Austria / Asylum Court / C8 263654-0/2008 Asylum seeker from China v Austria

Key facts of the case:

The claimant applied for asylum in June 2004. In a first interrogation in June 2004 at the Federal Asylum Office he stated to be married and father of one child. Until 2002 he worked as a construction worker in China. After that he was unemployed. He left his home with a trafficker and boarded a ship to Italy, afterwards he came to Austria by car and by walking and entered illegally on 8 June 2004. Asked on his reasons for flight, he stated that China is persecuting the Falun Gong movement. Together with others he set up a print shop and distributed leaflets for Falun Gong. After some people were arrested he decided to leave his country. His application for asylum was rejected and the expulsion to China was seen as admissible. In August 2005 the claimant filed an appeal. He was given a legal adviser, this adviser asked for a public hearing to uphold the guarantees of Art. 47 of the Charter of Fundamental Rights.

Paragraphs referring to EU Charter: 

 

To fulfil the requirements of Art. 47 of the Charter of Fundamental Rights, a written statement cannot sufficiently guarantee the hearing of parties and cannot replace a public, oral hearing. The questions asked to the claimant in the statement on the collection of evidence (Verständigung von der Beweisaufnahme) would have to be asked in a public, oral hearing. Otherwise the level of language knowledge and integration could not be judged (Statement of the legal adviser of the claimant, page 3 of 9 of the judgement). In relation to the written statement of 30 January 2012, whereas a written statement cannot guarantee the hearing of parties sufficiently and in accordance with Art. 47 Charter of Fundamental Rights 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 within reasonable time in a fair and public trial by an impartial and independent court established by law. The Charter applies to Member States when implementing Union law. Still, the right guaranteed in Art. 47 para 2 of the Charter is not without limitations – as a result of Art. 52 – and the restriction of the duty to public hearing (Verhandlungspflicht) in § 41 para 7 Asylum Act is admissible in the sense of Art. 52 para 1 of the Charter, because it is foreseen by law and respects the essential content of the right guaranteed 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. (page 4 of 9 of the judgment).

Deciding body (original language): 
Asylgerichtshof
Language: 
German