HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

applicants are required to reside at or in proximity to the external borders or the transit zones or in other designed location within the territory of a Member State. 39 3. The Conformity with the Charter of Fundamental Rights of the European Union and the Convention Relating to the Status of Refugees According to the Art. 3 of the Screening regulation, when applying this regulation, Member States shall act in compliance with the Charter. In light of the hierarchy of European law, this regulation, as a component of secondary law, must be interpreted and applied in conformity with primary law. Pursuant to Art. 6 of the Treaty on European Union, the Charter is an integral part of primary law, and therefore, all secondary legislation must align with it. In terms of fundamental rights, the Screening regulation establishes an obligation for Member States to create a monitoring mechanism to ensure that fundamental rights are protected during the screening procedure. 40 The monitoring mechanism should control the conformity of the procedure with European and international law, including the Charter, emphasizing access to the asylum procedure, non refoulement, the best interest of the child, and detention rules. Next, it should set up a mechanism providing effective investigation of allegations of failure to respect fundamental rights. The regulation does not prescribe more details regarding the functioning of the monitoring mechanism. The Asylum procedure regulation only mentions monitoring of fundamental rights with reference to the provisions of the Screening regulation regarding monitoring mechanism. 41 With the legal fiction of non-entry, concerns arise about its conformity with Art. 6 of the Charter, which establishes a right to liberty and security. As stated in the Explanations relating to the Charter of Fundamental Rights 42 this article has the same meaning and scope as Art. 5 of the European Convention on Human Rights ( hereafter “the ECHR” ). Art. 5 of the ECHR enumerates cases of legal deprivation of liberty including “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with 39 Ibidem, Art. 54. 40 REGULATION (EU) 2024/1356 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 May 2024 introducing the screening of third-country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817 [online]. Art. 10 [cit. 2024-08-15]. Available at: https://eur-lex.europa.eu/legal-content/EN/ TXT/?uri=CELEX%3A32024R1356. 41 Ibidem, Art. 43(4). 42 EXPLANATIONS (*) RELATING TO THE CHARTER OF FUNDAMENTAL RIGHTS (2007/C 303/02) [online]. [cit. 2024-08-15]. Available at: https://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=OJ:C:2007:303:0017:0035:en:PDF.

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