Austria - Constitutional Court, 13 March 2013, U1175/12

Country of Decision:
Country of Applicant:
Date of Decision:
Court Name:
Constitutional Court
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 - § 41
Austria - Bundesverfassungsgesetzes über den Schutz der persönlichen Freiheit (Federal Constitutional Law on the Protection of Personal Freedom)
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There has been a violation of Article 47 (2) of the Charter of Fundamental Rights of the European Union if there is a failure to hold a hearing at the Asylum Court, notwithstanding that the facts of the case are not sufficiently clear. Merely general statements without reference to the case in point do not represent sufficient grounds for the lack of credibility of the submission.


The Applicant travelled to Austria with his wife and their child in 2011 and applied for international protection. He stated that he had worked as a chauffeur for a Turkish businessman, who operated a chain of supermarkets. The latter was suspected of supporting the banned Islamic "Nurchilar" movement. The Applicant himself had been subject to the same suspicions owing to his close working relationship with his boss. The Applicant and his employer had then hidden from the police for approximately six months. Shortly before his departure searches had been made for the Applicant, and his wife was threatened with imprisonment unless he gave himself up. As a result the Applicant and his family left the country.

The Federal Asylum Agency refused the applications for international protection. The Applicant lodged an appeal against this and applied for an oral hearing. As part of the notice of appeal to the Asylum Court numerous current reports on events in Uzbekistan in connection with the supermarket chain mentioned by the Applicant were submitted.

The Asylum Court refused the appeal without holding an oral hearing. The Asylum Court denied that the Applicant was threatened with persecution owing to his job as a chauffeur as he was not involved in the activities for which his employer was being sought (tax evasion, misuse of the favourable investment climate and "brotherly relationships"). At the same time, referring to the general statements, the Asylum Court did not consider it credible that the Applicant had worked as a chauffeur for the company. It was an extremely responsible job and the Applicant was still too young and inexperienced for this.

The Applicant appealed against these decisions to the Constitutional Court and pleaded a violation of Article 3 ECHR and Article 47 (2) Charter of Fundamental Rights of the European Union.

Decision & Reasoning: 

The Constitutional Court came to the conclusion that the decision by the Asylum Court had violated the right of the Applicant to equal treatment of foreigners and his right granted under constitutional law to an oral hearing in accordance with Article 47(2) of the Charter of Fundamental Rights of the European Union.

According to the Constitutional Court, the statements by the Asylum Court on the lack of credibility are general and do not refer to the personal circumstances of the Applicant. The general statements on local knowledge, the clothing and punctuality of chauffeurs did not have any weight in this particular case and can also not have an adverse effect on the credibility of the Applicant, in particular because there are no definite statements relating to Uzbekistan. The contradictions identified by the Asylum Court concern mere nuances of the otherwise coherent submission.

Article 47 (2) of the Charter of Fundamental Rights of the European Union is also applicable in asylum proceedings. Section 41 (7) Asylum Act (AsylG) regulates the failure to hold an oral hearing before the Asylum Court in those cases in which the Parties have already been heard in the Court of First Instance and the facts of the case from the state of the file including the appeal seem to have been resolved or it is clear without any doubt from the investigations that the submission is contrary to the facts.

However, in this case the facts presented were not sufficiently resolved. An oral hearing should therefore have been held. The Applicant’s right was therefore violated with regard to Article 47 (2) of the Charter of Fundamental Rights of the European Union.


The appeal was upheld and the disputed findings withdrawn. 

Subsequent Proceedings : 

Status on 04.08.2013: no further decision


Withdrawal of findings by the Asylum Court: AsylGH 31.05.2012, D18 423335-1/2011

Case Law Cited: 

VfSlg 19.632/2012

VfSlg 16.383/2001

VfSlg 15.743/2000

VfSlg. 18.614/2008

VfSlg. 16.354/2001

VfSlg. 16.297/2001

VfSlg. 15.451/1999

VfSlg. 16.314/2001

VfSlg. 14.393/1995

VfSlg. 16.214/2001

VfSlg. 17.026/2003

VfSlg. 16.080/2001

VfSlg. 14.650/1996

VfSlg. 13.836/1994