Legal assistance for review of detention


Country Report: Legal assistance for review of detention Last updated: 30/11/20


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The detained asylum applicant is appointed a legal adviser provided by the state, either from the organisation ARGE Rechtsberatung or VMÖ, which closely co-operates with the Ministry of Interior. 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.

The funding allocated to each case is not sufficient (€200.55 per case), and the two legal aid organisations have a different understanding of what their role is with regard to providing legal advice to detainees. The organisation VMÖ works closely with the Ministry of Interior and thus avoids conflicts with the authorities.[4] As discussed above, this organisation also receives funding from the Ministry of Interior for providing assistance to authorities in Dublin proceedings and in cases of voluntary return.

This has resulted in situations undermining asylum seekers’ right to appeal. VMÖ staff responsible for the “preparation for return in detention” advised asylum seekers, who were legally represented by legal advisers of Diakonie, to withdraw their right to appeal against a Dublin decision without the consent or involvement of the legal representative from Diakonie. The question whether the appeal was submitted or not was ruled by the Constitutional Court.[5] NGOs in Austria suspect that detainees were not fully informed about the possibility of legal representation by VMÖ and that this organisation refuses to represent the detainees (whereas the legal adviser should write an appeal against the detention order if the detention order appears to be unlawful). ARGE Rechtsberatung, on the contrary, is committed to the safeguard of the human rights of detainees and has successfully appealed detention orders.

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.

[4]  Edith Meinhart: Mr. Gongo. Profil 40, October 2007.

[5]  VwGH U1286/2013, 12 March 2014. The asylum seeker from Afghanistan had already experienced 18 months detention in Hungary. When he received the decision to send him back to Hungary he signed a form in which he declared that he will not submit an appeal against the Dublin decision. The following day he gave power of attorney to his legal adviser from Diakonie refugee service and wanted to have the decision appealed. The Asylum Court ruled that the appeal is inadmissible. The Constitutional Court declared that legal counselling has to include all aspects of the administrative procedure and the procedure at the Asylum Court including the submitting of an appeal. The asylum seeker has to be informed about the withdrawal of the right to appeal by the appointed legal adviser. The employee of Verein Menschenrechte Österreich who prepares detainees for the return had no legitimacy to give legal advice. See also VfGH, Decision U489/2013, 26 February 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