FECL 24 (May 1994):


At the request of the German Federal Constitutional Court (Bundesverfassungsgericht), the United Nations High Commissioner for Refugees (UNHCR) presented a statement regarding asylum procedures in Austria. It follows from the statement that Austria no longer can be considered as a "safe third country" to which asylum seekers can be turned back without prior examination in each particular case.

The statement addresses Austria's very restrictive interpretation of the third country principle. Only refugees who have travelled to Austria directly from their country of origin are granted access to an asylum procedure complying with an "international minimum standard", the UNHCR says. According to the Austrian definition of direct entry, third country regulations apply to any person transiting through a neighbouring country, including Hungary, which has joined the Geneva Convention on Refugees with geographic reservations. Travel by air is considered a direct only if the asylum seeker had no opportunity to apply for asylum while landing in another country en route. The UNHCR notes that the question of whether an asylum seeker has objectively been granted protection in the transit country concerned or if he can still seek this protection in the event of being sent back by Austria, is not being properly examined.

The statement also underlines the fact that appeals against the rejection of an asylum application do not put any stay on a deportation order whenever "The execution of the measure is strongly required in the interest . . . of the common good and because of imminent danger". This catch-all provision is widely used to deny asylum seekers a provisional stay permit pending a decision on their appeal.

There is no sufficient examination of the question of whether the deportation of a rejected asylum seeker is in compliance with the prohi-bition of refoulement as stipulated by Article 3 of the European Convention on Human Rights and Article 3 of the UN Convention on torture.

As a result of the entry into force of new asylum legislation in June 1992, the number of asylum applications in Austria has drastically decreased. Between 1991 and 1993 the number of asylum application dropped from 16,238 to 4,744.

The UNHCR has expressed concern with the Austrian authorities regarding the above legislation and practice, as far as . . . it is not in compliance with international asylum law standards".

In conclusion, the UNHCR "recommends giving due consideration in each individual case to the problems described above prior to any decision of German authorities on a deportation back to Austria as a third country".


Source: Voraussetzungen und Bedingungen des Asylverfahrens in Österreich, UNHCR, 28.1.94