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Detention with a view to Expulsion based on the Prognosis that the Application for International Protection Will Be Rejected

In the present case, the application for international protection of a Georgian citizen was rejected as inadmissible by the authority competent in matters of asylum on the grounds of lack of jurisdiction of Austria to examine it. At the same time, an expulsion order was issued. After all legal remedies had been exhausted against the expulsion order the individual concerned submitted a complaint with the Austrian Administrative Court which was granted suspensory effect. Shortly after, the district administrative authority issued a detention order for the purpose of securing the applicant's expulsion based on Section 76 para 2 digit 4 of the Aliens Police Act (Fremdenpolizeigesetz, hereinafter: FPG). The independent administrative tribunal upon review confirmed the lawfulness of the order issued by the first instance authority by basically reasoning that the detention was necessary as the applicant had not been issued a residence permit; it failed to provide further substantiation. Against this order that the applicant lodged a complaint with the Austrian Constitutional Court pursuant to Article 144 of the Federal Constitutional Law (Bundes-Verfassungsgesetz, hereinafter: B-VG). In the course of reviewing the lawfulness of the order for detention pending expulsion, the Austrian Constitutional Court dealt with the question of whether Section 76 para 2 digit 4 FPG, on which the order was based, satisfied all requirements set out in the Federal Constitutional Law on the Protection of Personal Liberty (Bundesverfassungsgesetz über den Schutz der persönlichen Freiheit, hereinafter: PersFrBVG) and thus whether the provision was constitutional or not.