Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

168 | PRACTITIONERS GUIDE No. 6
The European Court of Human Rights has held that, in order to comply
with the right to a remedy, a person threatened with an expulsion which
arguably violates another Convention right must have:
• access to relevant documents and accessible information on the
legal procedures to be followed in his or her case;
• where necessary, translated material and interpretation;
• effective access to legal advice, if necessary by provision of legal
aid; 593
• the right to participate in adversarial proceedings;
• reasons for the decision to expel (a stereotyped decision that does
not reflect the individual case will be unlikely to be sufficient) and
a fair and reasonable opportunity to dispute the factual basis for
the expulsion. 594
Where the State authorities fail to communicate effectively with the
person threatened with expulsion concerning the legal proceedings in
his or her case, the State cannot justify a removal on the grounds of the
individual’s failure to comply with the formalities of the proceedings. 595
The European Court of Human Rights has addressed, in the case of I.M.
v. France, the compatibility of accelerated asylum procedures with the
right to a remedy under Article 13 ECHR in connection with the principle
of non-refoulement. While the Court has recognized that these special
procedures can facilitate the examination of clearly abusive or manifestly
unfounded applications, 596 it stressed that they cannot be used at
the expense of the effectiveness of the essential procedural guarantees
for the protection of the applicant from an arbitrary refoulement. 597 In
the case of I.M., the resort to an accelerated asylum procedure to examine
the first application of an asylum seeker resulted in excessively
short time limits for the asylum seeker to present his arguments, lack
of access to legal and linguistic assistance, and a series of material and
procedural difficulties, exacerbated by the asylum seeker’s detention,
which rendered the legal guarantees afforded to him merely theoretical,
in breach of Article 13 ECHR. 598
593 M.S.S. v. Belgium and Greece, ECtHR, op. cit., fn. 324, para. 301.
594 Ibid., para. 302; C.G. and Others v. Bulgaria, ECtHR, op. cit., fn. 510, paras. 56–65. See
also, Hirsi Jamaa and Others v. Italy, ECtHR, GC, op. cit., fn. 46, paras. 202–204.
595 Ibid., para. 312.
596 I.M. v. France, ECtHR, Application No. 9152/09, Judgment of 2 February 2012, para. 142.
In K.K. v. France, ECtHR, Application No. 18913/11, Judgment of 10 October 2013,
paras. 62–71, the Court has upheld the use of an accelerated asylum procedure in the
specific case. See also, Mohammed v. Austria, ECtHR, op. cit., fn. 388, para. 79.
597 Ibid., para. 147.
598 Ibid., para. 150–154.