The Constitutional Court decided this in a legal review process. The relevant provisions are repealed as unconstitutional. The legislature now has until July 1, 2025 to introduce new legal regulations.
Since June 2019, the BBU, which is 100 percent owned by the federal government, has been entrusted with providing free legal advice to asylum seekers in proceedings before the Federal Administrative Court. Previously, it was mainly clubs that carried out such consultations. In December 2022, the Constitutional Court decided to ex officio examine several provisions in the BBU Establishment Act (BBU-G) and in the Procedural Act for the Federal Office for Immigration and Asylum (BFA-VG) for their constitutionality. Concerns are expressed, among other things, with regard to the principle of the rule of law and the fundamental right to “effective judicial protection”. However, according to the Constitutional Court’s review, the legal form of the GmbH is constitutional.
Constitutional Court: Independence of legal advisors not given
Asylum seekers are provided with a legal advisor free of charge for proceedings before the Federal Administrative Court. This must support the respective asylum seeker when submitting a complaint to the Federal Administrative Court (BVwG), and must act independently and without instructions. Until the establishment of the BBU, the selection of legal advisors before the BVwG was the responsibility of the Federal Chancellor; Associations such as Diakonie could also be entrusted with providing legal advice.
The Constitutional Court does not believe that the BBU’s legal advisors have this independence from the Minister of the Interior. Although this is stipulated by law, the position of the consultants within the BBU and in relation to the Minister of the Interior, who acts as the owner’s representative under company law, is defined in more detail in a contract that binds the management of the BBU to instructions from the Minister of the Interior and the Minister of Justice in terms of company law. says a press release from the VfGH on Friday.
Justice Minister Alma Zadić welcomes the Constitutional Court’s decision that independence and freedom of instruction must be protected by law. “We managed to anchor appropriate guarantees of independence in the BBU framework agreement. Nevertheless, I said back then that a legal solution for independence was needed,” she emphasized in a statement on Friday.
She now sees the Interior Minister’s turn in order to create a situation that complies with the constitution. The Ministry of Justice will make its “fundamental and human rights expertise available” in order to ensure independent legal advice and representation for asylum seekers on the one hand, and to secure the work of the BBU legal advice employees in the long term on the other. “This year alone, they have provided independent, high-quality advice and representation in the second instance in more than 20,000 cases,” said Zadić.
BBU cannot be assigned to the state administration
However, according to the Constitutional Court’s review, the legal form of the GmbH is constitutional. “The legal advice and representation designed in this way – unlike, for example, the Covid-19 Financing Agency (COFAG) – does not represent functional state administrative management (..),” according to the VfGH’s decision. Although the legislature commissioned a state-controlled legal entity to provide legal advice and representation, this activity is a service for those affected that can and is also provided by private individuals. Therefore, the BBU or individual legal advisors cannot be assigned to the state administration.
She is pleased with the decision. “In the past three years, division manager Stephan Klemm and I have not only succeeded in improving the legal quality of advice, we have also placed the independence and freedom of instruction of legal advisors within the BBU beyond any doubt. We therefore welcome the finding of the Constitutional Court “, according to which independence should now also be more securely secured at the legal level,” commented BBU managing director and refugee coordinator Andreas Achrainer in a press release. He wants to “get the necessary change in the law finalized as quickly as possible” and “offer politicians our expertise, which is recognized by the Constitutional Court”.
The criticism from NEOS, however, is harsher. “It was clear from the start that this wouldn’t last,” says asylum spokeswoman Stephanie Krisper. “It contradicts the principle of the rule of law that legal advice is subject to the same authority whose officials decide on the content. Black-Green implemented what Black-Blue decided and thereby undermined the right to independent legal advice. Now it applies quickly to ensure freedom of instruction and the quality of legal advice – and not to wait until 2025.”
Further proceedings pending
In another case, the Constitutional Court is currently examining whether the restriction of the right to legal aid violates the constitutional principles of effective legal protection and is therefore unconstitutional. The reason for the legal review procedure is the complaint of an Afghan citizen who received asylum in 2004 and applied for Austrian citizenship in 2021 and its extension to her three minor children born in Austria. Your application was rejected. The woman then lodged a complaint with the Vienna Administrative Court and applied for legal assistance for this administrative court procedure. This application was rejected with reference to a provision in the Administrative Court Procedure Act: According to this, the right to legal aid depends on whether fundamental rights are the subject of the proceedings (which does not apply in the specific case). The provision therefore excludes the granting of legal aid for all other proceedings.
For the time being, the Constitutional Court is of the opinion that effective access to the administrative courts should exist regardless of whether the person seeking legal protection turns to the court in a matter that falls within the scope of application of fundamental rights. Even outside the scope of these fundamental rights, there could be procedures in individual cases in which legal assistance must be granted in order to ensure effective access to legal protection.
