The independence of legal advice for asylum seekers is not legally protected sufficiently by the Federal Care Agency (BBU), which was established under Turquoise Blue. The Constitutional Court (VfGH) decided this in a legal review process. The right to an effective remedy is violated.
The relevant provisions are repealed as unconstitutional. The legislature now has until July 1, 2025 to introduce new legal rules.
Consultations since 2019
Since June 2019, the BBU, which is 100 percent owned by the federal government, has been tasked with providing free legal advice to asylum seekers in proceedings before the Federal Administrative Court. Previously, it was mainly clubs that conducted such consultations.
In December 2022, the Constitutional Court decided to examine ex officio various provisions in the BBU Establishment Act (BBU-G) and in the Procedure Act for the Federal Office for Immigration and Asylum (BFA-VG) for their constitutionality. Concerns are expressed, among other things, about the principle of the rule of law and the fundamental right to “effective judicial protection”.
Asylum seekers have the right to legal advice
Asylum seekers are assigned a legal advisor free of charge for procedures at the Federal Administrative Court. This must support the asylum seeker in question in submitting a complaint to the Federal Administrative Court (BVwG) and must act independently and without instructions. Until the establishment of the BBU, the Chancellor was responsible for the selection of legal advisors before the BVwG. Associations such as Diakonie could also be charged with providing legal advice.
No independence from the minister
The VfGH does not believe that the BBU’s legal advisors have this independence from the Minister of the Interior. Although this is determined by law, the position of the advisors within the BBU and in relation to the Minister of the Interior, who acts as the owner’s representative under company law, is further specified in a contract that binds the management of the BBU. to instructions from the Minister of the Interior and the Minister of Justice in the field of company law, according to a press release from the VfGH on Friday.
The legal form of GmbH is constitutional
However, according to the assessment of the Constitutional Court, 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,” the VfGH decision said. Although the legislature has mandated a state-controlled legal entity to provide legal advice and representation, this activity is a service for those involved that can also be provided by private individuals. Therefore, the BBU or individual legal advisors could not be assigned to the state administration.
Source: Krone
I am Ida Scott, a journalist and content author with a passion for uncovering the truth. I have been writing professionally for Today Times Live since 2020 and specialize in political news. My career began when I was just 17; I had already developed a knack for research and an eye for detail which made me stand out from my peers.
