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CYIL 7 ȍ2016Ȏ RIGHT TO A FAIR TRIAL IN ASYLUM PROCEDURES
source countries. Regarding the definition of a refugee, the Czech legislation is based
on international conventions including conventions of a regional character. 19
Excursion to the content and meaning of Directive 2013/32/EU
The EP and Council Directive 2013/32/EU contains higher standards than
Council Directive 2005/85/EC and introduces less discretion for Member States.
The transposition deadline expired on 20 July 2013, and the United Kingdom and
Ireland did not participate in the adoption of Directive 2013/32/EU and remain
bound only by Directive 2005/85/EC.
In June 2013 the UNHCR noted that the reformed legislation “has the potential
to significantly contribute to the harmonization of asylum in the Union.” Reworked
“asylum package”, including a revised directive on asylum procedures, along with the
Qualification Directive,20 which was adopted in 2011, “has the potential to improve
protection standards and practices throughout the Union.” 21 The proposal to rework
Directive 2005/85/EC, which eventually resulted in the adoption of Directive 2013/32/
EU was “informed in accordance with the evolving case law of the Court of Justice of the
European Union and the European court of human rights, especially regarding the right
to an effective remedy.”22 Some of the new provisions of Directive 2013/32/EU truly
reflect the conclusions as to the requirements stemming from EU law to an effective
remedy. The most important thing is that Art. 46 of Directive 2013/32/EU requires
“full and ex nunc investigation of both factual and legal circumstances” and ensures that
the asylum applicant will not be deported during the appeal proceedings. Nevertheless,
this is systemically the most problematic provision and the Czech Republic has failed
to make the changes related to Art. 46 para. 3 Procedures Directive and judicial
review ex nunc in time.
Nevertheless Directive 2013/32/EU does not form the base of an entirely
effective asylum procedure. Many of the provisions will require interpretation by
national courts and the Court of Justice. Also the UNHCR has its role in its practical
application. Within the meaning of Art. 29 of this Directive the Member States shall
allow UNHCR:
19 ŠTURMA, P., HONUSKOVÁ, V. (eds) et al. Theory and Practice of refugees and asylum. Prague: Charles
University, 2006, p. 42.
20 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and
status of third country nationals or stateless persons, stateless refugees or persons who need international
protection for other reasons and the content of the protection granted.
21 UNHCR, Moving further toward a Common European Asylum System, UNHCR’s Statement on the EU
Asylum Legislative Package,
22 Amended proposal for the Directive of the European Parliament and of the Council on minimum
standards on procedures in Member States for granting and refusing international protection (recast)
COM (2011) 319 final, 4 and the Commission’s original proposal, /home-
affairs/e-library/docs/ceas-fact-sheets/ceas_factsheet_cs.pdf.