Acceso usuarios
Panos Koutrakos
Following Opinion 2/13, the relationship between the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) has resumed its place at the centre of policy and scholarly debate. The two Courts have long approached the case-law of each other on the basis of mutual understanding and accommodation. The application of the Dublin Regulation, however, has given rise to two strands of case-law which may appear at first sight to be irreconcilable.
In NS, the Court of Justice relied on the principle of mutual confidence and held that "� it must be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the Charter, the Geneva Convention and the ECHR". This presumption is rebuttable and the transfer of an asylum seeker would be illegal "if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter.
How narrowly is the term "systemic deficiencies" to be interpreted? In Abdullahi, the Court appeared to strengthen the presumption of compliance with human rights under the Dublin Regulation. It held that such deficiencies constitute "the only way" in which the presumption may be rebutted. On the other hand, in its judgment in Tarakhel, the ECtHR required "a thorough and individualized examination of the situation of the person concerned" in the context of transfers under the Dublin Regulation.6 National authorities are under a duty to "ascertain whether, in view of the overall situation with regard to the reception arrangements for asylum seekers in Italy and the applicants' specific situation, substantial grounds have been shown for believing that the applicants would be at risk of treatment contrary to Article 3 if they were returned to Italy", an assessment which entails the exercise of "close scrutiny". The ECtHR's approach appears to require close scrutiny of the reception conditions in the responsible Member State and to impose a somewhat light burden on the claimant. As such, it appears to be in contradiction to the requirement for systemic deficiencies articulated by the ECJ. No reference to Abdullahi was made in Tarakhel, even though it had been rendered eleven months earlier. The latter judgment only referred to NS and the presumption of compliance with fundamental human rights laid down therein, and made no comment on the ECJ judgment.
