Austria - Constitutional Court, 12 March 2013, U1674/12

Although the Applicant did not state that he had already been the victim of an assault on his sexual self-determination, the threat of an assault was however the reason for his departure. It is clear from Section 20 Asylum Act (AsylG) and the corresponding Government submission that even if there is a mere fear of sexual assaults, insofar as this was a reason for fleeing the country, the Asylum Court must undertake the proceedings with persons of the same gender. The proceedings before the Asylum Court should therefore have been conducted by a court panel with judges of the same gender as the Applicant. The fact that the appeal was limited at a later date to an assessment of subsidiary protection and expulsion does not change anything with regard to the mistake in the original composition of the court panel.  

With regard to the assessment for granting subsidiary protection, the Constitutional Court referred to the fact that the risk forecast should be based on the actual destination of the Applicant. If the region of origin of the Applicant does not come into consideration as a destination owing to the threat there, he can only be expelled to another region of the country by taking account of the general circumstances there and his personal circustances. The Asylum Court had paid insufficient attention so far to this, in particular as, according to the Applicant, it was not possible for relatives to provide support in Kabul.