In the case of Staatssecretaris van Justitie en Veiligheid (Mutual trust in case of transfer) (C-392/22, 29.2.2024), the CJEU ruled on whether a practice of pushbacks and detention at the border of a Member State which, under the Dublin III Regulation (No 604/2013), is responsible for the examination of an application for international protection, precludes the transfer of the applicant to that Member State.
In the case at hand pending before the Dutch courts, a Syrian national who had made an application for international protection in Poland, followed by another one in the Netherlands, challenged the request by the Dutch authorities for the Polish authorities to take back the applicant, pursuant to Article 18(1)(b) of the Dublin III Regulation.
The referring court interrogated the CJEU on whether such a take back could at all be requested, despite “objective, reliable, specific and properly updated information [showing] that the Republic of Poland has, for a number of years, systematically infringed a number of fundamental rights of third-country nationals by subjecting them to pushbacks [to Belarus], regularly accompanied by the use of violence, and by systematically detaining, in what are described as ‘appalling’ conditions, third-country nationals who enter its territory illegally.” (§ 20)
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In substance, the CJEU answered that the transfer of a third-country national to the Member State responsible for examining his or her application for international protection is precluded only if there are substantial grounds for believing that he or she would, during his or her transfer or thereafter, face a real risk of being subjected to pushbacks and detentions, and that those practices are capable of placing that third-country national in so grave a situation of extreme material poverty that it may be equated with the inhuman or degrading treatment prohibited by Article 4 of the EU-Charter.
In its reasoning, the CJEU first recalled the requirements of mutual trust between the Member States and explained why pushbacks as well as detention for the sole reason that a person is seeking international protection are contrary to EU law, notably Directives 2013/32 and 2013/33.
It then stated that while such practices constitute “serious flaws” in the asylum procedure and in the reception conditions for applicants, only “systemic flaws resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter make [the transfer of the person concerned] impossible”, those two conditions being cumulative (§§ 57-58). Article 3(2), second sub-paragraph, of the Dublin III Regulation, indeed reads:
“Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter], the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.“
Thus, the CJEU seems to interpret this provision not as an illustration of the kind of scenarios which could render such a transfer “impossible” but as limiting them to those which would entail a risk that Article 4 of the EU-Charter be breached because of “systemic flaws” in the Member State primarily designated as responsible for the examination of an application .
As to what constitutes inhuman or degrading treatment in this context, the CJEU referred to practices of pushback and detention which would be such as to expose the person concerned “to a situation of extreme material poverty that would not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that would undermine his physical or mental health or put him in a state of degradation incompatible with human dignity, placing him in a situation of such gravity that it may be equated with inhuman or degrading treatment”. (§ 63) This definition seems to draw on M.S.S. v. Belgium and Greece, §§ 253-264, which concerned the take back of a homeless applicant for international protection who, however, was never made the subject of any detention.
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This approach would appear to significantly restrict the effect of fundamental rights of migrants at the border with third countries, when compared with the Convention case-law. For at least two reasons.
1. First, because Article 3(2), second sub-paragraph, of the Dublin III Regulation, as interpreted by the CJEU, seems to limit the categories of risks precluding the take back of an applicant for international protection to risks of a breach of Article 4 of the EU-Charter. Risks of a breach of any other of an applicant’s fundamental rights seem to be irrelevant in this context.
Even detention by the local authorities at the border, which is one of the risks alleged by the applicant in the case at hand, would appear to have no chance of being considered relevant if it is not giving rise to ill-treatment within the meaning of Article 4 of the EU-Charter. This might also be the reason why the CJEU does not address the issue of arbitrary detentions as such but only as part of pushbacks exposing applicants to a situation of extreme material poverty (§ 63). The individual guarantees, which the CJEU suggests could be asked, seem limited to ill-treatment too (§ 80).
This approach seems to be ignoring the fact that several other fundamental rights issues can arise in the context of such pushbacks, as illustrated, inter alia, by Ilias and Ahmed v. Hungary and N.D. and N.T. v. Spain. Only recently was the case of C.O.C.G. and Others v. Lithuania, concerning pushbacks at the Lithuanian border with Belarus, brought before the Grand Chamber of the ECtHR for a determination of whether Articles 2 (right to life), 3 (prohibition of ill-treatment), 5 (right to liberty and security), 13 (right to an effective remedy) and 34 (right to individual petition) of the Convention, as well as Article 4 of Protocol No 4 (prohibition of collective expulsions) have been breached.
Given that, in addition to Article 3, Articles 2, 5 and 13 of the Convention, and 4 of Protocol No 4, have also found their way into the EU-Charter, i.e. in Articles 2, 6, 47(1) and 19(1) respectively, and in light of Article 52(3) of that same EU-Charter, one may wonder whether the Dublin III Regulation can legally restrict the impact of that Charter on the practices described above, to the extent that they come within the scope of EU law (Art. 51(1) of the EU-Charter). Thus, here too, EU law seems to be creating two different categories of fundamental rights, depending on their capacity to be invoked under the Dublin III Regulation, even though Recital 39 of the Preamble of that same Regulation states in its first sentence: “This Regulation respects the fundamental rights and observes the principles which are acknowledged, in particular, in the Charter of Fundamental Rights of the European Union.”
2. Secondly, to the extent that a complaint can be considered relevant under the Dublin III Regulation because it genuinely relates to Article 4 of the EU-Charter, it will be confronted with another restriction to the effect that the only abuses at the State border which that complaint will be capable of preventing are systemic flaws which “concern, generally, the asylum procedure and the reception conditions applicable to applicants for international protection or, at the very least, … certain groups of applicant for international protection as a whole, such as the group of persons seeking international protection after crossing or having attempted to cross the border between Poland and Belarus.” (§ 59)
Thus, the CJEU drew here on the two-step methodology which it developed in the field of the European arrest warrant. It requires the existence of systemic or generalised deficiencies in the issuing Member State as a pre-condition to any individual assessment of the risks incurred by the person concerned (e.g. in GN). One may wonder whether, by requiring such systemic or generalised flaws, this approach does not come down to replacing risk by certainty as a condition for the protection of a person’s fundamental rights in the context of a transfer. In any event, it considerably increases the burden of proof to be discharged by the person concerned.
This seems in contrast with the approach adopted in M.S.S. v. Belgium and Greece, in which the ECtHR, while taking note of the fact that the very poor situation in which the applicant found himself in Greece existed “on a large scale” (§ 255), did not require it to be in any way “systemic” or “generalised”, and even less made the individual assessment of whether the applicant’s fundamental rights had been complied with hinging on such a preliminary finding. In other words, this finding served merely as evidence in support of an individual assessment, not as a pre-condition to the latter.
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How should national courts handle these different levels of protection between Luxembourg and Strasbourg? Since the Convention is the mandatory minimum protection level governing also the application of EU law by the courts of the Member States, and in light of Article 52(3) of the EU-Charter, it would appear that in the face of such differences, like in the present case, national judges should, wherever EU law falls below the Convention level, apply the latter. Failure to do so entails the risk of seeing the final domestic judgment in the case successfully challenged before the ECtHR, as in M.S.S. v. Belgium and Greece and, mutatis mutandis, Bivolaru and Moldovan v. France or M.B. v. the Netherlands. In other words, a wholistic approach is called for here.