Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
In this judgment the Court interpreted provisions of the Procedures Directive concerning right to effective remedy in the light of Article 47 of the Charter
Ms Alheto holds a passport issued by the Palestinian National Authority and is registered with UNRWA. She left Gaza Strip and went to Jordan and then to Bulgaria.
She lodged an application for international protection in Bulgaria. In support of that application, she claimed that to return to the Gaza Strip would expose her to a serious threat to her life since she would risk experiencing torture and persecution there.
Bulgarian administrative authorities refused the application for international protection lodged by Ms Alheto, on the ground that her statements lacked credibility. Ms Alheto brought an action before the Administrativen sad Sofia-grad (Administrative Court, Sofia, Bulgaria) for annulment of the contested decision.
The Admnistrative Court in Sofia asked several question concerning interpretation of the Qualification Directive 2011/95 and Directive 2013/32.
1. Whether Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that a court or tribunal of a Member State seised at first instance of an appeal against a decision on an application for international protection may take into account matters of fact or of law, such as the applicability of Article 12(1)(a) of Directive to the applicant’s circumstances, which were not examined by the body that took that decision.
2. Whether Article 46(3) of Directive 2013/32, read in conjunction with Articles 18, 19 and 47 of the Charter, must be interpreted as meaning that the requirement for a full and ex nunc examination both of facts and of points of law also covers the grounds of inadmissibility of the application for international protection referred to in Article 33(2) of that directive and, if so, whether, in the event of an examination of such a ground of inadmissibility by the court or tribunal, even though that ground had not been examined by the determining authority, the file must be referred back to that authority for it to conduct the admissibility interview provided for in Article 34 of that directive.
3. Whether Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that the court or tribunal seised at first instance of an appeal against a decision concerning an application for international protection must, in the event that it annuls that decision, rule itself on that application for international protection by granting or rejecting it.
1. The Court held that "the adjective ‘full’ used in Article 46(3) of Directive 2013/32 confirms that the court or tribunal is required to examine both the evidence which the determining authority took into account or could have taken into account and that which has arisen following the adoption of the decision by that authority. The Court underlined that this provision must be interpreted in a manner consistent with Article 47 of the Charter. The requirement for a full and ex nunc examination implies that the court or tribunal seised of the appeal must interview the applicant, unless it considers that it is in a position to carry out the examination solely on the basis of the information in the case file, including, where applicable, the report or transcript of the personal interview before that authority. In the event that new evidence comes to light after the adoption of the decision under appeal, the court or tribunal is required, as follows from Article 47 of the Charter, to offer the applicant the opportunity to express his views when that evidence could affect him negatively."
2. The Court stated that the fundamental rights guaranteed by Articles 18 and 19 of the Charter which relate to the right to asylum and protection in the event of removal, expulsion or extradition must be observed when implementing requirement for a full and ex nunc examination of both facts and points of law, they do not offer, in the context of the reply to the referred question, specific additional guidance concerning the scope of that requirement.
The Court held that "Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that the requirement for a full and ex nunc examination of the facts and points of law may also concern the grounds of inadmissibility of the application for international protection referred to in Article 33(2) of that directive, where permitted under national law, and that, in the event that the court or tribunal hearing the appeal plans to examine a ground of inadmissibility which has not been examined by the determining authority, it must conduct a hearing of the applicant in order to allow that individual to express his or her point of view in person concerning the applicability of that ground to his or her particular circumstances."
3. The Court held that "Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that it does not establish common procedural standards in respect of the power to adopt a new decision concerning an application for international protection following the annulment, by the court hearing the appeal, of the initial decision taken on that application. However, the need to ensure that Article 46(3) of that directive has a practical effect and to ensure an effective remedy in accordance with Article 47 of the Charter requires that, in the event that the file is referred back to the quasi-judicial or administrative body referred to in Article 2(f) of that directive, a new decision must be adopted within a short period of time and must comply with the assessment contained in the judgment annulling the initial decision."