CYIL vol. 11 (2020)

CYIL 11 (2020) THE PRINCIPLE OF NON-REFOULEMENT AND THE EU CHARTER… in danger of being subjected to torture. A similar ban is contained in Article 22 of the 1969 American Convention on Human Rights. In academic literature, there is little dispute that the principle of non-refoulement has a customary basis within the framework of international refugee law and international protection of human rights. 5 This means that, beyond obligations arising from various treaty provisions and their current interpretation, the principle of non-refoulement is legally binding for the entire international community. According to some authors, the principle of non- refoulement has even acquired the status of a mandatory norm (jus cogens) and, therefore, derogation from this rule is not possible. 6 3. The principle of non-refoulement in the EU’s protection of fundamental rights Given the firm entrenchment of the principle of non-refoulement in the system of international law, it is not surprising that this principle has also been incorporated into EU law. Under Article 19(2) of the EUCFR, no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. In this regard, the Explanations relating to the EUCFR 7 refer to ECtHR case law on Article 3 of the ECHR. It follows from the reference to Article 3 of the ECHR that Article 19(2) of the EUCFR must be understood, in particular, as a supplement to Article 4 of the EUCFR, according to which no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Beyond the frame of this anti-torture provision, under Article 19(2) of the EUCFR, courts shall also consider whether there is a serious risk that the person concerned would be subjected to the death penalty. As a matter of fact, such link between the principle of non-refoulement and the right to life is supported by the case law of the ECtHR, which explicitly held that the suffering prior to the execution of the death penalty may constitute inhuman treatment under Article 3 of the ECHR. 8 For a long time, the EU Court of Justice (CJEU) has not dealt with the application and interpretation of Article 19(2) of the EUCFR. However, the gradual expansion of the EU‘s competences in the area of ​the former third pillar, i.e. police and judicial cooperation in criminal matters, and in the field of border controls, asylum, and immigration, has created a direct link between the problem of non-refoulement and EU legislation. 9 Although the case law of the CJEU is, by far, not as extensive and comprehensive as the relevant Strasbourg case law on this issue, it is of undeniable importance. 5 LAUTERPACHT, E. / BETHLEHEM, D. The scope and content of the principle of non-refoulement: Opinion. In: FELLER, E. / TÜRK, V. / NICHOLSON, F. (eds.) Refugee Protection in International Law , Cambridge, 2003, pp. 87-177. 6 See e.g. ALLAIN, J. The Jus Cogens Nature of Non-Refoulement. International Journal of Refugee Law (2001), 13(4), pp. 533-558. 7 The Explanations were originally prepared under the authority of the Praesidium of the Convention and, according to Article 52(7) EUCFR they shall be given due regard by the courts of the Union and of the Member States. 8 Al-Saadoonand Mufdhi v the UK (application No. 61.498/08). 9 For more details, see BERNSDORFF, Norbert. Artikel 19: Schutz bei Abschiebung, Ausweisung und Auslieferung. In: MEYER, Jürgen (ed.) Charta der Grundrechte (4th edition), Baden-Baden, 2014, pp. 354-363, 362.

185