CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ

RIGHT TO A FAIR TRIAL IN ASYLUM PROCEDURES

Excursion into the so-called Qualification Directive of the European Parliament and Council 2011/95/EU

The objectives of this Directive, namely to establish standards for the granting of international protection to third-country nationals and stateless persons by Member States, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Directive, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the TEU. This Directive does not go beyond what is necessary in order to achieve those objectives. The principle of efficiency requires that the rights explicitly guaranteed to asylum applicants by this Directive, especially the right to asylum status for those in need of international protection and the prohibition of refoulement , are effectively protected. Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with this Directive. According to this Directive the applicant must submit as soon as possible all the elements needed to substantiate the application for international protection. In cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application. The Directive sets important procedural standards (the level of evidence, the burden of proof, the use of assumptions and evaluation of statements and evidence provided by the applicant.) Reflection on the benefits of the Procedures Directives You can legitimately ask whether the Procedures Directives and the fact that the asylum procedure is now governed by EU rules have brought anything new to the protection scheme, which had already developed in the context of the application of the ECHR and the subsequent decisions of the ECtHR. ECtHR case law is an important source of inspiration for the EU right to an effective remedy and thus also indirectly applicable to the interpretation of Procedures Directives. The Procedures Directive provides broader factual protection than Art. 3 and 13 of the ECHR. For example, the Procedures Directive covers many procedural issues, such as the right to information, right to a personal interview, right to get reasoning of the decision on an asylum, the right for free legal aid and interpretation services, special guarantees for unaccompanied minors, and the right to contact the UNHCR, which was at the time of adoption of the Directive rarely taken into account in the case law of the ECtHR. 23 Secondly, the width of the application of the Procedures Directive and of the EU right to an effective remedy is broader than Art. 13 of the ECHR. Most crucial is the fact that the EU right to an effective remedy referred to 23 Čonka v. Belgium, no. 51564/99.

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