Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 13 July 2023 (1)
Case C‑392/22
X
v
Staatssecretaris van Justitie en Veiligheid
(Request for a preliminary ruling from the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch, Netherlands))
(Reference for a preliminary ruling – Area of freedom, security and justice – Dublin system – Regulation (EU) No 604/2013 – Transfer of an asylum seeker to the Member State responsible for examining the application for international protection – Second subparagraph of Article 3(2) – Implementation of the transfer impossible because of systemic flaws in the asylum procedure and in the reception conditions for applicants – Scope – Summary refoulement from external borders and measures of detention at border control posts – Applicable rules of evidence – Duty and scope of cooperation between the applicant and the competent authority)
I. Introduction
1. This reference for a preliminary ruling raises, once again, the question of the scope of the second subparagraph of Article 3(2) of Regulation (EU) No 604/2013, (2) under which, where it is impossible to transfer an applicant for international protection to the Member State initially designated as responsible for examining his application (‘the Member State responsible’), because there are substantial grounds for believing that there are systemic flaws in the asylum procedure in that Member State, which expose the applicant to a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, (3) the Member State determining the Member State responsible is to continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.
2. The reference has been made in proceedings between X, a Syrian national, and the Staatssecretaris van Justitie en Veiligheid (Secretary of State for Justice and Security, Netherlands; ‘the Secretary of State’), in connection with the latter’s decision not to examine his application for international protection, the Member State responsible for doing so being the Republic of Poland. X objects to the carrying out of his transfer to that Member State, on the ground that he has been subjected, more than once, to summary refoulement from the external borders of Poland, and later to allegedly unlawful detention at the border control post of that country – moreover, in conditions that did not meet his needs.
3. In the present case, the Court will need to build on its previous case-law. It identified the principle on which the second subparagraph of Article 3(2) of the Dublin III Regulation rests in the judgment of 21 December 2011, N. S. and Others, (4) going on to clarify the scope of that principle in the judgments of 16 February 2017, C. K. and Others (5) and of 19 March 2019, Jawo. (6) The present case differs from those previous cases in that the transfer is said to have been rendered impossible by the commission, by the Member State normally responsible, of serious and systematic infringements of the fundamental rights of third-country nationals at its borders.
4. In the present analysis, I will set out, first of all, the reasons why I consider that the practices referred to in point 2 of this Opinion are not, in themselves, a proper basis for a finding that there are substantial grounds for believing that the applicant for international protection would, if transferred to the Member State normally responsible, face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter during the examination of his application for international protection and upon conclusion of that examination.
5. I will go on to explain that, in those circumstances, the competent authority is required to implement the transfer decision without first carrying out checks or requiring the Member State normally responsible to provide further information or individual guarantees as to the reception conditions and the conditions under which it will take charge of the applicant.
6. Lastly, I will clarify, in the light of the principles which the Court has already identified in its case-law, the rules of evidence and cooperative arrangements to be observed in establishing a risk of inhuman or degrading treatment of the applicant in the context of the second subparagraph of Article 3(2) of the Dublin III Regulation.
II. The legal framework
7. Recitals 19, 32 and 39 of the Dublin III Regulation state:
‘(19) In order to guarantee effective protection of the rights of the persons concerned, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in accordance, in particular, with Article 47 of the [Charter]. In order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred.
…
(32) With respect to the treatment of persons falling within the scope of this Regulation, Member States are bound by their obligations under instruments of international law, including the relevant case-law of the European Court of Human Rights.
…
(39) This Regulation respects the fundamental rights and observes the principles which are acknowledged, in particular, in the [Charter]. In particular, this Regulation seeks to ensure full observance of the right to asylum guaranteed by Article 18 of the [Charter] as well as the rights recognised under Articles 1, 4, 7, 24 and 47 thereof. This Regulation should therefore be applied accordingly.’
8. Headed ‘Access to the procedure for examining an application for international protection’, Article 3 of that regulation provides:
‘1. Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.
2. Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it.
Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of [the Charter], the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.
Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible.
…’
III. The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling
9. The applicant, a Syrian national born in 1992, made an application for international protection in Poland on 9 November 2021. On 21 November 2021, he travelled to the Netherlands where he made a new application for international protection on 22 November 2021. On 20 January 2022, the Kingdom of the Netherlands asked the Republic of Poland to take back the applicant on the basis of Article 18(1)(b) of the Dublin III Regulation. On 1 February 2022, the Republic of Poland agreed to take him back on the basis of Article 18(1)(c) of that regulation. By decision of 20 April 2022, the Secretary of State declined to consider the application for international protection made by the applicant.
10. The applicant brought an action challenging that decision before the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch, Netherlands), the referring court, simultaneously seeking interim measures from the judge hearing the application for interim measures. On 3 June 2022, the judge hearing the application for interim measures granted the measures sought and ordered that the applicant was not to be transferred to Poland pending determination of the appeal.
11. The applicant submits that the Polish authorities infringed his fundamental rights and that he is therefore concerned that they will do so again if he is transferred to Poland. In that regard, he states that the Polish authorities removed him from the territory of the European Union to Belarus on three occasions after he had entered Poland, by means of a so-called ‘pushback’ procedure. He submits that that procedure is incompatible with human dignity, which constitutes, under the case-law of the European Court of Human Rights, an absolute bar to a transfer pursuant to the Dublin III Regulation. (7) The applicant supports his statements by reference to reports of non-governmental organisations (NGOs) and to the case-law of the Court of Justice, of the European Court of Human Rights and of national courts. The applicant is also critical of the way the Polish authorities treated him at the border, where he did not receive assistance from an interpreter in order to obtain explanations or information. He was provided, however, with a document in Arabic explaining the Dublin III Regulation. On the advice of an organisation, he allowed his fingerprints to be taken. The applicant also complains about the conditions in which he was detained after making his application for international protection, in that he lacked food and was not given a medical check. Lastly, the applicant states that the Polish judiciary is not independent and has asked the referring court to refer to the Court of Justice, for a preliminary ruling, the same questions that were referred in the case which gave rise to the order of the President of the Court of 20 May 2022, Staatssecretaris van Justitie en Veiligheid. (8)
12. The Secretary of State considers, on the other hand, that he is fully entitled to rely on the principle of mutual trust with regard to the Republic of Poland, and thus that it can be assumed that the applicant will not find himself in a situation which is contrary to Article 4 of the Charter after being transferred to that Member State. He states that the practice of ‘pushback’ is not relevant in assessing the legality of the transfer decision, in so far as the applicant will not be at risk of being pushed back once the transfer has been carried out. Furthermore, he states that the applicant has not demonstrated that the situation in which he will find himself, after being transferred to Poland, will meet the particularly high threshold of severity defined by the Court in the judgment in Jawo.
13. The Secretary of State indicates, finally, that he sees no reason to make use of the discretionary clause in Article 17 of the Dublin III Regulation and examine the applicant’s application for international protection of his own volition.
14. The referring court considers that it must rule on the extent to which the infringements of the fundamental rights of third-country nationals entailed in the practice of ‘pushback’ and the incidents of unlawful detention by the Member State normally responsible affect the principle of mutual trust between Member States.
15. In those circumstances, the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court of The Hague, sitting in ’s-Hertogenbosch) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1. Should the [Dublin III] Regulation, in view of recitals 3, 32 and 39 thereof, and read in conjunction with Articles 1, 4, 18, 19 and 47 of the [Charter], be interpreted and applied in such a way that the principle of inter-State trust is not divisible, so that serious and systematic infringements of EU law committed by the potentially responsible Member State, before transfer, with respect to third-country nationals who are not (yet) Dublin returnees absolutely preclude transfer to that Member State?
2. If the answer to the [first] question is in the negative, should Article 3(2) of the [Dublin III] Regulation, read in conjunction with Articles 1, 4, 18, 19 and 47 of the [Charter], be interpreted as meaning that, if the Member State potentially responsible infringes EU law in a serious and systematic way, the transferring Member State cannot, within the framework of [that regulation], rely blindly on the principle of inter-State trust but must eliminate all doubts or must demonstrate that, after the transfer, the applicant will not be placed in a situation which is contrary to Article 4 of the [Charter]?
3. What evidence can the applicant use in support of his arguments that Article 3(2) of the [Dublin III] Regulation precludes his transfer, and what standard of proof should be applied? In the light of the references to the Union acquis in the recitals of [that regulation], does the transferring Member State have a duty of cooperation or verification, or, in the event of serious and systematic infringements of fundamental rights with respect to third-country nationals, is it necessary to obtain individual guarantees from the Member State responsible that the applicant’s fundamental rights will (indeed) be respected after the transfer? Is the answer to this question different if the applicant lacks evidence in so far as he is unable to support his consistent and detailed statements with documents, when he cannot be expected to do so, given the nature of the statements?
4. Is the answer to [the third question] different if the applicant demonstrates that complaining to the authorities and/or recourse to legal remedies in the responsible Member State will not be possible and/or effective?’
16. Written observations have been submitted by the applicant, the Netherlands, Belgian, Czech, German, Italian, Hungarian, Austrian and Polish Governments, and by the European Commission.
IV. Analysis
A. The scope of the second subparagraph of Article 3(2) of the Dublin III Regulation (first and second questions)
17. I suggest to the Court that the first and second questions referred should be examined together.
18. By the first question, the Court is invited to rule on whether the second subparagraph of Article 3(2) of the Dublin III Regulation is to be interpreted as precluding the implementation of a transfer decision relating to an applicant where it is established that the Member State normally responsible has committed, in relation to that applicant, ‘serious and systematic infringements of EU law’ prior to the adoption of such a decision. Although that question is formulated in particularly broad terms, it is clear from the request for a preliminary ruling that the referring court is focusing its enquiries on two types of practice which appear to be used by that Member State where third-country nationals attempt to cross – or have very recently crossed – its external borders, namely summary refoulement and detention at border control posts.
19. I would therefore point out, at the outset, that this question does not relate to the type of case where the applicant relies on exceptional circumstances that are unique to him, such as a particular vulnerability, a situation which the Court referred to in paragraph 95 of the judgment in Jawo and examined in the judgment of 16 February 2017, C. K. and Others. (9)
20. Moreover, by the second question, the referring court asks the Court to clarify, in the event that it does not consider that those practices preclude the implementation of the transfer decision, the extent to which the competent authority is required to satisfy itself that the transfer will not put the applicant at risk of inhuman or degrading treatment.
1. The scope of the assessment of whether a risk of inhuman or degrading treatment would arise if the transfer were carried out, and how that assessment is to be made
21. Under the second subparagraph of Article 3(2) of the Dublin III Regulation, an applicant for international protection cannot be transferred to the Member State normally responsible if there are substantial grounds for believing that he or she would be at risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, by reason of systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State. That provision codifies the case-law established by the Court in the judgment in N. S. and Others.
22. In the judgment in Jawo, the Court extended the scope of the assessment to be carried out by the court hearing an action challenging a transfer decision on the basis that the Common European Asylum System and the principle of mutual trust depend on the guarantee that ‘the application of that system will not result, at any stage and in any form, in a serious risk of infringements of Article 4 of the Charter’, (10) that provision containing a general and absolute prohibition on inhuman and degrading treatment. (11) Consequently, that assessment must relate as much to the risk of inhuman or degrading treatment faced by the applicant at the time of the transfer as to the risk he or she faces, as an applicant, while the application is under examination, and, following determination of the application, as a beneficiary of refugee status or subsidiary protection, (12) or as a third-country national awaiting removal, if international protection is refused. (13)
23. The Court requires the competent authority to carry out a two-stage assessment.
24. The first stage consists in an evaluation of whether the applicant would face a real risk of being subjected to inhuman or degrading treatment, on the basis of information that is objective, reliable, specific and properly updated. That information must enable the competent authority to assess the functioning of the system of international protection in the Member State responsible and, in particular, whether there are indeed deficiencies, which may be systemic or generalised, or which may affect certain groups of people, (14) in the reception and taking charge of applicants, and, where applicable, whether the individual guarantees which that Member State is able to offer are adequate and sufficient. That information may derive, in particular, from international judicial decisions, such as judgments of the European Court of Human Rights, and from decisions, reports and other documents issued by the organs of the Council of Europe or relating to the United Nations system, or indeed from regular and concordant reports of international NGOs. It is worth noting, in that regard, that, according to the European Court of Human Rights, ‘general deficiencies well documented in authoritative reports, notably of the [United Nations High Commissioner for Refugees], Council of Europe and EU bodies are in principle considered to have been known’ to the competent authorities. (15)
25. As regards the criteria which are to guide the competent authority in carrying out that assessment, the Court has held that, in order to fall within the scope of Article 4 of the Charter, those deficiencies must attain a particularly high level of severity, which depends on all the circumstances of the case. (16) According to the Court, that particularly high level of severity is attained where the person concerned is in a situation of extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity. (17) That threshold thus does not cover situations characterised even by a high degree of insecurity or a significant degradation of the living conditions of the person concerned. (18)
26. The second stage of the assessment must enable the competent authority to evaluate, in a concrete and precise manner, whether there are substantial grounds for believing that the person concerned would face such a real risk of being subjected to inhuman or degrading treatment by reason of the treatment he or she would receive during the examination of the application and upon conclusion of that examination. That evaluation requires an individual, prospective assessment of the risk to which the person concerned would be exposed.
2. The effects of summary refoulement of third-country nationals and measures placing applicants in detention at border control posts on the implementation of the second subparagraph of Article 3(2) of the Dublin III Regulation
27. In the present case, the applicant’s arguments do not relate to exceptional circumstances unique to him, but to infringements or deficiencies in the implementation, by the Member State normally responsible, of the procedures for reception of third-country nationals and applicants for international protection at its borders. As the referring court observes, the applicant complains, first, that he was subjected to summary refoulement at the external border of Poland on several occasions before making his application for international protection, and, secondly, about the treatment he received when he entered Polish territory and made his application for international protection, in that he was detained at the border control post. The referring court emphasises in this regard that the use of those two practices is attested by objective, reliable, specific and properly updated information.
28. I do not consider that those arguments, even if attested by such information, are sufficient to displace the principle of mutual trust and thus preclude implementation of the transfer decision adopted pursuant to Article 29 of the Dublin III Regulation.
29. Those arguments, in so far as they concern practices relating to the conditions prevailing over the crossing of the external borders of a Member State and over the making of applications for international protection at those borders, do not cast light on the conditions which can be expected to prevail over the taking in charge of the applicant in the event of a transfer to that Member State.
30. As regards the practice of summary refoulement of third-country nationals from the border of a Member State, such a practice is quite evidently a serious infringement of the fundamental rights of those third-country nationals. Regardless of the legal status of the person concerned, the principle of non-refoulement, which is enshrined in Article 78(1) TFEU as well as in Articles 18 and 19 of the Charter, is an essential component of the prohibition on torture and inhuman or degrading treatment or punishment. That principle prohibits the removal, expulsion or indeed extradition not only to a country in which a person may be exposed to a risk of persecution or serious harm (direct refoulement), but also to a country where he or she would be at serious risk of onward removal to that country (indirect refoulement).
31. The European Court of Human Rights examines the legality of that practice, which is also referred to as ‘summary expulsion’ or ‘pushback’, in the context of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (19) or of Article 4 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, (20) as amended by Protocol No 11, which is headed ‘Prohibition of collective expulsion of aliens’. (21) It relates it to expulsion, which refers to any forcible removal of a third-country national from a State’s territory, irrespective of the lawfulness of the person’s stay, the length of time he or she has spent in the territory, the location in which he or she was apprehended, his or her status as a migrant or an asylum-seeker and his or her conduct when crossing the border. (22) The third-country national is thus deprived of the possibility of entering the State’s territory. Entry to the territory is a necessary initial step in a process of identifying and assessing the specific needs of the most vulnerable people. Some third-country nationals may therefore find themselves unable to make an application for international protection.
32. In that context, I consider that the practice of summary refoulement from the border of a Member State affects the proper functioning of the Common European Asylum System in its external dimension, in that it does not guarantee access to international protection.
33. Nonetheless, the fact that the Member State normally responsible encounters major difficulties in the integrated management of its borders and the application of Regulation (EC) No 562/2006, (23) leading it to adopt practices at the border which may infringe the fundamental rights of the persons concerned, cannot constitute, in itself, substantial grounds for believing that the applicant for international protection would, in the event of transfer to that Member State, face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter during the examination of his or her application for international protection and upon conclusion of that examination. (24) As the Secretary of State has observed before the referring court, the practice of summary refoulement is not relevant in assessing the legality of the transfer decision in so far as the applicant will not be subject to that practice once he has been transferred.
34. The nature and seriousness of the risk of inhuman or degrading treatment faced by the applicant by reason of the transfer to the Member State normally responsible must be assessed in the light of specific information relating to the flaws or deficiencies exhibited by that Member State in circumstances objectively comparable to those in which that applicant would be after the transfer had been carried out, in his or her capacity as applicant during the process of examination of the application, and then in his or her capacity either as beneficiary of refugee status or subsidiary protection upon conclusion of that process, or in his or her capacity as third-country national awaiting removal in the event of the application being rejected. (25) The indications as to the practices used by the Member State normally responsible when attempts are made to cross its external borders or when applications for international protection are made at its borders do not give rise to any presumption as to the treatment that the person concerned will receive as the process of examination of the application progresses and upon conclusion of that process. Even where those indications attest to serious infringements of the fundamental rights of third-country nationals, they cannot be regarded as relevant information for the purposes of the assessment of the risk of inhuman or degrading treatment that the competent authority is required to carry out on the basis of Article 3(2) of the Dublin III Regulation, otherwise the functioning of that regulation might be entirely frustrated.
35. The same applies to shortcomings of the Member State normally responsible in the treatment of third-country nationals when they cross the border and the reception of applicants for international protection placed in detention at border control posts. Those shortcomings relate to situations which are not comparable to that in which applicants who are subject to transfer decisions are liable to find themselves, in terms of the status of the third-country national and also of the applicable law. In the absence of information attesting to flaws which are systematic or generalised, or which affect a certain group of persons, in the implementation of Directive 2013/33 and, in particular, in relation to the availability of material reception conditions, those considerations are, equally, not sufficient to constitute substantial grounds for believing that the person concerned would, if transferred to that Member State, face a real risk of being subjected to inhuman or degrading treatment during the examination of his or her application for international protection or upon conclusion of that examination, in particular by being placed in a situation of extreme material poverty. (26)
36. In conclusion, in the absence of objective, reliable, specific and properly updated information capable of demonstrating the existence, in the Member State normally responsible, of systematic or generalised flaws affecting the system of international protection or of flaws affecting the taking in charge and treatment of an objectively identifiable group of persons to which the applicant belongs, there is no valid reason for the competent authority to presume that the treatment that will be given to the applicant, during the process of examination of his or her application and upon conclusion of that process, will expose him or her to a risk of inhuman or degrading treatment. On the contrary, the competent authority is required to make its assessment on the basis that fundamental rights, including those deriving from the Convention Relating to the Status of Refugees, (27) as supplemented by the Protocol Relating to the Status of Refugees, (28) as well as from the ECHR, (29) will be respected, in accordance with the principle of mutual trust.
37. In those circumstances, the competent authority cannot therefore be authorised to require the Member State normally responsible to provide further information or individual guarantees as to the reception and living conditions of the applicant during the examination of the application and upon conclusion of that examination, as that would be contrary to the principle of mutual trust between the Member States on which the Common European Asylum System is based. Furthermore, given that such actions would require additional time, they would not make it possible to guarantee the rapid determination of the Member State responsible and the rapid processing of applications, despite these being objectives which the EU legislature was seeking to achieve through the Dublin III Regulation. (30)
38. In the light of those matters, I consider that the second subparagraph of Article 3(2) of the Dublin III Regulation, read in the light of Article 4 of the Charter, is to be interpreted as not precluding the implementation of a transfer decision relating to an applicant for international protection who has been subject, more than once, to summary refoulement at the external border of the Member State which, pursuant to that regulation, would normally be responsible for examining his or her application, and to an allegedly unlawful measure placing him or her in detention at the border control post of that Member State, in so far as the competent authority does not have material capable of demonstrating that there are substantial grounds for believing that the applicant would be exposed to a real risk of being subjected to inhuman or degrading treatment during the examination of his or her application and upon conclusion of that examination, by reason of having been transferred to that Member State.
39. In the absence of such material, the competent authority is required to implement the transfer decision, in accordance with Article 29 of that regulation, without first carrying out checks or requiring the Member State normally responsible to provide further information or individual guarantees as to the treatment that the person concerned will receive during the process of examination of his or her application for international protection and upon conclusion of that process.
B. The rules of evidence and obligation to cooperate applicable in the context of the second subparagraph of Article 3(2) of the Dublin III Regulation (third and fourth questions)
40. I suggest to the Court that the third and fourth questions referred should be examined together.
41. By its third question, the referring court asks the Court, first, to clarify the rules of evidence applicable in the context of implementation of the second subparagraph of Article 3(2) of the Dublin III Regulation. It asks, in particular, about the nature of the evidence and the standard of proof required to establish a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter resulting from a transfer to the Member State normally responsible.
42. Secondly, the referring court asks the Court whether there is a duty of cooperation incumbent on the competent authority with regard to the establishment of such a risk and, if so, what the scope of that duty may be. In that context, it invites the Court to clarify the extent to which the competent authority is obliged to carry out checks as to the existence of a risk of inhuman or degrading treatment in the Member State normally responsible or to require individual guarantees in the event of serious and systematic infringements of fundamental rights by that Member State.
43. By its fourth question, the referring court enquires about the impact of the absence of effective judicial protection in the Member State normally responsible on the rules of evidence or the cooperative arrangements established in the context of implementation of the second subparagraph of Article 3(2) of the Dublin III Regulation.
1. The rules of evidence applicable in the context of the second subparagraph of Article 3(2) of the Dublin III Regulation
44. The EU legislature has not regulated the rules of evidence applicable in the context of implementation of Article 3(2) of the Dublin III Regulation. I consider, nonetheless, that the scheme of that regulation and the rules which the Court has established in its case-law make it possible to identify the principles on which those rules of evidence must be based.
45. First, the assessment that must be conducted under the second subparagraph of Article 3(2) of that regulation requires that the applicant is given the opportunity to present all the material in his or her possession which contributes to establishing the existence of a risk of inhuman or degrading treatment in the event of transfer to the Member State normally responsible.
46. The applicant must be given that opportunity at the stage of the personal interview and, where appropriate, at the stage of bringing an action against the transfer decision.
47. The personal interview is among the general principles and safeguards set out in Chapter II of the Dublin III Regulation. Article 5(1) of that regulation requires the competent authority to conduct a personal interview with the applicant in order to facilitate the process of determining the Member State responsible and ensure that the applicant understands the information provided to him or her under Article 4 of the regulation. That interview is, first and foremost, the applicant’s opportunity to provide detailed statements and/or to supply all the proof and circumstantial evidence referred to in Article 21(3) and Article 22(3) of that regulation which enable a Member State to be presumed responsible and on which the take charge request is based. (31) That proof and that evidence relate to the application of the criteria for determining the Member State responsible set out in Chapter III of the Dublin III Regulation, which does not cover the ‘exclusion criterion’ in Article 3(2) of that regulation. (32) However, there is no reason, in my view, why the personal interview cannot also be the applicant’s opportunity to express his or her concerns and to communicate, where applicable, such matters as may demonstrate that there would be a risk of inhuman or degrading treatment in the event that a transfer to another Member State were to be considered. The terms of the first subparagraph of Article 5(1) of that regulation are broad enough to permit that interpretation which, in addition, assists in realising the objective pursued by the EU legislature in requiring a personal interview to be conducted, namely to strengthen the rights of applicants and involve them as closely as possible in the process of determining the Member State responsible. (33) Lastly, it seems to me that that interpretation is supported by the principles identified by the Court in the judgments of 19 March 2019, Ibrahim and Others, (34) and of 16 July 2020, Addis, (35) concerning the assessment of whether there would be a substantial risk of the applicant being subjected to inhuman or degrading treatment in the event of a transfer back to the Member State in which he or she already has the benefit of international protection. I refer, in that regard, to points 55 to 57 of this Opinion.
48. After a transfer decision has been adopted, the applicant may put forward the reasons why such a transfer would expose him or her to a risk of inhuman or degrading treatment in the action that he or she may bring against that decision pursuant to Article 27(1) of the Dublin III Regulation. That is illustrated by the present case.
49. With regard, secondly, to the evidence that the applicant must provide, the Commission has stated in its observations that, in the light of the judgment in Jawo, ‘the applicant must provide objective, reliable, specific and properly updated material indicating the existence of flaws which are either systematic or generalised, or affect certain groups of persons, and which meet a particularly high threshold of severity’.
50. I do not agree with that analysis.
51. First, it seems to me that that interpretation places an excessive burden of proof on applicants, having regard to the difficulties they may face in gathering evidence and, in particular, to the resources available to them.
52. I accept that it is, in principle, for the applicant to produce material capable of demonstrating that there are substantial grounds for believing that, if the transfer decision were implemented, he or she would be exposed to a real risk of being subjected to inhuman or degrading treatment. However, I think there is a need for prudence with regard to the requirements as to the nature of the evidence and the standard of proof required, as these depend on the circumstances of each individual case. I therefore agree with the observation of the Polish Government that the absence of any document corroborating the applicant’s statement does not mean, in itself, that that statement must be deemed to lack probative force. Some applicants are in a position to explain their concerns in concrete terms and provide relevant information – even documentary proof – as to the conditions under which they were taken in charge, because they have stayed, in that capacity, on the territory of the Member State normally responsible, which they subsequently left. On the other hand, other applicants are unable to submit evidence in support of their statements and, if available to them, to provide that which is most relevant. In that regard, the Netherlands Government states, in its observations, that the applicant is able to provide the information available on the Member State concerned, such as the reports produced by the Asylum Information Database (AIDA) or the cooperation agreements concluded between that Member State and the European Union Agency for Asylum (EUAA) or the reports of human rights organisations. While some applicants are able, at the stage of bringing an action against a transfer decision, to make effective use of the legal and linguistic assistance provided to them, I am not persuaded that, in the majority of cases, they necessarily have knowledge of useful sources of information as regards respect, in a Member State, for the fundamental rights of applicants and, where applicable, of how to access that information.
53. In those circumstances, while an applicant can be required to demonstrate, to the requisite standard, the reality of his or her personal situation, by the nature and content of his or her statements or the indicative evidence in his or her possession, he or she cannot be expected to provide objective, reliable, specific and properly updated information capable of demonstrating the existence of flaws in the Member State normally responsible and the seriousness of the risk to which he or she is exposed. In my view, those are steps for the competent authority to take, it being solely the competent authority that is in a position to carry out the legal assessment required for the implementation of the second subparagraph of Article 3(2) of the Dublin III Regulation.
54. Secondly, I see no reason why the applicant should bear a heavier burden of proof than is the case where he or she must demonstrate that, if returned to the Member State in which he or she already has the benefit of international protection, there would be a risk of treatment contrary to Article 4 of the Charter.
55. I would observe that, in the judgment of 19 March 2019, Ibrahim and Others, (36) which was delivered on the same day as the judgment in Jawo, the Court held that Article 33(2)(a) of Directive 2013/32/EU (37) does not preclude a Member State from exercising the option granted by that provision to reject an application for international protection as being inadmissible on the ground that the applicant has been previously granted such protection by another Member State, where the living conditions that that applicant could be expected to encounter as the beneficiary of such protection in that other Member State would not expose him or her to a substantial risk of suffering inhuman or degrading treatment, within the meaning of Article 4 of the Charter. (38)
56. In that context, the Court identified the same principles it had set out in Jawo, which it applied by analogy. It thus held that, where the authorities of a Member State have available to them evidence produced by the applicant in order to establish the existence of such a risk in the Member State that has previously granted international protection, those authorities are required to assess, on the basis of information that is objective, reliable, specific and properly updated and having regard to the standard of protection of fundamental rights that is guaranteed by EU law, whether there are deficiencies which may be systematic or generalised, or which may affect certain groups of people. (39) As to the threshold of severity, this – as logic dictates – is the same as that defined in the judgment in Jawo, and requires that the person concerned is exposed to a risk of finding himself or herself in a situation of extreme material poverty. (40)
57. In the judgment of 16 July 2020, Addis, (41) the Court held that it follows that the assessment of whether there is a risk of treatment contrary to Article 4 of the Charter must be made after the applicant is given the opportunity to set out all of the circumstances, particularly personal circumstances, capable of confirming that such a risk exists. (42) The Court thus held that the personal interview must enable the determining authority not only to assess the applicant’s specific situation and degree of vulnerability, but also to satisfy itself that he or she has been invited to set out ‘all of the considerations which are capable of demonstrating that being sent back to the Member State that previously granted international protection would expose him or her to a risk of treatment that is contrary to Article 4 of the Charter’. (43)
58. It must be observed that the Court did not lay down any requirement here, like the EU legislature, as to the nature and strength of the evidence that the applicant is required to provide in support of his or her allegations. There is thus no reason, in my view, to depart from those principles in the context of implementation of the second subparagraph of Article 3(2) of the Dublin III Regulation, inasmuch as it would not be appropriate to draw a distinction between the situations of applicants who state that they are at risk of inhuman or degrading treatment, depending on whether they are transferred to the Member State which has already granted international protection or to the Member State responsible.
59. It follows in my opinion that it is for the applicant to make the detailed statements and, where applicable, to produce all the material in his or her possession which is capable of demonstrating that there are substantial grounds to believe that he or she would be exposed to a real risk of being subjected to inhuman or degrading treatment if transferred to the Member State normally responsible.
2. The existence of a duty of cooperation incumbent on the competent authority in implementing the second subparagraph of Article 3(2) of the Dublin III Regulation and, if such a duty exists, its scope
60. In the second part of its third question, the referring court asks the Court to clarify the extent to which the competent authority is required to cooperate with the applicant for the purposes of establishing whether there would be a risk of inhuman and degrading treatment in the event of a transfer to the Member State normally responsible. Such an obligation, in so far as it would require that authority to make a detailed examination and assessment as to the existence of a real risk of being subjected to inhuman and degrading treatment, would compensate for the difficulties faced by the applicant in proving the existence of such a risk, especially given that the applicant does not have the benefit of the same procedural safeguards as are laid down by Directives 2011/95 and 2013/32.
61. The Dublin III Regulation does not lay down any obligation for the applicant and the competent authority to cooperate in the implementation of the second subparagraph of Article 3(2) of that regulation.
62. First, the Dublin III Regulation is based, above all, on the principles of mutual trust and administrative cooperation between the Member States. While the applicant is heard by the competent authority during the personal interview, the procedure for determining the Member State responsible is based in particular, in accordance with Chapter VII of that regulation, on information sharing, exchange of data and administrative arrangements between the competent authorities of the Member States. Regulation No 1560/2003 thus has the objective, as stated in recital 1 of that regulation, of clearly defining the arrangements for the effective application of the Dublin III Regulation ‘so as to facilitate cooperation between the authorities in the Member States competent for implementing that Regulation as regards the transmission and processing of requests for the purposes of taking charge and taking back, requests for information and the carrying out of transfers’.
63. Secondly, Article 3(2) of the Dublin III Regulation codified the principles identified by the Court in the judgment in N. S. and Others, and the EU legislature did not add any specific provisions as to the existence of any duty of cooperation between the applicant and the competent authority.
64. Given that the regulation is silent on that matter, the Polish Government suggests, in its observations, that the provisions contained in Article 4 of Directive 2011/95 should be applied by analogy, the referring court considering, in that regard, that the duty to cooperate that would thus be established, for the purposes of establishing a risk of inhuman and degrading treatment in the event of a transfer to the Member State normally responsible, would be comparable, in terms of its nature and scope, to that laid down by Directive 2011/95.
65. Application by analogy requires the situation subject to a legal vacuum and that which is regulated by the EU legislature to be, if not identical, then at least similar. While the Dublin III Regulation differs in its objective and purpose from Directives 2011/95 and 2013/32, (44) the situation referred to in the second subparagraph of Article 3(2) of that regulation, relating to whether there would be a risk of inhuman or degrading treatment in the event of the applicant being transferred to the Member State normally responsible, and the situation referred to in Article 4 of Directive 2011/95, relating to whether there would be a real risk of suffering serious harm in the event of the applicant being returned to his or her country of origin, are similar in terms of the reason for the existence of those two provisions. It is true that the risk assessment carried out as part of the procedure for determining the Member State responsible is more limited in scope. Nevertheless, it has the same purpose as the risk assessment carried out as part of the examination of an application for international protection, namely to ensure that the fundamental rights of the applicant are respected, and it involves the same actors.
66. I do not consider, however, that an application by analogy is necessary. In the judgment in N. S. and Others; the judgment of 16 February 2017, C. K. and Others; (45) and the judgment in Jawo, the Court sketched the outline of an obligation of cooperation between the applicant and the competent authority in the context of implementation of the second subparagraph of Article 3(2) of the Dublin III Regulation, the practical details of which are similar to those set out in Article 4 of Directive 2011/95.
67. In both cases, the statements made by the applicant in the personal interview and, where applicable, the documentary proof or indications that he or she provides, constitute merely the starting point in the process of assessment of the facts and circumstances carried out by the competent authorities. (46) Mirroring the provisions contained in Article 4(3) and Article 4(5) of Directive 2011/95, (47) the Court requires the competent authority to assess whether the applicant would face a real risk of being subjected to inhuman or degrading treatment in the light not only of objective, reliable, specific and properly updated information relating to the functioning of the system of international protection in the Member State normally responsible, but also of the particular situation of the applicant, that authority thus being required to carry out an individual assessment. (48)
68. I accept that the scope of the cooperation between the applicant and the competent authority in the context of implementing the second subparagraph of Article 3(2) of the Dublin III Regulation differs from the cooperation provided for by Article 4 of Directive 2011/95 in one situation, namely where the assessment reveals the existence of substantial grounds for believing that the applicant would be at risk of inhuman or degrading treatment if he or she were transferred to the Member State responsible. In such a case, the principles of mutual trust and administrative cooperation on which the Dublin III Regulation is based require, in my view, that the competent authority asks the Member State normally responsible, on a case-by-case basis, to provide further information or adequate individual guarantees as regards the reception conditions that the applicant will encounter or the conditions under which it will take charge of the applicant, in order to implement the transfer decision in accordance with Article 4 of the Charter. In the event that those guarantees prove to be insufficient, that article implies an obligation not to implement that decision, given that Article 3(2) of the Dublin III Regulation requires the competent authority to continue to examine the criteria set out in Chapter III of that regulation in order to establish whether another Member State can be designated as responsible (second subparagraph) or to examine the application for international protection itself (third subparagraph).
3. The consequences of the potential absence of an effective or adequate remedy in the Member State responsible on the rules of evidence or the cooperative arrangements established in the context of implementation of Article 3(2) of the Dublin III Regulation
69. By its fourth question, the referring court enquires about the extent to which ineffectiveness or inadequacy of remedies, leading to a lack of effective judicial protection in the Member State responsible, affects the rules of evidence or the cooperative arrangements applicable in the context of implementation of the second subparagraph of Article 3(2) of the Dublin III Regulation.
70. I share the view of the Netherlands Government that the potential existence of flaws in the Member State normally responsible has no impact, in itself, on those rules of evidence or those arrangements for cooperation between the applicant and the competent authority. Taken in isolation, that factor does not constitute an infringement of Article 4 of the Charter. Combined with the existence of flaws in the system of international protection, however, it has an impact on the scope of the risk assessment that the competent authority is required to carry out and, where applicable, on the further information or individual guarantees it may require.
71. In the light of all those considerations, I think it is for the competent authority to assess, in cooperation with the applicant, whether there are substantial grounds for believing that the applicant would be exposed to a real risk of being subjected to inhuman or degrading treatment as a result of being transferred to the Member State normally responsible. While the applicant is required to make detailed statements and, where applicable, to produce all the material in his or her possession which is capable of demonstrating the existence of such a risk, the competent authority is required, for its part, to assess that material and carry out an assessment of the risk having regard not only to objective, reliable, specific and properly updated information on the functioning of the system of international protection in that Member State, but also to the individual situation of the applicant, by requiring from that Member State, where applicable, adequate individual guarantees as to the reception conditions that the applicant will encounter or the conditions under which it will take charge of the applicant.
V. Conclusion
72. In light of the foregoing considerations, I suggest that the Court should answer the questions referred for a preliminary ruling by the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court, The Hague, sitting in ’s-Hertogenbosch, Netherlands) as follows:
The second subparagraph of Article 3(2) of Regulation (EU) No 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, read in the light of Article 4 of the Charter of Fundamental Rights of the European Union,
is to be interpreted as meaning that:
– it does not preclude the implementation of a transfer decision relating to an applicant for international protection who claims to have been subject, more than once, to summary refoulement at the external border of the Member State which, pursuant to that regulation, would normally be responsible for examining his or her application, and to an allegedly unlawful measure placing him or her in detention at the border control post of that Member State, in so far as the competent authority does not possess material capable of demonstrating that there are substantial grounds for believing that the applicant would be exposed to a real risk of being subjected to inhuman or degrading treatment during the examination of his or her application and upon conclusion of that examination, by reason of having been transferred to that Member State. In the absence of such material, the competent authority is required to implement the transfer decision, without first carrying out checks or requiring the Member State normally responsible to provide further information or individual guarantees as to the treatment that will be received by the person concerned during the process of examination of his or her application for international protection and upon conclusion of that process;
– it is for the competent authority to assess, in cooperation with the applicant for international protection, whether there are substantial grounds for believing that the applicant would be exposed to a real risk of being subjected to inhuman or degrading treatment as a result of being transferred to the Member State normally responsible for examining his or her application for international protection. While the applicant is required to make detailed statements and, where applicable, to produce all the material in his or her possession which is capable of demonstrating the existence of such a risk, the competent authority is required, for its part, to assess that material and carry out an assessment of the risk having regard not only to objective, reliable, specific and properly updated information on the functioning of the system of international protection in that Member State, but also to the individual situation of the applicant, by requiring from that Member State, where applicable, adequate individual guarantees as to the reception conditions that the applicant will encounter or the conditions under which it will take charge of the applicant.