CYIL 2012

Harald Christian Scheu CYIL 3 ȍ2012Ȏ assurances and the Greek promise that EU law and human rights obligations would be complied with. The Netherlands and the United Kingdom appeared before the ECtHR in defense of the Dublin system. According to the Dutch government the shortcomings of the Greek asylum system shall not be interpreted to mean that legal protection of refugees was generally illusory. In practice, therefore, also the Netherlands trusted the assurances offered by the Greek government. If Belgium were convicted of a violation of the ECHR in this case, according to the Dutch Government this would mean a serious disruption of the principle of mutual trust between Member States, upon which the Dublin system is based. Furthermore, the Netherlands briefly recalled the ECtHR’s judgment in the Bosphorus case, which de facto excludes the responsibility of EU Member States for human rights violations resulting from the application of EU law. The British Government highlighted one of the objectives of the Dublin system, which is to accelerate the process of examining applications for asylum within the EU. The Dublin system is to prevent the establishment of social and cultural ties between the applicant and a Member State which eventually will not be competent to deal with the applicant’s asylum application. Although the British Government admitted a certain degree of accountability of the Member State which returns the asylum-seeker to another Member State, it would limit this accountability only to exceptional cases in which the applicant does not at all have access to national courts in the responsible Member State. But in the case of M.S.S. v. Belgium and Greece the British government found that there was no such risk. The ECtHR briefly discussed the applicability of the principles which had been formulated in the Bosphorus case. It reiterated that a Member State cannot rely on the doctrine of equal protection at the EU level or, more specifically, at the level of the EU Court of Justice where its action is not determined by EU legal obligations or where, with respect to the application of EU law, it has a margin of discretion. The ECtHR concluded that in light of the derogation clause laid down in Article 3, paragraph 2 of the Dublin Regulation, Belgium could have refused to return the complainant to Greece, if it found that Greece did not fulfil its obligations under the ECHR. Therefore, the presumption of equal protection did not apply to the acts of Belgium in the instant case. As regards the specific assessment of Belgium’s responsibility for human rights violations the ECtHR quoted extensively from documents issued by the UN High Commissioner for Refugees and the Council of Europe Commissioner for Human Rights and from the reports and opinions of numerous NGOs. The ECtHR considered as important the fact that since 2008 there had been intensive discussions held on the European Asylum System on the level of the European Commission and the EU Member States. Under these circumstances, according to the ECtHR, Belgium had to be aware of the situation in Greece. The Court concluded from this assumption that Belgium

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