Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling — Area of freedom, security and justice — Asylum policy — Common procedures for granting and withdrawing international protection — Directive 2013/32/EU — Articles 14 and 34 — Obligation to give applicants for international protection the opportunity of a personal interview before the adoption of a decision declaring the application to be inadmissible — Failure to comply with that obligation in the procedure at first instance — Consequences.
Outcome of the case:
In the light of the foregoing considerations, I propose
that the Court hold that the Bundesverwaltungsgericht (Federal Administrative Court, Germany) should assess whether, in accordance with national procedural rules, the national court or tribunal seised on appeal, in accordance with Article 46 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, is in a position to replicate in full a personal interview pursuant to Article 14 or Article 34 of that directive while ensuring that all the relevant mandatory requirements and guarantees specified by the European legislator in Article 15 of that directive are met. In the event that such a personal interview cannot be adequately replicated, the decision rejecting an application for international protection must be annulled on that basis and the case should be referred back to the determining authority for a new decision.
9) As regards, more specifically, Case C‑517/17, the referring court withdrew the first two questions it had originally referred to the Court. Those questions concerned the extent to which a Member State is precluded from rejecting an application for international protection as inadmissible on the ground that the applicant has already been granted refugee status by another Member State, where the living conditions in that other Member State do not satisfy the provisions of Article 20 et seq. of Directive 2011/95/EU of the European Parliament and of the Council 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, ( 6 ) without however being such as to be in breach of Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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46) As regards the specific situation of Mr Addis, the referring court noted that the Federal Office and, in turn, the administrative courts, are obliged to examine whether the living conditions of a person granted refugee status in Italy comply, inter alia, with Article 4 of the Charter.
78) In paragraph 49 of the judgment of 26 July 2017, Sacko , ( 44 ) the Court stated that Directive 2013/32, in particular Articles 12, 14, 31 and 46 thereof, read in the light of Article 47 of the Charter, must be interpreted as not precluding the national court or tribunal hearing an appeal against a decision rejecting a manifestly unfounded application for international protection from dismissing the appeal without hearing the applicant where the factual circumstances leave no doubt as to whether that decision was well founded. This conclusion was, however, subject to the following conditions: first, during the proceedings at first instance, the applicant must have been given the opportunity of a personal interview on his or her application for international protection, in accordance with Article 14 of that directive, and the report or transcript of the interview, if an interview was conducted, was placed on the case file, in accordance with Article 17(2) of that directive, and, second, the court hearing the appeal may order that a hearing be conducted if it considers it necessary for the purpose of ensuring that there is a full and ex nunc examination of both facts and points of law, as required under Article 46(3) of that directive.
84) In the judgment of 25 July 2018, Alheto, ( 51 ) the Court found that in accordance with Article 47 of the Charter, the requirement for a full and ex nunc ( 52 ) examination pursuant to Article 46(3) of Directive 2013/32 implies that the court or tribunal seised of the appeal must interview the applicant, unless it considers that it is in a position to carry out the examination solely on the basis of the information in the case file, including, where applicable, the report or transcript of the personal interview before that authority. ( 53 ) In the event, however, that new evidence comes to light after the adoption of the decision under appeal, the court or tribunal is required, pursuant to Article 47 of the Charter, to offer the applicant the opportunity to express his or her views when that evidence could affect him or her negatively. ( 54 )
86) It is thus clear from the facts in the case giving rise to the judgment of 25 July 2018, Alheto, ( 57 ) that the determining authority in that case did not adopt a decision of inadmissibility. It was thus not required to carry out a personal interview in accordance with Article 34 of Directive 2013/32. As the question of inadmissibility was first raised by a court of tribunal in the context of a full and ex nunc examination of both facts and point of law pursuant to Article 46(3) of Directive 2013/32, this Court held that it was incumbent on that court or tribunal to conduct a personal interview of the applicant itself in order to protect the rights guaranteed by Article 47 of the Charter. ( 58 ) It follows that where a court raises on appeal and of its own motion a question of admissibility which was not previously examined by the determining authority, that court must itself conduct a personal interview.
109) Against this background, one may frankly doubt whether in those instances where an infringement of Articles 14 and 34 has occurred a court or tribunal is then competent in all cases, in effect, to step into the shoes of a determining authority and to conduct a personal interview in accordance with Article 15 of Directive 2013/32. ( 78 ) After all, the European legislator clearly intended for a detailed personal interview to be conducted at first instance in confidential surroundings by specially trained administrators as distinct from questioning by judges (who may not have this training) in a judicial manner in open court. The principle of effectiveness in Article 47 of the Charter requires that these mandatory requirements should not be set aside lightly, as compliance with this express legislative stipulation was clearly intended by the European legislator to be a prerequisite to the validity of any subsequent adverse asylum decision.
117) Yet, at the heart of Mr Addis’ application is his contention that he would effectively face destitution and an abject standard of living in a manner which exposes him to, in the words of this Court in its judgment of 19 March 2019, Ibrahim and Others), ( 86 )‘extreme material poverty that does not allow him to meet his most basic needs’, such that his rights under Article 4 of the Charter would thereby be infringed if he were to be deported or otherwise removed to Italy. While the consultation of country reports and reports of non-governmental organisations are doubtless of considerable assistance in any assessment of this issue, they are no substitute for a personal interview in which the applicant is allowed to describe his or her own personal experiences and personal circumstances. ( 87 ) This, at any rate, is what the European legislator has ordained.
