CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ

RIGHT TO A FAIR TRIAL IN ASYLUM PROCEDURES

The principles of just procedure under applicable asylum law The meaning of Community right to adequate procedural safeguards, including a right to appeal in the asylum procedure, lies in the contents of the Procedures Directives (especially Chapter II. Art. 6 and Art. 12 of the Directive) and in their proper application. The essence of the right to an effective remedy within the scope of Art. 46 “The Right to an Effective Remedy” in the asylum context was derived from the EU courts and the ECtHR case law. From the above mentioned, a number of procedural standards with an impact on the key issues of asylum procedures has arisen: the right to remain on the territory of a Member State; the right to be heard; the issue of evidence. The EU’s right to an effective remedy includes common procedural principles that are applicable in all areas of EU law. The right to effective protection against administrative and judicial authorities is a basic procedural right that emanates from both national laws 40 and international law 41 as well as from the EU law 42 and the case law of the ECtHR, but now also the ECJ case law. Chapter VI. of the Charter of Fundamental Rights of the EU includes procedural rights e.g. the right to an effective remedy and a fair trial, the presumption of innocence and right to defence, principles of legality and proportionality of criminal offenses and penalties; the right not to be prosecuted or punished for the same offense twice is also applicable to asylum procedures. Art. 47 of the Charter, which stipulates the right to an effective remedy and to a fair trial and which covers the protection of procedural rights where EU law is applicable, was undoubtedly intended by its creators to be applied in its entirety to all types of proceedings which individuals under EU law may participate in. As examples one can therefore use proceedings before the EU institutions, proceedings about direct and indirect actions, in competition proceedings, sanctions, in proceedings where the subject is compliance with equal treatment and therefore extends to the asylum procedure. The principle of fair procedure therefore applies in its entirety to all cases falling within the scope of EU law. In all types of proceedings the parties may argue, for example, that the lack of suspensive effect of the appeal, restrictions on the right to be heard, respecting the rules of evidence or a limited range of intensity of judicial review has undermined their right to an effective remedy and /or hinders the effective exercise of their rights only for the specific procedure, as well as for all procedures, where the EU law is applied. Using the analogy rules we can unambiguously deduce the applicability of these principles for the asylum procedures from ECJ decisions that materially relate to areas other than asylum.

40 Art. 36 ECHR. 41 Art. 6 ECHR. 42 Art. 47 of Charter of Fundamental Rights of the EU.

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