Abstract
The Council of Europe and the European Union are major players and partners in the domain of policy-shaping strategies on the European continent, with significant and ever-growing impact on international community as a whole. Although the ratio and ideas behind their establishment were not the same (economic versus humanistic), they have, over the time, acquired a similar attitude towards a number of legal issues, including protection of human rights and fundamental freedoms. Unlike the Council of Europe, which perceived human rights as a cornerstone of its founding pillars, the EU took a longer way to incorporate them in its priority areas. The latter shift was, however, rapid, and these days one is witnessing a large-scale cooperation instituted between respective regional organisations with the aim of creating a human-rights-friendly environment. The purpose of this paper is to shed light on one particular segment of their cooperation in the field of human rights protection—asylum law. For the fact that Europe attracts a large contingency of people looking for better life and new beginnings, asylum matters have moved swiftly to the forefront of the Council of Europe and EU standard-setting policies. Nevertheless, the existence of two parallel legal regimes has not led to an inconsistent asylum policy. In order to illustrate the Council of Europe and EU distinctive approaches to asylum, as well as their manifold interplay in the respective arena, the paper summarises the most notable pieces of their legal and regulatory framework and offers an insight into some of the leading asylum cases brought before the European Court of Human Rights and the Court of Justice of the European Union.
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- 1.
See Omejec (2013), p. 120.
- 2.
In this light, Article 6 § 2 stipulates that “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (…)”. The referring provision has been supplemented by Protocol (No 8) relating to Article 6 § 2 of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms, which, as an annex to the Treaty on European Union and to the Treaty on the Functioning of the European Union, regulates the issue of the specific characteristics of the Union and Union law. Another relevant provision is Article 6 § 3, according to which “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”. Treaty of Lisbon, Official Journal of the European Union, C306, Vol. 50, 17 December 2007.
- 3.
Pursuant to Article 59 § 2, “The European Union may accede to this Convention”. Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14, Rome, 4. XI. 1950, European Treaty Series, No. 5.
- 4.
See Omejec (2013), p. 120.
- 5.
See Stubberfield (2012), p. 118.
- 6.
See Zuijdwijk (2011), p. 819.
- 7.
Erich Stauder v. City of Ulm, Case 29/69, Judgement of 12 November 1969, European Court Reports, 1969, p. 425. Later judgements have confirmed the standpoint that “respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice”. See e.g. Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Case 11/70, Judgement of 17 December 1970, European Court Reports, 1970, p. 1134. In the years to follow, the Court was, in regard to human rights protection, inspired by constitutional traditions common to the Member States and guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories (see J. Nold, Kohlen- und Baustoffgroßhandlung v. Commission of the European Communities, Case 4/73, Judgement of 14 May 1974, European Court Reports, 1974, p. 507).
- 8.
Roland Rutili v. Ministre de l’intérieur, Case 36/75, Judgement of 28 October 1975, European Court Reports, 1975, p. 1232.
- 9.
Liselotte Hauer v. Land Rheinland-Pfalz, Case 44/79, Judgement of 13 December 1979, European Court Reports, 1979, pp. 3745–3746. The conclusion that the European Convention has a special significance for the EU among other international treaties for the protection of human rights can be found in some later cases as well. See e.g. Elliniki Radiophonia Tileorassi Anonimi Etairia (ERT AE) and Panellinia Omospondia Syllogon Prossopikou ERT v. Dimotiki Etairia Pliroforissis (DEP) and Sotirios Kouvelas and Nicolaos Avdellas and Others, Case C-260/89, Judgement of 18 June 1991, p. I-2963.
- 10.
See the preamble to the 1986 Single European Act, Official Journal of the European Communities, No L 169/2, 29 June 1987.
- 11.
See Article F(2) of the Treaty on European Union (Treaty of Maastricht), Official Journal of the European Communities, C 191, 29 July 1992.
- 12.
See Article 6 (ex Article F) (2) of the Consolidated Version of the Treaty on European Union (Treaty of Amsterdam), Official Journal of the European Communities, C 340, 10 November 1997.
- 13.
See the preamble to and Articles 52 § 3 and 53 of the Charter of Fundamental Rights of the European Union, Official Journal of the European Communities, C 364/01, 18 December 2000. The Charter sets forth that the meaning and scope of the rights it protects and the rights granted by the European Convention match in both documents. Hence, they constitute the fundamental standards of human rights protection in the EU, though the EU is entitled to provide for even more extensive protection if need be.
- 14.
See supra, note 2.
- 15.
See Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, Application no. 45036/98, Judgement of 30 June 2005, para. 159.
- 16.
See Velutti (2014), p. 78.
- 17.
The term of “equivalent” is not a synonym for the expression “identical”, but it is viewed in a more flexible manner, i.e. as “comparable”. Indeed, “any requirement that the organisation’s protection be ‘identical’ could run counter to the interest of international cooperation pursued”. Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, Application no. 45036/98, Judgement of 30 June 2005, paras. 155 and 165.
- 18.
M.S.S. v. Belgium and Greece, Application no. 30696/09, Judgement of 21 January 2011, para. 338.
- 19.
M.S.S. v. Belgium and Greece, Application no. 30696/09, Judgement of 21 January 2011, para. 251. Though the perception of asylum seekers as a “vulnerable population group” was criticized by judge Sajóin in his partly concurring and partly dissenting opinion to the same judgement. In his words, although asylum seekers can be vulnerable and underprivileged, “they are not a group historically subject to prejudice with lasting consequences, resulting in their social exclusion” and “they are not socially classified, and consequently treated, as a group”.
- 20.
Avci (1999), p. 205.
- 21.
See more Velutti (2014), p. 77.
- 22.
See Bossuyt (2012), pp. 203–245.
- 23.
- 24.
- 25.
- 26.
See Official Journal L 316, 15 December 2000.
- 27.
See Official Journal of the European Union, L50, 25 February 2003. The Dublin Regulation substituted the 1990 Dublin Convention for determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (“Dublin Convention”), Official Journal C254, 19 August 1997. See more Hurwitz (1999), pp. 646–677. This change was inevitable since the then Dublin system suffered from severe deficiencies. Still, according to Marx, it was conceptually regarded as “a reasonable basis for the elaboration of strategies, policies and legal doctrines in the field of asylum”. Marx (2001), p. 9.
- 28.
See Official Journal L 222, 5 September 2003.
- 29.
See Official Journal L 31, 6 February 2003. See more Lavrysen (2012), pp. 216–218.
- 30.
See Official Journal L 304, 30 September 2004. See more Lavrysen (2012), pp. 211–215.
- 31.
- 32.
M.S.S. v. Belgium and Greece, Application no. 30696/09, Judgement of 21 January 2011, paras. 63–64 and 78. See also Haddad (2010), pp. 92–93.
- 33.
See Official Journal of the European Union, L180, 29 June 2013.
- 34.
See Official Journal of the European Union, L180, 29 June 2013.
- 35.
Lenart (2012), p. 11.
- 36.
However, although the respective possibility may seem as an eligible solution at first glimpse, the system itself has some hidden dangers. First of all, the proposal for suspension is related to the situation when there are systemic flaws in the national asylum system of a Member State, the repercussions of which involve violation of human rights, and not to the situation when this system is simply overloaded. Moreover, due to the transfer of responsibilities to another Member State, suspension mechanisms may become a certain reward to a Member State that does not respect the EU asylum legislation.
- 37.
For more details on the third phase of the establishment of a common European asylum system, see Velutti (2014), pp. 39–49.
- 38.
See Stubberfield (2012), pp. 117, 119, and 127–129.
- 39.
See Lambert (2009), pp. 519–543.
- 40.
See Lenart (2012), p. 17.
- 41.
European Court of Human Rights, Press Unit, Factsheet—“Dublin” Cases. www.echr.coe.int/Documents/FS_Dublin_ENG.pdf. Accessed 8 March 2015.
- 42.
E.g. N. S. (C 411/10) v. Secretary of State for the Home Department and M. E. (C 493/10) and others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, C-411/10 and C-493/10, Judgement of 21 December 2011, para. 86; M. S. S. v. Belgium and Greece, Application no. 30696/09, Judgement of 21 January 2011, paras. 85, 194, 284, 300, 312, 321, 323–325, 330, 334, 343, 347, and 410.
- 43.
E.g. Cimade, Groupe d’information et de soutien des immigrés (GISTI) v. Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration, C-179/11, Judgement of 27 December 2012, paras. 36–62; M. S. S. v. Belgium and Greece, Application no. 30696/09, Judgement of 21 January 2011, para. 250; Sharifi v. Austria, Application no. 60104/08, Judgement of 5 December 2013, para. 35.
- 44.
See supra, note 26.
- 45.
While travelling from Afghanistan, the applicant entered the EU through Greece where he was shortly detained. For the fact that he did not apply for asylum, the Greek authorities issued an order instructing him to leave the country. At his final destination, in Belgium, he applied for asylum at the Aliens Office, with no identity papers, after which he was placed in the reception centre for asylum seekers. Since the applicant irregularly crossed the Greek border, Belgium referred to Greece, inviting it to take charge of the asylum application by making reference to the provision of Article 10 § 1 of the Dublin Regulation. The provision stipulates that an application for asylum shall fall within the competence of the EU Member State that the asylum seeker irregularly entered first. Since Greece did not make its observations thereto within the deadline set forth in Article 18 § 1, Belgium acted in accordance with § 7 of the same Article regulating that such situations imply a tacitus consensus rule. M.S.S. v. Belgium and Greece, Application no. 30696/09, Judgement of 21 January 2011, paras. 1, 3, 9, 10, 11, 13, and 14.
- 46.
Article 3 on prohibition of torture regulates that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”, whereas Article 13 on the right to an effective remedy prescribes that “everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”. Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14, Rome, 4.XI.1950, European Treaty Series, No. 5.
- 47.
Apart from the aforementioned “Dublin asylum law”, meaning the Treaty on European Union and the Treaty on the Functioning of the European Union (both as amended by the Treaty of Lisbon) and the Charter of Fundamental Rights of the European Union. See M.S.S. v. Belgium and Greece, Application no. 30696/09, Judgement of 21 January 2011, paras. 57–61.
- 48.
UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137. http://www.refworld.org/docid/3be01b964.html. Accessed 8 March 2015. All the EU Member States have ratified the Convention.
- 49.
See more Velutti (2014), pp. 10–29.
- 50.
- 51.
- 52.
M.S.S. v. Belgium and Greece, Application no. 30696/09, Judgement of 21 January 2011, para. 402.
- 53.
See Zuijdwijk (2011), p. 816.
- 54.
Commission of the European Communities v. Hellenic Republic, C72/06, Judgement of 19 April 2007.
- 55.
E.g. judgements in the Petrosian case (C-19/08, judgement of 29 January 2009), the Elgafaji case (C-465/07, judgement of 17 February 2009), the Salahadin Abdulla and Others case (joined cases C-175, 176, 178 and 179/08, judgement of 2 March 2010), the N.S. case (C-411/10, judgement of 21 December 2011). See M.S.S. v. Belgium and Greece, Application no. 30696/09, Judgement of 21 January 2011, paras. 81, 82, and 86.
- 56.
M.S.S. v. Belgium and Greece, Application no. 30696/09, Judgement of 21 January 2011, para. 223. See also Concurring opinion of judge Rozakis in the M.S.S. judgement.
- 57.
See more Uçarer (2006), pp. 219–240.
- 58.
- 59.
Zuijdwijk (2011), p. 807.
- 60.
- 61.
See Brouwer (2013), pp. 135–147.
- 62.
Third Section Decision as to the Admissibility of Application no. 43844/98 by T. I. v. the United Kingdom, 7 March 2000.
- 63.
Fourth Section Decision as to the Admissibility of Application no. 32733/08 by K. R. S. v. The United Kingdom, 2 December 2008.
- 64.
Namely, the German authorities assumed the standpoint that the applicant was not the victim of inhuman treatment that might be attributed to the Sri Lankan state and thus there is no danger of his return to the south of the country where he is sufficiently safe from political persecution. See T. I. v. the UK, 7 March 2000, para. 2.
- 65.
Article 7 § 1 of the Dublin Convention. See Official Journal L 316, 15 December 2000.
- 66.
On such occasions, the concept of refoulement implies negative and positive obligations of states. The negative ones include prohibition on removal, prohibition on extradition, prohibition on indirect refoulement and prohibition on rejection at the frontier and beyond (including the open sea), while the positive obligations comprise the obligation to admit (a right to asylum, to enter and to remain), obligations after removal (they must at least include an acknowledgment that Article 3 has been violated) and the obligation to install procedural safeguards. See Wouters (2009), pp. 25–31 and 317–345; Stubberfield (2012), pp. 121–122 and 133–140.
- 67.
This reasoning of the ECHR represents a shift from the usual viewpoint that acts of torture can be committed only by acting in an official capacity. See Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/RES/39/46 of 10 December 1984.
- 68.
See Crawford (2012), pp. 608–610.
- 69.
For more details on the case of T.I. v. the United Kingdom, see Noll (2001), pp. 176–180.
- 70.
K. R. S. v. the United Kingdom, 2 December 2008.
- 71.
Dublin Regulation, see Official Journal L 316, 15 December 2000.
- 72.
European Court of Human Rights, Rules of Court, Registry of the Court, Strasbourg, 1 January 2014. www.echr.coe.int/Documents/Rules_Court_ENG.pdf. Accessed 8 March 2015.
- 73.
See Factsheet—“Dublin” Cases, www.echr.coe.int/Documents/FS_Dublin_ENG.pdf. Accessed 8 March 2015.
- 74.
See supra, notes 29 and 31.
- 75.
Third Section Decision as to the Admissibility of Application no. 27725/10 by Samsam Mohammed Hussein and Others v. The Netherlands and Italy, 2 April 2013.
- 76.
N. S. (C 411/10) v. Secretary of State for the Home Department and M. E. (C 493/10) and others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, C-411/10 and C-493/10, Judgement of 21 December 2011, para. 86.
- 77.
Samsam Mohammed Hussein and Others v. The Netherlands and Italy, 2 April 2013, para. 28.
- 78.
Samsam Mohammed Hussein and Others v. The Netherlands and Italy, 2 April 2013, para. 28.
- 79.
Samsam Mohammed Hussein and Others v. The Netherlands and Italy, 2 April 2013, para. 28.
- 80.
Samsam Mohammed Hussein and Others v. The Netherlands and Italy, 2 April 2013, para. 70.
- 81.
Samsam Mohammed Hussein and Others v. The Netherlands and Italy, 2 April 2013, paras. 75, 79, 81, and 85.
- 82.
Mohammed v. Austria, Application no. 2283/12, Judgement of 6 June 2013 (final, 6 September 2013), paras. 1, 3, 4, 76, 79, 84–85, 87, and 98.
- 83.
Mohammed v. Austria, Application no. 2283/12, Judgement of 6 June 2013 (final, 6 September 2013), paras. 69 and 72.
- 84.
See Lavrysen (2012), pp. 199 and 240.
- 85.
- 86.
Article 4, Charter of Fundamental Rights of the European Union, Official Journal of the European Communities, C 364/01, 18 December 2000.
- 87.
Article 18, Charter of Fundamental Rights of the European Union, Official Journal of the European Communities, C 364/01, 18 December 2000.
- 88.
Article 18, Charter of Fundamental Rights of the European Union, Official Journal of the European Communities, C 364/01, 18 December 2000.
- 89.
Migrationsverket v. Edgar Petrosian and Others, e.g. judgements in the Petrosian case (C-19/08, judgement of 29 January 2009), the Elgafaji case (C-465/07, judgement of 17 February 2009), the Salahadin Abdulla and Others case (joined cases C-175, 176, 178 and 179/08, judgement of 2 March 2010), the N. S. case (C-411/10, judgement of 21 December 2011).
- 90.
N. S. (C 411/10) v. Secretary of State for the Home Department and M. E. (C 493/10) and others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, C-411/10 and C-493/10, Judgement of 21 December 2011, para. 86.
- 91.
N. S. (C 411/10) v. Secretary of State for the Home Department and M. E. (C 493/10) and others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, C-411/10 and C-493/10, Judgement of 21 December 2011, paras. 1–2.
- 92.
N. S. (C 411/10) v. Secretary of State for the Home Department and M. E. (C 493/10) and others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, C-411/10 and C-493/10, Judgement of 21 December 2011, paras. 55 and 69.
- 93.
N. S. (C 411/10) v. Secretary of State for the Home Department and M. E. (C 493/10) and others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, C-411/10 and C-493/10, Judgement of 21 December 2011, paras. 70, 72, 79–81, 86–89, and 105.
- 94.
N. S. (C 411/10) v. Secretary of State for the Home Department and M. E. (C 493/10) and others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, C-411/10 and C-493/10, Judgement of 21 December 2011, paras. 109 and 115.
- 95.
See Zuijdwijk (2011), p. 830.
- 96.
MekiElgafaji, Noor Elgafaji v. Staatssecretaris van Justitie, e.g. judgements in the Petrosian case (C-19/08, judgement of 29 January 2009), the Elgafaji case (C-465/07, judgement of 17 February 2009), the Salahadin Abdulla and Others case (joined cases C-175, 176, 178 and 179/08, judgement of 2 March 2010), the N. S. case (C-411/10, judgement of 21 December 2011).
- 97.
Article 15(c) views “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict” as an element of “serious harm” which represents grounds for subsidiary protection.
- 98.
Article 2(e) determines who is to be regarded as “a person eligible for subsidiary protection”.
- 99.
Article 15(b) puts “torture or inhuman or degrading treatment or punishment of an applicant in the country of origin” into the elements of “serious harm” which represents grounds for subsidiary protection.
- 100.
MekiElgafaji, Noor Elgafaji v. Staatssecretaris van Justitie, e.g. judgements in the Petrosian case (C-19/08, judgement of 29 January 2009), the Elgafaji case (C-465/07, judgement of 17 February 2009), the Salahadin Abdulla and Others case (joined cases C-175, 176, 178 and 179/08, judgement of 2 March 2010), the N. S. case (C-411/10, judgement of 21 December 2011), paras. 17–26, 28, and 44.
- 101.
Shamso Abdullahi v. Bundesasylamt, C-394/12, Judgement of 10 December 2013.
- 102.
Shamso Abdullahi v. Bundesasylamt, C-394/12, Judgement of 10 December 2013, paras. 1–2 and 27–30.
- 103.
Shamso Abdullahi v. Bundesasylamt, C-394/12, Judgement of 10 December 2013, para. 64.
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Kumrić, N.M., Župan, M. (2016). European Case Law on Asylum Matters: Interrelation and Interdependence of the European Court of Human Rights and the Court of Justice of the European Union. In: Bodiroga-Vukobrat, N., Rodin, S., Sander, G. (eds) New Europe - Old Values?. Europeanization and Globalization, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-02213-0_3
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