CYIL Vol. 7, 2016

MONIKA FOREJTOVÁ CYIL 7 ȍ2016Ȏ Another useful concept is the interest in balancing the interests of the parties of asylum procedure. EU courts measure the interests of the parties in the proceedings when considering whether there has been a breach of procedural rights enshrined in EU law. National procedural rules that bound the parties’ procedural rights, such as the right to access to court or the right to be heard, must serve a legitimate aim and be necessary and proportionate. Member States must also be able to justify a procedural rule that restricts the applicant’s procedural rights guaranteed by EU law in asylum cases. Interests of states include, for example, the protection of international relations, national security of Member States, protection of the health of EU citizens. The last ground so far is the overall integrity of the asylum proceedings. Lack of procedural safeguards at one stage of the proceedings may be corrected at a later stage of the proceedings, and vice versa. Both EU and CE courts accepted that a limited form of judicial review can be (partially) replaced by procedural safeguards at the administrative stage, especially the right to be heard and the right to be informed about the reasons of the decision. The Court of Justice considered that in the case of EU sanctions, where classified information were used, the lack of a hearing during the administrative phase may be replaced during the appeal phase. 31 In addition, both the Court of Justice and the ECtHR have already ruled that restrictions on the right to adversarial proceedings may be replaced by the use of compensatory techniques, such as appointing a lawyer or providing unclassified information. Lack of examining asylum decision by a court or tribunal ex nunc within the meaning of Art. 39 of Directive 2005/85/8C may be replaced by subsequent proceedings on asylum in which all new relevant facts and evidence will be assessed by the competent authority and reviewed by a court or tribunal ruling on the appeal. Probably the most fundamental example of the flaws of the asylum process so far is the lack of an automatic suspensive effect of the appeal. An applicant may be deported before the court reaches its decision and consequently may be exposed to irreparable harm in his country of origin. 32 The Court of Justice and national courts should therefore assess the compatibility of the procedural rule with the EU right to effective remedy simultaneously with respect to the guarantees provided in the asylum procedure as a whole. Key procedural safeguards in EU asylum law Procedural EU standards which are important for a number of key issues of asylum procedures can be extracted from EU legislation and the EU right to an effective remedy and related procedural rights and principles. International law, EU primary law and, in particular, the Directives described above, including the case law of both of the European courts, are the sources for their description. The main procedural standards should therefore, respecting that the list of rights may not be complete, be summarized as follows: 31 Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat v. Council and Commission. 32 Diallo v. Czech Republic, no 20493/07.

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