Austria - Constitutional Court, 27 June 2012, U98/12

Country of Decision:
Country of Applicant:
Date of Decision:
VfGH 27.06.2012, U98/12
Court Name:
Constitutional Court
National / Other Legislative Provisions:
Austria - Bundes-Verfassungsgesetz (Federal Constitutional Law) - Art 1(1)
Austria - Asylgesetz (Asylum Act) 2005 - § 3
Austria - Asylgesetz (Asylum Act) 2005 - § 8
Austria - Asylgesetz (Asylum Act) 2005 - § 16 Abs 3
Austria - Asylgesetz (Asylum Act) 2005 - § 19 Abs 1(5)
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The age of the child and the mental state of the Applicant as well as the ban on more detailed questioning on the reasons for fleeing in the initial police interview should have been taken into account to a greater extent when assessing the assertion of flight. The lack of discussion of these aspects represents a failure to investigate several decisive points, which made the decision by the Asylum Court arbitrary and therefore unconstitutional


The Applicant who was born on 13.01.1995 lodged an application for international protection on 07.04.2011, therefore as a 16 year old unaccompanied minor. The Federal Asylum Agency refused this application regarding asylum in a decision of 07.10.2011, but granted subsidiary protection. In a finding of 20.10.2011, the Asylum Court refused the appeal that had been lodged as unfounded. The Asylum Court chiefly justified the refusal with the grounds that the Applicant had given different information in his initial police interview and at his hearing: firstly that he had left Afghanistan owing to the economic situation; then that a commander had murdered his father and brother and his life was now also at risk. In addition, the descriptions were imprecise and lacking in detail. Overall the submission by the Applicant had therefore been considered to have lacked credibility.

The Applicant appealed against the decision by the Asylum Court to the Constitutional Court on grounds of a violation of the right granted under constitutional law of equal treatment for foreigners.

In the appeal he stated that the Asylum Court had acted arbitrarily because the traumatisation of the Applicant and his age as a child or young person at the time of the asylum proceedings or the events triggering flight had not been ascribed the appropriate significance. The standard applied by the Asylum Court regarding credibility was not appropriate for minors as they have a completely different perception of events owing to their not yet completed physical and mental development and drew conclusions that were not comprehensible – for adults. If one based the submission on flight on the empirical and cognitive skills of the Applicant, his submission on flight was conclusive and consistent. In addition, the Asylum Court had assigned greater credibility to the initial police interview than the other hearings, although the latter had taken place without a legal representative and should not have referred to the reasons for flight in accordance with Section 19 Para. 2 Asylum Act 2005. Overall, the Asylum Court is accused of major arbitrariness to the detriment of the Applicant.

Decision & Reasoning: 

The Constitutional Court stated in its decision on the appeal by the Applicant that Article I Para. 1 of the Federal Constitutional Law on the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)  forbids differentiation between foreigners that cannot be objectively justified. At the same time it included the imperative of equal treatment of foreigners; unequal treatment is legal only when and to the extent that there arereasonable grounds for this and unequal treatment is not disproportionate. Amongst other things, a decision contradicts Article I Para. 1 of the Federal Constitutional Law on the implementation of ICERD if the authority could be accused of arbitrary behaviour when taking this decision. Such arbitrary behaviour consists, amongst other things, of a cumulative misjudgement of the legal situation, failing to investigate a decisive point or failing to undertake the correct investigative procedure in the first place, in particular in conjunction with ignoring the parties’ submissions and a frivolous departure from the content of the files or disregard for the actual facts of the case.

The Asylum Court was accused of such arbitrary behaviour with regard to the disputed decision:

The Asylum Court was obliged to discuss all the relevant points of view in detail when assessing the credibility of the Applicant. This also included, for example, his mental health, which, if adversely affected, meant that a more generous standard should be applied to the level of detail of his submission. The age and level of development of the Applicant should also be taken into consideration.

Furthermore, the Asylum Court had assessed the submission by the Applicant on the murder of his father as lacking in detail, imprecise and unsubstantiated, without mentioning that the Applicant was eight years old at the time. The Asylum Court should have addressed the age of the Applicant and applied a corresponding assessment standard. This applies even more to the politically motivated hostility between his father and his father’s murderer, as the Applicant was at most six years old at this time.

Lastly, the Asylum Court primarily supported its decision based on contradictions between the reasons for flight submitted during the initial police interview and those given during the hearing before the Federal Asylum Agency. In doing so the Asylum Court had ignored the ban on closer questioning regarding the grounds for flight (Section 19 Para. 1 Asylum Act 2005) in the first interview. This provision is intended to protect asylum seekers from having to speak in detail about traumatic events to uniformed state bodies directly following their flight from their country of origin. In addition, additional conditions exist for the initial interview of minors (Section 16 Para. 3 and 5 Asylum Act 2005). This means that the Asylum Court should have taken the mental and physical conditions of asylum seekers into account in particular.

The fact that the Applicant had stated with regard to the initial interview that he was unable to remember things owing to the stress of the flight and the people smuggler had told him he must not mention anything about the hostility, is not included in the assessment of evidence by the Asylum Court. The Asylum Court should have questioned the reliability of the Applicant’s information during the initial police interview given the indications to that effect.

Overall, the failure to investigate several points that were decisive for the decision meant that the Asylum Court could be accused of arbitrariness. As a result, the Applicant’s right to the equal treatment of foreigners granted under constitutional law had been violated.


The disputed decision was revoked.


Disputed decision by the Asylum Court

Asylum Court (AsylGH) 11.01.2012, C14 422234-1/2011

Case Law Cited: 

Austria - Constitutional Court, 18.701/2009

VfSlg 16.383/2001

VfSlg 15.743/2000

VfSlg. 16.314/2001

VfSlg. 14.393/1995

VfSlg. 16.214/2001

Austria - VfSlg. 13.836/1994, VfSlg. 14.650/1996, VfSlg. 16.080/2001, 17.026/2003

Austria - VfSlg. 15.451/1999, 16.297/2001, 16.354/2001, 18.614/2008