Austria / Constitutional Court / U466/11; U1836/11 Two anonymised Chinese nationals v Austrian Asylum Court (Asylgerichtshof)

Key facts of the case:

U466/11: A Chinese national travelled to Austria on 29 March 2010 and filed an application for international protection in Austria on 30 March 2010. She argued to have hurt a police officer in China so that she would not have the possibility to return to China. The Austrian Federal Asylum Office (Bundesasylamt) dismissed the motion on 19 April 2010 in the first instance; the Asylum Court dismissed the subsequent appeal of the Chinese national on 18 January 2011 without oral hearing. The Chinese national also appealed against this decision to the Constitutional Court.

U1836/11: A Chinese national was arrested in Austria on 3 November 2010 and filed an application for international protection in Austria on 4 November 2010. He argued to have incurred large debts in China. The Austrian Federal Asylum Office (Bundesasylamt) dismissed the motion on 10 December 2010 in the first instance; the Asylum Court dismissed the subsequent appeal of the Chinese national on 20 April 2011 without oral hearing. The Chinese national also appealed against this decision to the Constitutional Court. The Constitutional Court dismissed (abweisen) both appeals of the Chinese nationals.

Paragraphs referring to EU Charter: 

 

The Court therefore has to examine first if it is competent to rule on the alleged violation of the Charter of Fundamental Rights and if the Charter of Fundamental Rights should be the standard of review for proceedings pursuant to Art 144a of the Austrian Constitution [Bundesverfassungsgesetz; B-VG] (which is comparable to Article 144 of the Austrian Constitution in this respect, cf. VfSlg 18.613/2008). If this is the case, the appeals – as all other prerequisites are met – are admissible. The Charter of Fundamental Rights, which was proclaimed at the Nice Summit in 2000, is part of the Treaty of Lisbon which was ratified by Austria on 13 May 2008. Since the entry into force of the Treaty of Lisbon on 1 December 2009 (OJ 2007 C 303, p1, consolidated version OJ 2010 C 83, p 389), the Charter of Fundamental Rights has the same legal value and is therefore part of the Primary law of the European Union due to the explicit order contained in Article 6 para 1 TEU (cf European Court of Justice of 19.1.2010, C-555/07, Kücükdeveci, 2010, I-365, margin note 22). (...) For the scope of European law, the Charter of Fundamental Rights guarantees rights which are similar to those constitutional rights which are guaranteed by the Austrian constitutional framework. As the preamble of the Charter of Fundamental Rights emphasizes, it reaffirms: ‘with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights’. As may be derived from the explanations to the Charter of Fundamental Rights, many of its rights are shaped according to the respective rights of the ECHR as to their wording and intention. The Charter of Fundamental Rights contains, as set out in its Article 51, ‘rights’ and ‘principles’ and it has not yet been clarified in detail how each provision has to be qualified and the importance of this differentiation. As already set out above, the Charter of Fundamental Rights fulfils, within the scope of the law of the Union, in many of its provisions – the ‘rights’ – the same duties as constitutional rights for the (autonomous) Austrian legal system. In light of the intention of far reaching identity of content and wording between the Charter of Fundamental Rights and the ECHR, the result are protected areas with far reaching overlaps. It would contradict the concept of the Austrian constitution with a centralised Constitutional judicial review if the Constitutional Court could not decide on the, often identic, rights of the Charter of Fundamental Rights. The Constitutional Court thus concludes that due to the domestic legislation, the principle of equivalence results in the rights of the Charter of Fundamental Rights being possible to be invoked as constitutional rights before the Constitutional Court pursuant to Article 144 and Article 144a of the Austrian Constitution, respectively, and that the they, within the scope of the Charter of Fundamental Rights, constitute a standard of review in proceedings of constitutional complaints, in particular pursuant to Article 139 and Art 149 of the Austrian Constitution. This is certainly true if the respective guarantee of the Charter of Fundamental Rights is comparable to constitutional laws of the Austrian Constitution in their wording and determination. The individual guarantees within the Charter of Fundamental Rights partly have a completely different normative structure and some of them are not comparable to constitutional rights but to ‘principles’ such as Article 22 or Article 37 of the Charter of Fundamental Rights. It is therefore to decide in each individual case, which rights of the Charter of Fundamental Rights constitute a standard of review in proceedings of constitutional complaints. The result, that the Charter of Fundamental Rights constitutes a standard of review in proceedings of constitutional complaints is not in contradiction to the fact that the fundamental rights, which are derived from the common constitutional traditions of the member states and international obligations for the protection of human rights to which member states were parties or acceded, were already in force as general principles for the implementation of Union law prior to the entry into force of the Charter of Fundamental Rights pursuant to the case law of the European Court of Justice (and will continue to be in force pursuant to Article 6 para 3 TEU), so that the Community may not recognize acts as rightful which are in contradiction with those fundamental rights as protected by the constitutions of the member states (cf ECJ 14.5.1974, C-4/73, Nold, ECR 1974, 491; 13.7.1989, C-5/88; Wachauf, ECR 1989, 2609; 13.4.2000, C-292/97, Karlsson, ECR 2000, I-2737; 3.9.2008, C-402/05 P and C-415/05 P, Kadi, ECR 2008, I-6351). Insofar, the fundamental rights were already applicable for all authorities who decided within the scope of the law of the Union prior to the entry into force of the Charter of Fundamental Rights (cf Administrative Court 23 October 2000, 99/17/0193). This means that the Constitutional Court – as already done so far (cf. VfSlg. 15.450/1999, 16.050/2000, 16.100/2001) – has to present a question to the European Court of Justice for a preliminary ruling if there are doubts as to the interpretation of a provision of Union law, i.e. also in case of the Charter of Fundamental Rights. If such doubts do not arise, in particular in light of the ECHR and the respective case law of the ECtHR and other supreme courts, the Constitutional Court decides without preliminary ruling. The Constitutional Court is in questions of the Charter of Fundamental Rights a court which has to request a preliminary ruling pursuant to Article 267 para 3 TFEU so that the Asylum Court does not violate the right to a lawful judge in accordance with the case law of the Constitutional Court (VfSlg. 14.390/1995, 14.889/1997, 15.139/1998, 15.657/1999, 15.810/2000, 16.391/2001, 16.757/2002) if it does not request a preliminary ruling from the European Court of Justice in a specific case.

Deciding body (original language): 
Verfassungsgerichtshof
Language: 
German