Austria / Asylum Court / C7 412493-1/2010 Asylum seeker from India v Austria

Key facts of the case:

The claimant entered Austria on 10.11.2009 illegally and applied for asylum the same day. He stated, that he left his country of origin legally using his passport via plane to Russia and then came to Austria. He stated, that as a follower of Ravi Dasi and because of his religious belonging he was persecuted by fundamental Sikhs and the police and fears for his life. In a later interrogation in March 2010 he stated, that he cannot provide document ans does not have family members in any other EU country. His only relative in Austria is his brother, who travelled with him. In India he worked as an electrician for three years, and then as a worker in a company for three years. He stated that he took part in demonstration after the Vienna attacks in 2009 and was taken to the police post for some times. He also received threats. After the threats he moved to his uncle to another city, where he stayed for two months, no problems appeared there. The Federal Asylum Office rejected the claim on 11 March 2010 because of non-credibility of the reasons for flight respectively non-credible danger of persecution. Expulsion to India was ordered. The asylum court considered the case and also did not find credible evidence for persecution of the claimant in his country of origin.

Paragraphs referring to EU Charter: 


It has to be stated, that a written statement does not sufficiently fulfil the right to hearing of parties and a public, oral procedure cannot be replaced, which is foreseen by Art. 47 of the Charter of Fundamental Rights. The questions to the claimant, written down in the information on collective of evidence (Verständigung von der Beweisaufnahme) would have to asked to the claimant in a public,oral hearing. Otherwise the language level and level of integration of the claimant could not be judged (Statement by the representatives of the claimant, pages 4 and 5 of 13 of the judgement). Regarding the criticism in the written statement of the claimant, that a written statement cannot sufficiently fulfil the right to hearing of parties and in accordance with the prerequisites of Art. 47 of the Charter of Fundamental Rights of the European Union cannot replace an oral hearing, it has to be stated: According to the clause referred to, every person, whose rights guaranteed by the Union have been violated – amongst others the Right to private and family life (Article 7), the right to asylum (Article 18) as well as the protection regarding removal, expulsion and extradition (Article 19) – has the right to be heard in the case by an impartial, independent court established by law in a fair trial, public and within reasonable time. The Charter applies for the Member States when implementing Union law. 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. In this context it has to be referred to the judgements of the Constitutional Court (Constitutional Court U466/11-18, U 1836/11-13) in which the Court states: “The ceasing of an oral hearing in cases, where the facts can be solved through studying the presented facts and the claim or where the investigation clearly showed, that the assertion is against the facts, is in accordance with Art. 47 para 2 of the Charter of Fundamental Rights, if there has been an administrative procedure before, where hearing of parties has been granted”. This applies in the present case. Furthermore for completeness the judgement of the Constitutional Court U 2121/11-6 of 14.3.2012 has to be brought forward, whereby contrary to the view of the claimant, among others also in connection to the question of integration, no extraordinary circumstances were seen to make a oral hearing necessary (pages 7 and 8 of 13 of the judgement).

Deciding body (original language):