Moussa Sacko v Commissione Territoriale per il riconoscimento della Protezione internazionale di Milano.
Date: 2017-07-26
28


In the fourth and final place, Article 46 of Directive 2013/32, which is the only provision in Chapter V, headed ‘Appeals procedures’, provides for the right to an effective remedy before a court or tribunal against a decision rejecting an application for international protection, including decisions dismissing the application as manifestly inadmissible or unfounded. In order to comply with that provision, Member States are required, pursuant to Article 46(3) of the directive, to ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95, at least in appeals procedures before a court or tribunal of first instance. However, neither Article 46 of Directive 2013/32 nor any other provision thereof provides that a hearing must be held before the court or tribunal hearing the appeal.
29


It should be noted in that regard that, according to the Court’s established case-law, under the principle of sincere cooperation laid down in Article 4(3) TEU, it is for the courts of the Member States to ensure judicial protection of a person’s rights under EU law, Article 19(1) TEU, moreover, requiring Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law (judgments of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 50, and of 9 February 2017, M, C‑560/14, EU:C:2017:101, paragraph 30 and the case-law cited).
30


That requirement on the part of the Member States corresponds to the right enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), entitled ‘Right to an effective remedy and to a fair trial’, which provides that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal (see, to that effect, judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 44).
31


It follows that the characteristics of the remedy provided for in Article 46 of Directive 2013/32 must be determined in a manner that is consistent with Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection (see, by analogy, with reference to Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13), judgment of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 51).
32


The principle of effective judicial protection of the rights which individuals derive from EU law comprises various elements; in particular, the rights of the defence, the principle of equality of arms, the right of access to a tribunal and the right to be advised, defended and represented (judgment of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 48).
33


With regard, first, to the proceedings at first instance covered by Chapter III of Directive 2013/32, it should be recalled that when the authorities of the Member States take measures which come within the scope of EU law, they are, as a rule, subject to the obligation to observe the rights of defence of addressees of decisions which significantly affect their interests (judgment of 10 September 2013, G. and R., C‑383/13 PPU, EU:C:2013:533, paragraph 35, and of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 40).
34


In particular, the Court has held that the right to be heard in any procedure, inherent in respect for the rights of the defence, which is a general principle of EU law, guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely (see, to that effect, judgments of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraphs 34 and 36, and of 9 February 2017, M, C‑560/14, EU:C:2017:101, paragraphs 25 and 31).
35


In that regard, the purpose of the rule that the addressee of an adverse decision must be placed in a position to submit his observations before that decision is adopted is, inter alia, to enable that person to correct an error or submit such information relating to his or her personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content (see, to that effect, judgment of 5 November 2014, Mukarubega, C‑166/13, EU:C:2014:2336, paragraph 47, and of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 37 and the case-law cited).
36


With regard, on the other hand, to the appeals procedures covered by Chapter V of Directive 2013/32, in order for the right to a remedy to be exercised effectively, the national court must be able to review the merits of the reasons which led the competent administrative authority to find that the application for international protection was unfounded or made in bad faith (see, by analogy with reference to Directive 2005/85, judgment of 28 July 2011, Samba Diouf, C‑69/10, EU:C:2011:524, paragraph 61).
37


In this instance, it should be noted that failure to give the applicant the opportunity to be heard in an appeals procedure such as that covered by Chapter V of Directive 2013/32 constitutes a restriction of the rights of the defence, which form part of the principle of effective judicial protection enshrined in Article 47 of the Charter.
38


However, according to the Court’s settled case-law, fundamental rights, such as respect for the rights of the defence, which includes the right to be heard, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not entail, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see, to that effect, judgments of 10 September 2013, G. and R., C‑383/13 PPU, EU:C:2013:533, paragraph 33; of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 43, and of 7 July 2016, Lebek, C‑70/15, EU:C:2016:524, paragraph 37).
39


An interpretation of the right to be heard, guaranteed by Article 47 of the Charter, to the effect that it is not an absolute right is confirmed by the case-law of the European Court of Human Rights, in the light of which Article 47 of the Charter must be interpreted, as the first and second paragraphs of that article correspond to Article 6(1) and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraphs 40 and 41 and the case-law cited).
40


In that regard, the Court has previously stated that Article 6(1) of that convention does not impose an absolute obligation to hold a public hearing and does not necessarily require that a hearing be held in all proceedings. It has held, similarly, that neither the second paragraph of Article 47 of the Charter nor any other provision thereof imposes such an obligation (judgment of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraph 44, which refers to the judgment of the ECtHR, 23 November 2006, Jussila
v. Finland, CE:ECHR:2006:1123JUD007305301, § 41).
41


Furthermore, the Court has also held that the question whether there is an infringement of the rights of the defence and the right to effective judicial protection must be examined in relation to the specific circumstances of each case, including the nature of the act at issue, the context in which it was adopted and the legal rules governing the matter in question (judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 102, and, to that effect, judgment of 9 February 2017, M, C‑560/14, EU:C:2017:101, paragraph 33).
42


In this instance, the obligation imposed in Article 46(3) of Directive 2013/32 on the court with jurisdiction to ensure that a full and ex nunc examination of both facts and points of law is conducted must be interpreted in the context of the procedure for the examination of applications for international protection as a whole, as governed by that directive, taking into account the close link between appeal proceedings before a court or tribunal and the proceedings at first instance preceding those proceedings, during which the applicant must be given the opportunity of a personal interview on his or her application for international protection, as required by Article 14 of the directive.
43


It should be noted in that regard that, as the report or transcript of any personal interview with an applicant must, in accordance with Article 17(2) of Directive 2013/32, be available in connection with the applicant’s file, the content of the report or transcript is an important factor in the assessment by the court with jurisdiction when it carries out the full and ex nunc examination of both facts and points of law required under Article 46(3) of the directive.
44


It follows, as the Advocate General observed in points 58, 59 and 65 to 67 of his Opinion, that whether it is necessary for the court or tribunal hearing the appeal provided for in Article 46 of Directive 2013/32 to grant the applicant a hearing has to be assessed in the light of its obligation to carry out the full and ex nunc examination required under Article 46(3) of the directive, in the interests of effective judicial protection of the rights and interests of the applicant. It is only if that court or tribunal considers that it is in a position to carry out such an examination solely on the basis of the information in the case-file, including, where applicable, the report or transcript of the personal interview with the applicant in the procedure at first instance, that it may decide not to hear the applicant in the appeal before it. In such circumstances, the possibility of not holding a hearing is in the interest of both the Member States and applicants, as referred to in recital 18 of Directive 2013/32, to have a decision made as soon as possible on applications for international protection, without prejudice to an adequate and complete examination being carried out.
47


That conclusion is supported by the case-law of the European Court of Human Rights to the effect that there is no need for a hearing where the case does not raise any questions of fact or law that cannot be adequately resolved by referring to the file and the written submissions of the parties (judgment of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraph 46, which refers to the judgment of the ECtHR of 12 November 2002, Döry
v. Sweden, CE:ECHR:2002:1112JUD002839495, § 37).