The Compatibility of European Union Dublin Regulation with the Article 3 of the European Convention on Human Rights

Abstract

Dublin system has always been subjected to certain level of criticism regarding its contradictory nature with human rights legislations such as ECHR. Being based on the principle of mutual trust and cooperation, the regulation does take into account differences in economic and political positions in Member states. Prohibition of torture, inhuman or other degrading treatment in the Dublin III Regulation is expressed through the Article 4 CFREU, which corresponds to the general spirit of the Article 3 ECHR, having the same meaning and protecting equal human rights. Article 3 RCHR consistently provides that prohibition of torture and inhuman or degrading treatment is one of the most fundamental and non-derogable human rights, even though certain degree of unclarity can be found while analyzing the text of the article. A more detailed analysis of the Strasbourg and Luxembourg Courts case law shows that in practice the prohibition of torture is subject to inconsistent interpretations that require the States to balance between the jurisprudence of the above mentioned institutions, being parties to both the ECHR and CFREU. The introduction of the Draft Proposal for the Dublin IV Regulation was hoped to balance the inconsistencies in the practices of the CJEU and ECtHR and combat the situation of expulsions to unsafe third countries, however, it is rather questionable whether the changes proposed will be able to improve the situation in the nearest future.