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Key facts of the case:

The Federal Administrative Court brought forward a motion for repeal of the word sequence "against a return decision, a decision according to §2 (4) to (5) or §3 GVG-B 2005 or a directive for expulsion” in §52 (2) BFA-VG because of alleged unconstitutionality. All applications by the Federal Administrative Court are based on complaints from asylum seekers against decisions of the Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl, BFA). Their applications for international protection regarding the status of asylum seekers were rejected in accordance with §3 (1) in conjunction with §2 (1) 13 Asylum Act 2005. However, the status of subsidiary protection – together with temporary residence permit – was granted. The BFA informed the asylum seekers in each case that they would be provided with a legal person as legal counsel for the appeal before the Federal Administrative Court. In their complaints, the complainants submitted an "application for free of charge accompaniment of a procedural assistant". On this occassion, the Federal Administrative Court brought forward applications for a legal examination. After its legal examination, the Constitutional Court repealed the cited word sequence for being unconstitutional. 

As for the presented case, the relevant legal norms are: Art140 of the Federal Constitution (Bundes-Verfassungsgesetz, B-VG) ; Art1 (1) Constitutional Act on Racial Discrimination (Bundesverfassungsgesetz vom 3. Juli 1973 zur Durchführung des Internationalen Übereinkommens über die Beseitigung aller Formen rassischer Diskriminierung, BVG-Rassendiskriminierung) ; §52 (2) Federal office for immigration and asylum procedures (BFA-Verfahrensgesetz, BFA-VG) ; §§ 28 and 40 Administrative Court procedures act (Verwaltungsgerichtsverfahrensgesetz, VwGVG)  and Art47 para 3 CFR.

The key legal questions raised by the Constitutional Court are about repealing a provision of the BFA-VG concerning the legal advice for strangers and asylum seekers in front fo the Federal Administrative Court because of a violation of the right to equal treatment of strangers among themselves. Moreover, the Court raised the issue about no objective justification for the stadardised restriction of legal advisers’ representation duty against return decisions, decisions concerning deprivation of basic services and decisions concerning directives for expulsion. 

Outcome of the case:

The wording "against a return decision, a decision according to §2 (4) to (5) or §3 GVG-B 2005 or a directive for expulsion” in §52 (2) BFA-VG in the version of BGBl I 70/2015 was repealed because of being unconstitutional. The repeal will enter into force by the end of 31 December 2016.

The Constitutonal Court gave direct access to the right to a fair trial by stating that in any case it can be assumed that legal aid can be, if no domestic legal claim exists, directly based on Art47 para 3 CFR.