Non-refoulement in the Eyes of the Strasbourg and Luxembourg Courts: What Room for Its Absoluteness?

The CEAS has been established through a long-lasting process that involved both primary and secondary EU law. The EU secondary legislative elements of the current CEAS are two regulations and four directives. As for the regulations, these are Regulation 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJL 180/31 (Dublin III Regulation); and Regulation 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice [2013], OJL 180/1 (EURODAC Regulation). As for the directives, these are Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJL 212/12 (Temporary Protection Directive); Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJL 337/9 (Qualification Directive); Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection [2013] OJL 180/96 (Reception Directive); and Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection [2013] OJL 180/60 (Procedures Directive).

Dublin III Regulation, which bounds all EU Member States (except for Denmark), as well as Iceland, Liechtenstein, Norway and Switzerland.

Ibid., whereas (4), (5), (7), arts 1, 3, 7–15. See also arts 16 and 17 concerning dependent persons and the discretionary clause, which could influence the determination of the State responsible for the examination of the asylum application.

A “take back procedure” concerns situation when a new asylum application has been lodged in the requesting Member State. A “take charge of procedure” concerns situation when no new asylum application has been lodged in the requesting Member State. See Dublin III Regulation, arts 18 and 19.

Dublin III Regulation, arts 18–33.

For further references on this point, see de Wet (2004), pp. 101–105.

Convention Relating to the International Status of Refugees (adopted 28 October 1933, entered in force July 1935), 159 LNTS 3663, art 3. This convention was later replaced by the Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention), whose art 33 establishes the principle of non-refoulement .

Sir Lauterpacht and Bethlehem (2003), pp. 149 ff.

Refugee Convention, and Protocol relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267. See Goodwin-Gill (2008), p. 4.

Refugee Convention, art 1 read in conjunction with art 33(1). See Sir Lauterpacht and Bethlehem (2003), pp. 123–128.

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 7 as interpreted in UNHRC, ‘General Comment 20’, in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (2008) HRI/HEN/1/Rev.1, para 9 (UNHRC, GC 20); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984; entered into force 26 June 1987), 1465 UNTS 85 (CAT), art 3.

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 3, as interpreted by the ECtHR—e.g. Soering v United Kingdom, App no 22414/93 (ECtHR, 15 November 1996), paras 87–88; Charter of Fundamental Rights of the European Union, 303 OJEU 1 (CFREU), art 19; American Convention on Human Rights (adopted 22 November 1969, entered in force 18 July 1978) (ACHR), art 22, para 8; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (African Charter), art 5.

Universal Declaration of Human Rights (adopted 10 December) 1948 UNGA Res 217 A(III) (UDHR), art 5; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UNGA Res 3452 (XXX) (9 December 1975) (UNGA Res 3452).

Concerning the differences of content and scope of the principle of non-refoulement as a norm of international human rights law and as a provision dealing with the protection of refugees, see Sir Lauterpacht and Bethlehem (2003).

Ibid., pp. 150–164; UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (26 January 2007) (UNHCR, Advisory Opinion 2007).

UNHRC, ‘General Comment 29’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ (2004) CCPR/C/21/Rev.1/Add.11, para 11; UNHRC, ‘Concluding Observations on Canada’, (20 April 2006) CCPR/C/CAN/CO/5, para 15; Committee Against Torture, Gorki Ernesto Tapia Paez v Sweden, (28 April 1997) CAT/C/18/D/39/1996, para 14.5; Committee Against Torture, ‘General Comment 1’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (2008) A/53/44 annex IX, para 2. See also the jurisprudence of ECtHR in cases concerning violation of Article 3 ECHR, e.g. Chahal v United Kingdom, App no 22414/93 (ECtHR, 15 November 1996), para 74; Soering (n 12), paras 87–88; Mamatkulov and Askarov v Turkey, App no 46827/99, 46951/99, (ECtHR, 4 February 2005), para 67; Salah Sheekh v The Netherlands, App no 1948/04 (ECtHR, 11 January 2007), paras 137 and 147.

A similar—although not identical—consideration regards the principle of non-refoulement as a rule concerning the protection of refugee. See Sect. 2 of the present paper.

A definition of torture is set in art 1 CAT, according to which ‘the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions’. However, even this definition leaves room for discretionary interpretation as e.g. to what constitutes ‘severe pain or suffering’. In this regard, see e.g. Ingelse (2001), p. 208. On the lack of definition and on the case-by-case approach see also UNHRC, GC 20, para 4, according to which ‘the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different types of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied’.

As for the link between different acts of ill-treatment, see UNGA Res 3452 (XXX), Annex I, art 1(2), according to which ‘[t]orture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment’. This approach was subsequently adopted by ECtHR, that based the distinction between these acts of ill-treatment upon ‘a difference in the intensity of the suffering inflicted’. See e.g. Ireland v United Kingdom, App no 5310/1971, (ECtHR, 18 January 1978), para 167; Selmouni v France, App no 25803 (ECtHR, 28 July 1999), paras 96–105; Ilhan v Turkey, App no 22277/1993 (ECtHR, 27 June 2000), para 87; Gäfgen v Germany, App no 22978/05 (ECtHR, 1 June 2010), para 108.

Weissbrodt and Hortreiter (1999), p. 3.

The present chapter does not deal with the principle of non-refoulement as a provision of refugee law.

ECHR, art 3 (“Prohibition of Torture”)—No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

EUCFR, art 4 (“Prohibition of torture and inhuman or degrading treatment or punishment”)—No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Convention Relating to the International Status of Refugees (adopted 28 October 1933, entered in force July 1935), 159 LNTS 3663, art 3.

Refugee Convention; ICCPR, art 7, as interpreted in UNHCR GC 20; CAT, art 3.

ECHR, art 3, as interpreted in the case law of the ECtHR; CFREU, art 19; Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered in force 20 June 1974), 1001 UNTS 45 (OAU Convention), art 2; ACHR, art 22, para 8; African Charter, art 5.

UDHR, art 5; Declaration on Territorial Asylum, UNGA Res 2312 (XXII) (14 December 1967), art 3; Bangkok Principles on the Status and Treatment of Refugees as amended (31 December 1966) (Bangkok Principles), art 3; UNGA Res 3452 (XXX); Cartagena Declaration on Refugees (22 November 1984), art 5.

Sir Lauterpacht and Bethlehem (2003); Goodwin-Gill and McAdam (2007), pp. 345–354. As for international bodies, see UNHCR, ‘The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93’ (31 January 1994). As for the jurisprudence of domestic courts, see e.g. New Zealand Court of Appeal, Zaoui v Attorney General, 30 September 2004, (No 2) [2005] 1 NZLR 690, paras 34 and 136. As for the position of national government, see e.g. the view of the Swiss Government in Bundesbeschluss über die Volksinitiative “für eine vernünftige Asylopolitik”, 14 March 1996, BBI 1996 I 1335 and Botschaft über die Volksinitiativen “für eine vernünftige Asylopolitik und gegen die illegal Einwanderung” in BBI, 1994 III, 1489.

De Wet (2004).

Sir Lauterpacht and Bethlehem (2003), p. 149 ff.

Goodwin-Gill (2008).

Refugee Convention, art 1 read in conjunction with art 33(1). See Sir Lauterpacht and Bethlehem (2003), pp. 123–128. For a description of the requirements that an act must meet in order to be qualified as act of persecution see e.g. Qualification Directive, art 9. For a description of the reasons of persecution see e.g. Qualification Directive, art 10.

Refugee Convention, art 33(2)—by itself and in relation with art 1(F). See Sir Lauterpacht and Bethlehem (2003), pp. 128–140.

Some authors support the thesis that the principle of non-refoulement has acquired the status of ius cogens norm: see e.g. de Wet (2004), pp. 101–105.

Sir Lauterpacht and Bethlehem (2003), pp. 150–164; UNHCR, Advisory Opinion 2007.

Sir Lauterpacht and Bethlehem (2003); UNHCR, Advisory Opinion 2007; UNHRC, ‘General Comment 31’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (2004) CCPR/C/21/Rev.1/Add.13, para 12.

De Wet (2004).

UNHRC, ‘General Comment 29’, ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (2001) CCPR/C/21/Rev.1/Add.11, para 11; UNHRC, ‘Concluding Observations/Comments on Canada’, (20 April 2006) CCPR/C/CAN/CO/5, para 15; Committee Against Torture, Gorki Ernesto Tapia Paez (n 16); Committee Against Torture, ‘General Comment 1’ (n 16). See also the case law of ECtHR in cases concerning violation of art 3 ECHR, e.g. Soering (n 12), paras 87–88; Chahal (n 16), para 74; Mamatkulov (n 16), para 67; Salah Sheekh (n 16), paras 137 and 147.

Goodwin-Gill (1993). See also Cartagena Declaration on Refugees, section III, para 5.

Chetail (2014), p. 28; Kretzmer (2010), para 35.

According to the ECtHR case-law, the protection can be invoked—inter alia—by refugees, rejected asylum seekers, and terrorists. See e.g. Ahmed v Austria, App no 25964/94 (ECtHR, 17 December 1996), paras 35–47; Cruz Veras and Others v Sweden, App no 15576/89 (ECtHR, 20 March 1991), paras 69–70; Saadi v Italy, App no 37201/06 (ECtHR, 28 February 2008), paras 124–127 and 137.

Kälin (2010), para 13; Saadi (n 42), paras 138–140.

Kälin (2010), para 13.

As for the difference between non-refoulement as an obligation of States and asylum as rights of States see Chetail (2014), pp. 30–31.

See also Milanovic (2011), p. 9. According to this author ‘[t]he violation, in other words, consists of the State knowingly exposing an individual to harm at the hands of third parties’.

Refugee Convention, art 33(1).

Declaration on Territorial Asylum, art 3; OAU Convention, art 2(3). Among scholars, see e.g. Goodwin-Gill (1996), pp. 137–138; Feller et al. (2003), p. 123.

CAT, art 3; UNHRC, GC 20, para 9.

Pirjola (2007).

Ibid., p. 640.

On the flexible nature of the term “persecution”, see UNHCR, ‘Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’ (2011) HCR/1P/4/ENG/REV. 3, para 51, according to which ‘[t]here is no universally accepted definition of “persecution”, and various attempts to formulate such a definition have met with little success’. Among scholars see e.g. Hathaway (1991), p. 102; Grahl-Madsen (1972), p. 193. As stated above, the so-called Qualification Directive, arts 9 and 10, provides for the requirements to define an act as an act of persecution and describes the reasons of persecution. However, also these two provisions are characterized by the use of flexible expressions.

As for the flexibility of the definition of torture set in CAT, art 1, see e.g. Ingelse (2001), p. 208. On the lack of definition and on the case-by-case approach see also UNHRC, GC 20, para 4.

As for the approach adopted by the UNGA and the ECtHR in order to differentiate between torture, on the one hand, and acts of ill-treatment, on the other hand, see footnote 20. As for the purposive elements, it is worth noting that the ECtHR case law is inconsistent on whether it has to be considered either as an indication or a requirement of torture. In this regard, see e.g. de Weck (2016), p. 141. It is worth noting that, even if the Court has identified the elements which characterize a conduct either as torture or as inhuman or degrading treatment or punishment, it has never tried to define the precise meaning of the term “torture”.

Pirjola (2007).

CAT, art 1.

It is worth reminding that the EU is not a Contracting Party to the ECHR. See Case C-2/13 Opinion Pursuant to Article 218(11) TFEU [2014] ECLI:EU:C:2014:2454. Accordingly, its acts cannot as such be the subject of applications to the ECtHR. However, all the EU Member States are Contracting Parties to the ECHR and, hence, are bound to respect the Convention and their acts fall under the supervision of the ECtHR.

M.S.S. v Belgium and Greece, App no 30696/09 (ECtHR, 21 January 2011). The judgment overruled the approach developed in the previous K.R.S. v United Kingdom, App no 32733/08 (ECtHR, 2 December 2008).

At the time of the delivering, the Dublin II Regulation was in force (Regulation (EC) No 343/2003), later emended by Dublin III Regulation.

Bosphorus Hava Yollari Turizmve Ticaret Anonim Sirketi (“Bosphorus Airways”) v Ireland, App no 45036 (ECtHR, 30 June 2005), paras 153 ff.; Michaud v France, App no 12323/11 (ECtHR, 6 December 2012), paras 105 ff; Povse v Austria, App no 3890/11 (ECtHR, 18 June 2013), para 77; Avotins v Latvia, App no 17502/07 (ECtHR, 23 May 2016), para 49.

See e.g. M. & Co. v. the Federal Republic of Germany, App no 13258/87 (Commission decision, 9 February 1990); Hava Yollari Turizmve Ticaret Anonim Sirketi (“Bosphorus Airways”) (n 62), paras 159–165; Michaud (n 62), paras 105–111; Povse (n 62), para 77; Avotins (n 62), para 49. As for the literature, see e.g. Lock (2010); De Schutter (2014); Ravasi (2017).

Dublin II Regulation, art 17(3), according to which a State might examine the application of asylum even if such examination was not its responsibility under the criteria laid down in the Dublin II Regulation. The amended clause is currently enshrined in Article 3(2) of the Dublin III Regulation. In M.S.S. the State responsible for the examination of the application was Greece due to the criteria of the ‘First Country of Arrival’ set by Article 10 of the Dublin II Regulation, according to which a State is responsible for the examination of the applications of international protection lodged by asylum seekers who have irregularly crossed its borders coming from a third country, i.e. a country which is not bind by Dublin Regulation.

M.S.S. (n 59), paras 338–340. On the duty to apply the Dublin System in a manner that is in compliance with the guarantees laid down in the ECHR, see also Sharifi and Others v Italy and Greece, App no 16643/09 (ECtHR, 21 October 2014), paras 222, 223 and 231.

See Sect. 4 of the present chapter.

See Sect. 2 of the present chapter. As for the ECtHR jurisprudence on indirect non-refoulement see e.g. T.I. v United Kingdom, App no 43844/98 (ECtHR, 7 March 2000); K.R.S. (n 59); Abdolkhani and Karimnia v Turkey, App no 30471/08 (ECtHR, 22 September 2009), para 88; Hirsi Jamaa and others v Italy, App no 27765/09 (ECtHR, 23 February 2012), paras 153 ff.

The jurisprudence of the ECtHR concerning the principle of non-refoulement is usually called ‘protection par ricochet’. In order to assess the existence of a real risk of being subjected to treatment in breach of art 3 ECHR, the Court takes into account—in a cumulative or alternative way—both the general situation concerning the respect of human rights in the receiving state and the particular situation of the applicant. See e.g. Salah Sheekh (n 16), paras 135 ff; Iskandarov v Russia, App no 17185/05 (ECtHR, 27 September 2010), para 127. The ECtHR considered that a situation of generalized violence in the receiving State may be sufficiently intense that any removal to such a country would constitute a breach of the principle of non-refoulement. See e.g. Sufi and Elmi v the United Kingdom, App nos 8319/07 and 11449/07 (ECtHR, 28 June 2011), para 293. It is worth noting that the assessment of a generalized risk is sufficient, rather than essential, in the evaluation of the compliance with the prohibition under inquiry: it is possible that, in the absence of a generalized risk, the applicant would anyway face an individual risk of being subjected to treatment contrary to Article 3 ECHR. The particular situation of the applicant has also been taken into account in other judgments concerning matters falling or connected to EU competence, see e.g. Sharifi (n 65), paras 222–225. Moreover, it is worthy of attention that according to the ECtHR the principle of non-refoulement is strictly linked to the extra-territorial application of art 3 ECHR. In this regard see Milanovic (2011), pp. 8–9.

Dublin III Regulation, art 3(2).

In this way, the EU legislator not only endorsed, but broadened the approach that the CJEU expressed in N.S. (n 60), paras 95 ff. It has to be mentioned that several EU Member States decided to stop Dublin Transfers due to the existence of systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in states which are responsible for the examination of the application for international protection according to Dublin III Regulation criteria. In this regard see e.g. Italian Council of State, sect. III, 27/09/2016 (ud.07/07/2016, dep.27/09/2016), n 4004, concerning Hungary; and Italian Council of State, sect III, 03/11/2017, (ud.19/10/2017, dep.03/11/2017), n 5085, concerning Bulgaria. As for Greece, see Commission, ‘Recommendation of 8.12.2016 Addressed to the Member States on the Resumption of Transfers to Greece Under Regulation (EU) No. 604/2013’ C (2016) 8525 final. As for the influence of the jurisprudence of the ECtHR and the CJEU on the reform of the Dublin Regulation see Morgades-Gil (2015).

In this regard, see Morgese (2012), p. 156. As for a possible interpretation of the criterion see: Lübbe (2015).

Case C-4/11, Bundesrepublik Deutschland v Kaveh Puid [2013] ECLI: ECLI:EU:C:2013:740, para 30; Case C-394/12, Shamso Abdullahi v Bundesasylamt [2013] ECLI:EU:C:2013:813. It is worth noting that in Abdullahi, para 62, the CJEU stated that in cases of Dublin Transfers, the only way in which the asylum seeker can challenge the decision is by pleading “systemic deficiencies” in the asylum procedure and in the reception conditions of the receiving State, which provide substantial grounds for believing that the asylum seeker would face a real risk of being subjected to treatment contrary to Article 4 of the CFREU.

Ippolito (2015), pp. 25–26.

For a critical view, see Ippolito (2015), pp. 24–26.

Vicini (2015), p. 66.

European Union Agency for Fundamental Rights, ‘Article 52 - Scope and Interpretation: Explanations Relating to the Charter of Fundamental Rights’ <http://​fra.​europa.​eu/​en/​charterpedia/​Article/​52-scope-and-interpretation-rights-and-principles> (Accessed 4 April 2019). See also e.g. Case C-400/10 McB v E [2010] ECLI:EU:C:2010:582, para 53; Case T-256/11 Ahmed Abdelaziz Ezz and Others v Council of the European Union [2014] ECLI:EU:T:2014:93, para 75. It is worth noting, on the one hand, that the CJEU developed a contrasting jurisprudence on the existence of a strict legal duty to interpret the CFREU consistently with ECtHR case law, and, on the other hand, that the exact scope of art 52(3) CFREU is still a matter of doctrinal debate. On both these aspects, see Lock (2015), pp. 179–186.

Vicini (2015), p. 66.

Ibid.

CFREU, art 52(1), according to which ‘[a]ny limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others’. Since in the case at hand the Court referred only to Article 4 CFREU as the ground of the principle of non-refoulement—not also to Article 19(2) of the Charter—it could be affirmed that the requirement of the law-based limitation could be not taken into account.

See Sect. 2 of the present chapter.

The expression “multilevel protection” or “multilevel systems of protection” refers to situation characterized by the presence of a plurality of legal systems aimed at safeguarding the same rights. The overlap between the systems could be total or partial. Each system is an autonomous one, thus not depending from the other(s) even if there could be a connection between the relevant legal systems—e.g. as for the case of ECHR and CFREU.

See e.g. Case C-185/95 P Baustahlgewebe GmbH v European Commission [1998] ECLI:EU:C:1998:608, paras 1 and 29; Case C-71/02 Herbert Karner Industrie Auktionen GmbH v Troostwijk GmbH [2004] ECLI:EU:C:2004:181, paras 48–51; Case C-347/03 Regione Autonoma Friuli-Venezia Giulia v Ministero delle le Politiche Agricole e Forestali [2005] ECLI:EU:C:2008:341, paras 120–125; Case C-402/05 P Kadi v European Council [2008] ECLI:EU:C:2008:461, paras 5, 8, 9; Case C-450/06, Varec SA v Belgium [2008] ECLI:EU:C:2008:91, paras 44–48.

Art 6(3) TUE: ‘[f]undamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law’. See also the above-mentioned art 52(3) CFREU.

Case C-2/13 Opinion Pursuant to Article 218(11) TFEU (n 58).

As for the rich doctrinal debate on the cross-fertilization among the two legal systems, see inter alia e.g. Douglas-Scott (2006); Callewaert (2008, 2009); Malenovsky (2010); de Búrca (2013).

de Búrca (2013), pp. 172–174, reporting also a summary analysis of the Court’s approach to Charter claims between 2009–2013.

Polakiewicz (2016).

Samsam Mohammed Hussein v The Netherland and Italy, App no 40524/10 (ECtHR, 2 April 2013), para 76; Abubeker v Austria and Italy, App no 73874/11 (ECtHR, 18 June 2013), para 72; Halimi v Austria and Italy, App no 53852/11 (ECtHR, 18 June 2013), para 68; Miruts Hagos v The Netherlands and Italy, App no 9053/10 (ECtHR, 27 August 2013), para 38; Hussein Diirshi and others v The Netherlands and Italy, App no 2314/10 (ECtHR, 10 September 2013), para 38.

Ibid., para 77.

Ibid., para 78. It is worth underlining that two recent judgments issued by national courts affirmed that the asylum procedure and the reception conditions in Italy are affected by systemic deficiencies, hence declaring the respective Dublin Transfers under inquiry in breach of Article 3 ECHR and art 4 CFREU. See Tribunal Administrative de Rennes, application no 1705747 (5 January 2018) para 4 (‘[c]onsidérant que […] il existait in Italie des défaillances systémiques dans la prcédure d'asile et les conditions d'accueil des demandeurs susceptibles d'entraîner un risque de traitement inuhmain ou degradant.’) (emphasis added); Tribunal Administratif du Grand-Duché de Luxembourg, application n 41401 (10 July 2018), 6 ff. ([o]r, en l’espèce, le tribunal s’est vu soumettre des éléments susceptibles de conclure à l’existence de défaillances systémiques dans la procédure d’asile et les conditions d’accueil des demandeurs en Italie’) (emphasis addeded).

On the relation between Switzerland and the Dublin III Regulation see footnote 2.

This modus operandi was later confirmed, see A.M.E. v The Netherlands, App no 51428/10 (ECtHR, 5 February 2015) paras 28 and 35.

For a general overview on diplomatic assurances in cases concerning the exposure to the risk of being subjected to torture or other forms of ill-treatment, see e.g. Izumo (2010), p. 256. See also Chahal (n 16), para 105; Saadi (n 42), paras 147–149; Othman (Abu Qatada) v United Kingdom, App no 8139/09 (ECtHR, 17 January 2012) paras 187–204; Eshonkulov v Russia, App no 68900/13 (ECtHR, 15 January 2015) para 39. As for the case-law of treaty bodies, see e.g. Committee Against Torture, Agiza v Sweden, Communication no 281/2005, UN Doc CAT/C/34/D/233/2003 (24 May 2003) para 13.4; Committee Against Torture, Pelit v Azerbaijan, Communication no 281/2005, UN Doc CAT/C/38/D/281/2005 (29 May 2007) para 11; Committee Against Torture, Inass Abichou v Germany, Communication no 430/2010, UN Doc CAT/C/50/D/430/2010 (21 May 2013) para 11.5. As for the approach of national courts, see e.g. BB, PP, W, U, Y AND Z (W and others) v Secretary of State for the Home Department, Appeals nos SC/39/2005, SC/34/2005, SC/54/2005, SC/32/2005, SC/36/2005, SC/37/2005 (18 April 2016) 116.

Ibid., para 122.

Ibid., Joint partly dissenting opinion of Judges Casadevall, Berro-Lefèvre and Jäderblom.

A.M.E. (n 103), paras 27 ff.; S.M.H. v the Netherlands, App no 5868/13 (ECtHR, 17 May 2016), para 42 ff.; N.A. and Others v Denmark, App no 15636/16 (ECtHR, 28 June 2016), paras 24 ff. These decisions are characterized by a more rigorous assessment of the personal circumstances of the applicant.

Among others, Vicini (2015), pp. 52 and 62 ff.

Tarakhel (n 100), para 120. It is worth noting that the Court carried out the assessment taking into account all the circumstances of the case—in accordance with its traditional approach (see Tarakhel, paras 94 and 118). Among these circumstances, specific regard was paid to the particular vulnerability of two of the applicants, who were children (see Tarakhel, paras 118–119).

A.M.E. (n 103), paras 34–35. The ECtHR declared the application inadmissible since: (i) the general situation in Italy was not comparable to the situation in Greece at the time of M.S.S.; (ii) ‘unlike the applicants in the case of Tarakhel […] the applicant is an able young man with no dependents’.

For a more detailed analysis of the notion of vulnerability in the ECtHR case-law see e.g. Peroni and Timmer (2013).

D. v United Kingdom, App no 30240/96 (ECtHR, 2 May 1997), paras 53–54; N. v the United Kingdom, App no 26565/05 (ECtHR, 27 May 2008), para 42; Yoh-Ekale Mwanje v Belgium, App no 10486/10 (ECtHR, 20 December 2011), para 83; Samina v Sweden, App no 55463/09 (ECtHR, 20 January 2012), paras 50, 54, 55, 61; Husseini v Sweden, App no 10611/09 (ECtHR, 8 March 2012), paras 84, 86, 90, 94.

Paposhvili (n 115), para 183, according to which the ‘other very exceptional cases’ which may constitute a breach of Article 3 ‘should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness’. Furthermore, the ECtHR listed the procedural obligations binding the sending State: these obligations are aimed at assessing ‘whether the care generally available in the receiving state is sufficient and appropriate in practice for the treatment of the applicant’s illness’. The Court stated also that ‘where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned […] the returning State must obtain individual and sufficient assurances from the receiving State’—in the aftermath of the Tarakhel approach. See Paposhvili paras 189 ff.

In C.K. and others (n 116), the CJEU expressly recalls art 3 ECHR and ECtHR case-law on this provision (see paras 63, 67, 78 and 79). Moreover, the CJEU recalls Paposhvili (n 115), para 68.

Ibid., para 73.

Dublin III Regulation, art 3(2).

Ibid., para 93.

Ibid., paras 92 and 95. On the other hand, it is worth noting that this approach results in the EU system offering a wider protection than the ECHR, at least in cases related to critically ill asylum seekers subjected to removal orders. Indeed, the state party to the latter Convention is under the obligation to respect the principle of non-refoulement also with regards to the particular situation of the applicant. However, the state party to the Convention is not obliged to recognize the right to seek asylum to the individual since this right is not listed in the ECHR. Conversely, in the aftermath of C.K. and others, the EU system provides a more extensive protection than the ECHR since the assessment of the individual risk comes alongside the recognition of the right to apply for international protection. For the foresight of this hypothesis see Vicini (2015), pp. 66–69.

It is worth noting that one of the reasons against the accession of the EU to the ECHR was the requirement, under the ECtHR case-law, that States ‘check that another Member State has observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States’. See Case C-2/13 Opinion Pursuant to Article 218(11) TFEU (n 58), para 194.

For a critical view on the reliance of ECtHR on secondary sources, see Bossuyt (2012), pp. 222–224; Sadeghi (2009).

Auad v Bulgaria, App no 46390/10 (ECtHR, 11 October 2011), para 99; Saadi (n 42), paras 129–132; F.G. v Sweden, App no 43611/11 (ECtHR, 23 March 2016), para 120; J.K. and others v Sweden, App no 59166/12 (ECtHR, 23 August 2016), para 91; C.K. and others (n 116), para 75.

M.S.S. (n 59), para 366; Hirsi Jamaa and Others (n 67), paras 116, 131 and 133; F.G. (n 129); J.K. (n 129); N.S. (n 60), paras 94 and 106.

De Búrca (2013), p. 172.

For a critical opinion, see Imamović and Muir (2017).

On the massive doctrinal debate on the persuasiveness of the ECtHR case law, see e.g. Cohen-Jonathan and Flauss (2005); Harpaz (2009); Mariniello and Lobba (2017).

As for the learning argument and the consistency argument, see de Búrca (2013), pp. 181–182.

As for the need of set up minimum standards rather than uniformity, see Polakiewicz (2016).

See Sect. 3.1 of the present chapter.

Reception Directive (n 1).

Ibid., paras 249–264.

Ibid., paras 294–322. The adjudication related to this aspect was issued taking into account art 3 ECHR read in conjunction with art 13 ECHR.

Reception Directive (n 1).

M.S.S. (n 59), para 250. In this regard, see also Tarakhel (n 100). The latter judgment does not recall the Reception Directive, whose Article 23(5) establishes, among other things, that states are under the obligation to ensure that ‘that minor children of applicants or applicants who are minors are lodged with their parents’. However, it is worthy the attention that the ECtHR stated that Switzerland would have violated art 3 ECHR—and not art 8 ECHR—if the Swiss authorities had sent the family back to Italy without having first obtained individual guarantees from the Italian authorities that the applicants would have been taken charge of in a manner adapted to the age of the children and that the family would have been kept together—see Tarakhel (n 100), para 122. It is possible to suppose that the EU obligations flowing from the Reception Directive could have influenced the statement, even though EU secondary law was not mentioned. The recent case A.E.A. (n 69) did not address the issue.

In this regard, see Marchegiani (2011), p. 360. It is worth noting that the ECtHR qualified all asylum seekers as vulnerable individuals, hence broadening the list of persons qualified as vulnerable by Article 20(3) the Qualification Directive. By this mean, the ECtHR shows an inconsistent approach related to the weight to be attributed to the EU law in its judgments.

O’Rourke v United Kingdom, App no 39022/97 (ECtHR, 26 June 2001); Nitecki v Poland, App no 65653/01 (ECtHR, 21 March 2002); Budina v Russia, App no 45603/05 (ECtHR, 18 June 2009).

M.S.S. (n 59), para 250. Specifically, the Court stated that ‘[…] Unlike in the above-cited Müslim case […], the obligation to provide accommodation and decent material conditions to impoverished asylum-seekers has now entered into positive law and the Greek authorities are bound to comply with their own legislation, which transposes Community law, namely […] the Reception Directive’.

Marchegiani (2011), p. 360.

Bossuyt (2012), p. 234.

Marchegiani (2011), p. 360.

With regard to this assumption, the possibility to justify the interpretation of Article 3 ECHR read in conjunction with the provision of the Reception Directive according to the systemic interpretation criterion should be dismissed. This criterion is set in the Vienna Convention on the Law of the Treaty (adopted 23 May 1969, entered in force 27 January 1980) 1155 UNTS 331, art 31(3)(c), according to which ‘[t]here shall be taken into account, together with the context: […] any relevant rules of international law applicable in the relations between the parties’. However, this criterion refers to the international law rules applicable between all the parties of the treaty to be interpreted. With regard to the object of the present inquiry, the parties of the treaty to be interpreted, namely the ECHR, are all 47 States parties of the Council of Europe and not just some of them—i.e. the 28 EU Member States.

Ibid., para 251.

Clayton (2011), p. 767.

As for the ECtHR case-law in this regard, see Connors v United Kingdom, App no 66746/01 (ECtHR, 27 May 2004), para 84; D.H. and others v Czech Republic, App no 57325/00, (ECtHR, 13 November 2007), para 181; Muñoz Díaz v Spain, App no 49151/07 (ECtHR, 8 December 2009), para 61; Oršuš and others v Croatia, App no 15766/03 (ECtHR, 16 March 2010), para 148. On the open-minded concept of vulnerability, see e.g. O’Boyle (2016); Peroni and Timmer (2013).

Judge Sajò firmly criticized the qualification of asylum seekers as individuals belonging to a particularly vulnerable group. The grounds of his position were the previous ECtHR case-law (e.g., Oršuš (n 158), para 147). According to the recalled judgments, the qualification of a group as particularly vulnerable stems from being ‘historically subjected to prejudice with lasting consequences, resulting in their social exclusion’. Judge Sajò stated that asylum seekers do not comply which such requirements, nor can be considered as a homogeneous group. However, two observations should be drawn. The first concerns the possibility to consider asylum seekers as a homogeneous group. The second one underlines the lack of definition of the concept of vulnerability and the adoption, by the ECtHR, of several different grounds in order to establish this qualification. On the concept of vulnerability in the ECtHR case law, see Peroni and Timmer (2013).

See, e.g., Lavrysen (2011).

Bossuyt (2012), p. 234; M.S.S. (n 59), Partly Concurring, Partly Dissenting Opinion of Judge Sajò, pp. 101 ff.

Budina (n 146). See also Leijten (2018).