Legal assistance for review of detention

Austria

Country Report: Legal assistance for review of detention Last updated: 08/04/21

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Asylkoordination Österreich Visit Website

The detained asylum applicant is appointed a legal adviser provided by the BBU GmbH (see Legal assistance). The law contains only the obligation for the legal adviser to take part in hearings and to represent the asylum applicant, if the person so requests.[1] This was also underlined in a ruling of the Supreme Administrative Court, which concluded that the legal provision according to which lawyers have to attend the oral proceedings at the request of the foreigner “can only be understood as meaning that the lawyer’s participation in the hearing must be” on behalf of the applicant “, and thus has to act as a representative.[2]

A legal adviser shall be appointed according to Articles 51-52 BFA-VG in return procedures, detention and apprehension orders.[3] However, the right to receive legal advice for people benefiting from alternatives to imprisonment was abolished on 1 January 2014.

Legal advisers can meet their clients in the visitors’ room during office hours. Appointed legal advisers have to arrange for an interpreter. As their service is included in the lump sum for legal advice, it can be assumed that interpreters are not always present.

Moreover, asylum seekers are usually detained during the admissibility procedure. Member states requested to take back or take charge an application have to respond to the request within one month, in accordance with the Dublin Regulation. As a result, asylum seekers may face difficulties to obtain effective legal assistance and/or may fail to appeal the inadmissibility decision within two weeks. Detained asylum seekers may face more difficulties to appeal a rejection of their application if they know that the appointed legal adviser will not assist them to write an appeal. Within the short time limit of two weeks for the appeal, it is thus difficult to obtain effective legal assistance.

 

[1]         Article 52(2) BVA-VG.

[2]       VwGH, Decision No Ra 2016/21/0152, 23 February 2017.

[3]          VfGH, Decision E4/2014-11, 26 June 2014.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation