The ruling concerns four cases with similar facts and proceedings.

Case E- 3608/2021: The case concerned an Iraqi national whose asylum application was rejected by the BFA and against which the appeal was also rejected by decision of 19 July 2021 of the Federal Administrative Court. The applicant applied before the Constitutional Court to request procedural assistance for violation of Article 144 of the Constitution and for restoration of the deadline to appeal before the Federal Administrative Court because of an infringement of his constitutional rights. The applicant alleged that the Federal Agency for Reception and Support Services (BBU), which provided him legal assistance before the BFA and the Federal Administrative Court, has failed, due to some technical errors in the electronic communication system, to notify him of the outcome of the proceedings at second instance and thus he missed the deadline to submit a constitutional appeal. The applicant contacted the Federal Administrative Court which replied that his legal representative was notified about the outcome of the appeal.

The BBU argued that the applicant could not submit an appeal due to unforeseeable and unavoidable events which he was not responsible of, but that the BBU did not violate its obligations. The BBU acknowledged that the applicant did not become aware of the outcome of the proceedings before the Federal Administrative Court due to a one-off circumstance despite best efforts of the agency to train the staff and despite internal control mechanisms. The applicant was not aware of the outcome and could not submit an extraordinary remedy within the deadline before the Constitutional Court.

Case E 3958/2021: An Iraqi national, whose application for international protection was rejected by BFA, further appealed before the Federal Administrative Court which rejected the appeal as unfounded by decision of 20 July 2021.

The applicant submitted before the Constitutional Court a request for restoration of the deadline based on the fact that he only learnt on 13 October 2021, from the BBU, that his legal representative has been notified electronically on 21 July 2021 of the outcome before the Federal Administrative Court. Thus, it was considered that the applicant was served with the decision on 22 July 2021. It was found that due to internal omissions from BBU the applicant was not notified about the judgement and not delivered with. The BBU mentioned that the failure to deliver the judgement was an unpredictable and unavoidable event for which the applicant is not responsible of.

Case E 175/2022: It concerned an Afghan applicant whose asylum application was rejected by the BFA but subsidiary protection was granted due to the situation in his country of origin. The appeal against the non-recognition of refugee status was dismissed by the Federal Administrative Court decision on 16 December 2021 and without the presence of BBU or the applicant to the oral hearing held by the court. The applicant raised before the Constitutional Court the infringement of his rights and procedural safeguards because the administrative court should have ensured his right to a legal advisor in the proceedings.

Case E 1172/2022: The case concerned a Syrian national whose request for asylum was rejected but was granted subsidiary protection in view of the situation in his country of origin. The applicant requested a review of the decision by BFA and brought an appeal against the BFA decision invoking that he had granted a power of attorney to BBU to lodge a complaint on his behalf but due to an internal error of a civil servant of BBU, the latter assumed erroneously that the applicant did not wish to lodge a complaint. The BFA rejected the request for review based on the failure to comply with the time-limit. The Federal Administrative Court further rejected the appeal considering the BBU error was not a minor one and that the remedy was time-lapsed. The applicant brought proceedings before the Constitutional Court based on article 144 of the Constitution.

Decision of the Constitutional Court:

The Constitutional Court first analysed the tasks and competencies of the BBU based on its legal framework. It stated that the requests for restoration of time limits were admissible and analysed the constitutionality of some provisions of the BBU Establishment Act.

The Constitutional Court underlined that the legal representative must be found guilty of the fault of his employees when the representative is accused of negligence in the control, supervision or instruction. The court mentioned that a professional legal representative, irrespective of whether it is a law firm or a legal advisory organisation, must organise its activities in a way that eliminates the omission of deadlines and to ensure standards of diligence which include the establishment of a control mechanism for business and registry processing.

The Constitutional Court allowed the review procedure and further examined the structure, organisation and mandate and tasks of BBU regarding legal assistance and representation of asylum applicants. The court noted that the BBU, which was established in June 2019, works under the federal government and the management is appointed by the Federal Minister of the Interior. Moreover, under the Establishment Act of the BBU, it is provided that the Federal Chancellor is responsible to select the legal advisors and that legal entities could provide legal services. The Constitutional Court raised concerns on the provisions related to implementation of legal advice and representation compatibility with the Constitution and the requirements under Article 20, where it is provided that the administration is carried out by bodies which follow instructions under the direction of supreme bodies of the federal and state governments. However, Article 20 (2) of the Constitution provides exception to the obligation to issue instructions when the legislative provides for an appropriate right of supervision for federal ministries. The Constitutional Court also raised concerned regarding rule of law and the right to an effective judicial protection because the current establishment of BBU might not offer the required minimum level of effectiveness for those seeking protection since legal advisors need to perform tasks independently and are bound by confidentiality in their tasks. The court also took into consideration that the BBU is subordinated to the Ministry of the Interior.

The Constitutional Court considered that in the process of review of the legislation governing BBU the Constitutional Court will have to examine whether the requirements under Article 20 apply to BBU and whether the BBU Establishment Act is compliant with the provisions of the Constitution.