CYIL 2012

Harald Christian Scheu

CYIL 3 ȍ2012Ȏ

1. Introduction The rules of the so-called Dublin system, which determine the EU Member State responsible for the examination of an asylum application, were originally created outside the EU legal framework. Nevertheless they can today be considered as a crucial part of the common European asylum system. In this contribution we are going to show the main problems which the application of the Dublin rules creates in the field of European human rights protection. For this purpose we will analyze the consequences of relevant judgments issued by the European Court of Human Rights and the European Court of Justice. 2. The genesis of the Dublin System In 1990 the Contracting States of the Convention implementing the Schengen Agreement adopted specific legal regulations connected to the gradual removal of checks at the internal borders of the Schengen area. Chapter VII of Title II of the Convention implementing the Schengen Agreement contained provisions concerning the responsibility of states parties for processing applications for asylum. In order to prevent the unwelcome phenomenon of so-called “asylum shopping”, according to which applicants for asylum launch asylum applications in different EU countries, Art. 29 of the Convention implementing the Schengen Agreement stipulated that, regardless of the number of Member States in which a third country citizen filed his asylum applications, only one Member State would be competent to deal with the application. More detailed rules for the determination of the responsible Member State were laid down in Article 30 of the Convention implementing the Schengen Agreement. Although the Convention of 1990 does not contain many references to relevant international human rights standards, 1 its Article 28 draws attention to obligations resulting from the Geneva Convention relating to the Status of Refugees of 1951 (as amended by the 1967 Protocol). The Convention implementing the Schengen Agreement was signed on 19 June, 1990 by Belgium, the Netherlands, Luxembourg, France and Germany and entered into force in 1993. Its practical implementation did not start before 1995, after the necessary technical measures had been adopted. Simultaneously, on 15 June 1990 all 12 EU Member States signed the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (the Dublin Convention). 2 This legal document, which entered into force in 1997, replaced Chapter VII of 1 See e.g. Article 38, paragraph 12 of the Convention implementing the Schengen Agreement of 14 June 1985, which states that the computerization of particular information shall be possible only if the Contracting Parties have adopted laws applicable to such processing which implement the principles of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981 and if they have entrusted an appropriate national body with the independent monitoring of the processing and use of data. 2 OJ C 254, 19 August 1997, p. 1.

88