THE PROTECTION OF THE FUNDAMENTAL RIGHT TO AN EFFECTIVE APPEAL ACCORDING TO THE DIRECTIVE 2013/32/EU: REFLECTIONS ON THE AFFAIRE ND & NT VS. SPAIN

The purpose of this research is to study the fundamental right to an effective remedy in the legal framework of Directive 2013/32 / EU of the European Parliament and of the Council, of June 26, 2013, on common procedures for granting or withdrawing of international protection.

The Directive provides that any foreigner who is not a European citizen who is in the territory of the European Union has the right to: access the procedures for requesting international protection; receive sufficient procedural guarantees to be able to follow the procedure in all its phases and, if necessary, appeal a negative decision before a court or tribunal (recital No. 25).

However, you are not guaranteed tout court the right to remain in the territory of the competent Member State while your claim is being analyzed. In this way, the legislator of the European Union indirectly legitimizes the execution of numerous "premature" return and expulsion orders. The fundamental consequence of this gap is the violation of art. 13 of the European Convention on Human Rights.

The difficulties of application and interpretation of the Directive are evident in the most recent jurisprudence of the European Court of Human Rights. This is testified by his last sentence handed down against Spain. The Spanish State has been sanctioned for having returned a Malian national and an Ivorian national who had crossed the border between Morocco and Spain irregularly in Melilla (case N.D. and N.T. vs. Spain).