Netherlands - ABRvS, 29 June 2012, 201112955/1/V4
| Country of Decision: | Netherlands |
| Court name: | ABRvS (Administrative Jurisdiction Division of the Council of State) |
| Date of decision: | 29-06-2012 |
| Citation: | 201112955/1/V4 |
Keywords:
| Keywords |
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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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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
Headnote:
The examination by the Dutch judge in second and subsequent asylum procedures was not in breach of Article 32 of the Asylum Procedures Directive, Article 13 of the ECHR, or Article 47 of the CFREU.
Facts:
This case concerns a second or subsequent asylum procedure. The facts of the case are not reported in the judgment.
Decision & reasoning:
The asylum seeker appealed on the grounds that the assessment framework applied by the Dutch judge in the second and subsequent asylum applications breached the right to an effective remedy as provided for in Article 47(1) of the CFREU and the application of this right as set out by the Court of Justice of the European Union in the Brahim Samba Diouf v. Ministre du Travail, de l'Emploi et de L'Immigration case. Under this assessment framework, if, after a negative decision, a further negative decision is made, an appeal against the latter cannot result in the administrative judge reviewing the judgment as if it were the first negative decision. Only if and to the extent that new facts or changed circumstances are cited or a pertinent change in the law takes place during the administrative phase can the decision be reviewed by the administrative judge.
The judge in the interim injunction proceedings did not examine the grounds for appeal by the asylum seeker. The asylum seeker appealed against this. The Council of State found that the grounds for appeal were correctly presented by the asylum seeker but cannot result in the appeal being upheld.
The Council of State found that Article 47(1) of the CFREU does not prevent the adoption of procedural rules under domestic law and in this point is consistent with Article 13 of the ECHR. The Council of State, in its judgment of 28 June (in case number 201113489/1/V4), found that there were no grounds for concluding that the assessment framework applied by the Dutch judge in the second and subsequent procedures breached Article 13 of the ECHR. There are therefore no grounds either for concluding that the assessment framework breached the right enshrined in Article 47(1) of the CFREU to an effective remedy. Particular facts or circumstances relating to the individual case in question are the sole basis for not invoking national procedural rules. As the alien demonstrated no particular facts or circumstances, the appeal based on Article 47(1) of the CFREU failed.
The judgment by the Court of Justice of the European Union in the Brahim Samba Diouf v. Ministre du Travail, de l'Emploi et de L'Immigration case does nothing to alter this finding. This judgment did not relate to a subsequent procedure subject to the special assessment framework. This judgment cannot be used to assert that, when a second or subsequent asylum application is not based on any new facts or changed circumstances cited by the alien, the judge should review the case substantively in order to make his assessment. The Council of State therefore found no grounds for submitting a reference for a preliminary ruling.
Outcome:
The Council of State dismissed the further appeal by the asylum seeker as manifestly unfounded and upheld the judgment by the judge in the interim injunction proceedings.
Observations/comments:
This judgment is closely related to the judgment by the ABRvS (Administrative Jurisdiction Division of the Council of State) of 28 June 2012 in case number 201113489/1/V4 and is furthermore based on the judgment by the ABRvS of 7 July 2010 in case number 200907796/1/V2.
Cited Cases:
| Cited Cases |
| Netherlands - ABRvS, 7 July 2010, 200907796/1/V2 |