Austria - Constitutional Court, 7 March 2012, U1558/11

Country of Decision:
Country of Applicant:
Date of Decision:
07-03-2012
Citation:
U1558/11
Court Name:
Constitutional Court
National / Other Legislative Provisions:
Austria - Asylgesetz (Asylum Act) 2005 - § 10
Austria - Asylgesetz (Asylum Act) 2005 - § 15
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: 

Under Austrian Asylum law, if a minor age cannot be excluded following an age assessment and doubts still exist in favour of the applicant, the authorities have to treat him or her as a minor. In this case, the age of the applicant had not been confirmed as being the age of maturity with absolute certainty and the applicant should therefore have been treated as a minor. The fact that only a copy of the birth certificate was submitted is not a sufficient basis to doubt its authenticity.

Facts: 

The applicant first entered the European Union via Italy and subsequently entered Austria. He applied for asylum in Austria, claiming to be 17 years old. The Federal Asylum Office ordered a multifactorial age assessment, the result of which was that a minimum age of 17 could not be excluded.

Following a EURODAC hit an information request was sent to the Italian authorities. Italy replied to the request, stating the applicant was registered with the date of birth 1 January 1992. As a result of receiving that information, the Austrian Federal Asylum Office sent a request to Italy to take charge of the applicant. Italy did not respond to the request within the time limit.

The Austrian Federal Asylum Office rejected the application for Dublin Regulation reasons and issued an expulsion order to Italy. A few days later the Magistrat Graz, as legal guardian, sent a copy of the applicant’s birth certificate, which confirmed he is a minor, to the Austrian Federal Asylum Office. The Asylum Court rejected the appeal and agreed with the decision of the Austrian Federal Asylum Office. The applicant appealed to the Constitutional Court.

Decision & Reasoning: 

The Constitutional Court allowed the appeal.

The decision of the Asylum Court was arbitrary by violating the right to equal treatment of foreigners. Furthermore, the Asylum Court ignored § 15 (1) Z 6 Asylum Law (Asylgesetz 2005). This states that, if a minor age cannot be excluded following an age assessment and doubts still exist in favour of the applicant, the authorities have to treat him or her as a minor. In this case, the age of the applicant had not been confirmed as being the age of maturity with absolute certainty and the applicant – based on the rule mentioned above – should therefore have been treated as a minor. Furthermore, the Asylum Court did not examine the submitted birth certificate. The fact that only a copy of the birth certificate was submitted is not a sufficient basis to doubt its authenticity. Judicial decisions concerning custody (and the finding that he is a minor) are binding and cannot be ignored.

Outcome: 

The appeal was allowed.

Subsequent Proceedings : 

The Asylum Court annulled its decision and returned the case to the Austrian Federal Asylum Office (see B1 428.257-1/2012/4E from 22 August 2012).

Observations/Comments: 

Under Austrian Asylum Law, if there exist doubts regarding an applicant’s age and these doubts are in favour of the applicant, the authorities have to treat him or her as a minor. In this case the authorities should at least have asked the applicant to submit the original birth certificate or name other circumstances that would prove his age.


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.