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MONIKA FOREJTOVÁ CYIL 7 ȍ2016Ȏ
in Art. 39 of Directive 2005/85/EC, and Art. 46 of Directive 2013/32/EU includes
the right to a fair trial.24 ECtHR case law provides important guidance on the
interpretation of EU law to a fair trial. Art. 13 of the ECHR applies only in cases of
ambiguous risks of refoulement. Finally, the Procedures Directive and EU right to an
effective remedy shall not be applied to expulsion decisions, which may violate the
prohibition of refoulement, but also on the decisions to exclude the right of a specific
person to asylum. Asylum applicants who have been refused but not deported25 can
consequently not rely on Article 13 of the ECHR.26 The Procedures Directive has
therefore made the procedural rights of asylum applicants more visible and provides
broader protection than Art. 3 and 13 of the ECHR.
Basis for the procedural rules in asylum procedures
within the EU asylum policy several concepts on which the right for asylum is
built and from which we can deduce how the courts will interpret EU law in the context
of EU procedural rules can be described. All this in a context of changing secondary
legislation and the Dublin system exposed to an ordeal. Before the description of
these concepts, it again is necessary to emphasize that the asylum procedure is now
governed by EU law, which leads to more possibilities of the Commission to oversee
compliance with EU law on a national level, including surveillance of Member States’
asylum procedures. The Commission therefore launched infringement proceedings
against a number of Member States which have not implemented even Directive
2005/85/EC properly.27
The first and fundamental starting point is undoubtedly a principle called the
prohibition of refoulement or the principle of non-refoulement. It is a fundamental
principle that defines the asylum procedure. This principle is defined as an absolute
one, which classifies it to such kinds of principles and values underpinning the
European community such as the principle of the prohibition of the death penalty.
The Court recognized the interest in effective asylum procedures and also recognized
the Member States’ interests in relation to asylum procedures (see below); but this
does not mean that Member States were automatically allowed to provide fewer
procedural safeguards in asylum cases than in other cases falling within the scope EU
24 RENEMAN, Marcelle. EU asylum procedures and the right to an effective remedy. Portland, Oregon:
Hart Publishing, 2014. Modern studies in European law. ISBN 1849465452.
25 See Art. 12 (2) of Directive 2011/95 / EU.
26 A. v. the Netherlands, no. 4900/06, ECHR.
27 The Commission sent a formal challenge with regard to the implementation of the Procedures Directive
to Belgium, Cyprus, Czech Republic, Estonia, Finland, France, Greece, Ireland, Italy, Lithuania, Malta,
Poland, Portugal, Spain and Sweden. In most cases information provided by Member States sufficed
to the Commission. In relation to Belgium, Cyprus, Ireland, Spain and Sweden, the Commission
issued a reasoned opinion. The cases against Belgium and Ireland have been reported to the Court
but were concluded before the decision was reached. See:
infringements/infingements_by_policy_asylum_en.htm.