Josef B v Ministry of the Interior

JurisdictionAustria
CourtAdministrative Court (Austria)
Austria, Administrative Court.

(Borotha, President; Kadecka, Skorjanec, Rath and Jurasek, Judges)

Josef B
and
Ministry of the Interior1

The individual in international law Miscellaneous Refugees Geneva Convention Relating to the Status of Refugees, 1951 Application for recognition of refugee status Article 1 F (c) of the Convention Exclusion of application of Convention to persons suspected of acting contrary to purposes and principles of the United Nations The law of Austria

The individual in international law In general Position of individuals in international law Human rights and freedoms Geneva Convention Relating to the Status of Refugees, 1951 Article 1 F (c) Exclusion of application of Convention to persons suspected of acting contrary to purposes and principles of the United Nations Whether Convention requires conduct of individuals to conform to principles of United Nations Charter The law of Austria

Summary: The facts:The complainant, a naturalized Swiss citizen born in Austria, was convicted by a Swiss court of having committed treason during the Second World War by maintaining contacts with the Nazi regime in Germany with a view to bringing about the intervention of a foreign power in Swiss affairs. In 1954 he escaped from prison and fled to Austria. In 1968 the Austrian Ministry of the Interior refused his application to be granted the status of refugee within the meaning of the Geneva Convention Relating to the Status of Refugees of 1951, on the ground that under Article 1 F(c)2 its provisions were not applicable. He appealed to the Austrian Administrative Court3 contending that Article 1 F (c) of the Convention did not apply to him since the Charter of the United Nations was not in force at the time he committed the acts for which he was convicted, so that he could not have acted against the purposes and principles of that body. He also claimed that the Ministry had violated Article 11 of the Universal Declaration of Human Rights by taking into account an act which, when committed, did not constitute a penal offence. In addition he challenged the decision on procedural grounds, arguing that the Ministry had relied on an incorrect text of the judgment of the Swiss court.

Held:The decision of the Ministry of the Interior was quashed on procedural grounds since the Ministry had apparently relied on a newspaper report of the Swiss judgment without further verification. The Court stated that if the contents of that judgment were subsequently established to be as stated in the newspaper report then the decision of the Ministry would be correct in law.

(1) Article 1 F(c) of the Convention Relating to the Status of Refugees was aimed at defining the nature of the acts which excluded the application of the Convention and did not require that the act in question had been committed

after the establishment of the United Nations. That provision did not constitute a penal norm, with the result that the principle nullum crimen sine lege praevia was inapplicable

(2) Although the purposes and principles of the United Nations, contained in its Charter, were addressed to subjects of international law, the Refugees Convention required the conduct of individuals to conform to them. Activities of the kind allegedly carried out by the complainant during the Second World War were to be regarded as acts directed against the purposes and principles of the United Nations.

The following is a summary of the formal opening paragraph of the judgment:

Doctor Josef B of Graz brought a complaint against the decision of the Ministry of the Interior of 6 March 1969 concerning his recognition as a refugee.

[The following is the text of the relevant part of the judgment of the Court:]

[The Administrative Court] holds as follows:

The decision being...

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