C-556/17 - Torubarov, 29 July 2019

Facts:

Mr Torubarov, a Russian national, was a businessperson who participated in the activities of a Russian opposition political party and a non-governmental organisation representing the interests of businesspersons. Several sets of criminal proceedings have been brought against him in Russia since 2008. Mr Torubarov applied for asylum in Hungary in December 2013. In August 2014, the Immigration Office rejected that application after finding it unlikely that he would be the subject of persecution in Russia.

On appeal, the Administrative and Labour Court, Pécs, Hungary annulled the decision stating that it contained inconsistencies and the facts were not fully and objectively assessed. It ordered the Immigration Office to conduct a new procedure and make a new decision. Assessing the application for international protection for a second time, the Immigration Office again rejected Mr Torubarov’s application, stating, inter alia, that independent judicial proceedings were guaranteed to the applicant in Russia and additionally, that Mr Torubarov was a threat to national security in Hungary.

On appeal, the Administrative and Labour Court, Pécs annulled the decision, stating that Mr Torubarov had reasons to fear persecution and serious harm in Russia on account of his political opinions and held that the evidence of the threat to national security was inconsistent. It ruled that Mr. Torubarov should be granted international protection and ordered the Immigration Office to conduct a new procedure and take a new decision. In the third assessment of the application, the Immigration Office rejected the application for international protection. Mr Torubarov appealed this decision in the Administrative and Labour Court, Pécs.

The referring court decided to stay proceedings and submit a preliminary reference to the Court of Justice of the European Union on the right to effective remedy and the power of the courts in the granting of international protection. The referring court specifically questions the new Law on the Management of Mass Immigration in Hungary, which came into force on 15 September 2015. This law withdraws the power of the administrative courts to vary administrative decisions on international protection.

The referring court submitted the following question to the CJEU:

‘Is Article 46(3) of [Directive 2013/32], in conjunction with Article 47 of [the Charter], to be interpreted as meaning that the Hungarian courts have the power to vary administrative decisions of the competent asylum authority refusing international protection, and also to grant such protection?’

Decision & reasoning:

In examining the case, the CJEU first clarified that the Asylum Procedures Directive 2013/32/EU (rAPD) does not preclude a national court, such as the referring court, from applying the national legislation transposing rAPD in proceedings pending before it, even though those proceedings relate to an application for international protection lodged before the deadline for the transposition of the directive of the 20 July 2015.

The CJEU recalled that the aim of the rAPD is to establish common procedures for granting and withdrawing international protection pursuant to the Qualification Directive 2011/95/EU (QD). Accordingly, Member States are required, subject to the grounds for exclusion provided for by that directive, to grant international protection status if the person meets the minimum standards set by EU law to qualify for it. 

With reference to Alheto (C-585/16), the CJEU held that under Article 46(3) of the rAPD, Member States are required to order their national law in such a way that the processing of appeals includes a ‘full and ex nunc examination’ of the international protection needs of the applicant. The court or tribunal must ensure that the application for international protection is considered in an exhaustive manner without it being necessary to refer the case back to the determining authority, therein furthering the aim of the rapid processing of asylum cases.

While it recognised that the rAPD affords Member States some discretion in the determination of rules for handling an application for international protection, the CJEU ruled that that Member States must comply with Article 47 of the Charter on the right to an effective remedy. It stated that this right would be illusory if a Member State’s legal system were to allow a final, binding judicial decision to remain inoperative to the detriment of one party. It held that the EU legislature, through the adoption of Article 46(3) of the rAPD, intended to confer on that court or tribunal the power to give a binding ruling as to whether the applicant concerned satisfies the conditions laid down in Directive 2011/95 to be granted international protection. Thus, the Court found that Article 46(3) of the rAPD would be deprived of any practical effect if the quasi-judicial or administrative body referred to in Article 2(f) of the rAPD could take a decision that ran counter to that assessment.

The CJEU ruled that in order to guarantee that an applicant for international protection has an effective judicial remedy within the meaning of Article 47 of the Charter, a national court or tribunal is required to vary a decision of the administrative or quasi-judicial body, in the present case the Immigration Office, that does not comply with its previous judgment. The court or tribunal must substitute is own decision on the application for international protection by disapplying, if necessary, the national law that prohibits it from proceeding in that way. 

Outcome:

Article 46(3) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in circumstances, such as those at issue in the main proceedings, where a first-instance court or tribunal has found — after making a full and ex nunc examination of all the relevant elements of fact and law submitted by an applicant for international protection — that, under the criteria laid down by Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted, that applicant must be granted such protection on the ground that he or she relied on in support of his or her application, but after which the administrative or quasi-judicial body adopts a contrary decision without establishing that new elements have arisen that justify a new assessment of the international protection needs of the applicant, that court or tribunal must vary that decision which does not comply with its previous judgment and substitute its own decision for it as to the application for international protection, disapplying as necessary the national law that would prohibit it from proceeding in that way.

Observations/comments:

Notably, the Hungarian Government provided details of a new law implemented in 1 January 2018 which establishes certain procedures and remedies, which require administrative bodies to comply with the judgments of the Court. Nonetheless, the CJEU found that the amendment does not apply ratione temporis to the case in the main proceedings and that the remedies described may not be used in the field of international protection. 

This ruling aligns with the Advocate General Bobek’s Opinion on the case, which used an analogy of a ping-pong match to describe the referrals between the Immigration Office and the Administrative and Labour Court. 

Other sources:

Travaux préparatoires of Directive 2013/32.