Austria / Asylum Court / C8 407012-1/2009 Asylum seeker from China v Austria

Key facts of the case:

The claimant from China applied for Asylum on 14.05.2009. He was interrogated by the police the very same day and stated his reason for flight being a conflict with another person. On the next day after the conflict 3 persons came to his family and hit his son. They stated that they would cut off the legs of his wife. That’s why he fled. In case of return to China he would be tortured. On 19.5.2009 he stated in a further interrogation that he paid 100.000 RMB for his emigration. He would like to return to China in one to two years. He does not have contact with his family. But lived with his wife and son in an apartment they owned and worked as a mechanic.

Paragraphs referring to EU Charter: 


Regarding the statement of the claimant of 14.05.2012, that a written statement does not sufficiently fulfil the hearing of parties and – in accordance with Art. 47 of the Charter of Fundamental Rights- cannot replace a public, oral hearing: According to the mentioned clause every person, whose rights and freedoms guaranteed by the law of the European Union were violated – e.g. the right to private and family life (Art. 7), right to asylum (Art. 18) and the protection from removal, expulsion and extradition (Art. 19) – has a right that his/her case is heard by an independent, impartial Court established by law in a fair trial publicly and within reasonable time. Moreover the Charter also applies for Member States when implementing the law of the Union. Still the right guaranteed in Art. 47 para 2 is not guaranteed without limitations – as results from Art. 52 – the limitation of the right to a public hearing (Verhandlungspflicht)in § 41 para 7 Asylum Act is allowed in the sense of Art. 52 para 1 of the Charter, especially because it is 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. (page 6 of 9 of the judgment).

Deciding body (original language):