The new Dublin Regulation, past contradictions, pressing dilemmas
4th lecture of the seminar on European asylum law
The contradictions of the new Dublin Regulation and the “adventures” of the notion of solidarity were analyzed based on previous Case Law of the European Court of Justice and the European Court of Human Rights. During the 4th lecture titled “Regulating CEAS – The role of the European Court of Justice and the European Court of Human Rights”, which took place on the 20th February, 2018, at the Representation of the European Commission in Athens.
During his proposal, professor V. Chatzopoulos, Professor teaching European Law & Policy in the Panteion University and Visiting Professor at the College of Europe and at the University of Nottingham, pointed out
The contradictory nature of the European Commission’s proposals for the reform of the Dublin III Regulation. Thus, despite the common understanding of the latter’s failure, measures such as the obligation to request and the stay of unaccompanied minors in the Member State of entry and the mandatory control of admissibility on the basis of the first country of asylum or the safe third country in periods of ” crisis, “which, as it turns out, will exclude a large number of asylum seekers from the resettlement mechanism.
Mr. Chatzopoulos noticed that the fair burden sharing and the principle of solidarity seem to fall despite the promising proposals of the European Parliament under the pressure of the traditional North-South political separations and the dilemma of the worst alternative, limited implementation of offshore management practices. His analysis was based on a comprehensive and thorough historical review showing the evolution of the legal framework and political targeting, the relevant directives and regulations, as well as implementation problems and, in particular, violations of fundamental human rights over time.
The overall assessment of the soon-to-be Dublin IV according to this analysis could be summarized in the phrase: “It will be detrimental despite procedural impovements”.
Interesting was also the intervention of Mrs M. Gavouneli, Chair of the event, Associate Professor of International Law at the University of Athens, on the issue of the creative dialogue between the two courts, the European Court of Human Rights and the Court of Justice of the European Union, according to which: “The two courts reach at the same conclusions, but they do not follow the same process”, while concerning solidarity she commented on practical implementation problems in the European Union, due to strong denial of some Member States.
Mr. Michail Chrisomallis, Associate Professor of European Law and Director of the Sector of International Law Studies of the Democritus University of Thrace, presented a comprehensive and detailed case law analysis of both Court cases (the European Court of Justice and the European Court of Human Rights) in their joint search for harmonious coexistence in the protection of human rights despite the non-accession of the European Union to the ECHR.
The European Court of Human Rights found violations of fundamental rights in the historic judgment of MSS VS BELGIUM & GREECE, in which it decided to suspend the transfer procedure on the basis of a real risk of an indirect violation of Art. 3 of the ECHR due to inhuman and degrading prison and livelihood conditions as well as serious violations of Asylum procedures. Despite the fact that the ECtHR had established the presumption of equivalent protection in the Bosphorus case, it was differentiated in the above case by accepting that the aforementioned presumption was rebuttable and proceeded to carry out a substantive examination of the alleged violations under the ECHR.
The Court of Justice of the European Union, in NS & ME’s key cases, adopted the ECtHR interpretative effect on the presumption of safe country and mutual trust. It considered that asylum seekers could not be transferred to Greece because of systemic irregularities in the asylum procedure and reception conditions, while at the same time clearly distinguishing minor infringements which did not disturb returns. In the Tarakhel case, although the ECtHR did not detect systemic deficiencies in the Italian asylum system, it carried out a thorough individualized assessment of the asylum seekers’ predictable living conditions and decided that there would be a violation of ECHR No 3 if the transfer was carried out without the provision of detailed, concrete and clear guarantees for adapting the accommodation offered by Italy to the specific needs of the family of applicants and, in particular, of children. In Case C-578/16 PPU, the Court of Justice of the European Union IRP appears to incorporate in its case-law the specific interpretative approach.
Written by Dionysia Tsolaki, Reasearcher at the Jean Monnet European Centre of Excellence.