Is the concept of a “safe country” safe? An analysis in the light of the jurisprudence of the European Court of Human Rights

Abstract

The Directive 2013/32/EU contemplates three concepts of safe country. First, the application of the concept of “safe country of origin” allows the Member State to process an application for international protection by a national of that country through an accelerated procedure. Second, the application of the concept of “safe third country” makes it possible for the Member State to reject an application for international protection. And third, the application of the concept of “European safe third” country allows the Member State not to carry out, or at least not to do so completely, the examination of the application for international protection. Some Member States have adopted national lists of safe countries of origin, and even the Commission has proposed that a common European list of safe countries of origin be adopted. In any case, both the legislative, administrative and judicial practice of the Member States, as well as the application of readmission agreements signed by the EU, must comply with Directive 2013/32/EU, the ECHR and the ECHR jurisprudence. The study of the ECHR jurisprudence that interprets and applies Arts. 2 and 3 of the ECHR, demonstrates the need for a complete and ex nunc examination of both the prevailing circumstances in a given State and the specific circumstances of the person subject to expulsion, before proceeding with the expulsion. Otherwise, the establishment of a timeless and depersonalized list of safe countries of origin can come into conflict with the ECtHR jurisprudence. In this regard, the jurisprudence of this Court provides criteria that allow the development of those set out in Directive 2013/32/EU, in order that the classification of a country as safe is based on the effective respect of human rights, one of the values on which the EU is founded.