Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
Even if there are no serious grounds for believing that there are systemic failures in the asylum procedure and the conditions for the reception of applicants for asylum, a transfer in itself can entail a real risk of inhuman or degrading treatment within the meaning of Article 4 Charter. This is particulairily true in case of asylum sekeers with a particularly serious mental or physical condition, where a transfer can lead to the applicant’s health significantly deteriorating.
C. K., a national of the Syrian Arab Republic, and H. F., a national of the Arab Republic of Egypt, entered the territory of the European Union by means of a visa validly issued by the Republic of Croatia. After a short stay in Croatia, they crossed the Slovenian border equipped with false Greek identification. C. K. and H. F. were subsequently admitted to the reception centre for asylum seekers in Ljubljana (Slovenia) and each submitted an asylum application to the Ministry of the Interior of the Republic of Slovenia. C. K. was pregnant at the time of her entry into the territory of Slovenia.
The Slovenian authorities took view that the Republic of Croatia was, pursuant to Article 12(2) of the Dublin III Regulation, the Member State responsible for examining the application for asylum of the appellants in the main proceedings and they sent a request to the authorities of that Member State to take charge of them. Croatia accepted its responsibility in regard to those persons.
Taking into account the advanced pregnancy of C. K., the Republic of Slovenia did not, however, pursue the procedure under the Dublin III Regulation until after 20 November 2015, the date on which the appellant in the main proceedings gave birth to her child A. S.
By judgment of 2 March 2016, the Upravno sodišče (Administrative Court, Slovenia) annulled transfer decision and referred the case back for re-examination by instructing the competent authorities to obtain an assurance from the Republic of Croatia that C. K., H. F. and their child would have access to adequate medical care in that Member State.
In the context of that appeal, the appellants in the main proceedings claimed in particular that their transfer would have negative consequences for the state of health of C. K., also likely to affect the well-being of her new-born child. In this regard, they argued, supported by a number of medical certificates, that C. K. had had a high-risk pregnancy and that she has suffered psychiatric difficulties since giving birth. A specialist psychiatrist, it was stated, had accordingly diagnosed her as having post-natal depression and periodic suicidal tendencies. Furthermore, it is apparent from several medical opinions that the poor state of health of C. K. is mainly caused by uncertainty regarding her status and the resulting stress.
By judgment of 1 June 2016, the Upravno sodišče (Administrative Court) annulled the decision to transfer the appellants in the main proceedings. By an order of the same day, that court also suspended the enforcement of that decision until a final judicial decision had been adopted on the substance of the dispute.
The Ministry of the Interior thereupon brought an appeal against that judgment before the Vrhovno sodišče (Supreme Court, Slovenia).
Supreme Court confirmed that transfer decision. As regards the care that the state of health of C. K. requires, it held that it was apparent from a report of the Office of the United Nations High Commissioner for Refugees (UNHCR), received pursuant to a request by the Slovenian authorities, that the situation in the Republic of Croatia concerning the reception of asylum seekers was good. According to that report, that Member State had, in, inter alia, Kutina (Croatia), an accommodation centre designed specifically for vulnerable persons, where asylum seekers had free access to medical care provided by a doctor regularly visiting the centre or, in the event of emergencies, by the local hospital or even, if necessary, by the hospital in Zagreb (Croatia).
As regards other allegations of the appellants in the main proceedings, according to which they were victims of racially motivated remarks and abuse in Croatia, the Vrhovno sodišče (Supreme Court) held that they had not demonstrated that there were substantial grounds for believing that, in Croatia, systemic flaws existed in the asylum procedure and in the conditions for the reception of asylum seekers that were likely to give rise, for the latter, to a risk of inhuman or degrading treatment within the meaning of Article 3(2) of the Dublin III Regulation. Moreover, neither the EU institutions nor the UNHCR regarded the situation in that Member State as critical.
The appellants in the main proceedings lodged a constitutional appeal with the Ustavno sodišče (Constitutional Court, Slovenia).
By decision of 28 September 2016, that court held that, admittedly, it had not been proven in this case that there are, in Croatia, systemic flaws in the asylum procedure and in the conditions for the reception of applicants within the meaning of Article 3(2) of the Dublin III Regulation. Nevertheless, it held, this was not the only ground that could be invoked by the appellants in the main proceedings to show that their transfer to that Member State would expose them to a real risk of inhuman or degrading treatment. There is an obligation on the competent authorities and the national court to examine all the circumstances of significance for observance of the principle of non-refoulement, including the state of health of the person concerned, in the case where an asylum seeker claims that the Member State responsible for his application is not a ‘safe State’ for him. In that context, those authorities must take into account the applicant’s personal situation in Slovenia and assess whether the mere fact of transferring that person might in itself be contrary to the principle of non-refoulement.
The Ustavno sodišče (Constitutional Court) set aside the judgment of the Vrhovno sodišče (Supreme Court) and referred the case in the main proceedings back to that court for judgment in accordance with the considerations set out in its decision.
The Court ruled that Article 17(1) of the Dublin III Regulation must be interpreted as meaning that the question of the application, by a Member State, of the ‘discretionary clause’ laid down in that provision is not governed solely by national law and by the interpretation given to it by the constitutional court of that Member State, but is a question concerning the interpretation of EU law, within the meaning of Article 267 TFEU.
Furthermore, the Court states that the provisions in the Dublin III Regulation must be interpreted and applied with the respect to fundamental rights guaranteed by the Charter. The prohibition of inhuman or degrading treatment or punishment, laid down in Article 4 of the Charter, is, in that regard, of fundamental importance, to the extent that it is absolute in that it is closely linked to respect for human dignity, which is the subject of Article 1 of the Charter.
It follows from the case-law of the European Court of Human Rights relating to Article 3 of the ECHR, which must be taken into account when interpreting Article 4 of the Charter that the suffering which flows from naturally occurring illness, whether physical or mental, may be covered by Article 3 of the ECHR if it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible. Taking account of the general and absolute nature of Article 4 of the Charter, those points of principle are also relevant in the context of the Dublin system.
Even where there are no serious grounds for believing that there are systemic failures in the asylum procedure and the conditions for the reception of applicants for asylum, the transfer of an asylum seeker within the framework of the Dublin III Regulation can take place only in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment, within the meaning of that Article 4. Moreover, in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in the state of health of the person concerned, that transfer would constitute inhuman and degrading treatment, within the meaning of Article 4. It is for the authorities of Member States to eliminate any serious doubt as to the impact of the transfer on the health status of the person concerned, by ensuring that the asylum seeker is accompanied during the actual transfer by the appropriate medical staff who have the necessary equipment, resources and medicines, to prevent any aggravation of his health or any act of violence towards himself or third parties. Member States must also ensure that the asylum seeker receives care upon arrival in the responsible Member State.
If necessary, a Member State should suspend the transfer for as long as the applicant’s health condition does not render him capable of such a transfer. The requesting Member State may also choose to examine the application itself by making use of the 'discretionary clause' under Article
17(1) of the Dublin III Regulation - that provision cannot be interpreted to imply an obligation for that Member State to do so.
– even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible for examining the application for asylum, the transfer of an asylum seeker within the framework of Regulation No 604/2013 can take place only in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment, within the meaning of that article;
– in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in the state of health of the person concerned, that transfer would constitute inhuman and degrading treatment, within the meaning of that article;
– it is for the authorities of the Member State having to carry out the transfer and, if necessary, its courts to eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned by taking the necessary precautions to ensure that the transfer takes place in conditions enabling appropriate and sufficient protection of that person’s state of health. If, taking into account the particular seriousness of the illness of the asylum seeker concerned, the taking of those precautions is not sufficient to ensure that his transfer does not result in a real risk of a significant and permanent worsening of his state of health, it is for the authorities of the Member States concerned to suspend the execution of the transfer of the person concerned for such time as his condition renders him unfit for such a transfer; and
– where necessary, if it is noted that the state of health of the asylum seeker concerned is not expected to improve in the short term, or that the suspension of the procedure for a long period would risk worsening the condition of the person concerned, the requesting Member State may choose to conduct its own examination of that person’s application by making use of the ‘discretionary clause’ laid down in Article 17(1) of Regulation No 604/2013.
Article 17(1) of Regulation No 604/2013, read in the light of Article 4 of the Charter of Fundamental Rights of the European Union, cannot be interpreted as requiring, in circumstances such as those at issue in the main proceedings, that Member State to apply that clause.
Case Study - Discretionary clause
Article 4 Prohibition of torture and inhuman or degrading treatment or punishment