The need for examination and assessment of the safety situation in Afghanistan before ordering the return of the person entitled to a subsidiary protection

Austrian Constitutional Court (Verfassungsgerichtshof) E2002/2014

The complaint of the claimant, an Afghan national, is exclusively against the non-recognition of his entitlement to a subsidiary protection (granted when there are real risks of possible violations of Article 2 and 3 of the ECHR or Protocols 6 and 13 of the ECHR) with respect to his home state Afghanistan and, in this connection, against the referral of the case back to the Federal Agency for Asylum for the examination of the admissibility of the order for return.

The Federal Administrative Court (Bundesverwaltungsgericht) considered that the claimant, bearing in mind the risks in fragile and unsafe Afghanistan, would not be exposed to any real danger if returned home.

However, in view of the flawed reasoning of the Federal Administrative Court (Bundesverwaltungsgericht) that it would not be unreasonable for the claimant to return to his home province irrespective of the extreme and dangerous situation and state in which Afghanistan found itself, the Austrian Constitutional Court (Verfassungsgerichtshof) ruled that the claimant had in that regard his constitutionally guaranteed right to equal treatment among foreigners infringed (Article I (1) of the Austrian Constitutional Law (BVG)).

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