E4227/2021

In its judgement E 4227/2021, issued 16 December 2021, the Austrian Constitutional Court examined the international protection needs of a healthy man from Afghanistan following the Taliban takeover.

In its contested judgement of 12 October 2021, the Federal Administrative Court in the case of an ethnic Pashtu man originating from Paktia province had taken the view that the security situation in Afghanistan had calmed down since the Taliban took over. The single-judge decision by the Federal Administrative Court argued that the Taliban would have to build on existing supply structures, which is why it considered COI addressing the humanitarian situation before the Taliban's takeover as still valid. The Federal Administrative Court further argued that it could not be assumed that the strained and – since the Taliban's rise to power – even deteriorated humanitarian situation would collapse totally soon. Therefore, it deemed the complainant not to be in need of international protection. 

The rejected asylum-seeker lodged a complaint against the judgement with the Constitutional Court and was granted leave to remain until the Court's judgement.

On 16 December 2021, the Constitutional Court issued its ruling which was finally published in mid-January 2022 (the full judgement is available here and the summarized core legal ruling here - both in German). The Constitutional Court found that the Federal Administrative Court had erred in considering a return to Afghanistan to comply with Art 2 and 3 ECHR. The Constitutional Court recalled that based on the country information sheet on Afghanistan issued by the Austrian COI Unit (Staatendokumentation which is based in the asylum authority BFA), dated 19 July 2021, the security situation in Afghanistan was to be considered as so extremely volatile at the time of decision-making by the Federal Administrative Court that returnees would face a real risk of a violation of Art 2 or Art 3 ECHR. The Court went on to state that considering current reports, the situation in Afghanistan continues to be volatile (referencing the updated EASO Country Guidance on Afghanistan dated November 2021), which is why the Constitutional Court sees no reason to come to a different conclusion.

Furthermore, the Constitutional Court found that the assessment of the Federal Administrative Court concerning the humanitarian situation in Afghanistan is not comprehensible in view of current country reports (referencing the UNHCR Fact Sheet on "Afghanistan situation: Emergency preparedness and response in Iran" dated 11 October 2021 stating that "nearly half the population of Afghanistan […] require aid assistance to survive"). Hence the Constitutional Court found that the complainant's return to Afghanistan would violate Art 2 and 3 ECHR, quashed the judgement of the Federal Administrative Court regarding the negative decision on subsidiary protection and referred the case back to the Federal Administrative Court.

Please note that the Constitutional Court only extremely rarely finds a violation of Art 2 and 3 ECHR in its judgements. Normally its positive decisions are based on the finding that the contested judgement of the Federal Administrative Court has been inadequately reasoned and thus arbitrary.

(Please note that two decisions with similar reasonings have been issued by the Constitutional Court on 16 December 2021, see E 4382/2021 and E 4280/2021. Both also concerned single, healthy Hazara men from Afghanistan with one originating from Ghazni province whereas the other had lived in Iran since his childhood.)