
of fact and evidence before the authoritiy because they typically neither
speak nor understand German and are often in a special situation due to
stress and exhaustion. Hence, preventing them from entering an appeal that
takes into account new facts and evidence seriously undermines the
effectiveness of the remedy.
The Constitutional Court agreed with these arguments and found that the
provision in question35 prevents effective judicial review of negative decisions
regarding asylum. According to the Court, there is, effectively, a risk that
breaches of law committed by the competent authority will not be subject to
sanction. The Court acknowledged that restrictive measures that are designed
to increase an applicant’s cooperation in establishing the relevant facts do not
necessarily limit the effectiveness of judicial review, as long as the applicant is
free to cooperate. However, in asylum procedures, lack of cooperation is not
necessarily due to lack of will on the applicant’s part, but, frequently, to
communication problems, distress, or exhaustion. Moreover, the negative
consequences of an incorrect decision that is not subject to judicial review are
potentially grave in asylum cases. Therefore, the Court found that the
provision in question broadly limits the effectiveness of judicial review, and
that the reference in the Asylgesetz to trauma, connoting medical trauma, did
not take sufficient account of the special vulnerability of asylum seekers.
Accordingly it nullified the words ‘‘because of trauma’’ in the Asylgesetz.
2.2. Immediate expulsion
The Länder governments of Upper Austria and Vienna argued that
the provisions totally excluding the suspensory effect of appeals
against negative decisions on asylum,36 thus providing for immediate
32
See Wille v. Liechtenstein, Judgment of Oct. 28, 1999, App. No. 28396/95, para 75; Rotaru v.
Romania, Judgment of May 4, 2000, App. No. 28341/95, para 67.
33
See Soering v. United Kingdom, Judgment of July 7, 1989, App. No. 14038/88, para. 120;
Vilvarajah a.o. v. United Kingdom, Judgment of Oct. 30, 1991, App. No. 13163/87 a.o., para.
122; Chahal v. United Kingdom, Judgment of Nov. 15, 1996, App. No. 22414/93, para.145;
Jabari v. Turkey, Judgment of July 11, 2000, App. No. 40035/98, paras. 48, 50.
34
See generally Bahaddar v. Netherlands (rep.) No. 25894/92, Sept. 13, 1996; Chahal v. United
Kingdom, Judgment of Nov. 15,. 1996, App. No. 22414/93, para. 86.
35
x 32 (1) AsylG.
36
x 32 (2) and (8) AsylG.
694 Int’l J Con Law, Vol 4, No 4 (Oct 2006)
B. Kotschy
expulsion,37 are illegal under the rule of law and articles 2, 3, and 13 of the
ECHR. Again, they relied on the Constitutional Court’s case law regarding
the rule-of-law principle and the necessity of effective judicial review.
According to this case law, immediate enforceability of a decision—before it
has become final—is not permitted if this burdens the appellant, generally
and unilaterally, with all the negative consequences of a potentially illegal
decision until his case has been decided on appeal.38 Similarly, they argued
that an effective remedy and appropriate relief,39 within the meaning of
articles 3 and 13 of the ECHR, require the possibility of suspending
implementation of the impugned measure.40
In the opinion of the two Länder governments, the provisions in question
were illicit because, in the present context of asylum cases, immediate enforceability of negative decisions is not necessary. Moreover, immediate expulsion
makes judicial review of a negative decision de facto hypothetical. Even if
the appeal were to succeed eventually, the expelled asylum seeker most
likely would never know, and if, exceptionally, he were to learn of the
decision, only very rarely would it be possible for him to reach Austria a second
time.
The Constitutional Court held that the provisions of the Asylgesetz
providing for immediate expulsion41 hamper effective judicial review of
negative decisions on asylum. Since the provisions do not allow for exceptions
in individual cases and, therefore, burden all applicants with the negative
consequences of a potentially illegal decision, the Court annulled them.
2.3. Detention measures
The Upper Austria and Vienna governments also contested the constitutionality of the provisions concerning detention.42 They claimed that,
according to article 5(1) of the ECHR43 and articles 1 and 2 of the
37
x 5(a) (1) second sentence AsylG; x 32 (2) second sentence AsylG.
38
VfSlg Nos. 11196, 12683, 13003, 13305, 14374, 14548, 14765, and 15511.
39
Chahal v. United Kingdom, Judgment of Nov. 15, 1996, App. No. 22414/93, para. 145;
Jabari v. Turkey, Judgment of July 11, 2000, App. No. 40035/98, paras. 48, 50.
40
Jabari v. Turkey, Judgment of July 11, 2000, App. No. 40035/98, paras. 48, 50.
41
x 5(a) (1) second sentence AsylG; x 32 (2) second sentence AsylG.
42
x 34(b) (1) sentences 1 and 3 AsylG.
43
Article 5(1) of the ECHR provides that ‘‘[e]veryone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following cases and in accordance with
a procedure prescribed by law:
[. . .] f) the lawful arrest or detention of a person to prevent his effecting an unauthorized
entry into the country or of a person against whom action is being taken with a view to
deportation or extradition.
Austria
695
PersonenfreiheitsG,44 asylum seekers may be deprived of their liberty only
where this is necessary for their expulsion,45 and that this was not the
case in the situations targeted by the provisions in question.
First, regarding the provision ordering the detention of asylum seekers
who fail to appear at a hearing,46 the Länder governments claimed that
there were many possible reasons why an applicant might fail to appear, and
that this was not sufficient evidence that the asylum seeker would refuse to
leave the country as the result of a negative decision, making detention
necessary to ensure his future expulsion. Second, concerning the provision
ordering the detention of asylum seekers who file follow-up applications for
asylum after a final negative decision,47 the Länder governments asserted
that this provision unlawfully imputes abuses to applicants. Moreover, it
anticipates the negative outcome of follow-up application when, in fact,
especially in the cases of refugiés sur place, follow-up applications are often
successful (due to changes in the country of prosecution48 or changes in the
situation of the applicant).49
The Constitutional Court found no breach with regard to the first
provision.50 It held that this provision allows for detention only after a
repeated and unexcused absence from hearings, and only if this repeated
absence showed that the asylum seeker intended to prevent or delay the
possibility of expulsion. Interpreted in this way, detention could be
considered necessary to ensure that expulsion can be achieved.
The Constitutional Court, however, did find in the second provision51 a
breach of the principle of the rule of law. It considered that this provision
ordered detention in all cases of follow-up applications, including applications that are not manifestly inadmissible. Since only manifestly inadmissible
applications could be thought to show an applicant’s intention to prevent or
delay his expulsion, only in such cases would detention be appropriate to
ensure expulsion. The Court, therefore, annulled this provision.
44
Article 1 of the PersonenfreiheitsG provides that everyone has the right to liberty and security
and that nobody may be deprived of his liberty for other reasons than those laid down in that
law. Article 2 of the PersonenfreiheitsG lists the reasons for which a person may be deprived of
his liberty, one of them being arrest or detention connected to deportation or extradition.
45
Quinn v. France, Judgment of Mar. 23, 1995, App. No. 18580/91, para 48; Chahal v. United
Kingdom, Judgment of Nov. 15, 1996, App. No. 22414/93, paras 112, 113.
46
x 34(b) (1) first sentence AsylG.
47
x 34(b) (1) third sentence AsylG.
48
Which is what happened, for instance, in Kosovo after the agreement of Rambouillet.
49
Such as, for instance, critical comments on the prosecuting country.
50
x 34(b) (1) first sentence AsylG.
51
x 34(b) (1) third sentence AsylG.
696 Int’l J Con Law, Vol 4, No 4 (Oct 2006)
B. Kotschy
2.4. ‘‘Safe country’’ status
The two Länder governments also raised doubts regarding the use of lists
of safe countries, namely, the lists of ‘‘safe third countries’’52 and ‘‘safe
countries of origin.’’53 With regard to the first list, they argued that it
infringes article 3 of the ECHR54 because it provides for the expulsion of an
asylum seeker solely on the ground that he passed through a third country
on this list, without requiring a proper examination as to whether the third
country fulfills all the requirements of a ‘‘safe third country’’ at that moment
and with regard to the specific asylum seeker. As for the ‘‘safe countries of
origin’’ list, the Länder governments claimed that it infringes article 4 of
protocol no. 4 of the ECHR55 because it provides for the expulsion of all
asylum seekers belonging to the groups of nationals appearing on this list.
On the first point, the Constitutional Court simply referred to the actual
situation in the countries on the list, at the present moment, and found that
both Switzerland and Liechtenstein met the prerequisites of a ‘‘safe third
country.’’ It found that should this, in an exceptional case, prove to be
otherwise, with regard to a specific asylum seeker, the Asylgesetz obliges the
competent authority to take notice and act accordingly.
In response to the second point, the Constitutional Court recalled that any
decision to expel an asylum seeker must be made on the basis of a reasonable
and objective examination of the particular case, and that the existence of
the list of ‘‘safe countries of origin’’ did not change this into a procedure of
collective expulsion. The Asylgesetz merely establishes that a ‘‘safe country
of origin’’ is one of the grounds on which an application for asylum (within
52
x 4 (2) AsylG.
53
x 6 (2) AsylG.
54
According to the case law of the European Court of Human Rights (ECtHR] and the
Constitutional Court, article 3 of the ECHR not only obliges the contracting states to protect
individuals within their jurisdiction from ill treatment but also outside of it. Hence, this provision
prohibits refoulement. A person may not be expelled where substantial grounds have been
shown for believing that he would face a real risk of being subjected to treatment contrary to
article 3 (Soering v. United Kingdom, Judgment of July 7, 1989, App. No. 14038/88, para 91;
Chahal v. United Kingdom, Judgment of Nov. 15, 1996, App. No. 22414/93, para 74; Ahmed v.
Austria, Judgment of Dec. 17, 1996, App. No. 25964/94, paras. 39–40; Iruretagoyena v.
France, (dec.) No. 32829/96, Jan. 12, 1998; VfSlg Nos. 13314, 13453, 13561, 13776, 13897,
13981, 14119, and 16160). The same is true if a person is to be expelled to an intermediate
country, where he faces no such risk, but where there is no guarantee that he might not be
further expelled to a country where he would then face such risk. See T.I. v. United Kingdom
(dec.) No. 43844/98, Mar. 7, 2000; VfSlg No. 13897.
55
Article 4 of Protocol No. 4 of the ECHR provides that ‘‘[c]ollective expulsion of aliens is
prohibited.’’ According to the case law of the ECtHR, article 4 of the Protocol prohibits any
measure compelling aliens, as a group, to leave a country, except where such a measure is taken
on the basis of a reasonable and objective examination of the particular case of each individual
alien of the group. Andric v. Sweden (dec.) No. 45917/99, Feb. 23, 1999; Conka v. Belgium,
Judgment of Feb. 5, 2002, App. No. 51564/99, para 59.
Austria
697
the framework of the regular administrative procedure for such applications)
may be dismissed as manifestly ill-founded. The competent authorities still
must examine individually the merits of each application. Moreover, the Court
found that the countries mentioned in this list (EU member states, Australia,
Iceland, Canada, Liechtenstein, New Zealand, Norway, and Switzerland) are,
in fact, ‘‘safe countries of origin’’ and that, if there were indications that this
might be otherwise with regard to a specific asylum seeker, the competent
authority would be obliged to investigate and act accordingly.
2.5. Search and confiscation measures
Finally the two Länder governments claimed that the search and
possible confiscation of asylum seekers’ clothing and personal belongings
was neither necessary to establish their identity nor proportionate to this
objective (especially considering the special situation of the individuals
involved). They claimed that the provisions relating to these measures56
infringed article 8 of the ECHR57 and article 1 of protocol no. 1 of the ECHR.58
56
x 18 (3) AsylG; x 24 (4) first and second sentences AsylG.
57
Article 8 of the ECHR provides that ‘‘(1) [e]veryone has the right to respect for his private and
family life, his home and his correspondence. (2) There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others.’’
The existing case law of the ECtHR does not directly concern the search of persons and
their belongings outside their home or office premises. However, the concept of ‘‘private
life’’ covers a person’s physical and moral integrity. See, in particular, X and Y v.
Netherlands, Judgment of Mar. 26, 1985, App. No. 8978/80, para. 22; CostelloRoberts v. United Kingdom, Judgment of Mar. 25, 1992, App. No. 13134/87, para. 34.
And article 8(1) of the ECHR protects correspondence, including letters and professional
documents. See, e.g., Niemietz v. Germany, Judgment of Dec. 16, 1992, App. No.
13710/88, para 32; Goral v. Poland, Judgment of Oct. 30, 2002, App. No. 38654/97,
para 82; Foxley v. United Kingdom, Judgment of June 20, 2000, App. No. 33274/96,
paras. 29, 30. Thus, it is possible that the search of clothing and personal belongings
could be considered as falling within the scope of this provision. The Constitutional
Court has accepted that the search of persons and their luggage is protected by article
8(1) of the ECHR. See VfSlg No. 13708.
58
Article 1 of Protocol No. 1 of the ECHR provides that ‘‘[e]very natural or legal person is
entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law and by the general
principles of international law. The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other contributions or
penalties.’’ According to the consistent case law of the ECtHR the object and purpose of article 1
is primarily to guard against the arbitrary confiscation of property. In this context the Court held
that the provisional seizure of documents relates to the use of property and falls within the ambit
of the second paragraph (sentence) of article 1. See Handyside v. United Kingdom, Judgment of
Dec. 7, 1972, App. No. 5493/72, para 62.
698 Int’l J Con Law, Vol 4, No 4 (Oct 2006)
B. Kotschy
The Constitutional Court responded that the search of clothing and
personal belongings was necessary in order to establish the identity of an
applicant as quickly as possible and a proportionate means to reach this
objective. Contrary to the interpretation given by the Länder governments,
the Court recalled that these provisions do not allow for automatic
body searches of asylum seekers but are limited to cases (a) where the
applicant has not submitted relevant documents and objects voluntarily and
(b) where it cannot be excluded that he carries such documents or objects
with him.
As regards the confiscation of objects or documents that indicate an
asylum seeker’s nationality, his travel route, or his reasons for fleeing the
country, the Constitutional Court held, first, that documents pertaining to
the identity of a person are not ‘‘property’’ protected by article 1 of protocol
no. 1 of the ECHR59 and, second, that the confiscated objects must be
regarded as evidence for the proceedings, which is to be returned to the
applicant immediately after inspection by the competent authority. The
Court ruled that such limited interference was justified by the need to
establish the facts correctly and was proportionate to this objective.
3. Analysis
The judgment in question is interesting in four respects, having to do with:
balancing of interests, formalism, a cautionary approach, and clarification.
First, concerning most of the questions, the balancing of interests—
specifically, the interests of the individual asylum seekers against those of the
state—appears as the centerpiece of the Constitutional Court’s reasoning.
The judgment underscores that, on the one hand, asylum seekers are in a
very special situation compared with applicants in other types of cases. First,
they are more vulnerable, since usually they do not speak or understand
the official language of the jurisdiction in which they are making their
application; they are often suffering from distress and exhaustion; and they
likely lack financial resources. Second, asylum seekers have an interest in
lengthy proceedings, since they have the right to remain in the country
during this time. The state, on the other hand, would like to conduct the
proceedings as quickly as possible and to limit the right to asylum to genuine
political refugees.
In weighing these interests, the Court found for the asylum seekers in
those instances where a measure was particularly restrictive, such as the
immediate expulsion of asylum seekers to a third country.60 In this case,
where the chances of readmission are slim, and the number of decisions set
59
60
See VfSlg No. 15431 (concerning a driving license).
In this context, member states of the EU are not considered to be ‘‘third countries.’’ See VfSlg
No. 17340.
Austria
699
aside on appeal is unusually high,61 the measure was disproportionate.
Similarly, the Court found excessive the obligation to prove medical trauma
in order to submit new facts or evidence on appeal, and it ruled that
detention to secure expulsion was not admissible where there was no
indication that an applicant intended to prevent or to delay expulsion.
Concerning other measures, including the search and confiscation
measures, the Court gave precedence to the state’s interests. Since search
and confiscation are a serious interference in privacy, this result might seem
surprising. Moreover, while the Court’s reasoning on confiscation measures
may appear convincing in the context of criminal procedures (where an
individual is charged with a crime or an offense, and evidence is needed for
his conviction), it may seem less justified in administrative proceedings, such
as asylum proceedings, where an individual applies for an authorization or a
permit. Nonetheless, the Court found that the state’s interest, in establishing
the facts as quickly as possible, prevailed.
Second, this judgment is a good example of the formalism inherent in
Austrian public law. The Constitutional Court rejected several pleas as
inadmissible on the ground that a plea can be accepted only if the asserted
breach would then be entirely repaired. However, in practice, especially
when dealing with very complicated, repetitive, or even contradictory
regimes, it may be very difficult for applicants to identify all the provisions
that may have a bearing on the alleged breach.62 To avoid precisely this
situation, constitutional courts in other countries are not bound strictly to
the application but have the power also to annul related provisions of the
challenged legislation.63
Similarly, the Court avoided a discussion on the merits of the plea
addressing the theoretical implications of relying on safe-country lists, noting
that it only examines the constitutionality of a provision at the present
moment. If, in the future, the factual circumstances were to change, the
constitutional question would be examined at that point under the new
circumstances.64
61
In 2002–2003, more than 50 percent of the cases were set aside on appeal. See
www.parlament.gv.at/portal/page?_pageid=908,700011&_dad=portal&_schema=PORTAL.
62
See also VfSlg No. 13915.
63
For example, in Germany the Bundesverfassungsgericht [BVerfG] [German Constitutional
Court] may annul provisions of the same law that cannot be detached or are unconstitutional for
the same reasons: x 78 (2) Bundesverfassungsgerichtsgesetz [BundesverfassungsgerichtsG]
[Statute of the Federal Constitutional Court], BGBl 1993 I 1473, as amended by BGBl 2004 I
3396. See CHRISTIAN PESTALOZZA, VERFASSUNGSPROZESSRECHT 129 (C.H. Beck 1991). The Spanish
Tribunal Constitucional [TC] [Constitutional Court] has similar powers. See Art. 39, Ley
Orgánica del Tribunal Constitucional, Boletı́n Oficial del Estado [B.O.E.] [Official Gazette] 1979,
23186, in the version of B.O.E. 2001, 880.
64
VfSlg Nos. 8871, 11048, and 14533.
700 Int’l J Con Law, Vol 4, No 4 (Oct 2006)
B. Kotschy
Third, this judgment shows the Constitutional Court’s preference
for cautious solutions. Concerning restricted judicial review, for instance,
it annulled only the sequence of words requiring medical trauma and not
the entire provision. Concerning immediate expulsion, it criticized the
measures only so far as they did not allow for exceptions in individual cases.
Since the Austrian legislator can, in principle, exempt legislative measures
from judicial scrutiny by conferring constitutional status upon them,65 the
Court adopted a wise approach in this instance. A more categorical stance
might have provoked such a reaction. However, any partial annulment of
provisions or laws may prove to be problematic with regard to the balance
of powers if the truncated provision or law no longer reflects the intentions
of the legislator. In most constitutional jurisdictions the legislative intent66 is,
therefore, a bar to partial annulment. In Austria this hurdle is set relatively
high. The Constitutional Court will refrain from the partial annulment of a
provision only ‘‘where this would give it an entirely different meaning, which
the legislator could not possibly have intended.’’67 This may be due to the fact
that the Austrian Constitutional Court cannot simply declare a provision
unconstitutional—without annulling it.68 Some constitutional courts take a
less strict approach,69 others follow a significantly stricter line.70
65
So-called ‘‘constitutional laws.’’ They require special quora. See note 7 and accompanying
text.
66
Meaning the intention of the legislator or, more technically, the ‘‘hypothetical will of the
legislator.’’
Interestingly enough, the European Court of Justice (ECJ) does not consider the
hypothetical will of the legislator but focuses, rather, on the substance of the provision.
According to the ECJ ‘‘partial annulment is not possible where the substance of the
provision in question would be altered’’: Case C-244/03, France v. Parliament and
Council, Judgment of May 24, 2005, E.C.R. 1-4024, paras. 13, 14.
67
VfSlg Nos. 11190, 12465, 13094, 13915, and 14044.
68
Other constitutional courts, e.g., the German Bundesverfassungsgericht, have this possibility:
see x 31 (2), second sentence and x 79 (1) BundesverfassungsgerichtsG). See Alfred Rinken,
Artikel 94, in KOMMENTAR ZUM GRUNDGESETZ FüR DIE BUNDESREPUBLIK DEUTSCHLAND, Band II, 1079
(R. Wassermann ed. 1989). In Austria, the Constitutional Court can only declare a provision to
be unconstitutional without annulling it, if this provision has already ceased to be in force: Art.
140 (4) B-VG.
69
In Spain, for example, the Tribunal Constitucional considers that ‘‘in (partly) annulling
provisions that are contrary to the Constitution, it does not innovate the legal order (and therefore
does not exceed its competence)’’. Sentencias del Tribunal Constitucional Sistematizadas y
Comentadas [S.T.C.] 103/1983 (Spain). This has, however, been criticized (see the dissenting
opinions in S.T.C. 103/1983; and the submission of the Abogado del Estado [State Attorney] in
S.T.C. 72/1994). See A. J. Gòmez Montero, Artı́culo 39, in COMENTARIOS A LA LEY ORGANICA DEL
TRIBUNAL CONSTITUCIONAL 593 (Juan Luis Requejo Pagés ed., Tribunal Constitucional 2001).
70
The German Bundesverfassungsgericht, for example, refrains from partial annulment
‘‘where this would impinge on the freedom of action of the legislator.’’ Entscheidungen des
Austria
701
Finally, the judgment in question clarified certain provisions of
the Asylgesetz, thus limiting the margin of discretion of the competent
authorities. For instance, the Constitutional Court recalled that all
decisions must be taken on the basis of a reasonable and objective
examination of the particular case of each individual asylum seeker.
Moreover, detention measures are allowed only after repeated and
unexcused absences and only if this repeated absence shows the intention
of the asylum seeker to prevent or delay his possible expulsion. Additionally,
the competent authorities are in no way empowered to conduct systematic
(that is, body) searches.
4. Conclusion
The message of the Constitutional Court is that asylum seekers require
special protection compared with applicants in other types of cases, and only
restrictions that take this into account are admissible. Whether this message
has actually reached the Austrian government is not entirely clear. On the
very day of the judgment, the Minister for Interior Affairs announced his
intention to use the judgment as an occasion to recast the rules on asylum
matters. In 2005, the Austrian parliament adopted the new law, the
Asylgesetz 2005.71 Currently, yet another reform is on the way.
Thus, although intending to secure the legal position of asylum seekers,
the judgment of the Constitutional Court was handed down at the very
outset of new restrictive measures.72
So far, these measures have not been brought before the Constitutional
Court. It remains to be seen whether they will, in the future, be subject to
scrutiny by the Constitutional Court or by the European Court of Human
Rights. Should that not happen, the only bar to the new restrictions would
be European Community law harmonizing the procedures on asylum.73
Considering the increased rate at which Community law is developing in this
area, the prospect exists that this bar will, at some point, be raised.
Bundesverfassungsgerichts [BVerfGE] 73, 280, 297 (F.R.G.). See Rinken, supra note 68, at
1079.
71
BGBl. I No. 100/2005.
72
The Asylgesetz 2005 [AsylG 2005] [Asylum Law 2005] introduced, for instance, so-called
‘‘leading cases’’ [Leitentscheidungen] to be decided by the grand chamber of the Bundesasylsenat with the consequence that similar cases could be rendered without an oral hearing. x 42
AsylG 2005. Also, it provided that documents would no longer be served on the lawyers of
asylum seekers. x 23 AsylG 2005.
See www.rakwien.at/import/documents/asylgesetz2005.pdf.
73
According to the principle of precedence, Community law prevails over national law. Case
106/77, Simmenthal, 1978 E.C.R. 629, para. 17.