France - Council of State, 4 March 2013, ELENA and Others, n° 356490, n°356491, n°356629
Keywords:
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘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.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
Headnote:
Referring specifically to the asylum procedures directive, the Council of State examines the external and internal legality of the French list of safe countries of origin and decides to take Bangladesh off the list.
Facts:
Several organisations (ELENA, CIMADE, LDH, ADDE,Forum réfugiés,FTDA) are challenging before the Council of State a decision of 6 December 2011 of the Board of Directors of Ofpra (French Office for the Protection of Refugees and Stateless Persons) adding Armenia, Bangladesh, Moldova and Montenegro to the French list of safe countries of origin.
Decision & reasoning:
Firstly, the Council of State considers, in the light of article 30 § 5 of the asylum procedures directive, that the Board of Directors of Ofpra based its decision on sufficiently diversified sources of information to determine that these countries were safe.
Secondly, the Council of State affirms that, in the context of French legislation, only the provisions of paragraph 2 of article 30 of the asylum procedures directive are applicable to the decision challenged and that the applicant organisations associations cannot rely on the criteria of annex II to the said directive.
Thirdly, the Council of State considers that articles 1 and 3 of the 1951 Convention relating to the Status of Refugees do not hinder different asylum procedures from being provided for, according to the applicant’s country of origin, since no distinction is made between applicants according to their country of origin in assessing their right to obtain refugee status. The Council of State concludes that, by providing for a list of safe countries of origin to be drawn up, the asylum procedures directive does not fail to meet the stipulations of article 18 of the EU Charter of Fundamental Rights, which guarantees the right to asylum specifically in compliance with the 1951 Convention relating to the status of refugees.
Fourthly, recalling that the object of the decision challenged was not to lay down the procedure for legal action against the decisions taken by Ofpra on asylum applications but only to lay down the list of safe countries of origin, the Council of State rules out the grounds that the lack of suspensive effect of the appeal would be contrary to the right to an effective remedy guaranteed by article 47 of the said Charter and by article 13 of the ECHR.
Finally, concerning the countries entered on the list, the Council of State decides to keep Montenegro, Armenia and Moldova on the list of safe countries of origin in view, amongst others, of their accession to the ECHR and in spite of certain persistent difficulties in two of these countries. However, « in view of the violence to which political opponents and certain categories of the population have been exposed in Bangladesh because of their religion, origin or opinions, without being guaranteed sufficient protection from the public authorities, and violations of the rights of minorities and displaced persons in certain regions », the Council of State considers that Bangladesh could not be regarded, on the date of the decision challenged, as being such as to allow it to be entered on the list of safe countries of origin.
Outcome:
The decision of 6 December 2011 of the Board of Directors of Ofpra to include Bangladesh on the list of safe countries of origin was quashed.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |