05.11.2019
A generally sworn and court-certified expert in the field of regional studies of Afghanistan and other Asian countries (Iraq, Syria) made inappropriate public statements. When asked (in an interview) how many Afghans were actually being persecuted in his opinion, the expert replied: "I would say 70 percent of the people who come to Austria from Afghanistan are economic refugees.” Moreover, he later commented on the withdrawal proceedings against him in a newspaper article as follows: “There is obviously a very intensive collaboration between the regional civil court responsible for the case and the NGOs. They want to destroy me.“
In the opinion of the Federal Administrative Court, each of these statements was capable of casting doubt on the trustworthiness of the expert in the sense of the highest court jurisprudence. According to the consistent case law of the Administrative Court, the question of the trustworthiness of an expert in the sense of Section 2 Paragraph 2 Item 1 Letter e SDG concerns his personal characteristics. It depends on whether someone is trustworthy to the extent that the public seeking legal advice can expect from someone who is entered on the list of experts. In view of the important function that an expert plays in establishing the truth in judicial and administrative proceedings, there must not be the slightest doubt about his adherence to the law, correctness, diligence, strength of character and sense of duty. A strict standard must be applied when assessing the existence of these characteristics, which is why even a one-off - serious - misconduct can justify untrustworthiness. It is irrelevant in which areas the causes for the loss of trustworthiness lie, because it only depends on whether the expert has the required level of trustworthiness or not. Therefore, behavior that is not related to the expert's activity can also give rise to untrustworthiness (VwGH Ro 2017/03/0025; Ra 2019/03/0060, each with further references).
With the first quote, the expert gave the impression that he was of the opinion that 70 percent of Afghan asylum seekers are economic refugees. This cannot be reconciled with the asylum statistics of the Federal Minister of the Interior from 2017, which is why this statement makes him objectively biased in asylum procedures for Afghan asylum seekers. By claiming that the authority involved in the withdrawal procedure is working closely with NGOs to destroy the expert, the President of the Regional Court for Civil Matters is accused of unlawful behavior. When assessing this statement, it must be taken into account that the expert sought contact with the journalist on his own initiative and expressly approved the text of the interview. This also leads to a loss of trustworthiness as an expert, which is why his approval must be withdrawn and he has been removed from the list.
The Administrative Court[1] confirmed the ruling of the Federal Administrative Court that the court-certified expert should be removed from the list of experts because of his public comments.
As a result, a court-certified expert must be objective and unbiased, especially in the field in which he performs this activity. If doubts arise about his trustworthiness, this can lead to a loss of the license. This happened in this specific case, but only after the expert had submitted reports in a large number of cases.