CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ

RIGHT TO A FAIR TRIAL IN ASYLUM PROCEDURES

Procedures Directives – the benefits, negatives, changes The c urrent status of the Common European Asylum System (CEAS) is based on an amendment to the three major directives, the Dublin II Regulation and EURODAC Regulation. The new version of the Dublin III and EURODAC Regulation entered into force on 1 January 2014, the transposition deadline for the amended Qualification Directive expired on 21 December 2013 and for the amended Reception and Procedures Directive on 20 July 2015. This means that the national asylum legislations are largely predetermined by the EU law. Procedures Directives are part of the EU administrative law and consist of a basic Council Directive 2005/85/EC 1 and the Amending Directive of the European Parliament and Council 2013/32/EU, 2 which play a crucial role in asylum procedures, as they provide minimum guidelines for many of the procedural issues analysed below. The professional public was disappointed by the final content of the Directive 2005/85/EC. However, the adoption of Directive 2005/85/EC represented an important step towards a more sophisticated protection of asylum proceedings participants. Regardless its shortcomings, this directive provides important principles for asylum procedures. In addition, this directive has transferred the national asylum procedures within the scope of EU law (former communitarization had already taken place as a result of the Lisbon Treaty by the abolition of the pillar structure). As a result, asylum procedures also fall within the scope of the Charter of Fundamental Rights of the EU. Directive 2005/85/EC was the basis for Directive 2013/32/EC, which has further enhanced the legal status of asylum applicants. Many positive changes in Directive 2013/32/EU seem to be inspired by the case law of the EU courts and the ECtHR concerning the right to an effective remedy. The consequences of adopting procedural guidelines for the level of procedural safeguards for asylum applicants, and particularly whether the Directive adds something to the existing protection afforded by the ECHR is going to be analysed below. As is apparent from the case law of the Court and ECtHR, considering the fundamental rights that may be affected in asylum cases, the standard of procedural protection provided should be rather higher than the one guaranteed by the general administrative law of the Member State. In the context of asylum procedures, as both the Court of Justice and ECtHR have acknowledged, the procedural rights of any party can be balanced against the interests of the Member states to process cases efficiently. 3 The effectiveness of the asylum procedure is one of the objectives of the 1 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. 2 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection. 3 C-619/10 Trade Agency Ltd .

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