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CYIL 7 ȍ2016Ȏ
RIGHT TO A FAIR TRIAL IN ASYLUM PROCEDURES
law. On the contrary, the case law of both the Court of Justice and the ECtHR (see
Art. 3 and Art. 13 of the ECHR) has made it clear that the nature of the fundamental
rights which are at stake in asylum procedures, in particular the absolute prohibition
of
refoulement
, requires a higher level of procedural protection. The Court of Justice
stated that in assessing the risk rate of
refoulement
“
must, in all cases, be carried out
with vigilance and care, since what are at issue are issues relating to the integrity of the
person and to individual liberties, issues which relate to the fundamental values of the
Union
.”
28
In this context the decision of the Grand Chamber of the CJEU in the case
M’Bodj
may be mentioned.
29
The CJEU ruling concerned the scope of protection
available under EU law to third country nationals suffering from serious illness
whose removal would amount to inhuman or degrading treatment. The CJEU ruled
that, although the removal of a seriously ill person could in exceptional circumstances
amount to a breach of Article 3 ECHR, the Qualification Directive (2004/83/EC)
is to be interpreted as not requiring a Member State to grant the social welfare and
health care benefits to a third country national who has been granted leave to reside
in the territory of that Member State under national legislation.
The second basis for assessing the asylum procedure is the special procedural
status of the person for whom the decision is made. The level of procedural protection
that should be guaranteed, does not include only the rights at risk of the persons, on
which the decisions are made, but also their special procedural position. The Court
of Justice has for instance accepted the argument that the weak position of some
subjects, for example consumers and dismissed pregnant workers, may need special
procedural guarantees, such as the application of EU law
ex officio
and extensions of
deadlines.
30
It is not excluded that the asylum applicant would be in the context of
European law considered as the weaker party. The Court of Justice has not dealt with
this issue yet, but we can assume that the Court of Justice will take into account
also the difficult position in which asylum applicants usually find themselves. The
ECtHR has in some of its decisions already stated that the weak procedural status
of asylum applicants requires special procedural guarantees. It stressed the need for
clear information about the asylum procedure and admission to (free) legal assistance
and interpretation services in asylum procedures. As was stated in the case law of the
Court of Justice, national courts should examine whether the procedural rule agrees
with the EU right to an effective remedy in general, including taking the particular
circumstances of the case into account. The scope of the review, however, may mean
a truly substantive and time demanding burden for the national courts, which is
compensated by being consistent about the interest in the legal protection of the
weaker party, which asylum applicants undoubtedly are.
28
Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 Salahadin Abdulla.
29
C-542/13 M’Body.
30
Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores and Case C-63/08
Pontin.