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Shaping the Common European Asylum System through Human Rights: The Jurisprudence of the ECHR as a Limit of Discretionary Powers of States in the Dublin System

Sílvia Morgades-Gil

In June 2013, the second phase of the Common European System was completed with, among other rules, the so-called Dublin III Regulation 604/2013, establishing a mechanism to identify the EU Member state responsible for examining each asylum applications presented in the European area of freedom of movement. The new version of this regulation include a number of exceptions to the transfer of asylum seekers to the Member state designated as responsible in accordance with the general rules of the system. These exceptions are related to the protection of Human Rights of asylum seekers as interpreted restrictively by the Court of Justice of the European Union (CJEU). The European Court of Human Rights (ECHR) has recently held the judgment on the case Tarakhel versus Switzerland (4.11.2014) where a quite different interpretation is defended, according to which the discretionary clauses of the Dublin system should be activated in order to prevent transferring asylum seekers to Member states if they have a risk of suffering ill treatments due to failures in the procedures of asylum or in the reception conditions. The paper is aimed at analyzing the difference between the jurisprudence of the CJEU and of the ECHR on the issue of the exceptions to the application of the Dublin system based on risks of suffering Human Rights violations by asylum seekers in the destination country. It will be argued that the Dublin III Regulation should be interpreted in accordance to the main findings of the ECHR jurisprudence.

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