CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ RIGHT TO A FAIR TRIAL IN ASYLUM PROCEDURES law. On the contrary, the case law of both the Court of Justice and the ECtHR (see Art. 3 and Art. 13 of the ECHR) has made it clear that the nature of the fundamental rights which are at stake in asylum procedures, in particular the absolute prohibition of refoulement , requires a higher level of procedural protection. The Court of Justice stated that in assessing the risk rate of refoulement “ must, in all cases, be carried out with vigilance and care, since what are at issue are issues relating to the integrity of the person and to individual liberties, issues which relate to the fundamental values of the Union .” 28 In this context the decision of the Grand Chamber of the CJEU in the case M’Bodj may be mentioned. 29 The CJEU ruling concerned the scope of protection available under EU law to third country nationals suffering from serious illness whose removal would amount to inhuman or degrading treatment. The CJEU ruled that, although the removal of a seriously ill person could in exceptional circumstances amount to a breach of Article 3 ECHR, the Qualification Directive (2004/83/EC) is to be interpreted as not requiring a Member State to grant the social welfare and health care benefits to a third country national who has been granted leave to reside in the territory of that Member State under national legislation. The second basis for assessing the asylum procedure is the special procedural status of the person for whom the decision is made. The level of procedural protection that should be guaranteed, does not include only the rights at risk of the persons, on which the decisions are made, but also their special procedural position. The Court of Justice has for instance accepted the argument that the weak position of some subjects, for example consumers and dismissed pregnant workers, may need special procedural guarantees, such as the application of EU law ex officio and extensions of deadlines. 30 It is not excluded that the asylum applicant would be in the context of European law considered as the weaker party. The Court of Justice has not dealt with this issue yet, but we can assume that the Court of Justice will take into account also the difficult position in which asylum applicants usually find themselves. The ECtHR has in some of its decisions already stated that the weak procedural status of asylum applicants requires special procedural guarantees. It stressed the need for clear information about the asylum procedure and admission to (free) legal assistance and interpretation services in asylum procedures. As was stated in the case law of the Court of Justice, national courts should examine whether the procedural rule agrees with the EU right to an effective remedy in general, including taking the particular circumstances of the case into account. The scope of the review, however, may mean a truly substantive and time demanding burden for the national courts, which is compensated by being consistent about the interest in the legal protection of the weaker party, which asylum applicants undoubtedly are. 28 Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 Salahadin Abdulla. 29 C-542/13 M’Body. 30 Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores and Case C-63/08 Pontin.

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