CJEU AG Opinion in Case C-578/16 PPU C.K. and Others v. Supreme Court of Republic Slovenia

Thursday, February 9, 2017

On 9 February 2017, Advocate General (AG) Evgeni Tanchev has given his Opinion in Case C-578/16 PPU C. K. and Others v. Supreme Court of Republic Slovenia, which relates to the interpretation to be given to Articles 3(2) and 17(1) Dublin III Regulation (Regulation No. 604/2013). The case concerns the transfer of a couple and their newborn child from Slovenia to Croatia. Pursuant to psychiatric assessments the mother and the child were to remain at the reception centre in Slovenia since they required care. Indeed, the mother had been suffering from depression and periodic suicidal tendencies since the birth of her newborn.

The Slovenian Constitutional Court held that there were no systemic failures in the asylum procedure and reception conditions for applicants for international protection in Croatia which entail a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter, but nevertheless the applicants could not be transferred to Croatia. The Constitutional Court considered that the Slovenian authorities had to take into account all the relevant circumstances, in particular the personal situation and the state of health of the applicants. The judgment of the Supreme Court was therefore annulled, with the Constitutional Court remitting it back to the Supreme Court to review all the relevant circumstances. The Supreme Court subsequently referred a request for preliminary ruling to the CJEU on the interpretation of Articles 3(2) and 17(1) of the Dublin III Regulation.
With regards to the first question the AG opined that both the application and the non-application of the discretionary clause under Article 17(1) of Dublin III Regulation fall within the scope of EU law. Moreover, a national court, such as the referring court, must be regarded as a court against whose decisions no legal remedy under national law exists within the meaning of Article 267(3) TFEU, when the possibility to lodge an appeal before the Constitutional Court of the Member State is limited to the examination of a possible violation of fundamental rights and freedoms.

As for the second question posed to the Court the AG states that the CJEU does not need to follow the position of the ECtHR, despite Article 52(3) of the Charter. The AG also explains why Case Ghezelbash (C-63/15) is not relevant to the case in hand. The applicant in Ghezelbash did not allege that he was in danger of being subjected to inhuman or degrading treatment in the responsible Member State, thus the case did not address whether systemic deficiencies are the only ground for preventing transfers under Dublin. The assessment of the circumstances as specified in Article 3(2) Dublin III Regulation (i.e. systemic deficiencies) is thus sufficient to meet the requirements under Article 4 of the Charter, according to the AG. In particular it is not impossible to transfer the applicant to the responsible Member State where the transfer itself entails a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter, the AG states.

With regard to the third question, the AG states that Article 17(1) of the Dublin III Regulation cannot be interpreted as meaning that where a Member State is required not to transfer an applicant to the Member State responsible, it must itself examine the application for international protection. The AG dismisses the fourth preliminary question as it is inadmissible.

Based on an unofficial translation by the ELENA Weekly Legal Update.


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