CYIL Vol. 7, 2016

MONIKA FOREJTOVÁ CYIL 7 ȍ2016Ȏ in Art. 39 of Directive 2005/85/EC, and Art. 46 of Directive 2013/32/EU includes the right to a fair trial. 24 ECtHR case law provides important guidance on the interpretation of EU law to a fair trial. Art. 13 of the ECHR applies only in cases of ambiguous risks of refoulement . Finally, the Procedures Directive and EU right to an effective remedy shall not be applied to expulsion decisions, which may violate the prohibition of refoulement , but also on the decisions to exclude the right of a specific person to asylum. Asylum applicants who have been refused but not deported 25 can consequently not rely on Article 13 of the ECHR. 26 The Procedures Directive has therefore made the procedural rights of asylum applicants more visible and provides within the EU asylum policy several concepts on which the right for asylum is built and from which we can deduce how the courts will interpret EU law in the context of EU procedural rules can be described. All this in a context of changing secondary legislation and the Dublin system exposed to an ordeal. Before the description of these concepts, it again is necessary to emphasize that the asylum procedure is now governed by EU law, which leads to more possibilities of the Commission to oversee compliance with EU law on a national level, including surveillance of Member States’ asylum procedures. The Commission therefore launched infringement proceedings against a number of Member States which have not implemented even Directive 2005/85/EC properly. 27 The first and fundamental starting point is undoubtedly a principle called the prohibition of refoulement or the principle of non-refoulement . It is a fundamental principle that defines the asylum procedure. This principle is defined as an absolute one, which classifies it to such kinds of principles and values underpinning the European community such as the principle of the prohibition of the death penalty. The Court recognized the interest in effective asylum procedures and also recognized the Member States’ interests in relation to asylum procedures (see below); but this does not mean that Member States were automatically allowed to provide fewer procedural safeguards in asylum cases than in other cases falling within the scope EU 24 RENEMAN, Marcelle. EU asylum procedures and the right to an effective remedy . Portland, Oregon: Hart Publishing, 2014. Modern studies in European law. ISBN 1849465452. 27 The Commission sent a formal challenge with regard to the implementation of the Procedures Directive to Belgium, Cyprus, Czech Republic, Estonia, Finland, France, Greece, Ireland, Italy, Lithuania, Malta, Poland, Portugal, Spain and Sweden. In most cases information provided by Member States sufficed to the Commission. In relation to Belgium, Cyprus, Ireland, Spain and Sweden, the Commission issued a reasoned opinion. The cases against Belgium and Ireland have been reported to the Court but were concluded before the decision was reached. See: http://www.ec.europa.eu/home-affairs/news/ infringements/infingements_by_policy_asylum_en.htm. broader protection than Art. 3 and 13 of the ECHR. Basis for the procedural rules in asylum procedures 25 See Art. 12 (2) of Directive 2011/95 / EU. 26 A. v. the Netherlands, no. 4900/06, ECHR.

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