Spain - The Spanish National Court. Chamber for Contentious-Administrative Proceedings, 28th December 2017, Appeal No. 607/2016

Country of Decision:
Country of Applicant:
Date of Decision:
28-12-2017
Citation:
Appeal No. 607/2016
Court Name:
Audiencia Nacional. Sala de lo Contencioso.
National / Other Legislative Provisions:
Spain - Ley 12/2009 art 16.2/ 18.1.b)/ 21
Spain - Ley Organica 4/2000 art. 22.2
Printer-friendly versionPrinter-friendly version
Headnote: 

Law 12/2009 establishes a special guarantee for applications for international protection filed at the border, providing that legal assistance is mandatory at the time of formalising the request, and has to be provided even if the applicant does not ask for it or rejects it.

Moreover, communication must be in the language preferred by the applicant unless there is another language that he understands and in which he is able to communicate clearly.

Facts: 

The applicant, a national of Ethiopia, applied for asylum in Switzerland and was returned to Spain for the examination of his asylum request, in application of the provisions of Dublin Regulation (EU) No 604/2013 (Dublin III).

On July 3, 2014, upon arrival at the Madrid-Barajas Airport from Switzerland, he filed an application for international protection, which was denied on April 22, 2015 by the Inter-ministerial Commission of Asylum and Refuge.

The applicant alleges that his rights have been violated since he did not have a lawyer or an interpreter and was not informed of the possibility of contacting the United Nations High Commissioner for Refugees and legally recognised non-governmental organisations, whose objectives include advice and assistance to people in need of international protection.

Decision & Reasoning: 

Regarding legal aid: Article 16.2.2º of Law 12/2009, regulating the right of asylum and subsidiary protection, provides that legal assistance is mandatory for applications submitted according to Article 21, that is, for applications filed at border posts.

This law establishes a reinforced additional guarantees for applications filed at the border (Article 21) and only for these, since it does not limit itself to granting the right to legal aid to the asylum seeker, but clearly states that in these specific cases, legal assistance is 'mandatory', that is, it has to be provided to the interested party even if he does not ask for it or rejects it.

The Asylum Procedures Directive 2013/32/EU foresees the possibility of going to the interview assisted by a lawyer but the presence of the lawyer or legal adviser is only mandatory in the case contemplated in article 25.1.b), referred to unaccompanied minors. Similarly, Directive 2013/33 /EU establishes that applicants must be provided with information about the organisations that provide specific legal assistance, in a language they understand, but nothing is said about legal assistance being mandatory.

Therefore, it must be understood that the obligation of the aforementioned article 16.2 refers to the initial moment of the filing of the application. Once the request is accepted for processing, the subsequent processing does not require the mandatory assistance of the applicant's legal counsel.

From the reading of this case, it appears that no lawyer intervened, when his intervention was mandatory, and an interpreter did not intervene when said assistance was expressly requested by the applicant.

Regarding the lack of an interpreter when submitting the asylum application:

Directive 2013/32/EU indicates in Article 12 that the right to 'have, where necessary, the services of an interpreter to present their arguments before the competent authorities is guaranteed'; and article 15.3º establishes that 'the States will select an interpreter who can guarantee a correct communication between the applicant and the person who holds the interview. The communication will be maintained in the language that the applicant prefers unless there is another language that he understands and in which he is able to communicate clearly '.

Likewise, Article 18 of Law 12/2009 and Article 22.2 of Organic Law 4/2002 guarantees the right to free legal assistance and interpreter. The Court refers to the STS of 1 April 2011 (Rec. 715/2008) interpreting the scope of this guarantee, namely to avoid 'any situation of helplessness, i.e. the applicant cannot under any circumstances be in a position in which he cannot adequately expose his situation, his request for asylum and the reasons that lead him to apply for this right'.

Therefore, the Court held that at the time of formalising the request for international protection again, the communication will be maintained in the language preferred by the applicant unless there is another language that he understands and in which he is able to communicate clearly.

Outcome: 

Appeal granted and annulation of the proceedings with retroactive effect to the time of the submission of the request for international protection by the appellant, so that such request is formalised with legal assistance and, where appropriate, the communication is maintained in the language that the applicant prefers unless there is another language that he understands and in which he is able to communicate clearly.