The judgment of the case Tarakhel v. Switzerland issued by the European Court of Human Rights (ECHR) on the 5th of November, turns once again the spotlight towards the Dublin System and the need to carefully assess the situation in the country of d estination before proceeding with the transfer of asylum seekers.
In this case, the court ruled that the suspension of a transfer of a family of asylum seekers, who arrived by boat in Italy in 2011 and later moved to Switzerland to apply for asylum, can be justified even if the Italian authorities accepted to take back the applicants. The Court declares that due to the current deficiencies of the Italian asylum reception system, transfers of certain vulnerable categories such as children or families may raise issues in respect of Article 3 ECHR (prohibition of inhuman and degrading treatments) in the absence of prior individualised guarantees from the Italian authorities as to the specific facility of destination.
Despite the Court stresses its “serious doubts” on the functioning of the Italian reception system, the situation is considered different from the one in Greece at the time of the MSS judgment. In that case, serious concerns about the respect of fundamental rights of asylum seekers in Greece led to a general suspension of Dublin transfers from other Member States.
This judgment underlines once more that the protection of human rights prevails on the strict application of EU law. EU Member states and Associated Countries where the Dublin Regulation applies, must carefully consider each specific case before proceeding with transfers, even when this is allowed by the Dublin II criteria. The lack of protection of fundamental rights in the first country of asylum, will lead to an (indirect) responsibility of the sending State for the violation of core articles of the European Convention of Human Rights.