The Dublin System: The Ecj Squares The Circle Betwixt Usual Trust As Well As Human Rights Protection

By Cecilia Rizcallah, Research Fellow at the Belgian National Fund for Scientific Research affiliated to the Centre of Interdisciplinary Research in Constitutional Law of Saint-Louis University (USL-B) and the Centre of European Law of the Free University Brussels (ULB). The writer wishes to give thank y'all the Professors E. Bribosia as well as S. Van Drooghenbroeck for their valuable advice.

Introduction

On Th Feb 16th, the ECJ handed downwards a seminal judgment inwards the representative of C.K. as well as others, C-578/16 PPU. This ruling was rendered on a reference for a preliminary ruling from the Supreme Court of Slovenia asking, inwards substance, whether the direct a opportunity faced past times an asylum seeker of beingness a victim of inhuman as well as degrading handling because of his/her private situation, shall preclude his/her transfer to approximately other Member State to consider his/her asylum claim on the reason of the Dublin system.

The Dublin System: Cooperation betwixt Member States based on Mutual Trust

The Dublin system, initiated past times a Convention signed inwards 1990 inwards the metropolis whose cite it bears, allocates responsibleness for examining asylum applications lodged past times 3rd province nationals (TCNs) inwards the EU, inwards such a trend that, inwards principle, only ane State has the chore of examining each asylum asking lodged on the European Union’s territory.  Pursuing harmonisation of Member states’ asylum policies, the Treaty of Amsterdam introduced the competence of the European Community (Article 63 EC; at nowadays Article 78 TFEU) to adopt additional measures inwards monastic enjoin to accomplish a Common European Asylum System (CEAS). On that basis, the Dublin Convention was replaced past times the “Dublin II” Regulation (Regulation n°343/2003) as well as and then the “Dublin III” Regulation (Regulation 604/2013). Also, a number of directives were adopted inwards monastic enjoin to gear upward minimum standards on the qualification as well as status of refugees as well as persons alongside subsidiarity protection (Directive 2011/95/UE), on asylum procedures (currently Directive 2013/32/UE) as well as on reception atmospheric condition for asylum-seekers (currently Directive 2013/33/UE).

The Dublin system, which constitutes a key exercise of the CEAS, has as its primary goals to (i) ensure the access of TCNs to the asylum application physical care for as well as to (ii) rationalise the handling of asylum applications past times avoiding forum shopping as well as the existence of multiple applications. It so establishes a set of criteria which determine which Member State is, inwards a detail situation, responsible for examining the application of an asylum-seeker. The full general dominion is that (in effect) the State of outset entry into the European Union is the responsible Member State, but in that location are several exceptions. If approximately other Member State is approached, that province tin forcefulness out either, on the reason of the Dublin system, automatically transfer the asylum seeker lodging the application to the responsible state, but it tin forcefulness out also – as well as it has a sovereign correct to – determine to examine the application itself as it so want (Article 17, Dublin III Regulation: the “sovereignty-clause”).

It is of import to Federal Reserve annotation that the Dublin organisation is underpinned past times the key thought of equivalence of Member States’ asylum systems, presuming, therefore, that asylum-seekers would non produce goodness from whatsoever payoff past times having their application examined inwards a specific country.

Summary of Previous Case Law of the ECJ: Preserving Effectiveness of European Union Cooperation, fifty-fifty at the Expense of Fundamental Rights

The automaticity of the transfer of asylum-seekers betwixt Member States, founded on the premise of equivalence, speedily appeared problematic inwards damage of protection of asylum-seekers’ key rights. Notably due to their geographic situation, approximately Member States were faced alongside a high number of arrivals that position their asylum-seekers’ reception infrastructures nether pressure, as well as resulted inwards degradation of their national asylum systems.

It did non accept long earlier challenges against transfer decisions were beingness introduced, because of the risks faced past times asylum-seekers regarding their key rights inwards the State which the Dublin organisation made responsible for examining their applications. One of the outset landmark rulings on this number was handed downwards past times the European Court of Human Rights (ECtHR), inwards which Kingdom of Belgium was held liable for breaching the European Convention on Human Rights (ECHR) past times having transferred an asylum seeker dorsum to Hellenic Republic on the reason of the Dublin system, piece this country, inwards its exam of asylum applications, was non fulfilling the obligations nether the ECHR. The ECtHR noted, inwards the representative of M.S.S c. Kingdom of Belgium as well as Greece (application n° 30696/09), that Belgium, beingness aware of, or having a duty to live aware of the pathetic detention as well as reception atmospheric condition of asylum-seekers inwards Greece, should direct hold relied upon the “sovereignty-clause” of the Dublin II Regulation, to refrain from transferring this private to a province where he faced a existent direct a opportunity of becoming a victim of inhuman as well as degrading handling inwards accordance alongside Article iii ECHR.

Less than a twelvemonth later, the ECJ addressed the same number alongside the additional difficulty of having the duty to safeguard the Dublin system’s effet utile. In the famous N.S. case (C-411/10), the Court was indeed asked whether “a State which should transfer the asylum seeker [to the responsible Member State according to the Dublin regulation] is obliged to assess the compliance, past times that Member State, alongside the key rights of the European Union”.  In addressing this challenge, the ECJ relied - for the outset fourth dimension inwards the champaign of asylum - upon the regulation of mutual trust betwixt Member States, founded on the presumption that “all participating States [to the Dublin system] uncovering key rights”, to conclude that it was inconceivable that “any infringement of a key correct past times the Member State responsible” would touching on the obligations of other Member States to comply alongside the Dublin Regulation (§82).

To keep the effectiveness of the Dublin Regulation despite the existence of flaws inwards national asylum systems, the ECJ innovated past times introducing the “systemic deficiencies test”, entailing that a transfer should live prohibited “if in that location are substantial grounds for believing that in that location are systemic flaws inwards the asylum physical care for as well as reception atmospheric condition for asylum applicants inwards the Member State responsible, resulting inwards inhuman as well as degrading treatment, inside the pregnant of Article four of the European Union Charter of Fundamental Rights (corresponding to Article iii ECHR), of asylum-seekers transferred to the territory of that Member State, the transfer would live incompatible alongside that provision” (§86).

To secure a clear, effective as well as fast method for determining the Member State responsible for dealing alongside an asylum application, the ECJ thus opted for a presumption of compliance past times Dublin States alongside key rights which could live rebutted inwards the presence of a “systemic deficiency inwards the asylum physical care for as well as inwards the reception atmospheric condition of asylum-seekers” where Member States would live compelled to preclude the transfer (§89). This presumption of key rights’ observe past times Member States was afterwards applied past times the ECJ inwards other judgements (C-4/11, Puid as well as C-394/12, Abdullahi).  In fact, the latter judgment expressly limited both the noun as well as procedural grounds on which a Dublin transfer could live challenged.

Heavily criticized, this approach was condemned inwards Strasbourg alongside the Tarakhel representative (application n°29217/12), inwards 2014 inwards which the ECtHR reaffirmed as well as specified its MSS sentence past times ruling that the Dublin organisation “does non exempt [national authorities] from carrying out a thorough as well as individualized exam of the province of affairs of the somebody concerned as well as from suspending enforcement of the removal monastic enjoin should the direct a opportunity of inhuman as well as degrading handling live established”. 

Stonewalling, ane of the ECJ’s arguments against the draft understanding on the accession of the European Union to the ECHR (Opinion 2/13) was the ECHR requirement that Member States “check that approximately other Member State has observed key rights, fifty-fifty though European Union constabulary imposes an obligation of mutual trust betwixt those Member States” (Opinion 2/13, §194). The Court’s “systemic deficiencies” bear witness was consolidated inwards the recast of the Dublin Regulation (Regulation 604/2013, Dublin III) whose Article 3(2) states that “where it is impossible to transfer an applicant to the Member State primarily designated as responsible because in that location are substantial grounds for believing that in that location are systemic flaws inwards the asylum physical care for as well as inwards the reception atmospheric condition for applicants inwards that Member State, resulting inwards a direct a opportunity of inhuman as well as degrading handling inside the pregnant of Article four of the Charter of Fundamental Rights of the European Union, the determining Member State shall proceed to examine the criteria set out inwards Chapter III inwards monastic enjoin to constitute whether approximately other Member State tin forcefulness out live designated as responsible”.

A outset motion from this representative constabulary has late been observed inwards approximately other champaign of European Union cooperation, namely inwards European Union criminal law. The interrogation asked to the ECJ was whether detention atmospheric condition incompatible alongside art. four of the Charter inwards a Member State issuing a EAW could permit or oblige the executing judicial authorization of a requested Member State to turn down the execution of a European Arrest Warrant (EAW). Once again, the ECJ was faced alongside the dilemma betwixt securing a European Union machinery based on mutual trust or taking human rights considerations seriously. In its landmark ruling inwards the representative Aranyosi as well as Căldăraru (C-404/15), the ECJ considered that inwards the lawsuit of “systemic or generalised, or which may touching on for sure groups of people, or which may touching on for sure places of detention” deficiencies, as well as only if “there are substantial grounds to believe that, next the give upward of that somebody to the issuing Member State, he or she volition run a existent direct a opportunity of beingness dependent champaign inwards that Member State to inhuman as well as degrading treatment, inside the pregnant of Article 4” (§94), the executing authorization volition direct hold to postpone the execution of the EAW.

Hence, a two-step analysis has to live carried out past times the national justice who must outset assess the existence of full general or detail deficiencies inwards the detention organisation of the requesting state, earlier examining, inwards concreto, whether the requested somebody faces a existent direct a opportunity of beingness dependent champaign to inhuman as well as degrading treatment. It remained, however, unclear whether the exception to mutual trust provided inwards Aranyosi as well as Căldăraru was to a greater extent than or less protective of key rights. Even though a mo status was added, the deficiency requirement seemed softened.

The ruling of the ECJ inwards C.K. as well as others: Influenza A virus subtype H5N1 Welcome Step Towards Reconciliation Between the Dublin organisation as well as Human Rights ?

Facts as well as Question referred to the ECJ

A duo alongside a newborn tike lodged an asylum application inwards Slovenia whereas Republic of Croatia was, according to the Dublin criteria, responsible for examining their application. Noting the absence of systemic flaws inwards the Croation asylum organisation but observing that the woman parent of the tike was inwards a really bad province of health, the Slovenian courtroom asked the ECJ whether the reliance upon the sovereignty clause (Article 17 of Dublin III) could live mandatory for the purpose of ensuring the identify unit of measurement an effective protection against risks of inhuman as well as degrading treatment. In other words, the national justice inquired whether Dublin transfers were only prohibited inwards representative of the existence of systematic deficiencies inwards the responsible state, subjecting asylum-seekers to risks of violations of Article four of the Charter, or whether a transfer also had to live precluded when such a direct a opportunity was faced due to the specific as well as private province of affairs of a detail asylum seeker.

The persuasion of the Advocate General

Following the NS as well as Abdullahi approach, the persuasion of Advocate General Tanchev argued that only systemic flaws inwards the responsible State could require the prevention of a Dublin transfer. Unsurprisingly, he justified his persuasion on the regulation of mutual trust betwixt Member States as well as on the demand to ensure the effectiveness of the CEAS (§51). He farther acknowledged that his seat did non encounter ECtHR standards but stressed that the European Union was non outflow past times it (§52). He moreover underlined that Article 17 of the Regulation constituted a “discretionary” clause which, past times definition, could non live construed as imposing obligations on Member States (§ 67).

The judgment of the Court

The 5th Chamber of the ECJ - quite uncommonly - did non follow the Advocate General’s opinion. To the contrary, the ECJ stated that, too situations where “systemic deficiencies” be inwards the responsible state, whatsoever transfer of asylum-seekers shall live excluded where it gives rising to a existent direct a opportunity for the private concerned to endure inhuman or degrading treatment, inside the pregnant of Article four of the Charter.  Relying upon Article 52§3 of the Charter, the ECJ recalled that corresponding rights guaranteed both past times the Charter as well as the ECHR should have the same range as those set downwards past times the Convention.

It as well as then quoted Strasbourg’s recent ruling inwards Paposhvili v. Belgium (application n° 41738/10, § 175) according to which “illness may live covered past times Article iii [of the ECHR], where it is, or risks being, exacerbated past times treatment, whether flowing from atmospheric condition of detention, expulsion or other measures, for which the government tin forcefulness out live held responsible”. Consequently, despite the absence of systemic deficiencies inwards the Croation reception atmospheric condition of asylum-seekers (§7), Slovenia was required to suspend the transfer due to the fact that it could result, because of the detail medical status of the immigrant, inwards a existent direct a opportunity of serious as well as irremediable deterioration of her wellness status (§84). The recess should, according to the judgement, live maintained as long as that direct a opportunity exists. On the reason of its ruling inwards Aranyosi, the Court also stressed that national government were required to assess the direct a opportunity earlier transferring an private (§76).

The Court added that if the province of wellness of the migrant was non expected to improve, the relevant Member State had the possibility to itself examine the asylum application on the reason of the sovereignty clause contained inwards Article 17§1 of the Regulation (§96). However, this provision does not, according to the ECJ, oblige a Member State to examine whatsoever application lodged alongside it, fifty-fifty when read inwards the lite of Article four of the Charter.

The ECJ finally concluded that this belongings “fully respected the regulation of mutual trust since, far from affecting the presumption of observe of key rights past times Member States, it ensures that exceptional situations are duly taken into consideration past times Member States” as well as furthermore, that “if a Member State proceeded to the transfer of an asylum-seeker inwards such circumstances, the resulting inhuman as well as degrading handling would non live attributable, neither straight or indirectly, to the government of the responsible Member State, but only to the outset Member State”.

Comments

The ruling of the 5th Chamber seems to innovate a crucial alter inwards the representative constabulary of the ECJ regarding the human relationship betwixt the regulation of mutual trust as well as the protection of individuals against inhuman as well as degrading treatment. Instead of putting these ii imperatives inwards competition, the Court seems, for the outset time, to evidently admit their necessary interdependence.  By considering that the regulation of mutual trust would live enhanced past times an effective application of Article four of the Charter, the ECJ finally appears to accept seriously the fact that this regulation is just founded on the observe past times Member States of European Union values including, inwards a higher identify all, the regulation of human dignity to which the prohibition of inhuman as well as degrading handling is closely linked (Article 2 TEU).

It is so non only inwards representative of systemic or generalised flaws inwards the asylum organisation of a responsible Member State that a transfer may live prevented. Specific as well as private considerations of asylum-seekers must live taken into concern human relationship inwards monastic enjoin to assess whether he or she could endure handling incompatible alongside Article 4 of the Charter because of his/her transfer. The Court moreover endorses this requirement past times belongings that inwards representative of failure inwards addressing this risk, the outset Member State volition shoulder responsibleness for breach of the Charter.

It should even so live stressed that, piece the outset judgements prioritising the regulation of mutual trust were delivered past times the ECJ Grand Chamber, the ruling inwards the representative at manus was handed downwards past times a Chamber of v judges whose authorization could live considered as beingness weaker. Nevertheless, the ruling follows the full general development of the representative constabulary of the ECJ which already underlined several times, next the lastly recast of the Dublin regulation, the fact that the changes of the organisation were “intended to brand the necessary improvements, inwards the lite of experience, non only to the effectiveness of the Dublin organisation but also to the protection afforded applicants nether that system” (C-63/15, Ghezelbash, §52) The latter judgment (from June 2016) had already overturned the procedural aspects of the Abdullahi judgment; the CK ruling at nowadays overturns the noun aspects.

This valuable pace inwards favour of asylum-seekers’ key rights protection nevertheless raises a number of practical questions. One could enquire outset – as well as this interrogation was already position forwards past times other commentators – whether the direct a opportunity of the violation of other key rights than the prohibition of inhuman as well as degrading handling must justify an exception to the Dublin distribution of responsibilities and, thereby, to the regulation of mutual trust. We think that, given the emphasis position past times the Court on the exceptional grapheme of the situation, non whatsoever breach of whatsoever key rights would preclude Member States to rely upon the regulation of mutual trust inwards monastic enjoin to transfer an asylum-seeker. To the contrary, only really serious risks of violation of absolute key rights (Chapter I of the Charter) would inwards our catch justify a mandatory recess of the transfer of asylum-seekers.

Additionally, the ruling raises questions as regards the consequences of a suspension. As pointed out past times the Court, a Member State would never live obliged to itself assess, on the reason of the sovereignty clause (Article 17.1 Dublin III), an asylum application which falls inside the responsibleness of approximately other State. What if, because of the private province of affairs of the asylum seeker, the transfer should live suspended inwards the long term? The finding of the ECJ could as well as then resultant inwards the existence of “refugees inwards orbit”, asylum-seekers who lose the certainty of having their application examined past times whatsoever Member State of the Union – something which the Dublin organisation peculiarly seeks to preclude as well as that could, inwards itself, constitute an inhuman as well as degrading treatment.

Finally, the interrogation of the applicability of this approach to European Union criminal cooperation should also live raised. The Court seemed, until its belongings inwards the Aranyosi case, really reluctant to admit whatsoever exception to the regulation of mutual trust inwards the framework of the European Arrest Warrant (see, amid others, the cases C-396/11 Radu as well as C-399/11, Melloni). The ruling inwards C.K. should however, inwards our opinion, live seen as applicable also inwards the champaign of criminal cooperation if such exceptional circumstances are met since the ruling peculiarly relies upon the judgment inwards Aranyosi as well as also due to the absolute grapheme of the prohibition set downwards inwards art. four of the Charter Now the ii lines of representative constabulary direct hold been brought together, but they lift parallel questions almost the long-term consequences. Indeed, the Court of Justice has already been asked to elaborate on the Aranyosi ruling, inwards the pending Aranyosi II case. So its ruling inwards that representative may live as relevant to Dublin cases.

In whatsoever case, the alter of seat of the ECJ seems much to a greater extent than inwards compliance both alongside the ECHR and, also, alongside the constitutional requirements of for sure national legal orders. Indeed, the High German Constitutional Court did non hesitate, inwards its judgment of xv Dec 2015, to brand an exception to the regulation of mutual trust, as implemented past times the EAW system, inwards monastic enjoin to protect the correct of human dignity, which, according to this ruling, forms exercise of High German constitutional identity.

One tin forcefulness out henceforth wonder whether the C.K. as well as Aranyosi rulings to a greater extent than oft than non overturn the Opinion 2/13 declaration based on the regulation of mutual trust opposed, amid others, past times the ECJ against the EU’s draft accession understanding to the ECHR… Either way, this novel setting should, without a doubt, direct hold an of import impact on today’s as well as future’s relationships betwixt the European Union legal order, on the ane hand, alongside the ECHR as well as national legal orders, on the other.

Barnard & Peers: chapter 9, chapter 26

JHA4: chapter I:5

Photo credit: Handelsblatt

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