CJEU - C‑348/16, Moussa Sacko

Facts:

Moussa Sacko, a Malian, arrived in Italy in 2015 and submitted an application for international protection. He was interviewed in March 2016; the Regional Commission interviewed him and rejected his application because, according to the Commission, it was clear that it was based on strictly economic grounds.

In May 2016 Mr Sacko lodged an appeal, giving a general description of the situation in Mali but without reference to his own circumstances. The Tribunale di Milano was minded to reject the appeal as manifestly unfounded, but sought guidance as to whether under EU law (particularly Directive 2013/32 arts. 12, 14, 31 and 46) Mr Sacko should first be given the opportunity to be heard.

Decision & reasoning:

The Court set out the requirements of Directive 2013/32 insofar as they relate to the right to be heard during an appeal with emphasis on the respective provisions limitations. In this vein the Court first points out that neither Articles 12, 14, 31 or 46 of Directive 2013/32 (which all relate to procedures in respect of examining a claim) provides that a hearing must be held before the court of tribunal hearing the appeal.

Whilst the Court notes that the characteristics of the remedy provided for in Article 46 of Directive 2013/32 must be determined in a manner that is consistent with Article 47 of the Charter and as such the principle of effective judicial protection, the rights of the defence which includes the right to be heard (Mukarubega and Boudjlida),  fundamental rights such as the right to be heard 'do not constitute unfettered prerogatives' and may be restricted, provided that such restrictions are not disproportionate to the aim of the measure in question. Moreover, article 6(1) of the ECHR, which Article 47 must be interpreted in light of,  'does not impose an absolute obligation to hold a public hearing'.

The question whether there is an infringement of the rights of defence must be examined rather in relation to the specific circumstances of each case and in the context of international protection proceedings by taking into account both first instance and appeal proceedings. As to the first instance, when assessing whether a full and ex nunc examination has been carried out under Article 46(3) of Directive 2013/32, the Court should examine whether a report or transcript of a personal interview is available.     Therefore, it is only where the national court or tribunal, considers, on the basis of all information in the case-file and where applicable the report or transcript of the personal interview, that it does not need to hear the applicant in the appeal. Indeed, this rationale is predicated on the need under the Directive to make a decision on the claim as promptly as possible. Conversely if the national court considers that a hearing is a required in order to fulfil the obligation of carrying out a full and ex nunc examination that hearing is an essential procedural requirement and cannot be dispensed with.

In the case of a manifestly unfounded application the obligation for the court or tribunal to carry out the full and ex nunc examination referred to in Article 46(3) of the directive is, in principle, fulfilled where that court or tribunal takes into consideration the pleadings submitted to the court or tribunal seised of the application and of the objective information contained in the administrative file in the proceedings at first instance, including, where applicable, the report or recording of the personal interview conducted in those proceedings. This is in line with ECtHR jurisprudence which states that no hearing is needed where the case does not raise any questions of fact or law that cannot be adequately resolved by reference to the file and written submissions of the parties.

Accordingly, the Court ruled that the provisions of European law, specifically Directive 2013/32/EU and Article 47 of the Charter of Fundamental Rights, permit the Italian court's proceedings (rejection of a manifestly unfounded application without hearing the applicant), on condition that the applicant was given the opportunity of a personal interview on first application for protection; and the report or transcript of the interview was placed on the case-file. 

Outcome:

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, in particular Articles 12, 14, 31 and 46 thereof, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the national court or tribunal hearing an appeal against a decision rejecting a manifestly unfounded application for international protection from dismissing the appeal without hearing the applicant where the factual circumstances leave no doubt as to whether that decision was well founded, on condition that, first, during the proceedings at first instance, the applicant was given the opportunity of a personal interview on his or her application for international protection, in accordance with Article 14 of the directive, and the report or transcript of the interview, if an interview was conducted, was placed on the case-file, in accordance with Article 17(2) of the directive, and, second, the court hearing the appeal may order that a hearing be conducted if it considers it necessary for the purpose of ensuring that there is a full and ex nunc examination of both facts and points of law, as required under Article 46(3) of the directive.

Observations/comments:

The judgment follows the Opinion of Advocate General Campos Sánchez-Bordona. 

This case summary was written by Luke Hodgkin, LLM Birkbeck, University of London. 

Other sources: