Effective Remedy in Asylnm Cases with Particular Focus ou Lithuania

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Effective Remedy in Asylnm Cases with Particular Focus ou Lithuania

in Baltic Yearbook of International Law Online

References

2 Handbook on procedures and criteria for determining refugee status, Geneva, Office of the LJNHCR, pp. 25-26, § 51.

3 ln this context, the term 'ECHR bodies' is to be understood as referring to the European Court of Human Rights and the former European Commission of Human Rights, as approp- riate. 4D.J. Harris, M. O'Boyle, & C. Warbrick, Law of the ECHR on Human Rights (Butterworths, 1995), pp. 451-454. 5 Silver and others v. the United Kingdom, Application Nos. 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75, European Court of Human Rights, 1983, § 116; see also, Leander v. Sweden, Application No. 9248/81, European Court of Human Rights, 1987, § 81.

6Ibid, § 77. 7 Soering v. the United Kingdom, Application No. 14038/88, European Court of Human Rights, 1989, § I21. 8 Vilvarajah and others v. the United Kingdom, Application No. 45/1990/236/302-306, European Court of Human Rights, 199 1. 9 Partly Dissenting Opinion of J. Walsh joined by J. Russo, Vilvarajah and others v. the United Kingdom, Application No. 45/1990/236/302-306, European Court of Human Rights, 1991, § 3. 10 Chahal v. the United Kingdom, Application No. 22414/93, European Court of Human Rights, 1996, § 153.

" Klass and others v. Federal Republic of Germany, Application No. 5029ni, European Court of Human Rights, 1978, § 69; Leander v. Sweden, note 5 above, § 84. 12 See note 10 above, § 150. 13 Ibid, § 151. 14 7'./. v. the United Kingdom, Application No. 43844/98, European Court of Human Rights, 2000. 15 Jabari v. Turkey, Application No. 40035/98, European Court of Human Rights, 2000, § 50. 16 Hilal v. the United Kingdom, Application No. 45276/99, European Court of Human Rights, 2001.

17 H. Storey, "Implications of Incorporation of the ECHR in the Immigration and Asylum Context: Some Challenges for Judicial Decision-making" ( 1998) 3 European Numan Rights Law Review (EHRLR), p. 452. 18 See note 8 above, § 122; see also, note 14 above. 19 D v. the United Kingdom, Application No. 146/1996/767/964, European Court of Human Rights, 1997, § 68. 20 McCallum v. the United Kingdom, Application No. 95II/8I, European Commission of Human Rights, 1989, § 80. 21 See note 5 above, § 116.

22 See note 7 above, § 123. z3 Vijayanathan and Pusparajah v. France, Application No.75/1991/327/399-400, European Court of Human Rights, 1992, § 46. 24 See note 15 above, § 50. 25 R. Byme & A. Shacknove, "The Safe Country Notion in European Asylum Law" (1996) 9 Harvard Human Rights Journal (HHRJ).

26 S. Egelund, "The Potential of the ECHR of Human Rights in Securing International Protec- tion of Forcibly Displaced Persons", in The ECHR of Human Rights and the Protection of Refugees, Asylum Seekers and Displaced persons (UNHCR Regional Bureau for Europe, European Series, Volume 2, No. 3, July 1996). 27 K. Stenman, "Harmonisation of the Asylum System in the European Union. A View by the European Council of Refugees and Exiles", Presentation for the Workshop on Freedom of Movement in Abo Academi Human Rights Institute, 15 September 1999, p. 7. 28 European Court of Human Rights, Rules of Court, Strasbourg, 1999, at www.echr.coe.int/- Eng/edocs/rulesofcourt.html, accessed on 25 June 2001. 29 Following the reform of the ECHR supervisory mechanism in November 1998, Rule 39 has taken over the provisions of Rule 36 of the then Commission's Rules. 30 Cruz Varas and others v. Sweden, Application No. 15576/89, European Court of Human Rights, 1991, § 103. 31 Vilvarajah and others v. the United Kingdom, Application Nos. 13163/87, 1364/87, 13165/87, 13447/87, 13448/87, European Commission of Human Rights, 1991, § 153.

3z See note 10 above, § 154. 33 Recommendation No. R (98) 13 of the Committee of Ministers to Member States On the Right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the ECHR, as reprinted in: Basic Instruments Concerning Refugees (Bratislava: Association of Slovak Judges, November 1999) p. 129.

34 Paragraph 4 of the Resolution states: 'Asylum applications will be examined by an authority fully qualified in the field of asylum and refugee matters. Decisions will be taken independently in the sense that all asylum applications will be examined and decided upon individually, objectively and impartially.' See Official Journal ojthe European Communities, No. C274, 19 September 1996. 3S lbid, § 19. 36 Ibid, § 21 (applications based on deliberate deceit or are an abuse of asylum procedures) and 24. 3� Ibid, § 22 and 25. 3g Convention Determining the State Responsible for Examining Applications for asylum lodged in one ojthe member states ojthe Community, 16 June 1990.

39 See note 34 above, § 21. 40 Ibid, § 1 of part 2.

41 K. Hailbronner, Immigration and Asylum Law and Policy of the European Union (Kluwer Law International, 2000), p. 455. 4z Resolution on Manifestly Unfounded Applications for Asylum, adopted by the Ministers of the Member States of the European Communities on 30 November 1992, Document WGI 1282 REVI, § 8. a3 Ibid, § 7. 44 Ibid, § I I. 45 'A person is a refugee ... as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his status does not therefore make him a refugee but declares him to be on[e]'. See note 2 above, p. 17, § 28.

46 E. Guild & J. Niessen, The Developing Immigration and Asylum Policies of the European Union (Kluwer Law International, 2000), p. 435. 47 Paragraph (e) (vii) of the Conclusion No. 8 On Determination oj Refugee Status, in Conclusions on the International Protection of Refugees adopted by the Executive Committee of the UNHCR Programme (Geneva: UNHCR, 1995), p. 17. 48 Paragraph 5(2) of the Recommendation No. R (81) 16 On the Harmonisation or National Procedures Relating to Asylum of 5 November 1981, in Collection of International Instru- ments and Other Legal Texts Concerning Refugees and Displaced Persons (Geneva: Division of International Protection of the Office of the UNHCR, Volume II, Regional Instruments, 1995), p. 405. a9 See note 46 above, p. 436.

50 Explanatory Memorandum, Commission of the European Communities, Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, COM (2000) 578 final, 2000/0238 (CNS), Brussels, 20.9.2000. 51 Article 33 of the Commission Proposal, COM(2000) 578 final, 2000/0238 (CNS), Brussels, 20.9.2000.

S2 Ibid., Article 36. s3 Law on Refugee Status in the Republic of Lithuania was adopted on 4 July 1995, but entered into force only on 27 July 1997. S4 Administrative body composed of representatives of the Government, Parliament and NGOs.

55 Article 23 provides that 'following examination of appeal against decision to refuse refugee status administrative court shall take one of these decisions: (1) leave the decision adopted unchanged and reject the appeal; (2) repeal the decision adopted and authorise the Migration Department to implement the order of the court'. See the Law on Rejugee Status of the Republic of Lithuania, 29 June 2000, No.VIII-1784, Valstybes Zinios (State News) No. 56- 1651,2000. 56 Such authorisation could be found, e.g. in decision of Vilnius District Administrative Court of 22 January 2001 issued in the administrative case No. IIh-9/2001 concerning granting of refugee status to an Afghan national. 57 First instance in Lithuanian asylum procedure granting or rejecting refugee status. 58 See note 55 above, Article 21 (4).

s9 Order No. 4I8/136 of the Minister of Interior and Minister of Foreign Affairs of 27 October 2000, Valstybes Zinios (State News), No. 94-2966, 2000, § 14. bo lbid, at § 16.

61 Ibis, § 8. sz Progress Report on Asylum within the Phare Horizontal Programme, Ministry of Interior of the Republic of Lithuania (unpublished), § 3.4.2.

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