CYIL 2012

THE DUBLIN SYSTEM FROM A EUROPEAN HUMAN RIGHTS PERSPECTIVE could not rely on the guarantees provided by Greece. With regard to this issue the Belgian position was indeed somewhat weak, because the first decision on the return of the complainant to Greece was issued at a time when the Belgian government could rely only on tacit consent under the Dublin system and had not yet received an explicit promise from Greece. But not even the delayed assurance provided by the Greek government could establish sufficient confidence on the part of Belgium, because that assurance only used the standard formulation and did not relate specifically to the complainant. According to the Court, Belgium should not have trusted the Greek promise, but it should have verified on its own if indeed Greece observed its international obligations in practice. The ECtHR concluded that the complainant’s return from Belgium to Greece, i.e. the application of the Dublin Regulation by Belgium, was contrary to Article 3 of the ECHR. This statement was adopted by 16 votes to one. Four judges attached partly dissenting opinions. The most extensive dissent with respect to the assessment of the Dublin system was added by the current President of the ECtHR, Nicolas Dušan Bratza, who pointed to the Court’s decision in the case of K.R.S v. the United Kingdom. According to Bratza, that decision, regardless of whether it was factually correct, could produce certain expectations on the part of the states parties to the ECHR. In a situation where there was no clear evidence of change in the state of affairs in Greece, national courts in Member States could rely on the fact that the application of the Dublin Regulation in relation to Greece will not lead to a violation of the ECHR. After all, national courts in Great Britain and Belgium specifically referred to the K.R.S. decision. It seems that in the M.S.S. case even the ECtHR itself relied on that approach when it initially refused to indicate interim measures under Rule 39. 6. The Dublin system before the Court of Justice of the European Union Already before the ECtHR issued its judgment in the M.S.S. case, human rights issues related to the Dublin system had been dealt with by the EU Court of Justice. In the joined cases C-411/10 and C-493/10 35 British and Irish courts, under the preliminary ruling procedure, had asked the Court to clarify certain aspects of the Dublin Regulation in light of fundamental rights. The case before the British court concerned an Afghan citizen who first entered the EU area via Greece and subsequently found his way to Great Britain, where he applied for asylum. In the case before the Irish court, five people from Afghanistan, Iran and Algeria, also first entered Greece illegally and then came to Ireland. In all these cases, the Dublin Regulation would be applicable and the national courts asked the EU Court of Justice whether they should, with respect to the protection of fundamental rights, examine the local situation of human rights in Greece 35 N. S. (C 411/10) v. Secretary of State for the Home Department and M. E. (C 493/10) and others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (European Union: European Court of Justice – Grand Chamber, 21 December 2011).

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