Austria – Constitutional Court, 26 September 2017, G 134/2017-12, G 207/2017-8

Country of Decision:
Country of Applicant:
Date of Decision:
G 134/2017-12, G 207/2017-8
Court Name:
Constitutional Court
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Austria - Sections 3
Austria – Articles 136
Austria – Art. 144 B-VG
Austria - Sections 2
58 AsylG
Austria - Sections 46
55 FPG
Austria - Sections 7 VwGVG
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The words "2, 4 and" and the sentence "This shall also apply in the cases of Section 3 para. 2 no. 1, if the decision is connected with the adoption of a measure terminating the stay". in Section 16 para. 1 BFA-Procedural Act (Bundesamt für Fremdenwesen und Asyl Verfahrensgesetz-BFA-VG), violates Article 136 para. 2 B-VG. The provision was repealed by the Constitutional Court as unconstitutional.


A Moroccan citizen filed an application for international protection on 17 November 2015. By decision of 22 July 2016, the Federal Office of Foreign Entities and Asylum (Bundesamt für Fremdenwesen und Asyl) dismissed this application for international protection (internationaler Schutz). The BFA refused to grant the status of asylum as well as the status of subsidiary protection (subsidiärer Schutz). Further the BFA did not issue a residence permit for reasons worth considering (Aufenthaltstitel aus berücksichtigungswürdigen Gründen gemäß dem AsylG) in accordance with Section 57 Asylum Act (Asylgesetz-AsylG 2005) and issued a return decision (Rückkehrerentscheidung) against the complainant in accordance with Section 10 para. 1 no. 3 AsylG 2005 in conjunction with Section 9 BFA-VG pursuant to Section 52 para. 2 no. 2 Foreigner Police Act (Fremdenpolizeigesetz-FPG) and determined that the removal of the complainant to Morocco is permissible in accordance with Section 46 FPG.

The appeal by the complainant against this decision was dismissed by the Federal Administrative Court on 5 January 2017 due to the delay of its submission. The decision had been delivered to the complainant in person on 16 August 2016. According to Section 16 para. 1 BFA-VG, there was a two-week period for filing an appeal; the period for filing an appeal had therefore ended on 30 August 2016. The appeal filed on 13 September 2016 had thus been filed late. Examining the appeal filed against this decision, the Constitutional Court raised concerns regarding the constitutionality of "2, 4 and" as well as the second sentence in Section 16 para. 1 BFA-VG. Therefore, the Constitutional Court decided, ex officio, to examine this regulation for its constitutionality.

Decision & Reasoning: 

The main object of the Constitutional Court's proceedings was to answer the question if the shortening of the period for filing the complaint from four weeks generally prescribed in Section 7 para. 4 Administrative Court Procedure Act (Verwaltungsgerichtsverfahrensgesetz-VwGVG) to two weeks stipulated in Section 16 para. 1 Federal Office of Foreign Entities and Asylum Procedure Act, was compatible with Article 136 para. 2 Federal Constitutional Act (Bundesverfassungsgesetz-B-VG). This shortened period is intended to apply to appeals against decisions of the BFA, which dismiss a foreigner's application for international protection (both with regard to the status of a person entitled to asylum and that of a person entitled to subsidiary protection), which do not grant a residence title for reasons worth considering in accordance with the Asylum Act and which issue a measure terminating the stay (aufenthaltsbeendende Maßnahme) against the foreigner in accordance with the 8th main part of the FPG.

According to Article 136 para. 2 B-VG, a federal or land law-act may only deviate from the uniform regulation of the procedure, in this case the four-week period, if this is necessary to regulate the subject matter. The court states that necessity exists, if it is "indispensable" to the regulation of the subject-matter of the proceedings. The Constitutional Court had expressed doubts in this regard, because there was no parallel provision for a substantial acceleration of the proceedings at the Federal Administrative Court. As a completely isolated regulation, the regulation did not have the required indispensability, respective necessity. Referring to this, the Federal Government argues that the shortening of the appeal period is not isolated, but part of several measures to accelerate proceedings. The Federal Government deems these further measures to be a conditional prohibition of new developments (bedingtes Neuerungsverbot) pursuant to Section 20 para. 1 BFA-VG. This expresses "a fundamental decision to accelerate complaints procedures in matters of asylum and foreign law". The Federal Government say, it serves to concentrate facts in the appeal proceedings at BFA, because only the submission of new facts in the appeal proceedings could lead to a significant delay in the proceedings. Only in this way could the substantial public interest in a fast enforcement of the residence termination measure be realised. The acceleration of the procedure has to start as soon as possible.

The Constitutional Court does not follow this opinion. It states, that there was no shorter duration of the entire proceedings beyond the two weeks mentioned. The legislator had not taken any special legal measures to significantly accelerate the further proceedings at the Federal Administrative Court. Only in specific cases is there a shortened decision period. None of these, however, was relevant here. There was no parallel order to accelerate the proceedings at the Federal Administrative Court by shortening its deadlines for deciding on appeals against negative decisions on applications for international protection, not granting a residence title for reasons worth considering and issuing a measure terminating the stay.

 The Constitutional Court also does not follow the objection that Section 20 para. 2 BFA-VG is an expression of a fundamental trend-setting decision. The Constitutional Court states, that this only partially covers the submissions that a complainant merely submitted for the deliberately intentional delay of the proceedings. The provision has a general accelerating aspect and contributes to the efficiency of the procedures. However, it should be noted that the personal legal position of the complainant is affected, thus the exercise of the guaranteed legal protection possibilities at the Federal Administrative Court is of major importance. Against this background, however, general measures to increase efficiency, such as the concentration of competences or measures against procedural delays, such as the conditional prohibition of new developments, are not sufficient on their own to regard a shortening of the administrative appeal period as necessary, respective indispensable. Rather, the acceleration of the procedure has to cover all stages of the administrative appeal procedure. This means that a shortening of the appeal period on the side of the complainant must be accompanied by legal measures. In addition to the shortened deadlines for the courts to make decisions, this must also concern the area which the legislator and afterwards the competent enforcement authority must ensure based on their organisational responsibility.

The Constitutional Court also points out the complexity of the facts in this context. Ultimately, in the sense of the case-law of the Constitutional Court, a shortening of appeal periods is only indispensable in such cases if they are accompanied by special measures under organisational and procedural law which would also guarantee a fast decision.


The period for filing an appeal, which is shortened in comparison to Section 7 para. 4 VwGVG, is not necessary to regulate the subject matter and violates Article 136 para. 2 B-VG.


The Constitutional Court also had concerns about the compatibility of the shortening of the period for submitting an appeal with the principle of equal treatment and the rule of law and the resultant principle of the effectiveness of legal protection. But the Constitutional Court left these questions open based on its ultimate finding.

This summary was written by Andreas Janßen stud. iur. Law at the University of Cologne.

Other sources cited: 

VfSlg. 13.831/1994; 13834/1994; 13.838/1994, 15.218/1998; 17.340/2004; 19.841/2014; 19.922/2014; 19.987/2015; 20.041/2016

VfGH 23.2.2016, G 589/2015; 23.2.2016, G 574/2015


Case Law Cited: 

Constitutional Court VfSlg. 28 April 2010, 2008/19/0139