The Federal Constitutional Court allowed a legislative review procedure pursuant to Article 140(1) sentence 1 (b) of the Federal Constitutional Act to examine the constitutionality of Section 8a of the Federal Act on Proceedings of Administrative Courts (Proceedings of Administrative Courts Act – VwGVG).

The reason for the legislative review procedure was the complaint of an Afghan national who was granted asylum in Austria in 2004 and who applied for Austrian citizenship in 2021 for herself and her three minor children born in Austria. Following the rejection of his application, the applicant lodged an appeal before the Vienna Administrative Court and applied for legal aid for the administrative court proceedings. This application was rejected based on Section 8a of the Federal Act on Proceedings of Administrative Courts (Proceedings of Administrative Courts Act – VwGVG), which determines that legal aid can only be granted if the fundamental rights pursuant to Article 6 of the ECHR or Article 47 of the EU Charter are the subject of the proceedings. The court considered that the case did not concern a fundamental right pursuant to Article 6 of the ECHR. 

The Federal Constitutional Court examined whether this restriction of the right to legal aid violates the constitutional principle of effective legal protection and is therefore unconstitutional. The Constitutional Court preliminary considered that the right to effective access to the administrative courts required by the ECtHR existed regardless of whether a matter concerns fundamental rights. Even outside the scope of Article 6 of the ECHR or Article 47 of the EU Charter, there could be individual proceedings in which legal aid was to be granted in order to ensure effective access to legal protection. The court stated that this could be the case, for example, if proceedings were very complex or the personal circumstances of the person concerned required legal aid.

Based on the above, the Federal Constitutional Court allowed a legislative review procedure to examine whether the concerns of the constitutionality of Section 8a of the Federal Act on Proceedings of Administrative Courts (Proceedings of Administrative Courts Act – VwGVG) are justified.