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 2015RV4460 Law, Advanced Course (Bachelor thesis), 15 Credits Examiner: Anna Gustafsson
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.1Therefore, 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,
Table of cases
The Court of Justice of the European
Union
Baustahlgewebe GmbH v Commission of the European Communities, (C-185/95 P) [1998] ECR I-8417…22
Commission of the European Communities v the Federal Republic of Germany, (249/86) [1989] ECR 1263…22 Connolly v Commission of the European
Communities, (C-274/99) [2001] ECR I-1611…22
ERT v DEP, (C-260/89) [1991] ECR I-2925…22
Hauer v Land Rheinland-Pfalz, (44/79) [1979] ECR 3727…22
Hoechst AG v Commission of the European Communities, (46/87 and 227/88) [1989] ECR 2859…22
Johnston v Chief Constable of the Royal Ulster Constabulary, (222/84) [1986] ECR 1651…22
Lisa Jacqueline Grant v South-West Trains Ltd, (C-249/96) [1998] ECR I-621…22 Mary Carpenter v Secretary of State for the
Home Department, (C-60/00) [2002] ECR I-6279…22
Orfanopoulos and Oliveri v Land Baden-Württemberg, ( 482/01 and C-493/01) [2004] ECR I-5257…22 Philip Morris International, Inc. and Others v
Commission of the European
Communities, (377/00, 379/00, T-380/00, T-260/01 and T-272/01) [2003] ECR II-1…22
Regina v Kent Kirk, (63/83) [1984] ECR 2689…22
Secretary of State for the Home Department v Hacene Akrich, (C-109/01) [2003] ECR I-9607…22
Stauder v City of Ulm, (29/69) [1969] ECR 419…22
The Queen v Secretary of State for the Home Department, (C-192/99) [2001] ECR I-1237…6
Union royale belge des sociétés de football and Others v Bosman and Others, (C-415/93) [1995] ECR I-4921…22
Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag, (C-368/95) [1997] ECR I-3689…22
The European Commission of
Human Rights
M. & Co. v the Federal Republic of Germany, no 13258/87, Commission decision of 9 February 1990, Decisions and Reports 64, p 138…20–23
European Court of Human Rights
Abdulaziz, Cabales and Balkandali v the United Kingdom, 28 May 1985, Series A no 94…
Al-Dulimi and Montana Management Inc. v Switzerland, no 5809/08, 26 November 2013…2, 20–21, 23–25
Aksoy v Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI…8
Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v Ireland [GC], no 45036/98, ECHR 2005-VI…2, 18, 20–
26
Botta v Italy 24 February 1998, Reports of Judgments and Decisions 1998-I…16 De Saedeleer v Belgium, no 27535/04, 24
Gaygusuz v Austria, 16 September 1996, Reports of Judgments and Decisions 1996-IV…16
Inze v Austria, 28 October 1987, Series A no 126…16, 19
Ireland v the United Kingdom, 18 January 1978, Series A no 25…8
Klass and Others v Germany, 6 September 1978, Series A no 28…16
Kudła v Poland [GC], no 30210/96, ECHR 2000-XI…14
König v Germany, 28 June 1978, Series A no 27…15
Leander v Sweden, 26 March 1987, Series A no 116…16
M.S.S. v Belgium and Greece [GC], no 30696/09, ECHR 2011…2, 20–21, 23–
25
Maaouia v France [GC], no 39652/98, ECHR 2000-X…15
Mamatkulov and Askarov v Turkey [GC], nos 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
T.I. v the United Kingdom (dec), no 43844/98, Reports of Judgments and Decisions 2000-III…7
V.P. v United Kingdom, no 13162/87, Commission decision of 9 November 1987, Decisions and Reports 54, p 211…15
Van der Mussele v Belgium, 23 November 1983, Series A no 70…16
Willis v United Kingdom, no 36042/97, ECHR 2002-IV…16
Zornić v Bosnia and Herzegovina, no 3681/06, 15 July 2014…18
German Constitutional Court
Bundesverfassungsgericht, 29 May 1974, BVerfGE 37, 271…20, 22 Bundesverfassungsgericht, 22 October 1986, BVerfGE 73, 339…20 Bundesverfassungsgericht, 7 June 2000, BVerfGE 102, 147…20
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)
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
List of Abbreviations
COE Dir EC ECHR ECJ ECtHR EU Reg TEU TFEU UDHR UNHCR Council of Europe Directive European CommunitiesThe European Convention for the Protection of Human Rights and Fundamental Freedoms
Court of Justice of the European Union European Court of Human Rights European Union
Regulation
Treaty on European Union
Treaty on Functioning of the European Union The Universal Declaration of Human Rights
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
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 <http://www.europarl.europa.eu/workingpapers/libe/pdf/108_en.pdf > accessed 6th May 2015 and the Treaties (n 1).
9 For example in 2013, 24 nationals of Croatia claimed asylum in Germany. See UNHCR Population Statistics
<http://popstats.unhcr.org/PSQ_RSD.aspx> accessed 20 May 2015.
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.
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, napersecu-tionality, 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.
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.
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 Qualificaprotec-tion 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.
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 reservaConven-tions. However, reservaConven-tions 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 <http://www.unhcr.org/41b6ccc94.pdf> accessed 15 May 2015.
42 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155
UNTS 331 art 26.
43 T.I. v the United Kingdom (dec), no 43844/98, Reports of Judgments and Decisions 2000-III. 44 Zimmermann (n 28) 125.
(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
[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).
and verifiable way, that circumstances which might in the past have justified recourse to the 1951 Geneva Convention have ceased to exist.56
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.
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 <http://www.unhcr.org/3ae6a0ce0.html> accessed 15 May 2015 and Rebecca Stern (n 20) 62. On the contrary, Hemme Battjes, a teacher of Constitutional and Administrative Law at the Vrije Universiteit in Amsterdam who has published extensively on European migration law, has expressed that the Aznar Protocol allows Member States to process applications from nationals of other Member States, and though the
applications must be declared manifestly unfounded there are no legal consequences for the declaration attached to the instrument. The obligations are in his opinion not discriminatory. See Hemme Battjes, European asylum
law and international law (Martinus Nijhoff Publishers 2006 vol 8) para 461.
65 Statement of an official from Belgium's Office of the Commissioner General for Refugees and Stateless
Persons (Commissariat général aux réfugiés et aux apatrides, CGRA) on January 1st 2007. See Immigration and Refugee Board of Canada (n 16).
66 ibid. 67 ibid.
68 Stefan Ericsson (n 8) 48.
69 For example 19 Croatians, 8 Hungarians and 64 Romanians filed applications in Belgium in 2013. See
cases Finland allows nationals of the EU to enter the asylum process.70 Nevertheless, all applications from EU nationals are examined.71 Moreover, the use of safe country of origin is abandoned and an assessment of the situation is made in each individual case, which means that an application will never be automatically declared manifestly unfounded.72 Hence, it seems like Finland has adopted a similar view to the Aznar Protocol as Belgium since both make an individual assessment regardless of the country of origin. Therefore, asylum appli-cations filed by EU nationals in Finland are at least not declared manifestly unfounded on the basis of nationality.
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 appliappli-cations 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) <http://www.infopankki.fi/en/moving-to
finland/coming-to-finland-as-an-asylum-seeker> accessed 15 May 2015.
72 Stefan Ericsson (n 8) 66.
73 Asylum Policy Division Irish Naturalisation and Immigration Service, ‘Background Note on Irish Asylum
Policy’ (March 2007)
<http://www.inis.gov.ie/en/INIS/AsylumPolicyMarch07.pdf/Files/AsylumPolicyMarch07.pdf> accessed 15 May 2015.
74 Irish Naturalisation and Immigration Service, ‘Asylum and Nationals of Member States of the European
Union: Information Note’ <http://www.inis.gov.ie/en/INIS/Pages/PR07000129> accessed 15 May 2015.
75 Immigration and Refugee Board of Canada (n 16). 76 UNHCR Population Statistics (n 9).
77 UDHR (n 17) art 14. 78 The Charter (n 24).
79 Dir 2011/95/EU (n 7) art 2(d); Dir 2013/32/EU (n 7) art 2(g); Reg No 604/2013 (n 7) art 2(c) and the Treaties
(n 1). However, an EU national can claim protection on the basis of the principle of non-refoulement according to Article 19 (2) of the Charter (n 24).
However, the exceptions laid out in the Protocol occur on rare occasions. 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.
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’
<http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=177&CM=&DF=&CL=ENG> accessed 21 May 2015.
86 Iain Cameron, An Introduction to the European Convention on Human Rights (6th edn, Iustus, 2011) 51, 174–
176.
87 ECHR (n 3) art 1. 88 Robert Schütze (n 15).
89 European Union, ‘Regulations, Directives and other acts’
<http://europa.eu/eu-law/decision-making/legal-acts/index_en.htm> accessed 21 May 2015.
can be held responsible under the ECHR if their conduct contradicts the rights and freedoms laid out in it (Article 1 ECHR).91
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).
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.
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.
