CYIL 2012

THE DUBLIN SYSTEM FROM A EUROPEAN HUMAN RIGHTS PERSPECTIVE their territories. 29 According to the Commissioner for Human Rights the Dublin system was paralyzed by the serious malfunction of asylum procedures in Greece and was nearing collapse. The Commissioner therefore openly called for changes in the Dublin system and for its suspension in relation to those states which no longer had the capacity to receive further refugees. Legal aspects of the Dublin system have also been examined by the European Court of Human Rights. In the case of a refugee from Sri Lanka, who, as the result of application of the Dublin Convention, should be returned from Great Britain to Germany, 30 the Court dealt with a number of relevant aspects. The British government emphasized that it would be fundamentally wrong if British courts had to assess whether Germany complied with its obligations under the ECHR. According to the British government such a procedure would undermine the Dublin system and the search for a fair division of responsibilities of EU Member States in the field of asylum law. The Office of the High Commissioner for Refugees intervened in the case and on the one hand pointed out the positive impact of the Dublin system. On the other hand, however, the UNHCR elaborated on some practical problems which were due to different legal standards and approaches at the national level. From a practical point of view the UNHCR indicated that the application of the Dublin system could lead to the return of refugees to third countries that did not provide sufficient protection in light of the non-refoulement principle. In this case, which was decided in 2000, the ECtHR first repeated the principle that a state party which enters international agreements, such as the Dublin Convention, is not absolved from its responsibility under the ECHR. After a closer look at the evolution of the complainant’s case in Germany, the ECtHR expressed doubts over whether the complainant after his return to Germany would have the opportunity to continue his already initiated asylum procedure or to submit a new application for asylum. In any case, it seemed very unlikely to the Court that the complainant would have a successful asylum procedure before the competent national authorities. All the more surprising was the conclusions of the ECtHR, according to which no evidence was submitted that the complainant’s return from Germany back to Sri Lanka would be in conflict with Article 3 of the ECHR. In its decision, the Court found the complaint as manifestly ill-founded and therefore inadmissible. In another pivotal case, the ECtHR dealt with the return of an Iranian refugee from Great Britain to Greece in accordance with the Dublin Regulation. 31 Before the Court the UNHCR and NGOs submitted reports showing that Greece was in serious breach of its international obligations in relation to refugees from third countries. Already in April 2008 the UNHCR issued a position paper in which it invited Member States to not apply the Dublin Regulation in relation to Greece. 29 See Press Release 683 (2010): The ‘Dublin Regulation’ undermines refugee rights. 30 T. I. v. United Kingdom, Appl. No. 43844/98 (European Court of Human Rights, 7 March 2000). 31 K. R. S. v. United Kingdom, application no. 32733/08 (European Court of Human Rights, 2 December 2008).

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