CYIL 2012

THE DUBLIN SYSTEM FROM A EUROPEAN HUMAN RIGHTS PERSPECTIVE November 2009, the ECtHR’s competent Chamber relinquished its jurisdiction in favour of the Grand Chamber. For purposes of this contribution, we will focus only on those aspects which are relevant with regard to the application of the Dublin system in light of the ECHR, i.e. the return of the complainant from Belgium to Greece in accordance with the rules of the Dublin Regulation. It should, however, be noted that the substance of the case is naturally beyond this narrow framework and could serve as a probe into the tragic reality of the European Asylum System. In its judgment, the ECtHR commented on various aspects of the functioning of the Dublin system. With respect to the argument that the conditions in Greek detention facilities are in conflict with the principle of human dignity as expressed in Article 3 of the ECHR, the ECtHR recognized the difficulties that were caused by the influx of immigrants and refugees to the Member States situated at the EU’s external borders. The ECtHR further said that the application of the Dublin Regulation magnified these problems and that the pressure on countries such as Greece should not be underestimated. On the other hand, the Court recalled that the prohibition of inhuman treatment is absolute in nature and, therefore, the difficult circumstances caused by the Dublin system cannot absolve a state of its obligations under Article 3 of the Convention. Furthermore, the ECtHR ruled on the functioning of the Dublin system in the context of the complainant’s return from Belgium to Greece. According to the complainant, Belgium acted in breach of Articles 2 and 3 of the ECHR, as it must have been aware of serious shortcomings in the asylum procedure in Greece and the particular risk of a violation of the non-refoulement principle. The complainant maintained that in this situation Belgium should use the so-called derogation clause contained in Article 3, paragraph 2 of the Dublin Regulation 34 and declare itself as competent to examine his application for asylum. Belgium answered that the Dublin system contains the principle of non refoulement and that, therefore, the complainant was not threatened by deportation to Afghanistan. As regards the application of Article 3, paragraph 2 of the Dublin Regulation, Belgium was unable to explain before the ECtHR in what specific contexts and how often the derogation clause had been applied. It pointed, however, at 10 cases before national authorities in which a particular interpretation could lead to application of the clause (in a situation where, according to the Dublin Regulation, Poland, Greece or Hungary were competent to deal with the asylum application). The Belgian Government further noted that before the return of the complainant it had received assurances by Greece concerning the holding of proper asylum procedures. Although the Belgian authorities were aware of certain shortcomings in the treatment of refugees in Greece, they relied in this case on these specific

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34 Supra note 18.