CYIL vol. 11 (2020)

CYIL 11 (2020) THE PRINCIPLE OF NON-REFOULEMENT AND THE EU CHARTER… years in prison for homicide and aggravated robbery was deprived of his refugee status in May 2016. Both the Supreme Administrative Court of the Czech Republic and the Belgian Council for Asylum and Immigration Proceedings questioned the compatibility of the Qualification Directive with the EUCFR and the Geneva Convention relating to the Status of Refugees which are referred to by Article 78(1) TFEU. In addition, the Supreme Administrative Court asked whether the Directive was in compliance with the general principles of European Union law as defined in Article 6(3) TEU. The referring courts recalled that the Geneva Convention does not allow the withdrawal of the refugee status. It was, therefore, necessary to consider whether the grounds for a revocation of the refugee status which are laid down in Article 14 of the Qualification Directive go beyond the scope of the Geneva Convention. In this respect, the Geneva Convention seems more favorable to the refugee than the Qualification Directive. On the other hand, the Geneva Convention contains less favorable provisions for refugees on the issue of deportation and non-refoulement. In a decision of 16 June 2016, 15 the Supreme Administrative Court rightly drew attention to the absolute nature of the principle of non-refoulement, as follows from Article 3 of the ECHR and Articles 4 and 19(2) of the EUCFR, in contrast to Article 33(2) of the Geneva Convention, which allows the expulsion and return of a refugee when there are reasonable grounds for regarding him as a danger to the security of the country in which he is, or when he, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. In his Opinion of 21 June 2018, Advocate General Melchior Wathelet briefly and precisely summarized this discrepancy by stating that “developments in the field of human rights protection since the Geneva Convention was adopted mean that the obligations of the Member States under EU law and international law now largely offset the exception to the principle of non-refoulement”. 16 On a rather general level, the CJEU has repeatedly confirmed the absolute nature of the prohibition of torture and inhuman treatment within the meaning of Article 3 of the ECHR and Article 4 of the EUCFR. 17 However, in the judgment which is subject to our analysis the principle of non-refoulement had to be interpreted in the light of the ambiguous structure of the Qualification Directive and its relation to the Geneva Convention. One of the problems is terminology. The Qualification Directive uses terms which, while based on the wording of the Geneva Convention, may have a different meaning. With regard to the concept of „refugee“, Article 2(d) of the Qualification Directive quite precisely repeats the substantive conditions for obtaining refugee status laid down in the Geneva Convention. 18 However, a terminological deviation can be seen in the use of the term „refugee status“, which is not defined in the Geneva Convention, despite the fact that this term appears in the very title of the Geneva Convention and in several of its provisions. According to Article 2(e) of the Qualification Directive, the term “refugee status” means the recognition of a third- country national or a stateless person as a refugee. Since the preamble to the Directive stresses 15 5 Azs 189/2015. 16 Opinion of Advocate General Melchiora Watheleta. Joined Cases C-391/16, C-77/17 and C-78/17, para. 57. 17 See e.g. C-112/00 Schmidberger and Joined Cases C-404/15 and C-659/15PPU, Aranyosiho and Căldărarua . 18 Chapter III of the Qualification Directive sets out in more detail the various conditions laid down by the Geneva Convention.

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