According to Article 76 FPG, the principle of necessity is to be taken into account. Detention has to be necessary to reach one of the stated aims. The principle of proportionality is not explicitly mentioned in the FPG. It is however mentioned that the BFA has to review the proportionality of detention every 4 weeks.1 Proportionality is also a constitutional principle applicable to all administrative procedures and therefore also to asylum and return proceedings. This is confirmed by the jurisprudence of the VwGH2 and the Constitutional Court (VfGH).3 Proportionality means to weigh or balance the interests between the public interest of securing the procedure (mainly expulsion procedure) and the right to liberty of the individual.
Alternative measures must be applied in all cases, not only if a particular ground for detention exists, if the authorities have good reasons to believe that the object and purpose of detention (i.e. deportation) could be reached by the application of such measures. An individualised examination is provided for in the FPG, but in practice less coercive measures are often regarded as not sufficient to secure the return procedure or expulsion.
Article 77(3) FPG enumerates 3 alternatives to detention: (a) reporting obligations; (b) the obligation to take up residence in a certain place of accommodation and (c) the deposit of a financial guarantee. Details about the deposit and amount of the financial guarantee are regulated by the Ordinance Implementing the Aliens Police Act (FPG-DV). This amount must be determined in each individual case and must be proportionate.4 The law specifies a maximum of €1,717.46 for financial guarantees (2 x €858.73). The measure is not usually applied in practice, however.5
Alternatives to detention are applied in open centres. Such measures are executed in regular reception facilities, facilities rented by the police or property of NGOs, or the private accommodation of the person to be deported. If an alternative to detention is ordered, asylum seekers have reporting duties. They have to present themselves at the police offices of the Federal Police Directorates every day or every second day. If reporting obligations or the obligation to take up residence in a certain accommodation facility are violated, the person is detained.6
The duration of alternative measures is limited. 2 days in the alternative measure count as 1 day of detention. Asylum seekers benefiting from an alternative to detention are not entitled to Basic Care. Necessary medical treatment must in any case be guaranteed. These costs may be paid by the BFA. Asylum seekers may also receive free emergency medical treatment in hospitals.
In Vienna Zinnergasse, more lenient measures are executed for vulnerable persons. Verein Menschen.leben is contracted to give care and advice to the persons who are usually restricted in their freedom of movement. In 2015, 154 persons had to stay in Zinnergasse, 10% out of whom were minors. The association runs a facility for more lenient measures in Lower Austria as well, where 41 persons received care and counselling in 2015.
- 1. Article 80(6) FPG.
- 2. VwGH, 2013/21/0008, 2 August 2013.
- 3. See e.g. VfGH, B1447/10, 20 September 2011.
- 4. Article 13 FPG-DV.
- 5. EMN, The use of detention and alternatives to detention in the context of immigration policies in Austria, July 2014, available at: http://bit.ly/1Mo6zDs, 17.
- 6. Article 77(4) FPG.