Austria / Supreme Administrative Court / 2011/21/0278 (a) An anonymised Ukrainian national (b) Independent Administrative Tribunal (Unabhängiger Verwaltungssenat) of Upper-Austria (Oberösterreich)

Key facts of the case:

A Ukrainian national was granted an Austrian “proof of settlement” (Niederlassungsnachweis) on 24 June 2005. Due to several criminal acts (bodily, criminal acts under the Austrian law banning National Socialist activities (Verbotsgesetz), aggravated theft, various offences under the Austrian law on addictive drugs (Suchtmittelgesetz) as well as systematic theft), the District Commission (Bezirkshauptmannschaft) Urfahr-Umgebung initated proceedings to expel the Ukrainian national. He was interrogated on 5 May 2010 by the District Commission. After the interrogation, the competent officer made a note to his files stating that he would not expel the Ukrainian national due to the impression which he gained during the interrogation. The competent Federal Police Directorate (Bundespolizeidirektion) nevertheless continued with the proceedings and issued a prohibition to stay (Aufenthaltsverbot) for the duration of 10 years on 26 May 2011. The Ukrainian national appealed against this decision to the Independent Administrative Tribunal of Upper-Austria who confirmed the prohibition to stay but limited its duration to five years without an oral hearing of the case. The Ukrainian national also appealed against this ruling to the Administrative Court.

Paragraphs referring to EU Charter: 


In connection with the present case, the Supreme Administrative Court, referring to its ruling 2011/22/0097, again stresses that the issuance of a prohibition to stay is to be considered as a measure according to Directive 2008/115/EC (Return Directive) and further one according to Directive 2003/109/EC. The authority issuing the contested order has therefore acted in implementation of Union law pursuant to Article 51 para 1 of the Charter and the rights granted under the Charter are thus also to be considered. In particular the Court is referring to Article 47 para 2 of the Charter according to which – the first sentence of this provision - everyone has the right to a fair and public trial before an independent and impartial tribunal, previously established by law, within a reasonable time. Generally this duty to conduct public oral hearings also applies to appeals proceedings relating to alien police of the present kind (cf the ruling of the Supreme Administrative Court of 20 March 2012, 2011/21/0298) – in any event pursuant to § 67d Administrative Procedures Act [Allgemeines Verwaltungsverfahrensgesetz; AVG] and, eventually, also § 9 para 7 Aliens’ Police Act (Fremdenpolizeigesetz, FPG) (for the innocuousness of the comparable formulation in §41 para 7 Aylum Law 2005 [Asylgesetz 2005, AsylG 2005] cf the ruling of the Constitutional Court of 14 March 2012, U 466/11-18 and U 1836/11-13). The Court does not need to return in greater detail on the interpretation of Article 47 para 2 of the Charter. It is to be stressed, however, that Article 47 para 2 of the Charter has the same scope and significance as Article 6 ECHR within the scope of this provision of the ECHR. Outside this scope, the guarantees of Article 6 ECHR apply accordingly for the scope of Article 47 para 2 of the Charter (cf the abovementioned ruling of the Constitutional Court, point II.7.2). In connection with the duty to conduct oral hearings, it is to be stressed, that within the scope of Article 47 para 2 of the Charter the competent authority may only assume an implied waiver of the hearing in case of an unrepresented party if the party was instructed about its right pursuant to § 67d para 1 Administrative Procedures Act [Allgemeines Verwaltungsverfahrensgesetz; AVG] to apply for a hearing or if there is indication that it should have known about this possibility (cf in light of Article 6 ECHR the ruling of the Supreme Administrative Court 2008/10/0315 in connection with a dispute before civil courts).

Deciding body (original language):