CJEU: Opinion of Advocate General Bobek in Torubarov (Case C-556/17)

Tuesday, April 30, 2019

On 30 April 2019, the CJEU published Advocate General Bobek’s Opinion in the case of Torubarov (C-556/7). The case concerns an application for asylum in Hungary by a Russian national and his access to an effective remedy.

The applicant first submitted an application for international protection in 2013. The Immigration and Asylum Office (IAO) rejected this application twice, and both times, the referring court annulled these decisions for separate reasons. With the second annulment, the referring court advised that the third application for international protection should be granted. The IAO subsequently refused the third application in disregard of the judicial guidance of the referring court. The applicant sought a third judicial review. The Administrative and Labour Court subsequently submitted a preliminary question to the CJEU to ascertain whether the court can derive the power from EU law to alter an administrative decision, specifically from Directive 2013/32/EU and Article 47 of the Charter of Fundamental Rights (Charter).

The Advocate General opened his opinion with an analogy of the history of Central European countries in the sport of table tennis and the back and forth nature of their judicial systems. With reference to the case of Alheto C‑585/16the Advocate General reiterated the main findings of that judgment [paras. 42 - 47] and recognized that the key issue in the instant case is the effectiveness of a judicial protection. He starts his analysis with the requirement of equivalence that prohibits a Member State from laying down less favourable procedural rules for actions to safeguard rights that individuals derive from EU law than those applicable to similar domestic actions. He states that in the Hungarian context, he sees no clear reason for the different treatment of judicial proceedings for matters of international protection from judicial reviews of administrative decisions in all other areas.

With regard to effectiveness, the Advocate General states that the model of judicial review on international protection, wherein courts have a mere cassational power and the judicial guidance they issue in annulment decisions is disregarded by administrative bodies, fails to meet the requirements of effective judicial review set out in Article 46(3) of Directive 2013/32 and interpreted in the light of Article 47 of the Charter.

The Advocate General concludes that national judges should not be excluded from altering decisions in judicial review matters in international protection. He further states that this remedy should come into effect in a situation in which: (i) the clear assessment contained in a judicial decision annulling an administrative decision has been disregarded by the administrative authority, (ii) without the latter bringing any new elements that it should have reasonably and legitimately brought into consideration [paras. 122 – 123].

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.




Effective remedy (right to)