In the case of Tudmur (19.12.2024, joined cases C‑185/24 and C‑189/24) the CJEU ruled on the unilateral suspension by the Italian authorities of the transfer to Italy of asylum seekers under the Dublin III Regulation (“the Regulation”).
The referring court, a Higher German Administrative Court dealing with two applications for asylum for which Italy was responsible under the Regulation, was confronted with the decision by the Italian authorities to temporarily suspend all transfers of asylum seekers to Italy under that Regulation, because of the unavailability of reception facilities as a result of the high number of arrivals and the lack of available reception places. In that context, the referring court requested the CJEU to clarify the interpretation of the Regulation, notably as regards the existence of systemic flaws in Italy.
According to the CJEU, the fact that a Member State had unilaterally suspended the taking charge of asylum seekers was not capable, in itself, of justifying the finding of systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection, to the effect that the latter could not be transferred to the Member State responsible for the processing of the application for asylum.
However, it nonetheless remained for the referring court to assess whether the conditions for an exception to the transfer to Italy of the two asylum seekers concerned, as laid down in the 2nd sub-paragraph of the Article 3(2) of the Regulation, were met. This will only be the case if, first, in the asylum procedure and the reception conditions of the Member State designated as responsible there are systemic flaws resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the EU-Charter and, secondly, if these systemic flaws result in a risk, for the person concerned, of being exposed to such a treatment (§§ 35-38).
Thus, systemic flaws precluding the transfer of an asylum seeker cannot be the result of a unilateral legal act by that Member State but are a factual circumstance the existence of which must be assessed “following a specific analysis based on information that is objective, reliable, specific and properly updated” (§ 40).
To this extent, the present case bears a striking resemblance with M.S.S. v. Belgium and Greece which concerned the transfer under the Dublin Regulation (No. 343/2003/EC) of an Afghan asylum seeker by Belgium to Greece, where the asylum system had broken down, which resulted in the applicant living in the streets of Athens in a state of extreme material poverty and being exposed to a risk of refoulement. In that case, the ECtHR found several violations of the Convention, notably of Article 3 of the Convention (prohibition of ill-treatment), taken alone and in conjunction with Article 13 (right to an effective remedy), on account of the dire living conditions of the applicant in Athens and the serious flaws in the Greek asylum procedure.
With Italy refusing any more transfers because of a lack of reception places as a consequence of a massive influx of migrants, the asylum seekers in the present case, RL and QS, can hardly expect any better conditions than M.S.S. could expect in Greece. Yet the ECtHR’s approach in M.S.S. differs from Tudmur in at least three different respects: the scope of the problem, the test to be applied and the burden of proof.
The scope of the problem
As regards, first, the scope of the problem, it is to be noted that in M.S.S. the relevant risks to the fundamental rights of the applicant were not limited to the risk of finding himself in a state of extreme material poverty incompatible with human dignity, as seems to be the case in Tudmur (§ 37).
By contrast, the ECtHR found in M.S.S. a violation of Article 13 of the Convention, in conjunction with Article 3, “because of the deficiencies in the Greek authorities’ examination of the applicant’s asylum request and the risk he faces of being returned directly or indirectly to his country of origin without any serious examination of the merits of his asylum application and without having access to an effective remedy” (§ 321).
A similar risk can hardly be ruled out in respect of RL and QS. It should therefore also be dealt with, at least under the Convention, by the referring court, provided of course that it has been raised by RL and QS. Strangely enough, though, the CJEU does not address that aspect of the situation, despite the wording of the 2nd sub-paragraph of Article 3(2) of the Regulation and Article 47(1) of the EU-Charter which also protects the right to an effective remedy. Is this another illustration of the categorisation of fundamental rights under the Regulation (see Staatssecretaris van Justitie en Veiligheid (Mutual trust in case of transfer)) ?
One can indeed easily imagine a situation whereby the reception conditions in the responsible Member State might not be such as to reach the point of extreme material poverty, while the flaws in the asylum procedure of that same State nonetheless represent a risk which is relevant under Article 13 in conjunction with Article 3 of the Convention.
The test to be applied
Secondly, under the Convention the existence of “systemic flaws” is not a necessary pre-condition the absence of which precludes any finding as regards the individual risks incurred by a person subject to a transfer, as is the case under the Regulation (§§ 38-39). In other words, under the Convention any general assessment cannot represent an obstacle to the application of an individual test. Rather, widespread shortcomings – not necessarily “systemic flaws” – are only used by the ECtHR as evidence serving as a basis for an individualised finding concerning the risks incurred by the applicant, as illustrated by paragraph 255 of M.S.S.:
“The Court notes in the observations of the Council of Europe Commissioner for Human Rights and the UNHCR, as well as in the reports of non-governmental organisations (see paragraph 160 above) that the situation described by the applicant exists on a large scale and is the everyday lot of a large number of asylum-seekers with the same profile as that of the applicant. For this reason, the Court sees no reason to question the truth of the applicant’s allegations.”
Consequently, the absence of widespread shortcomings in the country of destination of a transfer does not dispense the ECtHR from inquiring about individual risks incurred by the person concerned, as recently confirmed in Khasanov and Rakhmanov v. Russia (§§ 95-101). Even where the application of a general test is mandatory under EU law, the ECtHR’s only determination is individualised, focussed on the personal situation of the applicant (see Bivolaru and Moldovan v. France). This is because by virtue of the right to individual petition (Article 34 of the Convention), any individual application requires an individual determination based on an individual assessment, regardless of the general circumstances.
Thus, under the Convention domestic judges are not dispensed from applying an individual test when applying the Dublin Regulation, there being no primacy of EU law over the Convention.
The burden of proof
Finally, on the burden of proof, paragraph 39 of the Tudmur ruling seems to suggest that it is for the asylum seeker to provide the initial evidence establishing the risks which he or she would incur in the event of a transfer to responsible Member State, whereupon the domestic courts “must take into consideration, on their own initiative, relevant information of which they are aware”. In this connection, it might be worth recalling the following well-established principles of the Strasbourg case-law, as reiterated in paragraphs 125-126 of F.G. v. Sweden:
“It is in principle for the person seeking international protection in a Contracting State to submit, as soon as possible, his claim for asylum with the reasons in support of it, and to adduce evidence capable of proving that there are substantial grounds for believing that deportation to his or her home country would entail a real and concrete risk of exposure to a life‑threatening situation covered by Article 2 or to treatment in breach of Article 3.However, in relation to asylum claims based on a well-known general risk, when information regarding such a risk is freely ascertainable from a wide number of sources, the obligations incumbent on the States under Articles 2 and 3 of the Convention in expulsion cases entail that the authorities carry out an assessment of that risk of their own motion.” (emphasis added)
In F.G. v. Sweden, the failure by the authorities to inquire of their own motion about such well-known general risks concerning the applicant amounted to a breach of their procedural obligations under Articles 2 and 3 of the Convention.
Conclusion
On all three aspects addressed above, the Convention would appear to guarantee a higher level of protection for Dublin asylum seekers than the Regulation. In view of the obligation on domestic courts to apply EU law in compliance with the Convention (see M.B. v. the Netherlands), these courts should therefore preferably take the above aspects into account when applying Article 3(2), 2nd sub-paragraph, of the Regulation, of course without prejudice to the application by them of Article 267 TFEU.
In this connection, it is clear that, as repeatedly indicated by the CJEU, the Convention not being part of EU law, the CJEU does not have jurisdiction to assess the compatibility of EU legislation with the Convention (see, among others, Åkerberg Fransson, § 44). One may however wonder whether Article 52(3), 1st sentence, of the EU-Charter might not have the potential, if explicitly relied on in a referral request, to allow the CJEU to at least indirectly verify to what extent EU law complies with the minimum Convention protection level. Domestic courts might want to test this.