Key facts of the case:
The claimant, then under age, entered Austria illegally on 30 July 2009 and the very same day claimed international protection. During the first hearing at the police station Traiskirchen on 31 July 2009 he claimed, in presence of a legal adviser as legal representative, to be an Algerian citizen of Muslim belief and of Arab ethnicity. He arrived in Austria with a trafficker by truck. The claimant stated that his reason for flight was the fear of terrorism in Algeria, and that, since he was afraid of losing his life, he decided to leave his country. Legal custody was given to the province XXX until 26 November 2011 (majority age). In following interviews he defined his fear of terrorism and his fear to be taken or killed by radical Muslim organisations (Pages 1 and 2 of 18 of the judgement). The claim was rejected by the Federal Asylum Office and expulsion to Algeria was ordered. The story of his escape was perceived as not credible. The Magistrate holding legal custody appealed against this decision, because the Federal Asylum Office did not ask about the ethnic group of the claimant and did only use information on Algeria as of 2010.
According to Art. 47 para 2 of the Charter of Fundamental Right, every person has the right to an independent and impartial public hearing before a Court previously established by law in a fair and public trial and within reasonable time. The limitation of the right to a public hearing (Verhandlungspflicht), established by § 41 para 7 Asylum Act 2005 (Asylgesetz 2005, AsylG 2005) according to Art. 52 para 1 Charter of Fundamental Rights, is allowed in the view of the Asylum Court, as it is – as foreseen in the Charter – provided for by law and respects the essential content of the right foreseen in Art. 47 para 2 of the Charter. Fairly quick decisions on asylum applications are a goal of the Union, which has a significant value (see recital 11 of the preamble of Directive 2005/85/EC). The omission of hearings in those cases, where the actual situation can be established and the omission of the oral hearing does not diminish the quality of the decision, help reaching this goal. Therefore the restriction in § 41 para 7 Asylum Act 2005 also fulfils the requirement of Art. 52 para 1 last sentence of the Charter of Fundamental Rights. (Pages 14 and 15 of 18 of the judgment).