Opinion of Advocate General Bobek delivered on 30 April 2019.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2019:339
• Date: 30 April 2019
• Docket Number: C-556/17
• Procedure Type: Reference for a preliminary ruling

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 30 April 2019(1)

Case C‑556/17

Alekszij Torubarov

v

Bevándorlási és Menekültügyi Hivatal

(Request for a preliminary ruling from the Pécsi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Pécs, Hungary))

(Reference for a preliminary ruling — Area of freedom, security and justice — Border control, asylum and immigration — Common procedures for granting and withdrawing international protection — Judicial review of administrative decisions on application for international protection — Right to an effective remedy — Jurisdiction of the national court limited to the power to annul)

I. Introduction

1. Table tennis (or, under a trade name, Ping-Pong) is a popular sport, the origins of which seem to stretch back to 19th or early 20th century England. ‘The object [of the game] is to hit the ball so that it goes over the net and bounces on the opponent’s half of the table in such a way that the opponent cannot reach it or return it correctly.’ To this basic definition, Encyclopædia Britannica adds an intriguing historical fact: ‘the first world championships were held in London in 1926, and from then until 1939 the game was dominated by players from central Europe, the men’s team event being won nine times by Hungary and twice by Czechoslovakia’. (2)

2. There exists, unfortunately, another variety of the game, which is generally less enjoyable. In Czech judicial slang, but perhaps not just there, ‘judicial’ or ‘procedural ping-pong’ refers to the undesirable situation in which a case is repeatedly shuttled back and forth between courts within a judicial structure, or, in the context of administrative justice, between the courts and administrative authorities.

3. The present case and the issues it reveals could warrant the hypothesis that the popularity of the game in central Europe, unfortunately in its latter judicial variety, is not yet confined to history books and encyclopedias.

4. In 2015, the Hungarian legislature changed the competence that courts had when reviewing administrative asylum decisions from having the possibility to directly alter a decision, to the power to merely annul and remit. As a result, national courts cannot replace such decisions when they find them to be unlawful. They can merely annul the decision and refer the case back to the administrative authority for a new decision.

5. Mr A. Torubarov (‘the Applicant’) applied for international protection in Hungary in 2013. His application was rejected by the administrative authority twice. Both of those rejection decisions were annulled, for different reasons, by the referring court. The administrative authority then rejected that application for a third time, apparently in disregard of judicial guidance that had been issued by the referring court in the second judgment annulling the second administrative decision.

6. The referring court is now deciding on the matter for the third time. Faced with the problem of an administrative authority unwilling to abide by a judicial decision, that court wishes to ascertain whether it can derive the power to alter the administrative decision at issue from EU law, and more specifically from Directive 2013/32/EU on common procedures for granting and withdrawing international protection (‘Directive 2013/32’), (3) read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

7. Yes, it can.

II. Legal framework

A. EU law

8. Article 46(1)(a) and (3) of Directive 2013/32 provides:

‘1. Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against the following:

(a) a decision taken on their application for international protection, including a decision:

(i) considering an application to be unfounded in relation to refugee status and/or subsidiary protection status;

…

3. In order to comply with paragraph 1, Member States shall 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/EU (4), at least in appeals procedures before a court or tribunal of first instance.’

9. Article 52 of Directive 2013/32 contains the following transitional provisions:

‘Member States shall apply the laws, regulations and administrative provisions referred to in Article 51(1) to applications for international protection lodged and to procedures for the withdrawal of international protection started after 20 July 2015 or an earlier date. Applications lodged before 20 July 2015 and procedures for the withdrawal of refugee status started before that date shall be governed by the laws, regulations and administrative provisions adopted pursuant to Directive 2005/85/EC (5).

…’

10. The ‘laws, regulations and administrative provisions referred to in Article 51(1)’ of Directive 2013/32 include measures related to the implementation of Article 46 of the same directive.

B. Hungarian Law

11. Article 46(1)(a) of 2007. évi LXXX. törvény a menedékjogról (Law LXXX of 2007 on the right to asylum) (the ‘Law on Asylum’) provides:

‘In asylum procedures conducted by the refugee authority:

(a) no appeal is permitted and reopening the case may not be requested;’

12. According to Article 68(5) and (6) of the Law on Asylum:

‘(5) The court may not overturn the decision of the refugee authority. The court shall set aside any administrative decision it finds unlawful — with the exception of any violation of a procedural rule that does not affect the merits of the case — and, if necessary, shall order the asylum authority to conduct a new procedure.

(6) The court’s decision adopted in conclusion of the proceedings is final, no appeal lies against it.’

13. Article 339(1) of 1952. évi III. törvény a polgári perrendtartásról (Law III of 1952 on the Civil Procedural Code) (the ‘CPC’) states:

‘Unless otherwise provided for by the relevant legislation, the court shall quash any administrative decision it finds unlawful — with the exception of any violation of a procedural rule that does not affect the merits of the case — and, if necessary, shall order [the administrative body] to conduct a new procedure.’

14. Article 109(4) of 2004. évi CXL. törvény a közigazgatási hatósági eljárás és szolgáltatás általános szabályairól (Law CXL of 2004 on general rules of administrative procedures and services) (the ‘Law on administrative procedures and services’) provides:

‘The authority shall be bound by the operative part and by the justification of the decision adopted by the court of jurisdiction for administrative actions, and shall proceed accordingly in the new proceedings and when adopting a new decision.’

15. Under Article 121(1)(f) of the Law on administrative procedures and services:

‘In the proceedings governed under this Chapter, the decision shall be annulled if:

…

(f) the contents of the decision are contradictory to what is contained in Subsections (3) and (4) of Section 109.’

III. Facts, national proceedings and question referred

16. The Applicant is a Russian businessman. He was a member of the Russian opposition party ‘Right Cause’. He was also a member of the civil society organisation ‘Russian Business Association’, which supports businessmen in Russia.

17. From 2008 onwards, several criminal actions were brought against him in Russia. He travelled to Austria and then to the Czech Republic. From there he was extradited to Russia on 2 May 2013 under an international arrest warrant. Once he was back in Russia, the Applicant was charged, but then released.

18. On 9 December 2013, the Applicant crossed the Hungarian border. On the very same day, he was arrested by the Hungarian border police and applied for international protection.

19. By decision of 15 August 2014 the Hungarian asylum authority the Bevándorlási és Menekültügyi Hivatal (Immigration and Asylum Office) (‘the Defendant’) rejected the application (the first administrative decision). In the Defendant’s view, neither the Applicant’s statements nor the country of origin information supported the allegation that he faced a real risk of persecution or serious harm.

20. The Applicant sought judicial review of the first administrative decision before the referring court, which, by judgment of 6 May 2015 set aside the Defendant’s decision and ordered it to conduct a new procedure (the first judicial decision). That court noted that the first administrative decision contained inconsistencies, that the Defendant had failed to investigate a number of facts, and had conducted a haphazard assessment of the facts it had ascertained. The court ordered the Defendant to supplement its country of origin information research and carry out a comprehensive assessment of the facts and evidence in a new procedure.

21. By its second decision, issued on 22 June 2016, the Defendant again rejected the application at issue (the second administrative decision). It concluded that even if criminal charges had been brought against the Applicant in Russia for political reasons, the right to a fair trial by an independent tribunal would be guaranteed to him in that country. The Defendant also invoked a position statement obtained from the Alkotmányvédelmi Hivatal (Constitutional Protection Office, Hungary). The Defendant stated that the presence of the Applicant in Hungary was contrary to the interests of national security, because reasons had been established to show that the condition for his exclusion laid down in Article 1F(c) of the 1951 Geneva Convention relating to the Status of Refugees (6) had been fulfilled.

22. The Applicant challenged the second administrative decision before the referring court. By its second judgment of 25 February 2017, the referring court set aside that decision (the second judicial decision). It found that the...