CYIL vol. 7 (2016)

273

CYIL 7 ȍ2016Ȏ

RIGHT TO A FAIR TRIAL IN ASYLUM PROCEDURES

Excursion into the so-called Qualification Directive

of the European Parliament and Council 2011/95/EU

The objectives of this Directive, namely to establish standards for the granting

of international protection to third-country nationals and stateless persons by

Member States, for a uniform status for refugees or for persons eligible for subsidiary

protection, and for the content of the protection granted, cannot be sufficiently

achieved by the Member States and can therefore, by reason of the scale and effects of

this Directive, be better achieved at Union level, the Union may adopt measures, in

accordance with the principle of subsidiarity as set out in Article 5 of the TEU. This

Directive does not go beyond what is necessary in order to achieve those objectives.

The principle of efficiency requires that the rights explicitly guaranteed to asylum

applicants by this Directive, especially the right to asylum status for those in need of

international protection and the prohibition of

refoulement

, are effectively protected.

Member States may introduce or retain more favourable standards for determining

who qualifies as a refugee or as a person eligible for subsidiary protection, and for

determining the content of international protection, in so far as those standards

are compatible with this Directive. According to this Directive the applicant must

submit as soon as possible all the elements needed to substantiate the application

for international protection. In cooperation with the applicant, it is the duty of the

Member State to assess the relevant elements of the application. The Directive sets

important procedural standards (the level of evidence, the burden of proof, the use of

assumptions and evaluation of statements and evidence provided by the applicant.)

Reflection on the benefits of the Procedures Directives

You can legitimately ask whether the Procedures Directives and the fact that the

asylum procedure is now governed by EU rules have brought anything new to the

protection scheme, which had already developed in the context of the application

of the ECHR and the subsequent decisions of the ECtHR. ECtHR case law is an

important source of inspiration for the EU right to an effective remedy and thus also

indirectly applicable to the interpretation of Procedures Directives.

The Procedures Directive provides broader factual protection than Art. 3 and 13

of the ECHR. For example, the Procedures Directive covers many procedural issues,

such as the right to information, right to a personal interview, right to get reasoning

of the decision on an asylum, the right for free legal aid and interpretation services,

special guarantees for unaccompanied minors, and the right to contact the UNHCR,

which was at the time of adoption of the Directive rarely taken into account in the

case law of the ECtHR.

Secondly, the width of the application of the Procedures

Directive and of the EU right to an effective remedy is broader than Art. 13 of the

ECHR. Most crucial is the fact that the EU right to an effective remedy referred to

Čonka v. Belgium, no. 51564/99.