CYIL Vol. 7, 2016

MONIKA FOREJTOVÁ CYIL 7 ȍ2016Ȏ The Court of Justice confirmed its decision strategy consisting of the application of procedural principles to cases of asylum proceedings in the case Samba Diouf . 43 The Court of Justice in Samba Diouf stated that shorter periods in asylum proceedings (accelerated asylum proceedings) may be justified in cases where they ensure “that unfounded or inadmissible applications for asylum are processed more quickly, in order that applications submitted by persons who have good grounds for benefiting from refugee status may be processed more efficiently.” 44 Similarly, in IM 45 the ECtHR considered that Member States must have the means to cope with large numbers of asylum applicants and that accelerated procedures may facilitate the processing of clearly abusive or manifestly unfounded asylum applications. From the conclusions of this decision it is obvious that the Court of Justice has decided to deal with asylum cases in the same way as with all other cases falling within the scope of EU law and will apply the same procedural principles. In its judgment when addressing the scope of judicial review which should be performed by a court or tribunal within the meaning of Art. 39 of the Procedures Directive, the Court of Justice referred to its decisions on Wilson. 46 The EU’s right to an effective remedy under Art. 47 of the Charter and recognized by the Court as a principle of EU law may impose significant restrictions on the discretion of Member States under Directive 2005/85/EC and 2013/32/EU. It also potentially provides additional safeguards to the parties. This right is also an important tool in the interpretation of the Procedures Directive and may be used when filling in the gaps of protection. The provisions of the Directive interpreted in the light of the EU right to an effective remedy require the applicant to be allowed to remain on the territory of a Member State during the proceedings at first instance and during the appeal proceedings. In addition, the applicant must have sufficient time and opportunity to appeal against the rejection of an asylum application. A number of exceptions to the procedural rights were removed in Directive 2013/32, but, even so, provisions which require interpretation and which can be tested against the EU right to an effective remedy remain there. In addition it has been concluded that the right 46 CJEU decision in C-506/04 Wilson, para 57: “As regards judicial review within the framework of a substantive action against the decision rejecting the application for international protection, the effectiveness of that action would not be guaranteed if – because of the impossibility of bringing an appeal under Article 20(5) of the Law of 5 May 2006 – the reasons which led the Minister for Labour, Employment and Immigration to examine the merits of the application under an accelerated procedure could not be the subject of judicial review. In a situation such as that at issue in the main proceedings, the reasons relied on by that Minister in order to use the accelerated procedure are in fact the same as those which led to that application being rejected. Such a situation would render review of the legality of the decision impossible, as regards both the facts and the law (see, by analogy, Case C506/04 Wilson [2006] ECR I8613, paragraphs 60 to 62).” 43 C-69/10 Samba Diouf. 44 C-69/10 Samba Diouf. 45 IM v. France, no. 9152/09.

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