A Georgian national requested international protection in Austria on 19 July 2023, arguing that he was homosexual and that it was not possible for him to live in Georgia due to his sexual orientation. The applicant argued that he had been bullied, beaten and humiliated at school, and that his stepfather kidnapped him because of his sexual orientation and physically abused him. The applicant further argued that despite repeated complaints, the police had done nothing to protect him. On 29 November 2024, the Federal Office for Immigration and Asylum (BFA) rejected his application, issued a return decision, determined the deportation to Georgia admissible, and set a 14-day period for voluntary departure. The applicant lodged an appeal against BFA’s decision before the Federal Administrative Court, requesting among other things to be questioned by a  female judge and female interpreter during the oral hearing. The applicant argued that it was easier for him to talk to women about his sexual identity  

On 3 February 2025, the Federal Administrative Court dismissed the appeal in a hearing presided over by a male single judge, concluding that the acts of persecution alleged were committed by private individuals, and that the Georgian state was not shown to be unable or unwilling to protect him. The court rejected the existence of violations under Articles 2, 3 and 8 of the European Convention on Human Rights (ECHR). The applicant lodged a constitutional complaint against the decision of the lower court, alleging a violation of specified constitutionally guaranteed rights, including the constitutionally guaranteed right to a trial before a lawful judge. 

The Constitutional Court acknowledged that the right to a trial before a lawful judge would be violated by the Federal Administrative Court if it claimed jurisdiction that did not belong to it by law.The Constitutional Court held that the lower court made such an error, noting that if an applicant based his fear of persecution on encroachments on his sexual self-determination, Section 20(1) of the Asylum Act 2005 established the obligation to be questioned or to be heard and decided by a judge of the same sex unless the applicant expressly demanded otherwise The Constitutional Court acknowledged that the applicant’s claim before the BFA constituted encroachments on his right to sexual self-determination. The Constitutional Court concluded that since the applicant demanded in the appeal before the Federal Administrative Court that an oral hearing and decision be made by a female judge and this had not been respected, the lower court violated the applicant’s right to a trial before the lawful judge. 

The Constitutional Court upheld the constitutional complaint and set aside the Federal Administrative Court’s decision on the grounds of a violation of the constitutionally guaranteed right to a lawful judge.