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CYIL 7 ȍ2016Ȏ RIGHT TO A FAIR TRIAL IN ASYLUM PROCEDURES
Member States regarding the principle of non-refoulement.”9 In 2010 the UNHCR
stated: “There are many areas in which individual’s rights are not respected, not only
because of non-observance of the APD (the Procedures Directive), but also in the context
of the application of its provisions, in line with low minimum standards it sets.” 10
Despite the fact that Member States are bound by the guarantees contained
in the Procedures Directive, the ECtHR has found a violation of the right to an
effective remedy in asylum cases with respect to Austria,11 Belgium,12 Bulgaria,13 the
Czech Republic,14 Cyprus,15 and some other countries (France, Greece, and Italy)
and violations of Article 3 ECHR with respect to a number of other States. Breach
was often caused by a combination of procedural errors, such as e.g. the lack of
information on asylum procedures, the absence of free legal assistance and/or
interpretation services, the lack of a personal interview, the lack of scrutiny of the
risk of refoulement, the speed or duration of the proceedings, the lack of appeal with
automatic suspensive effect and the limited intensity of a judicial review.
There have already been two decisions made by the ECtHR in favour of asylum
applicants regarding the Czech Republic. The first one was in the case Rashed v.
Czech Republic, judgment no. 298/07, from 27. 11. 2008, considering the detention
of asylum applicants at Ruzyne Airport, where the complainants were represented
by the Association for legal immigration issues in the proceedings and the second
decision was issued by the European Court of Human Rights on 23. 6. 2011 in case
Diallo v. Czech Republic. 16 The complainants were citizens of Guinea who alleged
a violation of their right to an effective domestic remedy by the fact that they had been
deported back to their country of origin without the competent authorities dealing
with their assertion that they were at risk of torture or other inhuman or degrading
treatment in their country of origin. They had arrived in the Czech Republic by air
transferring in Lisbon, where they applied at the airport for asylum. They supported
their request by claiming that they had participated in a general strike which was
violently suppressed by the government and subsequently were sought by the police
because of their position — the first complainant was a teacher, the other one was
a chairman of a student association cooperating with unions. The Ministry of the
9 Proposal for a Directive of the European Parliament and of the Council on minimum standarts on
procedures in Member States for granting and withdrawing international protection (Recast)‘ COM (2009)
554 (Explanatory Memorandum),
com_com(2009)0554_/com_com(2009)0554_en.pdf.
10 Improving Asylum Procedures,
asylum-procedures-comparative-analysis-recommendations-law-practice.html.
11 IK v. Austria, no. 2964/12.
12 Singh v. Belgium, no. 33210/11.
13 Auad v. Bulgaria, no. 46390/20 and ECHR 26 July 2011, M et al v Bulgaria, no. 41416/08.
14 Diallo v. Czech Republic, no. 20493/07.
15 MA v. Cyprus, no. 41872/10.
16 Diallo v. Czech Republic, no. 20493/07.