{"id":3405,"date":"2025-09-01T19:22:29","date_gmt":"2025-09-01T17:22:29","guid":{"rendered":"https:\/\/johan-callewaert.eu\/?p=3405"},"modified":"2025-09-02T18:10:15","modified_gmt":"2025-09-02T16:10:15","slug":"how-safe-is-the-safe-country-of-origin-concept-judgment-of-the-cjeu-in-alace-and-canpelli","status":"publish","type":"post","link":"https:\/\/johan-callewaert.eu\/de\/how-safe-is-the-safe-country-of-origin-concept-judgment-of-the-cjeu-in-alace-and-canpelli\/","title":{"rendered":"How safe is the \u201csafe country of origin\u201d concept? Judgment of the CJEU in Alace and Canpelli"},"content":{"rendered":"\n<p>In the case of <em><a href=\"https:\/\/curia.europa.eu\/juris\/document\/document.jsf;jsessionid=9233D324721EE53128407ECE8A52852E?text=&amp;docid=303022&amp;pageIndex=0&amp;doclang=EN&amp;mode=lst&amp;dir=&amp;occ=first&amp;part=1&amp;cid=14065267\">Alace and Canpelli<\/a><\/em> (joined cases C-758\/24 and C-759\/24, 1.8.2025), the CJEU ruled on the application of the <strong>concept of \u201csafe country of origin\u201d<\/strong> and its consequences.<\/p>\n\n\n\n<p>In the CJEU\u2019s press release, the facts of this case are summarized as follows.<\/p>\n\n\n\n<p>The case concerns <strong>two Bangladeshi nationals<\/strong> who were rescued at sea by the Italian authorities and taken to a detention centre in Albania under the Italy-Albania Protocol, which establishes a detention and repatriation centre on Albanian territory, but subject to Italian jurisdiction. Their <strong>application for international protection<\/strong> was examined under the <strong>accelerated border procedure<\/strong> by the Italian authorities, which rejected it as unfounded, on the ground that their country of origin is considered \u2018safe\u2019.<\/p>\n\n\n\n<p>Under the <strong>Procedures Directive<\/strong> (2013\/32), Member States may <strong>accelerate the examination<\/strong> of applications for international protection and <strong>conduct it at the border<\/strong> where those applications are made by nationals of countries considered to offer adequate protection. In Italy, that designation of third countries as safe countries of origin has been effected, since October 2024, by a <strong>legislative act<\/strong>. Under that act, Bangladesh is considered in Italy to be such a \u2018safe country of origin\u2019.<\/p>\n\n\n\n<p>The applicants challenged the rejection decision before the Rome District Court, which made a reference to the CJEU in order to clarify the application of the safe country of origin concept and the Member States\u2019 obligations in terms of effective judicial review.<\/p>\n\n\n\n<p class=\"has-text-align-center\">*&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; *&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; *<\/p>\n\n\n\n<p>The findings of the CJEU in this case can be summarized as follows:<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>EU law <strong>allows<\/strong> Member States to designate third countries as safe countries of origin <strong>by legislation<\/strong>, but such designations must be open to <strong>effective judicial review<\/strong>, ensuring compliance with the <strong>material conditions<\/strong> in Annex I of the Directive.<\/li>\n\n\n\n<li>The <strong>sources<\/strong> underlying such designations must be sufficiently <strong>accessible to applicants and courts<\/strong> to guarantee <strong>effective protection of rights<\/strong>; national courts may also rely on their <strong>own reliable information<\/strong>, provided both parties can comment on it.<\/li>\n\n\n\n<li>Until <strong>Regulation 2024\/1348<\/strong> takes effect (expected 12 June 2026, unless advanced), Member States may not designate as safe any country that fails to meet the material conditions for <strong>certain categories of persons<\/strong>.<\/li>\n<\/ul>\n\n\n\n<p class=\"has-text-align-center\">*&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; *&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; *<\/p>\n\n\n\n<p>The main issue before the CJEU was about whether it makes any difference when the <strong>designation of a country as safe<\/strong> is the result of a <strong>legislative act<\/strong>. In essence, the CJEU\u2019s response, based on an interpretation of Article 46 of the Procedures Directive, is that the legislative origin of this designation <strong>does not matter much<\/strong>: While there is no principled objection against such a designation being made through a legislative act, the <strong>effectiveness of the remedy<\/strong> nonetheless requires that the designation as safe country of origin, which has to comply with the criteria set out in Annex I to the Procedures Directive, must be <strong>open to judicial review<\/strong> in an individual case.<\/p>\n\n\n\n<p>This in turn requires that the <strong>information on which the designation is based<\/strong> be made <strong>accessible<\/strong> both to the applicant and the competent judicial authority for <strong>adversarial comments<\/strong>. Since the designation as safe country is only a <strong>rebuttable presumption of adequate protection<\/strong> in the country of origin (\u00a7 48), the reviewing court must carry out a <strong>full and <em>ex nunc<\/em> examination of both facts and points of law<\/strong> (\u00a7 76). A question however arises as to the <strong>impact of the rebuttal<\/strong> of this presumption by a court in an individual case: is each reviewing court to have the power to rebut or not that presumption in an individual case? Might this give rise to a patchwork of approaches?<\/p>\n\n\n\n<p>In any event, in light of the above requirements, an <strong>individual assessment<\/strong> which is <strong>open to judicial review<\/strong> is still required in cases which are decided on the basis of the <strong>safe country status<\/strong>. This would appear to significantly reduce the benefit to be expected from summary or accelerated procedures at the border or in transit zones.<\/p>\n\n\n\n<p class=\"has-text-align-center\">*&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; *&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; *<\/p>\n\n\n\n<p>The above approach is in line with <strong>the one followed by the ECtHR<\/strong>, as exemplified by the case of <a href=\"https:\/\/hudoc.echr.coe.int\/eng?i=001-221838\"><em>S.H. v. Malta<\/em><\/a><em> <\/em>(37241\/21, 20.12.2022), which is a striking illustration of <strong>why an individual review may be called for<\/strong> in cases decided in light of the safe country status.<\/p>\n\n\n\n<p>The case concerned a Bangladeshi journalist who fled his country after reporting on electoral irregularities in his country and claimed that he was therefore exposed to threats and attacks. \u200b In Malta, he filed <strong>three successive applications for asylum<\/strong> which, according to the ECtHR, faced multiple <strong>significant procedural shortcomings<\/strong>, including:<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>A lack of legal assistance<\/li>\n\n\n\n<li>A superficial credibility assessment<\/li>\n\n\n\n<li>The failure to consider relevant evidence<\/li>\n\n\n\n<li>A superficial and automatic judicial review, giving rise to stereotyped decisions given within 24 hours<\/li>\n\n\n\n<li>Delayed and ineffective notifications<\/li>\n\n\n\n<li>A lack of individualized risk assessment<\/li>\n\n\n\n<li>The ineffectiveness of the Constitutional redress proceedings, due the absence of an automatic suspensive effect pending these proceedings<\/li>\n<\/ul>\n\n\n\n<p>As a result, the ECtHR ruled that returning S.H. to Bangladesh without a <strong>fresh assessment of the risks<\/strong> he might face back in his country of origin would violate Articles 3 (prohibition of ill-treatment) and 13 of the Convention (right to an effective remedy).<\/p>\n\n\n\n<p>What makes <em>S.H. v. Malta <\/em>particularly relevant in the present context is the fact that S.H.\u2019s application was processed in <strong>Malta<\/strong>, an EU Member State, under an <strong>accelerated procedure<\/strong>, with the authorities relying all along on the designation of <strong>Bangladesh as a safe country of origin<\/strong>.<\/p>\n\n\n\n<p>The case also very well illustrates the <strong>interplay between EU law and the Convention<\/strong> in these matters. It is characterized by the <strong>ECtHR coming last<\/strong> in <strong>ruling on the merits<\/strong> of the case and assessing the use made by national authorities of the safe country of origin concept. In <em>S.H. v. Malta<\/em>, the ECtHR ordered a <strong>fresh assessment of the risks<\/strong> involved in returning the applicant, pending which the national authorities were requested, by way of an <strong>interim measure<\/strong> (Rule 39 of the Rules of Court), to <strong>stay the execution<\/strong> of the impugned deportation.<\/p>\n\n\n\n<p>As the ECtHR put it: \u201cwhile the Court need not enter into the ministerial decision designating Bangladesh as a safe country, \u2026 a <strong>full individual assessment<\/strong> is nonetheless called for in certain circumstances, despite such designation.\u201d (\u00a7 91) In <a href=\"https:\/\/hudoc.echr.coe.int\/eng?i=001-179232\"><em>D.L. v. Austria<\/em><\/a><em> <\/em>(34999\/16, 7.12.2017), the ECtHR was even more explicit when stating: \u201cthe Court must agree with the applicant that as concerns his individual case, it was <strong>irrelevant<\/strong> whether Kosovo was declared a \u2018safe country of origin\u2019 by law. Such a declaration does not relieve the extraditing State from conducting an individual risk assessment.\u201d (\u00a7 59)<\/p>\n\n\n\n<p class=\"has-text-align-center\">*&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; *&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; *<\/p>\n\n\n\n<p>Fortunately, as regards the assessment to be carried out by national courts relying on the safe country of origin concept, the <strong>requirements<\/strong> set out by the CJEU <strong>largely coincide<\/strong> with those of the ECtHR. Both European Courts indeed insist on the <strong>effectiveness<\/strong> which should characterize the <strong>review<\/strong> to which the application of the safe country of origin concept must be subject (<em>S.H. v. Malta<\/em>, \u00a7 78; <em>Alace and Canpelli<\/em>, \u00a7\u00a7 65, 78, 80, 86), the concept of safe country of origin being only a <strong>rebuttable presumption of adequate protection<\/strong> in the country of origin (<em>Alace and Canpelli<\/em>, \u00a7 48). This notably requires the review to have an <strong>automatic suspensive effect<\/strong> (<em>S.H. v. Malta<\/em>, \u00a7 79; Art. 46(5) of the Procedures Directive).<\/p>\n\n\n\n<p>However, while Article 46 of the Procedures Directive only states the right of applicants for international protection to an <strong>effective remedy<\/strong>, the CJEU, by reading this provision in the light of Article 47 of the EU-Charter, requires this remedy to be <strong>judicial in nature<\/strong> (\u00a7 77). By contrast, under the Convention, such a remedy does not need to be judicial, but it should allow an <strong>independent, rigorous and prompt scrutiny<\/strong> (\u00a7 79). For both European Courts, the reviewing authority should carry out a <strong>full and <em>ex nunc <\/em>examination of both facts and points of law<\/strong> (Art. 46(3) of the Procedures Directive).<\/p>\n\n\n\n<p>Both European Courts also seem on the same line in considering that <strong>adequate information<\/strong> of the applicants and the reviewing authorities is key in ensuring the <strong>effectiveness<\/strong> of any review. While the ECtHR in <em>S.H. v. Malta <\/em>criticises the lack of a proper reasoning of the decisions rejecting S.H.\u2019s applications for asylum (\u00a7\u00a7 86-87), the CJEU explains the link between proper information and effectiveness of the review as follows:<\/p>\n\n\n\n<p><em>\u201cIn the light of the case-law cited in paragraph&nbsp;78 above, it must, therefore, be held that, in order for the judicial protection to be effective, both the applicant concerned and the court or tribunal seised must be able to have not only knowledge of the grounds for such a rejection, but also access to the sources of information on the basis of which the third country in question was designated as a safe country of origin.&#8220;<\/em> (\u00a7 80)<\/p>\n\n\n\n<p>In this context, the CJEU holds that the <strong>reviewing court<\/strong> must raise, on the basis of the <strong>information in the file<\/strong> and the <strong>information brought to its attention<\/strong> during the proceedings before it, a possible failure to have regard to the material conditions for the designation of a third country as a safe country of origin, set out in Annex&nbsp;I to that directive. That court may also do so by taking into account <strong>other information which it may itself have gathered<\/strong>, whether from public sources or from sources which it has requested one of the parties to the proceedings before it to produce (\u00a7\u00a7 85-86).<\/p>\n\n\n\n<p>The use of \u201c<strong>may<\/strong>\u201d suggests that gathering relevant information of its own motion is only an option for the reviewing court. However, this may not be enough under the Convention. In <em>S.H. v. Malta <\/em>the ECtHR indeed reiterated that in relation to asylum claims based on an individual risk, it must be <strong>for the person seeking asylum<\/strong> to rely on and to <strong>substantiate<\/strong> such a risk. However, if&nbsp;a <strong>Contracting State is made aware<\/strong> of facts relating to a specific individual that could expose him to a <strong>risk of ill-treatment<\/strong> in breach of the said provisions upon returning to the country in question,&nbsp;the obligations incumbent on the States Parties under Articles 2 and 3 of the Convention entail that the authorities carry out an <strong>assessment of that risk of their own motion<\/strong> (\u00a7 88, with reference to <em><a href=\"https:\/\/hudoc.echr.coe.int\/eng?i=001-161829\">F.G. v. Sweden<\/a><\/em>).<\/p>\n\n\n\n<p class=\"has-text-align-center\">*&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; *&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; *<\/p>\n\n\n\n<p>What is now the <strong>bottom line<\/strong> of this comparison of the Luxembourg and Strasbourg jurisprudences?<\/p>\n\n\n\n<p>As always, the courts of EU Member States should <strong>apply EU law without breaching the Convention<\/strong>, since compliance with the latter when applying EU law can be challenged by way of an application before the ECtHR. The required <em>modus operandi <\/em>can therefore be summarized as follows:<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>The application of the safe country of origin concept does not relieve the extraditing State from conducting an <strong>individual risk assessment<\/strong> (common requirement);<\/li>\n\n\n\n<li>A third country which fails to meet the material conditions in Annex I of the Directive for <strong>certain categories of persons<\/strong> cannot be considered safe (Luxembourg requirement);<\/li>\n\n\n\n<li>This risk assessment must be open to <strong>rigorous scrutiny<\/strong> (Strasbourg requirement) within the framework of an <strong>effective judicial remedy<\/strong> (Luxembourg requirement), which requires a <strong>full and <em>ex nunc<\/em> examination of both facts and points of law<\/strong> (common requirement);<\/li>\n\n\n\n<li>This judicial remedy must have an <strong>automatic suspensive effect<\/strong> (common requirement);<\/li>\n\n\n\n<li>The reviewing courts and the applicants must be provided with <strong>adequate information<\/strong> of the <strong>grounds<\/strong> for a rejection of an application for international protection based on the safe country of origin concept (common requirement), and with access to the <strong>sources<\/strong> of information on the basis of which a third country in question was designated as a safe country of origin (Luxembourg requirement);<\/li>\n\n\n\n<li>The obligations incumbent on the States Parties under Articles 2 and 3 of the Convention entail that the authorities carry out an assessment of that risk <strong>of their own motion<\/strong> (Strasbourg requirement).<\/li>\n<\/ul>\n\n\n\n<p>This post is titled: \u201c<strong>How safe is the safe country or origin concept?<\/strong>\u201d In light of cases such as <em>S.H. v. Malta<\/em>, it seems that the answer must be: less safe than one might expect.<\/p>\n\n\n\n<p><\/p>\n","protected":false},"excerpt":{"rendered":"<p>In the case of Alace and Canpelli (joined cases C-758\/24 and C-759\/24, 1.8.2025), the CJEU ruled on the application of the concept of \u201csafe country of origin\u201d and its consequences. In the CJEU\u2019s press release, the facts of this case are summarized as follows. The case concerns two Bangladeshi nationals who were rescued at sea [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,19],"tags":[],"class_list":["post-3405","post","type-post","status-publish","format-standard","hentry","category-court-of-justice-of-the-eu","category-recent-case-law"],"translation":{"provider":"WPGlobus","version":"3.0.2","language":"de","enabled_languages":["en","de","fr"],"languages":{"en":{"title":true,"content":true,"excerpt":false},"de":{"title":false,"content":false,"excerpt":false},"fr":{"title":false,"content":false,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/3405","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/comments?post=3405"}],"version-history":[{"count":3,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/3405\/revisions"}],"predecessor-version":[{"id":3410,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/3405\/revisions\/3410"}],"wp:attachment":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/media?parent=3405"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/categories?post=3405"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/tags?post=3405"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}