The right to effective remedies and procedural guarantees for people in need of international protection

Abstract: Ambiguity and controversy abounds the debate over the thousands of people trying to enter the European territory and their rights, especially in their procedural form. This paper explores the latest developments in the context of the European Court of Human Rights’ and the European Court of Justice’s expansive interpretation of the right to an effective remedy and the procedural guarantees afforded to protection seekers by the pertaining international and regional legislation. In their recent judgments the Courts have determined both the states’ obligations on guaranteeing fair and effective procedures for people trying to enter Europe as well as the individuals' corresponding right to seek protection. The paper takes a thorough look at the reasoning of the Courts and emphasizes on the -not any more underlying but- explicit dynamic of the right to an effective remedy in acquiring a separate identity in refugee regime, guaranteeing the right to seek international protection by means of procedure. The majority of the cases discussed holds that a State’s failure to offer fair and effective procedures guaranteeing those people’s substantive rights such as the right not to be exposed to the risk of persecution and torture can itself be a violation of the right to an effective remedy. The conclusions drawn through a constructive synthesis of the European Convention on Human Rights and the main CEAS instruments such as Dublin II, the Asylum Procedures and Qualification Directives are significant for two reasons. First, they signal new perceptions in the area of international protection highlighting particularly the potential of coherence in the asylum process, by weighing up and balancing partly incompatible demands. Second, they assert the implications of the Courts’ judgments on Member States and their intra-EU relations as well as on protection seekers themselves by emphasizing on the adherence to a procedure which the application of the rights and principles premising the contemporary refugee regime is contingent upon.