CYIL vol. 7 (2016)

267

CYIL 7 ȍ2016Ȏ

RIGHT TO A FAIR TRIAL IN ASYLUM PROCEDURES

Procedures Directives – the benefits, negatives, changes

The

urrent status of the Common European Asylum System (CEAS) is

based on an amendment to the three major directives, the Dublin II Regulation

and EURODAC Regulation. The new version of the Dublin III and EURODAC

Regulation entered into force on 1 January 2014, the transposition deadline for the

amended Qualification Directive expired on 21 December 2013 and for the amended

Reception and Procedures Directive on 20 July 2015. This means that the national

asylum legislations are largely predetermined by the EU law.

Procedures Directives are part of the EU administrative law and consist of a basic

Council Directive 2005/85/EC

and the Amending Directive of the European

Parliament and Council 2013/32/EU,

which play a crucial role in asylum

procedures, as they provide minimum guidelines for many of the procedural issues

analysed below. The professional public was disappointed by the final content of the

Directive 2005/85/EC. However, the adoption of Directive 2005/85/EC represented

an important step towards a more sophisticated protection of asylum proceedings

participants. Regardless its shortcomings, this directive provides important principles

for asylum procedures. In addition, this directive has transferred the national asylum

procedures within the scope of EU law (former communitarization had already taken

place as a result of the Lisbon Treaty by the abolition of the pillar structure). As

a result, asylum procedures also fall within the scope of the Charter of Fundamental

Rights of the EU. Directive 2005/85/EC was the basis for Directive 2013/32/EC,

which has further enhanced the legal status of asylum applicants. Many positive

changes in Directive 2013/32/EU seem to be inspired by the case law of the EU

courts and the ECtHR concerning the right to an effective remedy.

The consequences of adopting procedural guidelines for the level of procedural

safeguards for asylum applicants, and particularly whether the Directive adds something

to the existing protection afforded by the ECHR is going to be analysed below.

As is apparent from the case law of the Court and ECtHR, considering the

fundamental rights that may be affected in asylum cases, the standard of procedural

protection provided should be rather higher than the one guaranteed by the general

administrative law of the Member State. In the context of asylum procedures, as

both the Court of Justice and ECtHR have acknowledged, the procedural rights of

any party can be balanced against the interests of the Member states to process cases

efficiently.

The effectiveness of the asylum procedure is one of the objectives of the

Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member

States for granting and withdrawing refugee status.

Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common

procedures for granting and withdrawing international protection.

C-619/10

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