NEW, RESTRICTIVE LAW THREATENS RIGHT OF ASYLUM
On December 4, 1991, the Austrian parliament voted a new asylum law. The law drastically reduces the rights of asylum seekers. The parliament ignored grave objections by the Foreign ministry, the Constitution's Monitoring Board (Verfassungsdienst), the UNHCR, Amensty International and Austrian NGO's dealing with refugee matters.
The new law will come into force on July 1, 1992.
It contains a series of provisions which outrightly violate the Geneva Convention on Refugees or lack precision to such an extent that they next to call for arbitrary interpretation by the asylum authorities in charge of the procedure.
In contrast, the rare provisions in favor of the asylum seekers are often not embodied in the text of the law, but mentioned only in "explanatory comments".
The right of an asylum seeker to enter the country and awaite a decision on his application there, is all but undermined by § 6 and § 28.
§ 6 stipulates: "Entry shall be permitted (...) informally to an asylum seeker, if he comes directly from the state from which he alleges to fear persecution".
What happens, when he has not come "directly"? Nothing precise about this most probable situation is stated in the law. So we may guess that the answer of the border police will be, to refuse him entry.
§ 28(1) lays down that an "obviuosly unfounded" asylum application will be rejected immediately after the first police interview and without further procedure. A complaint against such a decision is theoretically possible. But it must be filed within 2 days(!) (formerly 2 weeks) and will not have suspensive effect on a deportation order.
According to § 28(3) "an asylum application shall be considered as obviously unfounded, when 1. the asylum seeker is unable to make credible his identity and particularly his nationality (...)" and when 2. "the asylum seeker is citizen of a state (...) of which it can be assumed that there does not ordinarly exist any founded threat of persecution".
The term "obviously unfounded" as a such, introduced for the first time in German asylum legislation in the early eighties constitutes a threat for the principal of fair procedure. This becomes all the more obvious in the new Austrian definition of the term "obviously unfounded".
To deny an asylum seeker a fair procedure inside the country on the mere ground that he is not able to make credible at once his identity and nationality is equivalent to undermining the right of asylum as such. For the lack of genuine identity documents must be considered as a characteristic precisely of genuine refugees.
The provision of § 28 (3.2) is an anticipation of the EC's project to introduce the term of "safe countries".
The Austrian definition shows that this is one more term that leaves the door wide open to arbitrary interpretation: The terms "assumed" and "ordinarly" allow a refugee to be sent back to his country of origin without having the chance to explain his case within a fair procedure, because some police officer "assumes" that "ordinarly" no persecution exists in this country.
The above-mentioned provisions introduce summary procedures which appear to be incompatible with the requirements of article 31 of the Geneva Convention on Refugees.
The new law also provides that asylum seekers can be assigned to a place of residence which they may not leave without prior permission from the federal office of asylum and where they must be within call daily. This is a form of "soft" detention.
During the first six months asylum seekers are not allowed to work.
Asylum seekers whose application has been rejected are no longer allowed to apply for an other from of residence, e.g. as a guest worker, as posssible according to the former law. "A person who wishes to immigrate into Austria, must file an application with the Austrian Embassy in her home country", says Mr. Pahr, the government official in charge of asylum.
Conclusions
The new Austrian asylum law constitutes a serious precedent in the ongoing dismantling of fundamental guarantees of the Geneva Convention on Refugees. It will have all the more catastrophical effects on a European level as Austria, in the era of the late chancelor Bruno Kreisky had become one of the strongholds of a humanitarian and independent asylum policy.
This important element of Austrian post war sovereignity has now been sacrified to both pressure from inside and from outside the country, particularly the frightful rise of the racist "Freiheitliche Partei Oesterreichs" and its leader J"rg Haider on a domestic level, and the pressure for harmonization with "European" asylum policies in the wake of Austrias application for membership with the EC.
Nicholas Busch
sources: "Juridicum" (Publ. by Context, Bergsteigergasse 43/16, A-1170 Wien), No. 4/91, p.10: Michael Genner: Das neue Asylrecht; "Fluchtseiten" (Basle, Switzerl.), No. 18/91