Key facts of the case:
A man was taken in custody suspect of burglary in December 2014. He stated to be French national. He was convicted to a (partially suspended) punishment in March 2015. The Federal Agency for Alien Matters and Asylum stated, that the man will not be given a residence title according to §§ 57 and 55 Asylum Act 2005 (Asylgesetz 2005); furthermore a decision for removal and an entry ban of eight years were decided in May 2015. The Authority issued a decision for detention pending removal and assumed that the man used a fake French ID but de facto stemmed from a North-African country. He applied for asylum in April 2015, but then withdrew the application back due to his “French nationality”.
The man filed a complaint against the decision for detention pending removal (Schubhaftbescheid) as well as against command of detention pending removal (Anordnung) and prolongation of detention pending removal. He now stated to be an Algerian national and furthermore stated that he never withdrew his application for asylum. He claimed that an oral hearing should be held and that he would need legal aid during the proceedings (Verfahrenshilfe).
Outcome of the case:
The application for legal aid of the applicant for revision was rejected, but the Highest Administrative Court ruled this rejection to be inappropriate, as it infringed Art. 47 (3) of the Charter.
The claimaint rightfully refers to Art 47 of the Charter. According to its section 3, persons who lack sufficient resources have to be given legal aid, in so far as such aid is necessary to ensure effective access to justice.
At least regarding the fact, that the decision on custody of 18 May 2015 (Schubhaftbescheid) – even if possibly inappropriate – was based on § 76 (1) FPG and should secure the procedure to release a decision on return as well as securing removal of the person asking for revision, this actual custody is to be understood as a measure in the sense of Directive 2008/115/EC (Return Directive, Art. 15 of this Directive). The decision of the Federal Administrative Court on legality of this custdody is taken “when implementing Union law” in the meaning of Art. 51 (1) of the Charter, whereas the area of application of the of the Charter – especially Art. 47 (3) of the Charter – is open.
Taking into account the primacy of EU law, the constitutional immunisation of § 40 VwGVG is irrelevant against the background of Art. 47 (3) of the Charter (regarding a similar constellation regarding the annulment of Art. 15 Z 3 of the Budgetbegleitgesetz 2009 setting a deadline by the Constitutional Court by ruling of 5 October 2011, G 26/10 et al, Slg Nr. 19522, see the decision of the CJE of 13 June 2012 in C-156/12 “GREP GmbH, margin note 22). Furthermore it has to be assumed anyway, that an entitlement for legal aid, if there is no national basis, is to be granted directly and based on Art. 47 (3) of the Charter (Storr, in Fischer/Pabel/Raschauer (Hrsg.), Verwaltungsgerichtsbarkeit (2014) Rz 27; zustimmend N. Raschauer/Sander/Schlögl in Holoubek/Lienbacher, GRC-Kommentar (2014) Art. 47 Rz 59).
For the interpretation and application of the Charter, the jurisprudence of the CJEU is decisive. The CJEU takes into account the jurisprudence of the ECtHR (see e.g. the decision of the Constitutional Court of 14 March 2012, U 466/11 et al, Slg Nr. 19632, Point II.5.7.). Also the explanations regarding Art. 47 (3) of the Charter (OJ 2007 C 303, 30) explitily make a reference to a judgment of the last named court. Concretly those explanations state:
“With regard to the third paragraph, it should be noted that in accordance with the case-law of the European Court of Human Rights, provision should be made for legal aid where the absence of such aid would make it impossible to ensure an effective remedy (ECHR judgment of 9 October 1979, Airey, Series A, Volume 32, p. 11). There is also a system of legal assistance for cases before the Court of Justice of the European Union.”
For the understanding of Art. 47 (3) of the Charter, the thoughts of the ECtHR in the referenced judgement are decisive, where it found a violation of Art. 6 (1) ECHR, because due to the lack of assigning an attorney, no effective access to justice was guaranteed. It is relevant, that the claimaint in the case decide by the ECtHR could make his claim personally in front of the court. According to the ECtHR this is not sufficient to guarantee access to justice; in the light of the material and procedural legal difficulties of the proceedings in front of the competent court and especially in the marital disputes, which emotional tensions were possibly at the basis of this case, the claimant was not able to effectively exercise her rights without the help of an attorney. However, the obligation to guarantee access to courts does not necessarily lead to the general obligation of member states to grant legal aid in proceedings on civil rights claims; it is in the discretion of the state to decide on how it fulfils its obligations. Granting legal aid is only one option; the simplification of proceedings would be another possibility, because not in all cases it would be unacceptable for the persons to bring his/her case before courts without the help of an attorney.
The representation of an alien in a procedure in front of the BWvG is (was) only guaranteed according to this legal situation, if a decision to return is the issue of the complaint. If the case deals with detention pending deportation (as in the present case), it is not guaranteed that the alien person has effective support (especially) in complaint proceedings, which seems necessary however to guarantee an effective access to the BVwG according to Art. 47 (3) of the Charter as in the present case. The rejection of the application for legal aid of the applicant for revision is thus inappropriate.