Mr. Torubarov, a Russian national, was a businessperson who participated in a Russian opposition political party and a non-governmental organisation representing business interests. Since 2008, multiple criminal proceedings had been brought against him in Russia. On 2 May 2013, he left Russia, went to Austria, and then the Czech Republic, from where he was extradited to Russia. In December 2013, he crossed into Hungary and applied for international protection. In August 2014, the Immigration Office rejected his application, finding it unlikely he would face persecution in Russia. On appeal, the Administrative and Labour Court in Pécs annulled that decision because it contained inconsistencies, the relevant facts had not been fully and objectively assessed, and it was not amenable to court review. The court gave detailed guidance to the Immigration Office on what it needed to examine in the new procedure. The Immigration Office again rejected Mr. Torubarov's application in June 2016 and, citing a statement from the Constitutional Protection Office, added that his presence in Hungary posed a threat to national security. On appeal, the Administrative Labour Court in Pécs annulled the decision and ordered the Immigration Office to make a new decision. After a third assessment, on 15 May 2017, the Immigration Office rejected the application for the third time. Faced with a third appeal on the same question, the Administrative Labour Court in Pécs stayed the proceedings and referred the following question for a preliminary ruling:

‘Is Article 46(3) of [Directive 2013/32], in conjunction with Article 47 of [the Charter], to be interpreted as meaning that the Hungarian courts have the power to vary administrative decisions of the competent asylum authority refusing international protection, and also to grant such protection?’

The referring court submitted that after the entry into force of the law on the management of mass migration (transposing Directive 2013/32 recast APD), the power of administrative courts to vary administrative decisions has been withdrawn and courts may only return cases back to the administration with the risk that the procedure can be prolonged indefinitely, effectively depriving applicants for international protection of an effective judicial remedy.

The CJEU noted that Article 46(3) of the recast APD concerns only the examination of the appeal brought to the court and does not govern what happens after any annulment of the decision under appeal. The court held that Member States may provide that, once annulled by the court, the file must be referred to the determining authority for a new decision. However, the court emphasized that when implementing the recast APD and deciding how to handle an application after annulment, Member States must respect Article 47 of the EU Charter, which guarantees the right to an effective remedy.

Referring to the considerations in Alheto (C-585/16, 25 July 2025), the court held that even though the recast APD does not require uniform procedural rules within Member States after a decision is annulled by a court, the aim of fast processing and the obligation to provide an effective remedy require each Member State to order its national law in such a way that following annulment of the initial decision and in the event of the file being referred back to the determining authority, a new decision is adopted within a short period of time and that it complies with the assessment contained in the judgment annulling the initial decision. Otherwise, if the determining authority could make a decision that contradicts the court’s assessment, Article 46(3) of the recast APD would be deprived of any practical effect.

The CJEU evaluated the Hungarian legislation at issue in light of those principles. First, the court concluded that Article 46(3) of the recast APD precluded to interpret Article 109(4) of the Law on administrative procedure in the manner that the Hungarian government submitted, that is, that the authority may not be bound by the court’s judgment and instructions on for the specific determination of the case, and that it may rest on other matters of law or fact such as those arising after the court’s decision.

To substantiate its reasoning, the court highlighted that the EU legislature, through the adoption of Article 46(3) recast APD, intended to confer on courts, where all the elements of fact and law necessary are available to them, the power to give a binding ruling following a full and ex nunc, that is exhaustive and up-to-date, examination of those elements, as to whether the applicant concerned satisfies the conditions to be granted international protection. Thus, the court noted, citing the observations of the Advocate General Bobek, after such a full and ex nunc review, the determining body no longer has a discretionary power as to the decision to grant or refuse the protection to grant or refuse the protection sought in the light of the same grounds as those that were submitted to that court or tribunal, or Article 46(3) recast APD read with Article 47 of the EU Charter, as well as Articles 13 and 18 of the recast Qualification Directive would be deprived of all their practical effect.

Next, the court evaluated whether the referring court could, pursuant to EU law, substitute its own decision for that of the Immigration Office by varying it in a manner that complied with its previous judgment, despite a national provision prohibiting it from doing so. It held that such national law results in a situation in which the applicant is deprived of an effective remedy, because the judgment of a court remains ineffective, as there is no remedy available to the court to ensure compliance with it after a full and ex nunc assessment. The CJEU highlighted that any provision or legislation that impairs the effectiveness of EU law by withholding from the national court the power to do everything necessary to set aside legislation that prevents EU rules from having direct effect is incompatible with the requirements of full and ex nunc examination demanded by Article 46(3) recast APD. Thus, in such a situation, to guarantee effective judicial protection, the court concluded that a national court or tribunal seised of an appeal is required to vary a decision of the determining authority, in the present case the Immigration Office, that does not comply with its previous judgment and to substitute is own decision on the application by the person concerned for international protection by disapplying, if necessary, the national law that prohibits it from proceeding in that way.

Based on the above considerations, the CJEU concluded that Article 46(3) of the recast APD read with Article 47 of the Charter, must be interpreted to mean that in circumstances where a first-instance court or tribunal has found after making a full and ex nunc examination of all the relevant elements of fact and law submitted by an applicant for international protection that, under the criteria laid down by the recast Qualification Directive that applicant must be granted such protection on the ground that he or she relied on in support of his or her application, but after which the administrative or quasi-judicial body (determining authority) adopts a contrary decision without establishing that new elements have arisen that justify a new assessment of the international protection needs of the applicant, that court or tribunal must:

• modify that decision which does not comply with its previous judgment and
• substitute its own decision for it as to the application for international protection, disapplying as necessary the national law that would prohibit it from proceeding in that way.

Following this CJEU ruling, the Hungarian Administrative and Labour Court ruled the amended of the Immigration and Asylum Office decision and granted refugee status to Alekszij Torubarov. The Court decision was issued on the 26th September of 2019 and it is not published yet.