Spain: Supreme Court. Chamber of Contentious-Administrative Proceedings n. 1064/2016, 10th March 2016, Appeal No. 1601/2015
| Country of Decision: | Spain |
| Court name: | Supreme Court |
| Date of decision: | 10-03-2016 |
| Citation: | Supreme Court, Case 1064/2016, of 10 March 2016. |
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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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
Headnote:
The fact that the rejection of the applicant’s application for international protection was not communicated to her in a full decision, but only in the form of a mere administrative act, raised an issue of lack of defence and founded the applicant’s request for access to the original document of the decision.
Facts:
The applicant was denied asylum and subsidiary protection by decision of the Undersecretary of Interior made on 22nd February 2013. She appealed on the grounds that this decision is not incorporated to the file of the Original Act that rejects her asylum claim. Instead, only the notification by the Undersecretary of Asylum is included in the file.
Following multiple attempts to gain access to the original document rejecting her application, or a certified copy of it, the applicant brought the case before the Supreme Court.
Decision & reasoning:
The applicant is contesting the denial of access to the original document on the basis of an alleged violation of the right of defence. In order to assess whether the contested decision resulted in a violation of the right of defence contained in article 24 of the Spanish Constitution, the Court assesses whether the necessary elements to determine lack of defence are present in the case.
The applicant filed the claim according to the legal procedural safeguards with the intention of verifying the existence of the decision that denied the asylum claim, as it did not appear in the file of the case, save in the form of a e notification to the applicant. The contested decision of the lower court held that the notification of the decision to the applicant was enough to verify its existence. The applicant claims that she was notified with a mere administrative act, therefore not complying with the legal procedure set up for asylum claims.
In this notification, it is stated that the Undersecretary of Interior, by a delegation of the Ministry, adopted the decision on the application. However, in the file, it is contained that the Secretary of the CIAR was the one that elaborated it. This generates a doubt regarding the identity of the Administrative Authority that adopted the decision, as well as the content of the resolution. This situation is, ultimately, linked with the applicant’s need and intention to gain access to the decision and its full forms, which renders her claim well-founded.
Outcome:
Appeal granted.
Cited National Legislation:
Other sources:
Domestic case law cited
Judgement of the National Court n. 844/2015 (Contentious Chamber, Section 8), of March 2, 2015 (appeal n. 164/2013) – (Sentencia de la Audiencia Nacional n. 844/2015 (Sala de lo Contencioso, Sección 8ª), de 2 de marzo de 2015 (recurso n. 164/2013)).
Judgement of the Constitutional Court n. 80/2011 (Section 2), of June 6, 2011 (appeal n. 3145/2005) – (Sentencia del Tribunal Constitucional n. 80/2011 (Sala 2ª), de 4 de junio de 2011 (recurso de amparo n. 3145/2005)).
Supreme Court order n. 8420/2015 (Contentious Chamber, Section 1), of October 1, 2015 (appeal n. 1601/2015) – (Auto del Tribunal Supremo n. 8420/2015 (Sala de lo Contencioso, Sección 1ª), de 1 de octubre de 2015 (recurso 1601/2015)).
Supreme Court ruling n. 2630/2008 (Contentious Chamber, Section 5), of May 30, 2008 (appeal n. 7854/2004) – (Sentencia del Tribunal Supremo n. 2630/2008 (Sala de lo Contencioso, Sección 5ª), de 30 de mayo de 2008 (recurso n. 7854/2004)).
Supreme Court ruling n. 375/2009 (Contentious Chamber, Section 5), of February 12, 2009 (appeal n. 710/2005) – (Sentencia del Tribunal Supremo n. 375/2009 (Sala de lo Contencioso, Sección 5ª), 12 de febrero de 2009 (recurso n. 7110/2005)).
Supreme Court ruling n. 1617/2009 (Contentious Chamber, Section 5), of March 27, 2009 (appeal n. 6290/2005) – (Sentencia del Tribunal Supremo n. 1617/2009 (Sala de lo Contencioso, Sección 5ª), de 27 de marzo de 2009 (recurso n. 6290/2005)).
Supreme Court ruling n. 5154/2009 (Contentious Chamber, Section 5), of July 23, 2006 (appeal n. 1712/2006) – (Sentencia del Tribunal Supremo n. 5154/2009 (Sala de lo Contencioso, Sección 5ª), de 17 de diciembre de 2006 (recurso n. 1712/2006)).
Supreme Court ruling n. 6395/2009 (Contentious Chamber, Section 5), of October 29, 2009 (appeal n. 492/2006) – (Sentencia del Tribunal Supremo n. 6395/2009 (Sala de lo Contencioso, Sección 5ª), de 29 de octubre de 2009 (recurso n. 492/2006)).
Supreme Court ruling n. 1766/2011 (Contentious Chamber, Section 6), of April 4, 2011 (appeal n. 1324/2007) – (Sentencia del Tribunal Supremo n. 1766/2011 (Sala de lo Contencioso, Sección 6ª), de 4 de abril de 2011 (recurso n. 1324/2007)).
Supreme Court ruling n. 3413/2011 (Contentious Chamber, Section 3), of June 7, 2011 (appeal n. 6166/2009) – (Sentencia del Tribunal Supremo n. 3413/2011 (Sala de lo Contencioso, Sección 3ª), de 7 de junio de 2011 (recurso n. 6166/2009)).
Supreme Court order n. 14431/2009 (Contentious Chamber, Section 1), of October 15, 2009 (appeal n. 449/2009) – (Sentencia del Tribunal Supremo n. 14431/2009 (Sala de lo Contencioso, Sección 1ª), de 15 de octubre de 2009 (recurso n. 449/2009)).
Supreme Court ruling n. 235/2016 (Contentious Chamber, Section 3), of February 1, 2016 (appeal n. 2134/2015) – (Sentencia del Tribunal Supremo n. 235/2016 (Sala de lo Contencioso, Sección 3ª), de 1 de febrero de 2016 (recurso n. 2134/2015)).