THE PROTECTION OF THE FUNDAMENTAL RIGHT TO AN EFFECTIVE APPEAL ACCORDING TO THE DIRECTIVE 2013/32/EU: REFLECTIONS ON THE AFFAIRE ND & NT

Abstract

This article analyses the difficult interpretation and application of the fundamental right to an effective remedy in the juridical framework 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. The Directive clearly explicates that any no European citizen foreign who stays in the European Union territory, has the right to: access to the proceedings established in order to seek international protection; have procedural guarantees sufficient for fallowing the whole procedure in each stages and, if necessary, appeal a negative decision before the judge or the tribunal (vid. whereas n. 25). On the contrary, the right to stay in the member State’s territory, competent to analyses his/her request, is not absolutely guaranteed. The European Union legislator, therefore, indirectly justifies the execution of «premature» orders of devolution and expulsion. The first consequence of this legal gap is a breach of art. 13 of the European Convention on Human Rights. For these reasons, the right to an effective remedy stands out as the protagonist of the recent European Court of Human Rights’ jurisprudence. That is proved by its
last sentence condemning Spain for having returned a Malaysian national and a foreign person, originating in Ivory Coast, who had crossed irregularly the frontier between Morocco and Spain in Melilla town (judgment N.D. and N.T vs. Spain)