J U R I D I C U M
Challenging States’ Reliance on the Aznar Protocol and Related EU Secondary Law An Assessment of Admissibility Issues at the European Court of Human Rights
Mikaela Graae
Spring 2015
RV4460 Law, Advanced Course (Bachelor thesis), 15 Credits
Examiner: Anna Gustafsson Tutor: Tarik Radwan
Abstract The EU defines a refugee as only including third-country nationals and stateless persons. The Aznar Protocol provides in essence that asylum claims from nationals of EU Member States should be considered manifestly unfounded. 1 Therefore, EU nationals are basically excluded from the possibility to acquire asylum in other EU countries. This paper examines the legal challenges that an otherwise bona fide refugee originating from an EU country would face if he were to bring a case to the ECtHR. A legal dogmatic method is used to establish the applicable law for the challenges.2 The purpose of this paper is to highlight that bona fide refugee claims from EU nationals to other EU countries are unlikely to succeed and that there are challenges for the ECtHR to hear such a case. If someone would bring a case before the Court it would be plausible to do so under either Article 6(1), 13, 14 or 1 of Protocol No 12 ECHR.3 The challenges for the Court to hear such a case are admissibility issues under the Articles, but also to overcome the doctrine of equivalent protection. The conclusion reached in this paper is that only Article 1 of Protocol No 12 could lead to a judgment on the merits. If the challenges on admissibility are overcome, the doctrine of equivalent protection opposes an additional challenge for the Court to hear such a case. This paper concludes that the doctrine is unlikely to be applied in a case where someone were to contest a State’s reliance on the Aznar Protocol and the refugee definition in EU secondary law at the Court. Therefore, the challenges can be overcome but they restrict the scope of which States can be held responsible for relying on the Aznar Protocol and related secondary EU law.
1 Consolidated Version of the Treaty on European Union and the Treaty on the Functioning of the European Union [2012] OJ C326/1 (hereinafter to be referred to as: ‘the Treaties’), 305. 2 Fredrik Korling and Mauro Zamboni, Juridisk Metodlära (Studentlitteratur AB 2013) 21. 3 Convention for the Protection of Human Rights and Fundamental Freedoms (open for signature 4 November 1950, entered into force 3 September 1953) CETS No 5 (hereinafter to be referred to as: ‘ECHR’).
Table of cases Stauder v City of Ulm, (29/69) [1969] ECR The Court of Justice of the European 419…22 Union The Queen v Secretary of State for the Home Department, (C-192/99) [2001] ECR I- Baustahlgewebe GmbH v Commission of the 1237…6 European Communities, (C-185/95 P) [1998] ECR I-8417…22 Union royale belge des sociétés de football and Others v Bosman and Others, (C- Commission of the European Communities v 415/93) [1995] ECR I-4921…22 the Federal Republic of Germany, (249/86) [1989] ECR 1263…22 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Connolly v Commission of the European Verlag, (C-368/95) [1997] ECR I- Communities, (C-274/99) [2001] ECR 3689…22 I-1611…22 ERT v DEP, (C-260/89) [1991] ECR I- The European Commission of 2925…22 Hauer v Land Rheinland-Pfalz, (44/79) Human Rights [1979] ECR 3727…22 M. & Co. v the Federal Republic of Germany, Hoechst AG v Commission of the European no 13258/87, Commission decision of 9 Communities, (46/87 and 227/88) February 1990, Decisions and Reports [1989] ECR 2859…22 64, p 138…20–23 Johnston v Chief Constable of the Royal Ulster Constabulary, (222/84) [1986] European Court of Human Rights ECR 1651…22 Abdulaziz, Cabales and Balkandali v the Lisa Jacqueline Grant v South-West Trains United Kingdom, 28 May 1985, Series Ltd, (C-249/96) [1998] ECR I-621…22 A no 94… Mary Carpenter v Secretary of State for the Al-Dulimi and Montana Management Inc. v Home Department, (C-60/00) [2002] Switzerland, no 5809/08, 26 November ECR I-6279…22 2013…2, 20–21, 23–25 Orfanopoulos and Oliveri v Land Baden- Aksoy v Turkey, 18 December 1996, Reports Württemberg, ( C-482/01 and C- of Judgments and Decisions 1996- 493/01) [2004] ECR I-5257…22 VI…8 Philip Morris International, Inc. and Others v Bosphorus Hava Yollari Turizm Ve Ticaret Commission of the European Anonim Sirketi v Ireland [GC], no Communities, (T-377/00, T-379/00, T- 45036/98, ECHR 2005-VI…2, 18, 20– 380/00, T-260/01 and T-272/01) [2003] 26 ECR II-1…22 Botta v Italy 24 February 1998, Reports of Regina v Kent Kirk, (63/83) [1984] ECR Judgments and Decisions 1998-I…16 2689…22 De Saedeleer v Belgium, no 27535/04, 24 Secretary of State for the Home Department v July 2007…18–19 Hacene Akrich, (C-109/01) [2003] ECR I-9607…22
Gaygusuz v Austria, 16 September 1996, T.I. v the United Kingdom (dec), no Reports of Judgments and Decisions 43844/98, Reports of Judgments and 1996-IV…16 Decisions 2000-III…7 Inze v Austria, 28 October 1987, Series A no V.P. v United Kingdom, no 13162/87, 126…16, 19 Commission decision of 9 November Ireland v the United Kingdom, 18 January 1987, Decisions and Reports 54, p 1978, Series A no 25…8 211…15 Klass and Others v Germany, 6 September Van der Mussele v Belgium, 23 November 1978, Series A no 28…16 1983, Series A no 70…16 Kudła v Poland [GC], no 30210/96, ECHR Willis v United Kingdom, no 36042/97, 2000-XI…14 ECHR 2002-IV…16 König v Germany, 28 June 1978, Series A no Zornić v Bosnia and Herzegovina, no 27…15 3681/06, 15 July 2014…18 Leander v Sweden, 26 March 1987, Series A no 116…16 German Constitutional Court M.S.S. v Belgium and Greece [GC], no Bundesverfassungsgericht, 29 May 1974, 30696/09, ECHR 2011…2, 20–21, 23– BVerfGE 37, 271…20, 22 25 Bundesverfassungsgericht, 22 October 1986, Maaouia v France [GC], no 39652/98, ECHR BVerfGE 73, 339…20 2000-X…15 Bundesverfassungsgericht, 7 June 2000, Mamatkulov and Askarov v Turkey [GC], nos BVerfGE 102, 147…20 46827/99 and 46951/99, ECHR 2005-
I…15
Matthews v the United Kingdom [GC], no 24833/94, ECHR 1999-I…14, 21, 23 Michaud v France, no 12323/11, ECHR 2012…21, 23–25 Panjeheighalehei v Denmark (dec), no 11230/07, 13 October 2009…15
Penafiel Salgado v Spain (dec), no 65964/01, 16 April 2002…15 Rasmussen v Denmark, 28 November 1984, Series A no 87…16 Sardinas Albo v Italy (dec), no 56271/00 ECHR 2004-I…15
Sejdić and Finci v Bosnia and Herzegovina [GC], nos 27996/06 and 34836/06, ECHR 2009…17–19 Slivenko and Others v Latvia (dec) [GC], no 48321/99, ECHR 2002-II (extracts)…15
Table of Legislation
International Legislation Charter of Fundamental Rights of the European Union [2012] OJ C326/391 Art 18………………………..……………………………………………...... …….…5 Art 19………………………..………………………………………………………...9, 12 Conclusions on countries in which there is generally no serious risk of persecution (adopted on 30 November and 1 December 1992 by the Immigration Ministers) SN 4821/92 WGI 1281 ASIM 145 Art 1……………..……………………………………………………………………….10 Consolidated Version of the Treaty on European Union and the Treaty on the Functioning of the European Union [2012] OJ C326 Art 2……………………………………………………………………………………...8 Art 6………………..…………………………………………………………………….5 Art 20..………………..………………………………………………………………….6 Art 78.………………..………………………………………………………..……1, 5–6 Art 267.………………..………………………………………………………………..23 Protocol 24..………………….………………………………………………….……1, 9 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 Art 1……………..…………………………………………………….…………..…….1 Art 3……………..……………………………………………………………..………. 1 Art 42……………..……………………………………………………………...……...7 Convention for the Protection of Human Rights and Fundamental Freedoms (open for signature 4 November 1950, entered into force 3 September 1953) CETS No 5 Art 6…………..………………………………………………………………...... 15 Art 13…………..………………………………………………………………...…14, 16 Art 14…………..………………………………………………………………..….14, 16 Art 35………………..……………………………………………………………...15, 18 Art 1 of Protocol No 12…………..……………………………………...……..14, 17–18 Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts [1997] OJ C340 Declaration by Belgium on the Aznar Protocol…………………………………….…..11 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) Art 14…………………………………………………………………………..….4, 7, 12
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 Art 26…………………………………………………………………………...………..7 Treaty Establishing the European Economic Community (adopted 25 March 1957, entered into force 1 January 1958) 298 UNTS 11 Art 177……………………………………………………………….……………..…..23
European Union Legislation European Parliament and Council Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [2011] OJ L337/9 Art 2……………………………………………………………….………..……...……6 European Parliament and Council Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection [2013] OJ L180/60 Art 2.…………………………………………………………….………..………...…...6 European Parliament and Council Regulation No 604/2013 of 26 June 2013 on establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L180/31 Art 2……………………………………………………………….………..………...... 6 Council Regulation (EEC) no 990/93 of 26 April 1993 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia (Serbia and Montenegro) [1993] OJ L102/14 Art 8……………………………………………………………………………………25
List of Abbreviations
COE Council of Europe Dir Directive EC European Communities ECHR The European Convention for the Protection of Human Rights and Fundamental Freedoms ECJ Court of Justice of the European Union ECtHR European Court of Human Rights EU European Union Reg Regulation TEU Treaty on European Union TFEU Treaty on Functioning of the European Union UDHR The Universal Declaration of Human Rights UNHCR The United Nations High Commissioner for Refugees
Table of Contents
1 INTRODUCTION ...... 1
1.1 Background ...... 1
1.2 Problem ...... 2
1.3 Delimitation ...... 2
1.4 Method and Material ...... 3
1.5 Disposition ...... 3
2 REFUGEE STATUS AND THE RIGHT TO ASYLUM ...... 4
2.1 Global Instruments ...... 4
2.2 EU Law ...... 5
2.3 Overview of Member State Practices Applying the Aznar Protocol ...... 9 2.3.1 Denmark ...... 10 2.3.2 Belgium ...... 10 2.3.3 Finland ...... 11 2.3.4 Ireland ...... 12
2.4 Concluding Remarks on Refugee Status and the Right to Asylum ...... 12
3 CHALLENGES TO ADMISSIBILITY ...... 14
3.1 Admissibility Under Article 6(1) ECHR ...... 15
3.2 Admissibility Under Articles 13 and 14 ECHR ...... 16
3.3 Admissibility Under Article 1 of Protocol No 12 ECHR ...... 17
3.4 Concluding Remarks on Challenges to Admissibility ...... 19
4 THE DOCTRINE OF EQUIVALENT PROTECTION AS A CHALLENGE FOR THE COURT TO HEAR A CASE ...... 20
4.1 The Doctrine of Equivalent Protection ...... 20
4.2 EU as an International Organization Generally Providing Equivalent Protection ...... 22
4.3 The Doctrine of Equivalent Protection as a Challenge for the ECtHR to Rule on the Merits ...... 23
4.4 Concluding Remarks on Equivalent Protection as a Challenge ...... 25
5 CONCLUSION ...... 27 1
1 Introduction
1.1 Background International asylum law prohibits discrimination based on nationality when determining refugee status.4 The EU has developed a common EU asylum system harmonizing asylum law in the EU.5 It has adopted primary and secondary sources to regulate asylum law. An interest- ing feature of the EU’s approach is that it has chosen to greatly reduce the possibility for EU nationals to claim asylum in other EU Member States (also referred to as ‘the Member States’). The Protocol on Asylum for Nationals of Member States of the EU (hereinafter to be referred to as: ‘the Aznar Protocol’), which is annexed to the Consolidated version of the TFEU and the TEU (hereinafter to be referred to as: ‘the Treaties’), provides in essence that asylum claims from nationals of EU Member States should be considered manifestly un- founded.6 Further, EU secondary law, meaning directives and regulations, exclude such nationals from their definition of potential refugees.7 These sources of EU law confirm the view in the EU that the concept of asylum is only relevant for third-country nationals and stateless persons, and in rare circumstances for nationals of EU Member States. The EU has based the delimitation on the concept that EU countries are safe countries of origin.8 The self- image of the EU results in a situation where discrimination based on nationality becomes the rule rather then the exception.
There are nationals of the EU that do seek asylum. Such applications from EU nationals have been filed in other EU countries.9 Nevertheless, asylum applications filed outside the EU are substantially higher than those known to have been filed within the EU. For example, in Canada, 406 asylum applications from Hungarians and 51 applications from Croatians were approved in 2013.10 Unless it can be proved that the asylum process in Canada is substantially different from those conducted in EU Member States, this indicates that well-founded asylum claims from EU nationals do in fact exist.
It is ironic that while the EU is declaring all EU Member States as safe countries of origin, another European institution is contradicting the presumption. The Council of Europe Human Rights Commissioner Thomas Hammarberg has stated:
In general, European governments seem not to accept that Roma could have protection needs. In the European Union the policy is that all EU member states shall be considered ‘safe countries of origin’ in respect of each other in asylum
4 Convention Relating to the Status of Refugees 189 UNTS 137 (hereinafter to be referred to as: ‘Refugee Convention’) art 3 together with art 1. 5 The Treaties (n 1) 76 art 78. 6 ibid 305. 7 European Parliament and Council Directive 2011/95/EU of 13 December 2011 OJ L337/9; European Parliament and Council Directive 2013/32/EU of 26 June 2013 OJ L180/60 and European Parliament and Council Regulation No 604/2013 of 26 June 2013 OJ L180/31. 8 The concept entails that some countries can be considered a priori safe, and because of that asylum applications from persons originating from such counties can be dismissed without extensive examination. See Stefan Ericsson, ‘Asylum in the EU Member States’ (2000) The European Parliament Working Paper LIBE 108, 19
matters. Consequently, a citizen of one EU member state may not be granted international protection in another EU member state.
It may be sobering to learn that whereas Roma from Hungary have been refused asylum in France, for instance, Roma individuals from the same country – and from the Czech Republic – have sought and been granted asylum in Canada.11
According to the statistics, it can be established that there are EU nationals who are perse- cuted and need the right to seek asylum. The reason why relatively few EU nationals seek asylum in the EU might thus be correlated to the limited possibility of succeeding there, rather than to the lack of a valid asylum claims.
1.2 Problem This paper assumes that asylum claims filed by EU nationals are declared manifestly unfounded in other EU Member States. It explores the legal challenges that an otherwise bona fide refugee originating from an EU country would face if he were to bring a case to the ECtHR on account of a State’s refusal to consider his refugee claim as a result of the Aznar Protocol and related EU secondary law. The focus in this paper is to assess the challenges to admissibility in such a case. The doctrine of equivalent protection is also addressed since it has shifted towards a kind of quasi-admissibility test.12 The doctrine provides a solution for the Court on how to proceed when a Member State submits that it should not be held responsible under the ECHR because it was complying with its obligations to another international organization.13
1.3 Delimitation EU asylum law’s compatibility with the ECHR is not addressed in this paper. Third-country nationals and stateless persons are excluded from the research because the issue lays exclu- sively in a possible discrimination of EU nationals as asylum-seekers. Because of this, equiva- lent protection is also delimited to focus only on the EU, not other international organizations.
Free movement of people in the EU is an interesting aspect as an alternative for asylum. How- ever, it does not pose a challenge for ECtHR to consider a case where an otherwise bona fide refugee originating from an EU country would bring a case to the ECtHR on account of a State’s refusal to consider his refugee claim as a result of the Aznar Protocol and related EU secondary law. Therefore, it is not assessed in this paper.
11 Thomas Hammarberg, ‘European migration policies discriminate against Roma people’ (Council of Europe, 22 February 2010) < http://www.coe.int/en/web/commissioner/thematic-work/migration/- /asset_publisher/qvL6Y0veKiir/content/european-migration-policies-discriminate-against-roma- people;jsessionid=5A5F66D2772074D014E8A383F65BA47B> accessed 21 May 2015. 12 M.S.S. v Belgium and Greece [GC], no 30696/09, paras 334–340, ECHR 2011 and Al-Dulimi and Montana Management Inc. v Switzerland, no 5809/08, paras 121–122, 26 November 2013. 13 Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v Ireland [GC], no 45036/98, ECHR 2005-VI. 3
1.4 Method and Material This paper uses a legal dogmatic method, which means that it strives to establish applicable law through examining legal sources.14 It relies on primary and secondary sources of EU law and case law of the ECtHR.15 Moreover, international treaties and conventions are used as well as some doctrine, primarily journal articles and books. This paper also uses statistics from the UNHCR and other research materials on refugee law; such as a research published by the Research Directorate of the Immigration and Refugee Board of Canada and a working paper on Member State practices from the European Parliament.16 Some online sources are also used. Mainly official domestic immigration websites and sources from official websites of for example the EU and UNHCR.
1.5 Disposition This paper starts by establishing the applicable international law for claiming refugee status and the right to asylum. It goes on to establish the applicable EU law for claiming refugee status and the right to asylum. After this there is an assessment of Member States practices applying the Aznar protocol. This paper then goes on to address the challenges to admissibil- ity, if someone were to contest ECHR compatibility of a State’s reliance on the Aznar Protocol and the secondary sources excluding EU nationals from the definition of refugees. Articles 6, 13, 14 and 1 of Protocol No 12 ECHR are assessed. The last chapter establishes applicable law for the doctrine of equivalent protection. It examines the components of the equivalent protection test, how it is established and the extent of it in order to answers the question of whether the doctrine would apply if someone were to contest ECHR compatibility of a State’s reliance on the Aznar Protocol and the refugee definition in EU secondary law.
14 Fredrik Korling and Mauro Zamboni (n 2). 15 For source of EU law see e.g. Robert Schütze, An introduction to European law, (Cambridge University Press 2012) 112. 16 Immigration and Refugee Board of Canada, ‘European Union (EU) Member States: Application of the "Protocol on Asylum for Nationals of Member States"’ (2007)
2 Refugee Status and the Right to Asylum The purpose of this section is to establish the applicable law in EU for claiming refugee sta- tus. This is done through an examination of both global instruments of asylum law as well as both primary and secondary source of EU law. The global instruments examined are the 1951 Convention relating to the Status of Refugees (hereinafter to be referred to as: ‘the Refugee Convention’) and the UDHR.17
This section is divided into three parts. The status of refugees and the right to asylum as guaranteed by global instruments is examined in the first part. The second part establishes applicable law for refugee status and the right to asylum in the EU. Member State practices are assessed in the third part in order to determine the effects of the Aznar Protocol.
2.1 Global Instruments The Refugee Convention is the main global instrument for refugee status. It guarantees global implementation of what is required for claiming refugee status. Article 1(A)2 of the Conven- tion defines a refugee as:
[A]ny person who:
[O]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.18
According to the provision, refugees are defined in three stages; they are outside their country of origin or former habitual residence, they are unable or unwilling to avail themselves of the protection of that country owing to a well-founded fear of being persecuted, and the persecu- tion feared is based on at least one of the following grounds: race, religion, nationality, membership of a particular social group or political opinion.
While the Refugee Convention establishes who should enjoy refugee status, the UDHR states in Article 14 (1): ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution’.19 The Article does not provide a right to asylum, but rather the right to seek and enjoy asylum if such right is otherwise possible to claim. Though the right to asylum was dis- cussed during the drafting process of the UDHR, it was rejected in order to avoid interference with the principle of state sovereignty.20
17 Refugee Convention (n 4) and Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III). 18 Refugee Convention (n 4) (emphasis added). 19 UDHR (n 17). 20 William T Worster, ‘The Contemporary International Law Status of the Right to Receive Asylum’ (2014) 26 No 4 International Journal of Refugee Law 1, 3 and Rebecca Stern, 'At a Crossroads? Reflections on the Right to Asylum for European Union' (2014) Refugee Survey Quarterly 54, 58. 5
Both the UDHR and the Refugee Convention have a limited scope since they do not establish an explicit right to asylum.21 They actually only guarantee a right to apply for asylum rather than the right to receive asylum. However, many countries have adopted domestic legislation granting the right to asylum, and there is an evolving international consensus on opinio juris and state practice that refugees must receive asylum. Hence, it seems like the right to asylum has become a norm of customary international law.22 Therefore, even though the global instruments do not seem to acknowledge a definitive right to asylum, one could at least claim a right through customary international law.
The growing acceptance of a right to asylum has been acknowledged by the EU, which has adopted legal measures regulating the right.23 The EU ensures a right to asylum.24 However, as will be shown, the right to asylum guaranteed by EU law is inadequate as well since it does not grant the right to asylum equally to everyone.
2.2 EU Law The harmonizing provisions on asylum in Article 78 TFEU commit the EU to establish a common European asylum system.25 Article 78(2) TFEU provides inter alia for the establish- ment of a uniform status of asylum, a common system of procedures for granting and withdrawing asylum status and criteria and mechanisms for determining the Member State responsible to consider an asylum application.26
EU recognizes the right to asylum in the Charter of Fundamental Rights of the European Union.27 The Charter has the same legal value as the Treaties according to Article 6(1) TEU; it is thus considered to be primary EU law.28 The Charter acknowledges the right to asylum in Article 18, which states:
The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union.29
Hence, Member States of the EU are required to grant asylum to persons fulfilling the criteria laid out in the Refugee Convention. However, the Refugee Convention has gaps. For example it does not deal with questions on admission and whose responsibility it is to deal with a claim of refugee status. Therefore, the EU has adopted provisions for the purpose of regulating a wider area of asylum and to establish a common policy on asylum in order to harmonize Member State practices. Article 78 TFEU states:
21 Alice Edwards, 'Human Rights, Refugees, and the Right to ‘Enjoy’ Asylum' (2005) 17 No 2 International Journal of Refugee Law 293, 300. See also William T Worster (n 20) 1–2. 22 William T Worster (n 20) 2. 23 Dir 2011/95/EU (n 7); Dir 2013/32/EU (n 7) and Reg No 604/2013 (n 7). 24 Charter of Fundamental Rights of the European Union [2012] OJ C326/391 (the Charter) 399 art 18. 25 The Treaties (n 1) 76. 26 Dir 2011/95/EU (n 7); Dir 2013/32/EU (n 7) and Reg No 604/2013 (n 7). 27 The Charter (n 24). 28 The Treaties (n 1) 19. See e.g. Andreas Zimmermann, The 1951 convention relating to the status of refugees and its 1967 protocol: A commentary (Oxford University Press 2011) 129. 29 The Charter (n 24). 6
1. The Union shall develop a common policy on asylum (...) with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system.30
The important measures adopted, for the purpose of this paper, are two Directives and one Regulation. These measures are important because they define refugees in a way that excludes EU nationals. The first one is the Directive on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protec- tion granted (hereinafter to be referred to as: ‘ the Qualification Directive’).31 The second im- portant measure adopted is the Directive on common procedures for granting and withdrawing international protection (hereinafter to be referred to as: ‘the Asylum Procedures Directive’),32 and the last one is the Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (hereinafter to be referred to as: ‘ the Dublin Regulation’).33 The definition of a refugee in the Directives and the Regulation neglect nationals of the EU as potential asylum applicants. Article 2(d) of the Qualification Directive defines refugee status almost identically to the Refugee Convention. However, the important distinction is that the Directive only applies to third-country nationals and stateless persons, whereas the Refugee Convention applies to any person meeting the criteria laid out in Article 1(A)2 of it.34 The Asylum Procedures Directive refers to the status of refugees as defined in the Qualification Directive, and is, thus, also only applicable on third-country nationals and stateless persons.35 The Dublin Regulation refers to applicants instead of refugees. In its Article 2(c) an applicant is defined as a ‘third-country national or a stateless person who has made an application for international protection’.36 Therefore only third- country nationals and stateless persons are considered as potential asylum-seekers in the EU. A third-country national is any person not defined as a citizen of the Union. As defined in Article 20(1) TFEU ‘every person holding the nationality of a Member State shall be a citizen of the Union’.37
According to the applicable law examined, secondary sources of the EU, relating to refugee status and potential asylum-seekers, delimit the scope of the definition provided in the Refugee Convention. Article 1 of the Refugee Convention clearly declares that any person
30 The Treaties (n 1) 76 (emphasis added for third-country national). 31 Dir 2011/95/EU (n 7). 32 Dir 2013/32/EU (n 7). 33 Reg No 604/2013 (n 7). 34 Dir 2011/95/EU (n 7) art 2(d). 35 Dir 2013/32/EU (n 7) art 2(g). 36 Reg No 604/2013 (n 7) art 2(c) (emphasis added). 37 It is the Member States that determine nationality and, hence, Union citizenship. See inter alia Case C-192/99 The Queen v Secretary of State for the Home Department [2001] ECR I-01237 and Catherine Barnard, The substantive law of the EU: the four freedoms (4th edn, Oxford University Press 2013) 232. 7 fulfilling the criteria laid out in it shall enjoy refugee status (with the exceptions laid out in Article 1 C–F). The secondary sources of EU asylum law do, however, not include all per- sons.38
The Charter, which is primary law of the EU, expands the scope of the right provided in global instruments. The Charter recognizes an explicit right to asylum instead of just a right to seek asylum, which is provided by the UDHR.39
When Member States apply the secondary sources of the EU, which restrict the scope of right holders, it can be interpreted as constituting a restriction on the Refugee Convention since they will not consider EU nationals as potential refugees. Article 42 of the Refugee Conven- tion allows for reservations. However, reservations cannot be made on Article 1 of the Convention according to Article 42(1).40 Even though reservations, in their core meaning, are only relevant when parties make them, the consequences of EU legislations, that restrict the scope of refugee status, is that the object and purpose of the international refugee law instru- ments are contradicted.41 Moreover, the Refugee Convention is binding on its parties and can- not be overruled by EU law based on the principle of pacta sunt servanda.42 The ECtHR has also held that Contracting States’, meaning parties to the ECHR, (hereinafter to be referred to as: ‘Contracting States’) obligations under the ECHR are superior to later obligations stem- ming from membership of the EU.43 Further, this position has been adopted to support the primacy of the Refugee Convention over EU law.44
The gaps of global instruments are filled by EU secondary sources but they only apply to third-country nationals and stateless persons. Therefore, nationals of EU Member States are placed outside the possibility of claiming refugee status in another EU Member State. Hence, the secondary sources are discriminatory based on nationality. However, whether the discrimination can be justified could be a question for the ECtHR on the merits, if the challenges for the Court to hear a case can be overcome.
Though, secondary law of the EU only refer to third-country nationals and stateless persons as possible asylum-seekers, the Aznar Protocol expressly refers to nationals of the EU as asylum-seekers. The protocol is annexed to the Treaties and therefore considered primary law of the EU.45 The Protocol states:
Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only in the following cases:
38 Dir 2011/95/EU (n 7) art 2(d); Dir 2013/32/EU (n 7) art 2(g) and Reg No 604/2013 (n 7) art 2(c). 39 The Charter (n 24) and UDHR (n 17) art 14. 40 Refugee Convention (n 4). 41 Office of the United Nations High Commissioner for Refugees, ‘UNHCR's position on the proposal of the European Council concerning the treatment of asylum applications from citizens of European Union Member States’ (1997) paras 4 and 5 p 27–28
(a) if the Member State of which the applicant is a national proceeds after the entry into force of the Treaty of Amsterdam, availing itself of the provisions of Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to take measures derogating in its territory from its obligations under that Convention;
(b) if the procedure referred to Article 7(1) of the Treaty on European Union has been initiated and until the Council, or, where appropriate, the European Council, takes a decision in respect thereof with regard to the Member State of which the applicant is a national;
(c) if the Council has adopted a decision in accordance with Article 7(1) of the Treaty on European Union in respect of the Member State of which the applicant is a national or if the European Council has adopted a decision in accordance with Article 7(2) of that Treaty in respect of the Member State of which the applicant is a national;
(d) if a Member State should so decide unilaterally in respect of the application of a national of another Member State; in that case the Council shall be immediately informed; the application shall be dealt with on the basis of the presumption that it is manifestly unfounded without affecting in any way, whatever the cases may be, the decision-making power of the Member State.46
The Protocol considers applications from nationals of EU Member States as obviously groundless, or manifestly unfounded as paragraph (d) declares, unless procedures have been initiated against that country for infringement of human rights or the State has derogated from the provisions of the ECHR due to Article 15 ECHR on derogation in time of emergency. Such derogations have been done by Contracting States on a few occasions.47 Derogating in times of emergency is still quite rare. The EU institutions have the power to determine whether there is a clear risk of a serious breach of values laid out in Article 2 TEU by a Mem- ber State.48 However, the conditions for triggering Article 7(1) and 7(2) are strict since the first one requires a decision in the Council by four fifths of its Members and for the second one determination is to be taken unanimously.49 Hence, it can be established that the excep- tions laid out in the Aznar Protocol are applicable on rare occasions.
It is not clear what the consequences are of declaring an application as manifestly unfounded according to the Aznar Protocol. The Executive Committee of the High Commissioner's Programme has clarified the meaning of manifestly unfounded as applications, which are obviously without foundation, and therefore do not merit for ‘full examination at every level of the procedure’.50 An official from the former European Commission Directorate-General for Justice, Freedom and Security has explained the Aznar Protocol as follows:
46 The Treaties (n 1) (emphasis added). 47 See inter alia Ireland v the United Kingdom, 18 January 1978, Series A no 25 and Aksoy v Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI. 48 The Treaties (n 1) 17. The values are inter alia respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. 49 ibid 19. 50 UNHCR EXCOM Conclusion No 30 (XXXIV) ‘The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum’ (1983), d. 9
[A]sylum applications from EU citizens are in general to be declared inadmissible by Member States. However, exceptionally, a Member state may unilaterally decide in individual cases to examine asylum applications lodged by nationals of another Member State (…). [T]he examination should be compatible with the provisions of the Protocol, which means that the application should be dealt with on the basis of the presumption that it is manifestly unfounded.51
According to a comprehensive examination of relevant EU law the possibility to acquire asy- lum is limited for nationals of the EU. Basically, EU nationals cannot acquire refugee status, except for in the four circumstances laid out in the Aznar Protocol (a–d).52 The legal acts established by the EU contribute to the asylum practices of the Member States since the EU has established that there should be a common policy on asylum in the Union. Member States’ asylum practices are thus likely to adopt the EU’s approach on potential asylum- seekers. In other words, Member States of the EU are not required to take into consideration or declare admissible an asylum application from a national of another Member State in any other cases than those listed in the Aznar Protocol, at least not according to the Aznar Protocol.53 A national of an EU Member State is, thus, unlikely to acquire refugee status since the exceptions included in the Aznar Protocol are rare circumstances. Hence, discrimination based on nationality becomes the rule in EU Member States.
2.3 Overview of Member State Practices Applying the Aznar Protocol The Aznar Protocol does not explicitly prohibit a Member State from accepting an asylum application from a citizen of the Union nor does it forbid derogating from the general prin- ciple of a right to asylum upheld by at least customary international law. But, in practice the requirement of presuming asylum applications from EU nationals as manifestly unfounded leads to the consequence that EU nationals are unlikely to get a proper individual assessment of their claims.54 Therefore, the Member State practices have to be examined in order to deter- mine the effects of the Aznar Protocol. No comprehensive study of all Member States will be provided. The choice of examined Member States has been made with the intention to include different perspectives of the implementation of EU asylum law, primarily the Aznar Protocol. The countries included are those that represent the majorities’ and the minorities’ views on the implementation of the Aznar Protocol.
Member States basically undertake not to grant asylum to nationals of other Member States due to the Aznar Protocol. It is based on the presumption of safety in EU Member States.55 Safety is expressed through the concept of safe country of origin, which is defined as:
[A] country which can be clearly shown, in an objective and verifiable way, normally not to generate refugees or where it can be clearly shown, in an objective
51 Immigration and Refugee Board of Canada (n 16). 52 However, Article 19(2) of the Charter (n 24) does include a prohibition for refoulement, which could be invoked if the circumstances allow for it. 53 The Treaties (n 1). 54 Rebecca Stern (n 20) 62. 55 The Treaties (n 1). 10
and verifiable way, that circumstances which might in the past have justified 56 recourse to the 1951 Geneva Convention have ceased to exist.
However, state practice has shown that not all Member States follow the presumption of declaring an asylum application as manifestly unfounded due to the Aznar Protocol.57 On the contrary some countries follow it strictly, which is where the problem analyzed in this paper becomes even more relevant. If the challenges for the Court to hear a case are not overcome, it cannot rule on the merits and determine whether States’ reliance on the Aznar Protocol contradicts the ECHR.
In 2000 the European Parliament published a working paper on ‘Asylum in the EU Member States’.58 The paper compares Member States practices in the asylum procedures. It contains a country-by-country view on procedures such as the right of appeal, accelerated asylum proce- dures, determining manifestly unfounded applications and safe country of origin. Unfortu- nately the paper is 15 years old and there is no similar later study on the matter from the European Parliament. Hence, the statistics contained in the paper are frequently backed up with a research on EU Member States application of the Aznar Protocol, made by the Research Directorate of the Immigration and Refugee Board of Canada in 2007.59
2.3.1 Denmark Denmark considers itself a party to the Aznar Protocol and applies it according to a statement from an official of the Royal Danish Embassy in Ottawa on August 15th 2007 to the Research Directorate of the Immigration and Refugee Board of Canada.60 However, all asylum-seekers answer a questionnaire and attend an interview after entering Denmark. The claim is then di- rected either to the manifestly unfounded application procedure or the regular determination procedure, where the first mentioned is an accelerated procedure with limited safeguards. However, the accelerated procedure also includes an independent review and an interview with the applicant. In that procedure the outcome can be one of two: either the opinion of a manifestly unfounded application is rejected and transferred to the regular determination procedure or the decision is accepted and the application is rejected.61 There is no right to appeal if the application is rejected in the manifestly unfounded procedure.
Denmark also has a special fast-track procedure. This procedure is meant for aliens from safe countries of origin. Asylum claims from them are almost certain to be rejected.62 Due to the Aznar Protocol, EU Member States are to be considered as safe countries of origin, and since Denmark applies the protocol, asylum applications from EU nationals are most likely directed to the fast-track procedure. Therefore, asylum applications from EU nationals are unlikely to succeed in Denmark.
2.3.2 Belgium Belgium informed the Research Directorate of the Immigration and Refugee Board of Canada that it does process applications from EU nationals. When approving the Aznar Protocol
56 Conclusions on countries in which there is generally no serious risk of persecution (adopted on 30 November and 1 December 1992 by the Immigration Ministers) SN 4821/92 WGI 1281 ASIM 145, art 1(a). 57 Finland and Belgium do not make use of the concept. See Stefan Ericsson (n 8) 18–19. 58 ibid 19. 59 Immigration and Refugee Board of Canada (n 16). 60 ibid. 61 Stefan Ericsson (n 8) 55–56. 62 ibid 56. 11
Belgium was the only Member State out of 28 in whole that partially opted-out from the implementation of the Aznar Protocol. 63 In a Declaration, attached to the Treaty of Amsterdam, Belgium declared that:
[I]n accordance with its obligations under the [Geneva Convention], it shall, in accordance with the provision set out in point (d) of the [Aznar] Protocol, carry out an individual examination of any asylum request made by a national of another Member State.64
However, in the correspondence between a Belgian official and the Research Directorate, the official stated that Belgium is not required to consider applications from EU nationals ‘when it is manifest there exists no fear of persecution or real risk of suffering serious harm’.65 Hence, the threshold is fairly high. It is however, unclear what Belgium bases its examination on when determining whether it is manifest that ‘no fear of prosecution or real risk of suffer- ing serious harm’ exists.66 If the examination is based on country information, such as previous human rights violations, it will be an application of the Aznar Protocol. Since Belgium has declared that it does not apply the Protocol the circumstances of the individual case are determinative for whether manifest ‘fear of persecution or real risk of suffering serious harm’ exists.67 Moreover, the safe country of origin notion is not used in Belgium and, therefore, all applications for asylum are examined on the merits.68
According to asylum practices in Belgium asylum applications from EU nationals are exam- ined there. However, statistics from 2013 show that all applications filed from EU nationals where rejected.69 Nevertheless, the reasons for why the applications were rejected could very well be that the persons applying for asylum did not fulfill the Refugee Convention criteria.
2.3.3 Finland Similarly to Denmark, an official from Finland’s Directorate of Immigration also informed (on August 16th 2007) the Research Directorate of the Immigration and Refugee Board of Canada that Finland is a party to the Aznar Protocol and applies it. However, in exceptional
63 Philip Lynch, Nanette A Neuwahl and Wyn G Rees ‘Reforming the European Union: from Maastricht to Amsterdam’ (Longman 2013) 155. 64 Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts [1997] OJ C340/1, 144. By this declaration, Belgium implied that the Aznar Protocol violates international law and more precisely the Refugee Convention. A majority of the doctrine in the area shares this view with Belgium. See for example Zimmermann (n 28) 1630; Karin Landgren, ‘Deflecting International Protection by Treaty: Bilateral and Multilateral Accords on Extradition, Readmission and the Inadmissibility of Asylum Requests’ (1999) Centre for Documentation and Research Working Paper No 10, 17
2.3.4 Ireland Ireland applies the Aznar Protocol, and as a result of it the Office of the Refugee Applications Commissioner does not process asylum claims from nationals of EU Member States.73 By a strict interpretation of this, an application filed by an EU national will not even be deemed manifestly unfounded, as is the case in the majority of the other Member States’ practices.74 The Irish Times also published a statement of the Minister of Justice, on February 19th 2007, explaining that about 220 Romanians and other EU nationals, who had submitted asylum applications in Ireland in the early 2007, were not going to receive refugee status due to the provisions of the Aznar Protocol.75 Ireland has thus, adopted a very strict interpretation of the Aznar Protocol by not allowing any EU nationals to enter the asylum procedure. No asylum applications from EU nationals filed in Ireland are included in the UNHCR’s Population Statistics from 2013, which proves either that, EU nationals have not filed asylum appli- cations there or asylum applications filed have not been allowed to enter the asylum proce- dure.76 However, an asylum application filed by an EU national in Ireland is unlikely to succeed.
2.4 Concluding Remarks on Refugee Status and the Right to Asylum As has been shown there is no right to asylum according to international human rights law.77 However, EU law does provide a right to asylum, though not an equal right to everyone.78 It defines a refugee so that EU nationals are excluded from the possibility to acquire refugee status.79 The Aznar Protocol basically requires that Member States consider applications from EU nationals as manifestly unfounded unless one of the exceptions laid out in it applies.80
70 Immigration and Refugee Board of Canada (n 16). 71 Infopankki, ‘Coming to Finland as an Asylum Seeker’ (8 May 2015)
However, the exceptions laid out in the Protocol occur on rare occasions.81 Therefore, the possibility for EU nationals to claim asylum in other EU countries is limited.
The consequence of declaring asylum applications as manifestly unfounded is unclear. This was clearly illustrated by the overview of Member State practices, since all except Belgium are applying the Protocol, and there is still no harmonized practice on dealing with asylum applications from EU nationals. Even though many of the States do examine applications from nationals of other EU Member States, there are some that do not or do it in a less meticulous way. However, for the purpose of this paper, Ireland’s way of dealing with asylum applications from EU nationals is the one that totally excludes EU nationals from acquiring asylum. It is thus of relevance to assess the challenges of seeking justice in front of the Court if someone was to bring a case before it. The problem with presuming that asylum appli- cations from EU nationals are manifestly unfounded is that valid claims from such nationals could very well exist. Hence, the question of whether the Court would hear such a case arises.
81 Ireland v the United Kingdom (n 8); Aksoy (n 8) and the Treaties (n 1) 19. 14
3 Challenges to Admissibility What would happen if someone where to challenge a State’s reliance on the Aznar Protocol and related secondary sources of EU asylum law to the ECtHR? This section addresses the challenges for the Court to hear such a case. The focus will be on how to overcome challenges to admissibility.
The plausible Articles one could invoke under the ECHR would be: Article 6(1) on access to justice, Article 13 on the right to an effective remedy, Article 14 on the prohibition of discrimination and Article 1 of Protocol No 12 on the general prohibition of discrimination.82 Article 6(1) ECHR on access to justice is the most intuitive provision one would choose where asylum applications from nationals of EU are declared manifestly unfounded and asylum-seekers are not allowed access to justice, especially where applicants are not even allowed to enter the asylum process. Article 13 could also be invoked since applications from EU nationals claiming asylum are most likely rejected and in some cases not allowed an appeal. Article 13 requires a remedy or procedural safeguards similar to those in Article 6(1).83 Moreover, a claim under Article 14 ECHR on prohibition of discrimination could also be invoked, since the Aznar Protocol and the secondary sources of EU lead to a situation where Member States discriminate nationals of EU Member States when dealing with asylum applications from them. A similar claim could be made under Article 1 of Protocol No 12 on the general prohibition of discrimination.84 Nevertheless, Article 14 ECHR on discrimination would be more desirable to claim since all Member States of the EU are parties to the ECHR, while Protocol No 12 only has 19 signatories and 18 ratifications or accessions.85 This re- stricts the applicability of the Protocol, and it cannot be relied on as widely as the other Articles in the ECHR.
Contracting States can be held responsible for applying provisions contrary to the ECHR even when those provisions are not put in place by the State itself.86 However, the Aznar Protocol or the secondary sources of EU law cannot constitute a violation of the ECHR since it only binds its parties, which are the Contracting States.87 The Protocol is a product of the EU annexed to its founding treaties and therefore primary law of the EU.88 The Directives and the Regulation are also products of EU organs and like the Aznar Protocol binding on the Member States.89 The EU is not a party to the ECHR and can therefore not be held responsible for violating the ECHR.90 However, as Member States apply EU asylum law, they
82 ECHR (n 3). 83 Kudła v Poland [GC], no 30210/96, para 156, ECHR 2000-XI and Nuala Mole and Catharina Harby, The right to a fair trial: A guide to the implementation of Article 6 of the European Convention on Human Rights (2nd edn, Directorate General of Human Rights, Council of Europe, 2006) 14. 84 ECHR (n 3). 85 Council of Europe Treaty Office, ‘Member States of the Council of Europe’
3.1 Admissibility Under Article 6(1) ECHR Since asylum applications from nationals of EU Member States are presumed manifestly un- founded and therefore possibly denied access to justice, the apparent provision to invoke would be Article 6(1) ECHR, which reads as follows:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law (…).92
Hence, in order for Article 6(1) to apply there has to be a civil right or obligation in issue.93 The concept of civil rights and obligations should be interpreted autonomously as a concept deriving from the Convention. Therefore, the classification in domestic laws of Contracting States is not decisive, but rather the substantive content and effects of the right.94 Claims under Article 6(1) in asylum matters have been made. However, the Court’s well-established case law has shown that the asylum procedure is not considered a civil right and does not fall within the scope of Article 6(1) ECHR.95 The Court stated inter alia in Maaouia v France that:
[D]ecisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention. Consequently, Article 6 § 1 is not applicable.96
According to the Courts established case law, Article 6(1) would not be applicable if a chal- lenge were to be made under it on the matter of denying access to justice for EU nationals claiming asylum in other EU countries. The Court would very likely declare an application incompatible ratione materiae within the meaning of Article 35(3) and reject it pursuant to Article 35(4).97 Therefore, an application filed to the Court under Article 6(1) ECHR is not likely to succeed, where someone were to challenge a State’s reliance on the Aznar Protocol and related EU secondary law.
91 Iain Cameron (n 86). 92 ECHR (n 3). 93 ibid. 94 König v Germany, 28 June 1978, para 89, Series A no 27. 95 Maaouia v France [GC], no 39652/98, paras 40–41, ECHR 2000-X; Panjeheighalehei v Denmark (dec), no 11230/07, para 2, 13 October 2009; Mamatkulov and Askarov v Turkey [GC], nos 46827/99 and 46951/99, paras 81–83, ECHR 2005-I; Penafiel Salgado v Spain (dec), no 65964/01, 16 April 2002 and Sardinas Albo v Italy (dec), no 56271/00 ECHR 2004-I. See mutatis mutandis Slivenko and Others v Latvia (dec) [GC], no 48321/99, para 94, ECHR 2002-II (extracts) and V.P. v United Kingdom, no 13162/87, Commission decision of 9 November 1987, Decisions and Reports 54, p 211. 96 Maaouia (n 95). 97 ECHR (n 3). 16
3.2 Admissibility Under Articles 13 and 14 ECHR Claiming Articles 13 or 14 before the Court require that another substantive provision can be claimed together with them ie they have to be claimed in conjunction with another provision of the ECHR.98 Article 13 reads:
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.
In Klass and Others v Germany the Court reiterated the view of the Commission that, even though Article 13, read literally, suggests that a person is ‘entitled to a national remedy only if a [violation] has occurred, it cannot be a prerequisite for the application of Article 13’.99 Therefore, even though Article 13 has to be claimed in conjunction with another right and freedom of the Convention, it can be breached without a breach of another substantive right as long as the ‘individual has an arguable claim to be the victim of a violation of the rights set forth in the Convention’.100 Comparably, Article 14 is also a complement to the other substan- tive provisions of the ECHR and its Protocols. The Article reads:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Applying Article 14 ECHR does not necessarily mean that there has to be a violation of an- other provision, however it cannot be applied unless the facts at issue fall within the ambit of at least one of the provisions of the ECHR.101
In the instant case, the Article to claim in conjunction with Articles 13 and 14 would be Article 6(1) ECHR. However, since the Court’s case law has established that asylum proce- dures do not fall within the scope of Article 6(1), a claim under Article 13 in conjunction with Article 6(1) cannot be considered since the applicant would not have an arguable claim under the last mentioned Article. Neither can such a claim be made under Article 14 in conjunction with Article 6(1) since the asylum procedure does not fall within the ambit of Article 6(1). Therefore, a claim under neither Article 13 nor 14 of the Convention can be made, and the last possible Article that an applicant could claim before the Court would be Article 1 of Protocol No 12 ECHR.
98 See inter alia Inze v Austria, 28 October 1987, para 36, Series A no 126 and Abdulaziz, Cabales and Balkandali v the United Kingdom, 28 May 1985, para 39, Series A no 94. 99 Klass and Others v Germany, 6 September 1978, para 64, Series A no 28. 100 Leander v Sweden, 26 March 1987, para 77, Series A no 116 (emphasis added). 101 The Court found, inter alia, in Van der Mussele v Belgium (23 November 1983, para 43, Series A no 70) that even though the applicant’s rights was not breached under the claimed article, the case fell within the ambit of that article thus, Article 14 was applicable. On the contrary, the Court reaffirmed in, Botta v Italy (24 February 1998, paras 37–39, Reports of Judgments and Decisions 1998-I), that the applicant’s rights under the claimed article of the Convention had not been violated and the complaint was not considered to fall within the ambit of that article. Hence, Article 14 was not applicable. See also Abdulaziz, Cabales and Balkandali (n 98) para 71; Rasmussen v Denmark, 28 November 1984, para 29, Series A no 87; Gaygusuz v Austria, 16 September 1996, para 36, Reports of Judgments and Decisions 1996-IV and Willis v United Kingdom, no 36042/97, para 29, ECHR 2002-IV. 17
3.3 Admissibility Under Article 1 of Protocol No 12 ECHR The ECHR prohibits discrimination under Article 14 and Article 1 of Protocol No 12.102 Unlike Article 14, Article 1 of Protocol No 12 is not limited to the ‘rights and freedoms set fort in [the] Convention’103 but protects ‘any right set forth by law’.104 A general prohibition on discrimination is thus provided in Article 1 of Protocol No 12.105 The Article states:
1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.
Sejdić and Finci v Bosnia and Herzegovina was the first case where the ECtHR declared a claim under Article 1 of Protocol No 12 admissible.106 The case concerned two citizens of Bosnia and Herzegovina who were of Roma and Jewish origin. Under the 1995 Constitution of Bosnia and Herzegovina only Bosnians, Croats and Serbs were eligible to stand for election to the House of Peoples. Hence, the applicants complained that they were prevented from being candidates for such positions based on ethnicity, despite possessing experience comparable to the highest elected officials in the country, which is a requisite for establishing discrimination.107 In that case the Court noted, under paragraph 30 on admissibility, that the Constitution of Bosnia and Herzegovina is annexed to an international treaty and that the powers of the international administrator for Bosnia and Herzegovina did not extend to the State Constitution. However, a domestic body of Bosnia and Herzegovina had the power to amend the Constitution.108 The Court concluded in the same paragraph:
In those circumstances, leaving aside the question whether the respondent State could be held responsible for putting in place the contested constitutional provisions (…), the Court considers that it could nevertheless be held responsible for maintaining them.109
The Court’s reasoning is unclear, since the discussion on the power to amend the Constitution was examined under the same paragraph as the requirements for state responsibility. In this case the Court left it up for interpretation, whether the power to amend a contradicting provi- sion is a requirement for state responsibility or whether responsibility can arise where the respondent State is doing nothing more than maintaining the provision. A wide interpretation of the paragraph implies that any maintenance of a provision contrary to the ECHR can still result in state responsibility. A narrow interpretation of the Court’s reasoning implies that any maintenance of a provision contrary to the ECHR can result in state responsibility only where a domestic body has the power to amend the provision.
102 ECHR (n 3) 103 ibid art 14. 104 ibid art 1 of Protocol No 12. 105 Sejdić and Finci v Bosnia and Herzegovina [GC], nos 27996/06 and 34836/06, para 53, ECHR 2009. 106 ibid para 56. See also Erik Fribergh and Morten Kjaerum, Handbook on European non-discrimination law (Publications Office of the European Union 2011) p 64. 107 Sejdić and Finci (n 105) paras 26 and 42. 108 ibid para 30. 109 ibid (emphasis added). 18
The Court’s established case law suggests that invoking state responsibility is a requirement for the proper functioning of the ECHR. The Court stated for example in Bosphorus: ‘to accept that all State acts implementing a Community obligation fall outside its Convention responsibility would create an unacceptable lacuna of human rights protection in Europe’.110 The Court has thus recognized that absolving Contracting States completely from their Convention responsibility would be incompatible with the purpose and object of the Conven- tion.111 This argument supports choosing the wide interpretation of the Court’s statement in Sejdić and Finci, since responsibility should be endorsed also where States are implementing obligations stemming from their membership in another organization.
Zornić v Bosnia and Herzegovina was the second case and the last one so far, where the Court has declared an application admissible under Article 1 of Protocol No 12.112 This case also supports the wider interpretation of the reasoning laid out in Sejdić and Finci. It quotes the Court’s reasoning in Sejdić and Finci without mentioning anything about the possibility to amend contradicting provisions in order to establish state responsibility.113
States relying on the Aznar Protocol and related secondary sources of EU asylum law could be claimed to contradict Article 1 of Protocol No 12.114 However, the cases of Sejdić and Finci and Zornić could be comparable to such a case only if the Court were to choose the wide interpretation of the reasoning laid out in Sejdić and Finci. The Aznar Protocol is an- nexed to a regional treaty, and the domestic authorities do not have the power to amend it nor do they have the power to amend the Directives and the Regulation.115 However, the Member States of EU are maintaining the primary and secondary sources of EU law, and can thus, through the wide interpretation, be held responsible for the provisions of it under Article 1 of Protocol No 12 ECHR.
There are two challenges for to Court to hear a case under Article 1 of Protocol No 12. The first one is that there are only two cases where the Court has declared a claim under Article 1 of Protocol No 12 admissible.116 The reasoning is unclear and the likelihood of success de- pends on the Court’s interpretation of what is required for State responsibility when it is implementing obligations stemming from membership in another international organization. Second, Protocol 12 only has 18 ratifications and cannot be claimed if the respondent State is not a party to it because such a claim would be declared inadmissible ratione personae.117
If the Court would chose the wider interpretation of the reasoning laid out in Sejdić and Finci it would have to assess whether it should examine the case on the merits or if the doctrine of equivalent protection applies. However, if the Court would decide to apply the narrow interpretation, the case would probably be declared inadmissible pursuant to Article 35(3) and rejected according to Article 35(4).118
110 Bosphorus (n 13) para 117. 111 ibid para 154. 112 Zornić v Bosnia and Herzegovina, no 3681/06, 15 July 2014. 113 ibid para 16. 114 ECHR (n 3) 115 The Treaties (n 1), 41 art 48. 116 Sejdić and Finci (n 105) paras 27–31 Zornić (n 112) paras 16–22. 117 De Saedeleer v Belgium, no 27535/04, para 68, 24 July 2007. For Contracting States see Council of Europe Treaty Office (n 85). 118 ECHR (n 3) 19
3.4 Concluding Remarks on Challenges to Admissibility According to the established law it would be difficult to get a case heard by the Court if some- one were to contest ECHR compatibility of a State’s reliance on the Aznar Protocol and the refugee definition in EU secondary law. A claim under Article 6(1) is unlikely to succeed be- cause the asylum process is not considered to be a civil right according to the Court’s case law.119 Articles 13 and 14 have to be claimed in conjunction with another substantive right.120 The most plausible Article to claim in conjunction with Article 13 or 14 would be Article 6(1), which is not possible since Article 6(1) is not applicable on asylum processes. A claim under Article 1 of Protocol No 12 is restricted to the States that are parties to it.121 Moreover, the Court has declared only two cases admissible under it.122 However, if a claim under it can be declared admissible, the next challenge to overcome is the doctrine of equiva- lent protection, which might result in the Court no to examine the merits of a case. The doc- trine is assessed in the following section.
119 Maaouia (n 95); Panjeheighalehei (n 95); Mamatkulov and Askarov (n 95); Penafiel Salgado (n 95) and Sardinas Albo (n 95). See mutatis mutandis Slivenko and Others (n 95) and V.P (n 95). 120 See inter alia Inze (n 98) and Abdulaziz, Cabales and Balkandali (n 98). 121 De Saedeleer (n 117). 122 Sejdić and Finci (n 105) paras 27–31 Zornić (n 112) paras 16–22. 20
4 The Doctrine of Equivalent Protection as a Challenge for the Court to Hear a Case The aim of this section is to determine how equivalent protection is established and whether the doctrine would apply if someone were to contest a State’s reliance on the Aznar Protocol and the refugee definition in EU secondary law at the ECtHR. The Court has developed the doctrine of equivalent protection (also called ‘the equivalent protection test’), and the extent of it has shifted towards a kind of quasi-admissibility test.123 Even though the case law is extensive the Court itself has not expressed explicitly that the equivalent protection test should be interpreted as a condition for admissibility or as a preliminary test.124 However, where someone were to contest a State’s reliance on the Aznar Protocol and the refugee definition in EU secondary law, the doctrine would be a challenge for the Court to hear the merits of a case.
This section is divided into three parts. The first part establishes applicable law for the doc- trine of equivalent protection by examining the components of the equivalent protection test, how it is established and the extent of it. The second part focuses on whether the EU does provide equivalent protection. The third part examines whether the doctrine would apply to a contested violation of Article 1 of Protocol No 12 on the general prohibition of discrimina- tion, if someone were to bring a case to the Court.
4.1 The Doctrine of Equivalent Protection The ECtHR established the equivalent protection test in the Bosphorus case.125 The purpose of the test is to resolve how the Court would proceed when a Member State refuses to undertake responsibility for ECHR violations by asserting that it was complying with its obligations to another international organization.126 The test seeks to determine if the other international organization provides equivalent protection for fundamental rights. If so, the Court will most likely decline to examine the merits of the case, unless the protection can be declared manifestly deficient due to specific circumstances of the case.127 Therefore, if the
123 In M.S.S. (n 12) the equivalent protection test was applied so that it gave an impression of being a criterion for admissibility. The ECtHR’s assessment started with dismissing the government’s arguments on inadmissibility and then went on to address whether or not the presumption of equivalent protection applied in the case. It dismissed the presumption of equivalent protection and moved on to examine the merits of the case, due to discretion left to the State in fulfilling its obligations under EU law. In Al-Dulimi (n 12) the equivalent protection test appeared to be, even more than in M.S.S. (n 12), a precondition that needed to be rebutted before the Court ruled on the merits of the case. There the ECtHR stated: ‘[t]he presumption of equivalent protection is […] rebutted in the present case. […] The Court must accordingly rule on the merits of the complaint’. 124 See inter alia Bosphorus (n 13); M.S.S (n 12); Michaud (n 129) and Al-Dulimi (n 12). 125 Bosphorus (n13). 126 ibid. The ECtHR was not the first Court to apply the equivalent protection test. The European Commission of Human Rights used the test in M. & Co. v the Federal Republic of Germany in 1990 (no 13258/87, Commission decision of 9 February 1990, Decisions and Reports 64, p 138). The German Constitutional Court also followed a very similar test in its Solange cases. See Bundesverfassungsgericht, 29 May 1974, BVerfGE 37, 271 (hereinafter to be referred to as: ‘Solange I’); Bundesverfassungsgericht, 22 Oct. 1986, BVerfGE 73, 339, (hereinafter to be referred to as: ‘Solange II’) and Bundesverfassungsgericht, 7 June 2000, BVerfGE 102, 147, (‘Solange III’). In its judgment for Solange I the Court did not use the expression ‘equivalent protection’ but something very similar: ‘effective protection of fundamental rights must be upheld in the same way as the protection of fundamental rights under the Basic Law’. 127 Bosphorus (n 13) paras 153–156. 21 international organization provides equivalent protection, state responsibility is unlikely to be established under the ECHR.
The ECHR does not prohibit Contracting States from transferring sovereign power to an international organization. 128 However, Contracting States remain responsible under the ECHR for acts and omissions that they undertake as a consequence of their obligations stem- ming from the international organization.129 The purpose of establishing equivalent protection is to ensure that Contracting States are not faced with a dilemma when they have to act due to legal obligations stemming from membership in another international organization, which is not a party to the ECHR and to which is has transferred sovereign powers. Equivalent protec- tion can thus justify state conduct derived from membership obligations to another interna- tional organizations.130
States remain responsible for ECHR violations only if comparable equivalent protection is not provided by an organization that they have transferred powers to, or if the Contracting State enjoys discretion when implementing its legal obligations flowing from membership of that organization.131 Hence, where States enjoy discretion in implementing their legal obligations, the presumption of equivalent protection will not apply. For example Ireland was not consid- ered to enjoy discretion in Bosphorus while the Court concluded the opposite for France in Michaud.132 One distinction between Michaud and Bosphorus is that the rules relied on by the Ireland originated from an EC Regulation while France had acted on the basis of an EU Directive.133 Directives are legislative acts that allow for discretion when States implement them while Regulations are binding legislative acts and must be applied in their entirety across the EU.134 Therefore, the question of discretion was determinative for the Court’s conclusions in Michaud and Bosphorus.
The Court’s equivalent protection test is composed of a substantial and procedural exami- nation of the protection provided for fundamental rights in another international organization. The substantial equivalence is focused on the rights provided by the other organization while the procedural equivalence requires adequate rules to uphold them.135 The Court has further explained that the requirement of equivalence should be interpreted as requiring comparable protection because requiring identical protection would not be harmonious with the interest of international cooperation.136
If an international organization does not have the power to investigate the conformity of its legal acts with human rights standards, there will not be a presumption of equivalent protec- tion.137 Hence, the doctrine of equivalent protection is limited to legal acts that can be, have been, or could have been investigated by the judicial organs of the organization. Moreover, equivalent protection does not extend to legal obligations that states have freely entered into,
128 ibid para 152. See, mutatis mutandis, M. & Co. (n 126) and Matthews (n 90) para 32. 129 Bosphorus (n 13) para 156; M.S.S. (n 12) para 338; Michaud v France, no 12323/11, para 103, ECHR 2012 and Al-Dulimi (n 12) para 114. 130 Michaud (n 129) para 104. 131 ibid para 103; Bosphorus (n 13) para 156; M.S.S (n 12) para 338 and Al-Dulimi (n 12) para 114. 132 Bosphorus (n 13) paras 147–148 and Michaud (n 129) paras 103, 113 and 115. 133 Bosphorus (n 13) para 16 and Michaud (n 129) para 9. 134 European Union (n 89). 135 Bosphorus (n 13) para 164. 136 ibid para 155. 137 Paul De Hert and Fisnik Korenica, ‘The Doctrine of Equivalent Protection: Its Life and Legitimacy Before and After the European Union’s Accession to the European Convention on Human Rights’ (2012) 13 No 07 The German LJ 874, 882. 22 such as the establishing treaties of an international organization.138 The basis for applying the doctrine of equivalent protection is thus; that the rules obligating states to act contrary to the ECHR are not rules that the state could have chosen not to apply.
A State’s reliance on the rules of another international organization cannot constitute a viola- tion of the ECHR when equivalent protection applies.139 Therefore, when Member States rely on the rules on asylum derived from EU law they cannot be held responsible if it can be es- tablished that the EU provides equivalent protection of fundamental rights. However, all components have to be established in order for equivalence to apply.
4.2 EU as an International Organization Generally Providing Equivalent Protection The Court dealt with the EU’s protection for fundamental rights in the Bosphorus judgment.140 It concluded that generally the EU does provide equivalent protection.141 For substantial equivalence the Court reiterated what have been expressed in the jurisprudence from the ECJ: while the founding treaties of the EC did not provide explicit provisions for the protection of fundamental rights, the ECJ, nevertheless, recognized that such rights where protected in the general principles of the Community law already in 1969.142 Further, the ECHR was recognized to have a special significance as a source of fundamental rights in the Community law in 1979.143 Later the ECJ has referred extensively to the provisions of the ECHR and to the jurisprudence of the Court.144 The Court has reaffirmed and expressed an even stronger reason for why it considers that EU protects fundamental rights substantially equivalent to the ECHR. It stated in Michaud v France:
A fortiori since 1 December 2009, the date of entry into force of Article 6 (amended) of the Treaty on European Union, which gave the Charter of Fundamental Rights of the European Union the force of law and made fundamental rights, as guaranteed by the Convention and as they resulted from the
138 Paul De Hert and Fisnik Korenica (n 137) 883. 139 ibid 882. 140 Bosphorus (n 13). 141 ibid paras 159–165. In M. & Co. (n 126) and Solange II (n 126) both the ECtHR and the German Constitutional Court presumed that the EU provided equivalent protection because of its globally sufficient protection of human rights. See also Sébastien Platon, ‘The “Equivalent Protection Test”: From European Union to United Nations, from Solange II to Solange I’ (2014) 10 European Constitutional Law Review 226, 242. 142 Case 29/69 Stauder v City of Ulm [1969] ECR 419 para 7. 143 Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727 para 15. 144 Examples on references to the ECHR provisions: ibid para 17; Case 63/83 Regina v Kent Kirk [1984] ECR 2689 para 22; Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651 para 18; Case 46/87 and 227/88 Hoechst AG v Commission of the European Communities [1989] ECR 2859 para 18; Case 249/86 Commission of the European Communities v the Federal Republic of Germany [1989] ECR 1263 para 10; Case C-260/89 ERT v DEP, [1991] ECR I-2925 para 45; Case C-415/93 Union royale belge des sociétés de football and Others v Bosman and Others [1995] ECR I-4921 para 79 and Case T-377/00, T-379/00, T- 380/00, T-260/01 and T-272/01 Philip Morris International, Inc. and Others v Commission of the European Communities [2003] ECR II-1 para 121. Examples on references to the jurisprudence of the ECtHR: Case C- 368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I- 3689 paras 25–26; Case C-249/96 Lisa Jacqueline Grant v South-West Trains Ltd [1998] ECR I-621 paras 33– 34; Case C-185/95 P Baustahlgewebe GmbH v Commission of the European Communities [1998] ECR I-8417 paras 20 and 29; Case C-274/99 Connolly v Commission of the European Communities [2001] ECR I-1611 para 39; Case C-60/00 Mary Carpenter v Secretary of State for the Home Department [2002] ECR I-6279 paras 41– 42; Case C-109/01 Secretary of State for the Home Department v Hacene Akrich [2003] ECR I-9607 paras 58– 60 and C-493/01 Orfanopoulos and Oliveri v Land Baden-Württemberg [2004] ECR I-5257 paras 98–99. 23
constitutional traditions common to the member States, general principles of European Union law.145
The EU is thus generally presumed to provide at least substantially equivalent protection. Effective remedies complying with the ECHR’s requirements have to be in place for proce- dural equivalence. The Court has confirmed that the application of EU law is controlled by the ECJ through the preliminary ruling procedure even though it is limited to answering questions from domestic courts on interpretation or validity.146 However, ECJ’s replies are often determinative for the domestic proceedings, and the national courts of EU Member States function in legal systems that have incorporated the ECHR into their legal system.147 The judicial organs of the EU do not have the power to review the conformity of EU primary law with human rights standards.148 Moreover, Member States have freely entered into the obligations laid out in primary law of the EU. Therefore, primary law should fall outside the scope of equivalent protection. The doctrine of equivalent protection is thus limited to EU secondary law and does not apply on primary law of the EU.149
The general presumption of equivalent protection can be rebutted when an overall lack of protection for fundamental rights can be established. The presumption can also be rebutted in a specific case, if the circumstances of the case show that the protection of Convention rights has been manifestly deficient.150 Since Bosphorus, the Court has agreed that the EU can be presumed to protect fundamental rights equivalently to the ECHR. However, many of the cases have resulted in not applying the doctrine of equivalent protection.151 Hence, even though the EU is considered to generally provide equivalent protection it might in a given case fail on the equivalent protection test. The reasons for failing the test can be that the State enjoys discretion when applying EU law, the law applied does not provide protection that is comparable to the ECHR, the law applied is EU primary law or specific circumstances of a case prove that the protection has been manifestly deficient.152
4.3 The Doctrine of Equivalent Protection as a Challenge for the ECtHR to Rule on the Merits The Court has established a presumption that the EU provides protection of fundamental rights equivalent to the ECHR. Therefore, the reasonable conclusion is that the Court would not try a case on the merits, where a State’s reliance on the Aznar Protocol or the definition of refugees in the secondary sources of the EU is claimed to contradict the ECHR. However, as
145 Michaud (n 129) para 106. 146 Treaty Establishing the European Economic Community [25 March 1957] 298 UNTS 11 art 177 [current art 267 of the Treaties (n 1) 164] and Bosphorus (n 13) para 164. 147 Bosphorus (n 13) para 164. 148 Paul De Hert and Fisnik Korenica (n 137) 882–883. 149 Matthews (n 90) para 33; Bosphorus (n 13) para 72 and ibid. 150 Bosphorus (n 13) para 156. 151 See eg Michaud (n 129) paras 105–116. It resulted in the ECtHR’s conclusion that the presumption of equivalent protection did not apply. The Court considered that since the Counseil d’Etat decided not to seek a preliminary ruling from the ECJ it resulted in that the presumption of equivalent protection could not be applied. The ECtHR considered that ‘the Conseil d’Etat ruled without the full potential of the relevant international machinery for supervising fundamental rights [which are] in principle equivalent to that of the Convention’.151 Therefore, the ECtHR ruled on the merits of the case. See also M.S.S. (n 12) paras 338–340; M. & Co. (n 126) and Al-Dulimi (n 12) paras 115–122 albeit the case concerns equivalent protection for United Nations. 152 Bosphorus (n 13) para 156. 24 mentioned the presumption can be rebutted in a specific case. Hence, the Aznar Protocol and the related secondary sources of EU law should be examined further in this context.
Equivalent protection, as mentioned above, means that the other international organization provides protection that is comparable to the ECHR.153 On one hand, the EU provides better protection for asylum-seekers then the ECHR does since the EU actually acknowledges a right to asylum whereas the ECHR does not. On the other hand, the EU does not provide the same right to everyone, which could be a reason for the Court to consider rebutting the presumption of equivalent protection in the EU as not comparable to the ECHR protection. This would constitute a lack of equivalent substantial protection concerning a specific right.
Since the equivalent protection test also includes a requirement of procedural equivalence, the Court would have to examine EU organs’ possibilities for reviewing the Aznar Protocol and the secondary sources defining refugees. The Aznar Protocol is annexed to the founding trea- ties of the EU and it is thus part of EU primary law.154 As mentioned, the EU judicial organs cannot review the conformity of primary law with human rights standards. Also, Member States have entered into the obligations through free will. Therefore, primary EU law does not pose obligations on Member States, which they could not have avoided. The Court would thus; not apply the doctrine of equivalent protection, at least not as far as it considers the conformity with the ECHR of States relying on the Aznar Protocol. Since the doctrine would not apply the Court would examine the merits of a complaint when a State has relied on the Aznar Protocol.
As to the Qualification Directive, the Asylum Procedures Directive and the Dublin Regulation the question of discretion becomes relevant.155 If there is no discretion for implementing the rules laid out in them, the respondent State cannot be held responsible under the ECHR according to the doctrine of equivalent protection.156 Therefore, the existence of discretion with regards to these secondary sources has to be examined.
As mentioned, directives are legislative acts that sets out goals that Member States have to achieve but leave it up to them to decide on the means. Directives also do not prohibit Member States from providing better protection then what is required.157 The Qualification Directive and the Asylum Procedures Directive refer to refugees as third-country nationals and stateless persons.158 However, these legal acts do not prohibit Member States from apply- ing the rules laid out in them on nationals of the EU. It can thus be established that Member States do enjoy discretion when applying the Directives. Therefore, just like in Michaud159 the Court could examine a case on the merits where a State’s reliance on the Qualification Directive and the Asylum Procedures Directive is claimed to be discriminatory based on nationality under Article 1 of Protocol No 12 ECHR. If the Court would come to this conclu- sion, the equivalent protection test fails. In such a case Member States applying the Directives cannot evade responsibility for ECHR violations based on the argument that they have been complying with obligations stemming from membership in the EU.
153 ibid paras 150 and 155. 154 Robert Schütze (n 15). 155 Dir 2011/95/EU (n 7); Dir 2013/32/EU (n 7) and Reg No 604/2013 (n 7). 156 Bosphorus (n 13) para 156; M.S.S (n 12) para 338; Michaud (n 129) para 103 and Al-Dulimi (n 12) para 114. 157 European Union (n 89). 158 Dir 2011/95/EU (n 7) art 2(d) and Dir 2013/32/EU (n 7) art 2(g). 159 The Court stated that one distinction between Bosphorus (n 13) and Michaud (n 129 para 113) was the discretion allowed by the EU norms applied. The complaint in Michaud regarded an EU Directive, while the complaint in Bosphorus was based on an EC Regulation. 25
Reiterating what has been mentioned: Regulations are binding legislative acts and must be applied in their entirety across the EU.160 Thus, the Dublin Regulation is a binding legal act, which does not allow for discretion but should be implemented as a whole. Therefore, there is no discretion as to the interpretation of who can be considered an applicant according to the Regulation. However, the Dublin Regulation establishes the criteria and mechanisms required for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless per- son. It does not impose obligations on Member States to decline refugee status for EU nationals nor does it prohibit that Member States have domestic legislation in place regulating the acceptance of other asylum applications than those brought by third-country nationals or stateless persons. Therefore, even though the Regulation only obligates Member States to deal with applications from third-country nationals and stateless persons, there is an obvious discretion left for the States to decide on the admission of asylum applications from nationals of other Member States.161 The equivalent protection test thus fails because the respondent State enjoys discretion when applying the Regulation.
Nevertheless, if the doctrine of equivalent protection would be applied, the last measure available for an applicant would be to claim that specific circumstances of his case require that the Court declare the protection provided by the international organization as manifestly deficient. If no manifest deficiency can be established, the doctrine of equivalent protection will apply, and the Court will not rule on the merits of the case.
4.4 Concluding Remarks on Equivalent Protection as a Challenge According to the Court’s established case law the general conditions for rebutting the presumption of equivalent protection are: the protection provided by the international organization is not comparable to the ECHR, the judicial organs of the international organiza- tion cannot review the conformity of the rules in question with international human rights law or the State enjoys discretion when implementing the rules in question.162 If none of these can rebut the presumption of equivalent protections an applicant can claim that specific circum- stance of the case has lead to a manifestly deficient protection.
According to the established law equivalent protection is unlikely to be applied if someone were to contest ECHR compatibility of a State’s reliance on the Aznar Protocol and the refu- gee definition in EU secondary law. The Aznar Protocol is primary law and does not fall within the scope of equivalent protection because the judicial organs of EU cannot review its conformity with international human rights law and the Member States have entered into it
160 European Union (n 89). 161 cf Bosphorus (n 13) where discretion was assessed under Article 8 of the Regulation (EEC) no 990/93, which states:
All vessels, freight vehicles, rolling stock and aircraft in which a majority or controlling interest is held by a person or undertaking in or operating from the [FRY] shall be impounded by the competent authorities of the Member States.
This Regulation poses an obligation for Member States to impound aircrafts when they are controlled by or a person or undertaking from the FRY. Hence, the Regulation does not leave any discretion for the conduct required from a Member State if the criteria are fulfilled. 162 Bosphorus (n 13) paras 155–156 and 164; M.S.S. (n 2) para 338; Michaud (n 21) and Al-Dulimi (n 12) para 114. 26 freely.163 Equivalent protection applies only when Member States do ‘no more than imple- ment legal obligations flowing from its membership of the organization’.164 The Qualification Directive, the Asylum Procedures Directive and the Dublin Regulation all allow for discretion when Member States apply them.165 Hence, the test fails because the secondary sources allow for discretion. However, if the Court concludes that equivalent protection cannot be rebutted on these grounds, an applicant can claim that specific circumstances of the case indicate that the protection provided by the EU has been manifestly deficient in his case.
163 Paul De Hert and Fisnik Korenica (n 137) 882–883. 164 Bosphorus (n 13) para 156. 165 Dir 2011/95/EU (n 7); Dir 2013/32/EU (n 7) and Reg No 604/2013 (n 7). 27
5 Conclusion This paper explores the legal challenges that an otherwise bona fide refugee originating from an EU country would face if he were to bring a case to the ECtHR on account of a State’s refusal to consider his refugee claim as a result of the Aznar Protocol and related EU secondary law. EU nationals’ possibility to acquire asylum is reduced since the Aznar Protocol states that asylum claims from EU nationals are to be considered manifestly un- founded. Moreover, EU secondary law restricts the definition of a refugee to third-country nationals and stateless persons. Thus, it excludes EU nationals from acquiring refugee status. As has been shown by establishing applicable law and Member States practices, this can lead to a situation where bona fide refugee claims are not processed. Therefore, such persons need the possibility to challenge State’s reliance on the EU provisions.
The challenges, that an otherwise bona fide refugee originating from an EU country would face if he were to bring a case to the ECtHR, relate first to admissibility and second to the doctrine of equivalent protection. The research shows that out of plausible claims under Articles 6(1), 13, 14 and 1 of Protocol No 12 ECHR, only the last one could be declared admissible before the Court. A claim under Article 6(1) is unlikely to succeed because the asylum process is not considered to be a civil right according to the Court’s case law. Articles 13 and 14 have to be claimed in conjunction with another substantive right and the most plausible article to claim with both of them would be Article 6(1). Thus, a claim under Article 13 or 14 will not succeed because Article 6(1) does not apply on asylum processes. A claim under Article 1 of Protocol No 12 could be declared admissible. However, it is restricted to the States that are parties to it. Since Protocol No 12 only has 19 signatories its applicability is not as wide as the other substantive rights laid out in the Convention. Moreover, the Court has declared only two cases admissible under it. The possibilities for the Court to examine the merits of a case are thus limited due to the challenges on admissibility under the described articles.
If a claim under Article 1 of Protocol No 12 is declared admissible, the next challenge for the Court to overcome in order to examine the merits of a case is the doctrine of equivalent protection. The doctrine provides a solution for the Court on how to proceed when a Member State declares that it was complying with its obligations to another international organization and should therefore not be held responsible under the ECHR. Four components are required in order to establish equivalent protection. Firstly, the protection provided by another interna- tional organization has to be comparable to the protection provided by the ECHR. Secondly, the judicial organs of another international organization have to be able to review the conformity of the rules in question with international human rights law. Thirdly, there can be no discretion left for the State when it is implementing the rules. Finally, in a specific case it has to be proven that there has not been a manifest deficiency in the provided protection. The Court has established that generally the EU does provide equivalent protection. However, the presumption can be rebutted if the components for equivalent protection are not met.
According to the established law equivalent protection would probably not be applied if someone were to bring a case to the Court contesting ECHR compatibility of a State’s reli- ance on the Aznar Protocol and the refugee definition in EU secondary law. The Aznar Protocol is primary law and does not fall within the scope of equivalent. The Qualification Directive, the Asylum Procedures Directive and the Dublin Regulation all allow for discretion when Member States apply them. Therefore, equivalent protection cannot be applied on a State’s reliance on them. 28
The legal challenges that an otherwise bona fide refugee originating from an EU country would face if he were to bring a case to the ECtHR can be overcome. However, the circum- stance of a specific case will affect the Court’s conclusion. The challenges for the Court to hear a case are high because only Article 1 of Protocol No 12 ECHR could be declared admissible before the Court. Relying on the Article is restricted to the 18 States that have rati- fied it. Hence, the scope of which States can be held responsible, for relying on the Aznar Protocol and related secondary EU law, is restricted. However, the aim of restricting the right to asylum for EU nationals within the EU is unclear. The adoption of the Aznar Protocol suggests that the aim is to reduce the workload of domestic authorities dealing with asylum applications. Since the EU presumes that all EU Member States are safe countries of origin it is understandable that it ignores the fact that there actually might be EU nationals who need a right to asylum. However, this should really not be a competence of the EU but rather a ques- tion left for the Member States to regulate. It is after all the authorities of the Member States that are burdened with the asylum applications and not the EU authorities. This is though a political question and does not have space in this paper.
29
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