ASYLUM LAW PARTLY UNCONSTITUTIONAL, SUPREME COURT RULES
The Austrian Supreme Court has declared a provision of the new asylum law unconstitutional. Since its adoption in December 1991 (see FECL No.3, p.3), the new legislation had drawn massive criticism from various quarters - among others, the Catholic church and the UNHCR (see FECL No. 24, p.8). Opponents of the law now call for its comprehensive amendment.
The Supreme Court's considerations focused on paragraph 20.2 of the law. It stipulates that the Interior Minister shall order an additional or entirely new examination of an asylum application only when the procedure was manifestly flawed. This means that procedural flaws below the level of outright arbitrariness can neither be pleaded by asylum seekers nor even be admitted for consideration by appellate jurisdiction.
The Supreme Court's written reasons for its judgement were not available at the time of the announcement, but reliable sources say that the ruling refers to the provision above.
The ruling has been welcomed as a first step in the right direction by the numerous opponents of the law. "Henceforth, at least on the level of the procedure of appeal a fair procedure will be granted", commented Thomas Prader, a prominent lawyer in Vienna. The contested provision allowed for speedy, summary and arbitrary asylum procedures and left practically no chance for the asylum seeker to appeal against the original decision. This meant that, in effect, flawed administrative procedures had been removed from the control of the Administrative Court, Prader said.
Christian Brünner, a MP of the ÖVP (Austrian Christian Democrats) said the ruling confirmed his earlier criticism of the particular provision concerned but pointed at two other elements of the law that he considers as being even more questionable. First, asylum seekers whose application has been turned down in the first instance can be deported before a final legal decision on their appeal; and second, minor formal mistakes are punished excessively. Thus, an asylum application can be summarily rejected on the mere ground that an asylum seeker has not kept an appointment with the immigration authorities.
The decision of the Supreme Court should be seen as a welcome opportunity for a thorough reconsideration of these other questionable provisions, Christian Brünner said.
The Greens' justice spokesperson, Terezija Stoisits, also stressed that "a little legal repair" would not be enough, and called for a comprehensive amendment of the law putting an end to a period of "inhumane asylum policies" in Austria.
Source: Salzburger Nachrichten, 15.7.94