Austria - Constitutional Court, 27 June 2012, U462/12

Country of Decision:
Country of Applicant:
Date of Decision:
27-06-2012
Citation:
U462/12
Court Name:
Constitutional Court
National / Other Legislative Provisions:
Austria - Asylgesetz (Asylum Act) 2005 - § 10
Austria - Asylgesetz (Asylum Act) 2005 - § 5
Austria - BVG über die Beseitigung rassischer Diskriminierung (Implementation of the International Convention on abolishment of all forms of racial discrimination) - Art I (1)
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Headnote: 

A decision to transfer the applicant to Italy, solely based on Italy’s failure to respond to a request to take back the applicant, was insufficient, arbitrary and violated the applicant’s right to equal treatment. The Asylum Court had neither listed any criteria of the Dublin II Regulation that would indicate that Italy was responsible nor addressed the issues concerning the travel route of the applicant and his long stay in Greece.

Facts: 

The applicant entered the European Union via Greece in 2005 and continued to Belgium. The applicant was rejected by Belgium and taken back by Greece. From March 2006 until November 2011 the applicant lived in Greece. He then went to Italy, where he applied for asylum. Shortly afterwards, the applicant entered Austria and applied for asylum again. The Austrian Federal Asylum Office sent a request to Italy to take responsibility of the applicant. Italy, however, did not respond within the time limit. The application was rejected and the applicant received an expulsion order to Italy. The Asylum Court agreed with this decision. The applicant then appealed to the Constitutional Court.

Decision & Reasoning: 

The Constitutional Court accepted the appeal.

The Court stated that the decision by the Asylum Court is arbitrary and violates the right to equal treatment for foreigners. The Asylum Court had not listed any criteria of the Dublin II Regulation that would indicate that Italy was responsible for the asylum procedure. A discussion of the issues concerning the travel route of the applicant and his long stay in Greece was also lacking. Furthermore, the Asylum Court based its decision only on the argument that Italy did not respond to the request to take responsibility of the applicant, which is considered insufficient for a take back procedure. The reasons for the decision were not sufficient and the Asylum Court’s decision constitutes a violation of the applicant’s right to equal treatment.

Outcome: 

The appeal was accepted.

Observations/Comments: 

It is clear that Austrian asylum authorities must consider both the Dublin II Regulation and its hierarchy of criteria and all circumstances of the case. Austrian asylum authorities must not arbitrarily focus on one aspect of a given asylum case without exploring other issues, such as travel route and duration of stay.


This summary has been reproduced and adapted for inclusion in EDAL with the kind permission of Forum Réfugiés-Cosi, coordinator of Project HOME/2010/ERFX/CA/1721 "European network for technical cooperation on the application of the Dublin II regulation" which received the financial support of the European Refugee Fund.