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

Country of Decision:
Country of Applicant:
Date of Decision:
12-03-2013
Citation:
VfGH 12.03.2013, U1674/12
Court Name:
Constitutional Court
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Austria - Asylgesetz (Asylum Act) 2005 - § 3
Austria - Asylgesetz (Asylum Act) 2005 - § 8
Austria - Asylgesetz (Asylum Act) 2005 - § 10
Austria - Asylgesetz (Asylum Act) 2005 - § 11
Austria - Asylgesetz (Asylum Act) 2005 - § 20
Austria - Bundes-Verfassungsgesetz (Federal Constitutional Law) - Art 83 Abs 2
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Headnote: 

The Applicant, an unaccompanied Afghan minor, stated that he had left his home country owing to his abduction and the threat of sexual abuse by the local ruler. The right to a decision by the statutory judge was violated by the fact that the decision on the application for international protection was made by a court panel consisting of two judges, one male and one female.

Facts: 

In December 2010 the Applicant entered Austria as an unaccompanied minor asylum seeker and lodged an application for international protection. He stated that he had been abducted by the local ruler to be sexually abused at a later date. However, he was able to escape before any sexual assaults were committed. The Federal Asylum Agency considered that the submissions lacked credibility and recognised neither refugee status, nor subsidiary protection status and issued a decision for expulsion to Afghanistan.

The Applicant lodged an appeal against this decision with the Asylum Court. His proceedings were assigned to a court panel consisting of one male and one female judge. In October 2011 the Applicant, who had in the meantime become of age, restricted the appeal through his authorised representative to granting subsidiary protection and fighting the expulsion. In April 2012 an oral hearing was held. In July 2012 the appeal was refused and the decision for expulsion to Afghanistan confirmed. The grounds for the decision were that the Applicant, originating from the Province of Baghlan, would not be under any threat from the Afghan security forces in Kabul. In addition, in Kabul he would be able to count on the support of his relatives living in Kabul or in Pakistan. The Applicant was a young, healthy man or in any case able to work, with a relatively high level of education for Afghanistan.

Decision & Reasoning: 

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.

Outcome: 

The appeal was granted and the decision revoked.

Subsequent Proceedings : 

Status on 04.08.2013: no decision by the Asylum Court

Observations/Comments: 

Overturned order by the Asylum Court (AsylGH) regarding the Applicant: AsylGH 31.07.2012, C1 419614-1/2011

Other decision by the highest court on the composition of the court panel for assaults on sexual self-determination: VfGH 29.11.2011, U1913/10 (with regard to sexual abuse by a cohabiting partner)

Other sources cited: 

952 of supplements XXII. Legislative period – Government submission - Materials,45 (regarding Section 20 Asylum Act)

Case Law Cited: 

VfSlg 16.572/2002

VfSlg. 16.079/2001

VfSlg. 15.738/2000

VfSlg. 16.066/2001

VfSlg. 16.298/2001

VfSlg. 16.717/2002

VfSlg. 15.482/1999

VfSlg. 15.858/2000

VfSlg. 16.737/2002

VfSlg 15.731/2000

VwGH 03 Dezember 2003, 2001/01/0402

VfGH 27 September 2012, U688/12

VfGH 11 Oktober 2012, U677/12

VfSlg. 10.022/1984

VfSlg 14.731/1997

VfSlg 15.588/1999

VfSlg 15.668/1999

VfSlg. 15.372/1998