CYIL 2012

THE DUBLIN SYSTEM FROM A EUROPEAN HUMAN RIGHTS PERSPECTIVE the approach of the EU Court of Justice. 42 The first difference lies in the fact that the Dublin case deals with human rights, while the Hedley Lomas case with animal rights. At first glance, we could therefore claim that according to the hierarchy of EU norms the protection of human rights will prevail over the protection of animals. It could be argued that in cases of doubts concerning human rights standards the issue of mutual confidence between Member States is less strict than in cases concerning the free movement of goods. Secondly, in the Hedley Lomas case the European Commission examined the situation in Spanish slaughterhouses and, as it did not find convincing proof that Spain was violating its obligations under the Animal Protection Directive, it did not consider it appropriate to institute treaty-infringement proceedings against Spain. With respect to the Dublin Regulation, the Commission in 2006 initiated infringement procedures against Greece as Greece did not allow examinations in the substance of refugee claims of persons who had been returned under the Dublin system. Thirdly, in matters of asylum and refugee return, national courts very often rely rather on elements of probability and credibility than on irrefutable evidence. As a rule, national courts in asylum cases have to examine the human rights situation in countries where reliable information is less accessible than in EU Member States. So indeed, a conclusive presumption of human rights compliance in a particular Member State would make little sense in cases where even the European Commission decided to initiate infringement proceedings and particular information is accessible. In other words, the principle of non-refoulement as such is not compatible with irrefutable assumptions but calls for a well-founded assessment of a concrete case concerning the transfer of an asylum seeker. Fourth, it should also be noted that national courts are not, necessarily, obliged to suspend the principle of mutual trust with respect to the human rights situation and the return to another Member State. If they have doubts as to whether the derogation clause in Article 3, paragraph 2 of the Dublin Regulation shall be applied in a particular case, they can file a reference for a preliminary ruling by the EU Court of Justice under Article 267 of the TFEU. Such approach, moreover, would have the advantage that in case of compliance with a binding judgment of the EU Court of Justice the Bosphorus doctrine would apply before the ECtHR. These arguments lead to the conclusion that the judgments of the ECtHR and the EU Court of Justice do not bring an end to the principle of mutual trust between EU Member States, but shall be understood as a call for a just solution in the light of human rights protection and solidarity among EU Member States.

42 It is, however, noteworthy that the Court itself did not mention its Hedley Lomas decision in the context of the Dublin system.

105