Judicial Checklist of Country of Origin Information and Due Process in the Light of EU (Fundamental) Law

The author identifies an important trend in deliberation of international standards of good practice in protection of refugees based on ad hoc networking and cooperation between judges and other experts under the auspices of the IARLJ. Since the legal questions in status determination procedures under EU law very often fall under the competence of the Court of Justice of the EU (CJEU), the author suggests that stakeholders in those projects must respect the constitutional structure of the EU by considering what kind of approach towards the standards of due process can be expected to be introduced by the CJEU. This is also relevant for the ongoing project of the IARLJ on the use of country-of-origin information and due process. While the minimum standards clauses under EU secondary law give a clear direction to the IARLJ's checklist as to where to build on a value added, it remains highly unclear what is the interpretative relevance of the Charter of the Fundamental Rights of the EU (the Charter) and the right to effective judicial protection. The author's short analysis of the recent case-law of the CJEU identifies two major, though different, approaches towards legal interpretation of the EU law based on the Charter. A combination of both – top-down and bottom-up - approaches puts the Charter into a specific perspective, where one cannot be expected to act under the legal circumstances of having EU constitutional law as a starting point, with the Charter being always placed at the top of legal argumentation. This will very probably also affect the “duty of cooperation” laid down in the Article 4(1) of the Qualifications Directive in relation to the use of country-of-origin information. In the conclusion, the author suggests that with its checklist on “best international practice”, the IARLJ might considerably improve legal uncertainties and minimum standards based on EU (fundamental) law.