CJEU - C-578/16 PPU, C.K. and others

The CJEU accepted the request of the referring court that the request for preliminary ruling was dealt with under the urgent preliminary ruling procedure. It based its decision on the fact that the possibility that the appellants in the main proceedings may be transferred to Croatia before the end of an ordinary preliminary ruling procedure could not be ruled out.

With regard to the first question, the CJEU relied largely on its decision in C-411/10 and C-493/10 N. S. and Others and concluded that the application of the “discretionary clause” under Article 17(1) is not governed solely by national law and by the interpretation given to it by national constitutional courts, but is a question of interpretation of EU law, within the meaning of Article 267 TFEU.

As regards the remaining questions, the CJEU reiterated that the Dublin III Regulation must be interpreted and applied in a manner consistent with the fundamental rights guaranteed by the CFR EU, with Article 4 CFR EU being of particular importance. It also recalled that the DRIII had been adopted with the intention not only to enhance the effectiveness of the Dublin system, but also to increase the protection granted to asylum seekers under that system. Therefore, a Dublin transfer can take place only in conditions which preclude that transfer from resulting in a real risk of the person concerned suffering inhuman or degrading treatment. From that outset, the CJEU rules, it is not possible to exclude that one’s serious state of health may result in such a risk.

The CJEU turns to the jurisprudence of the European Court of Human Rights, namely the decision in Paposhvili v. Belgium, which must be taken into account when interpreting Article 4 CFR EU. It follows from Paposhvili that the suffering which flows from a naturally occurring illness, whether physical or mental, may be covered by Article 3 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, provided that the resulting suffering attains the minimum level of severity required by that article.

Therefore, it cannot be ruled out that the transfer of an asylum seeker whose state of health is particularly serious may, in itself, result in a real risk of inhuman or degrading treatment within the meaning of Article 4 CFR EU, irrespective of the quality of the reception and the care available in the Member State responsible for examining the application. If an asylum seeker provides objective evidence, such as medical certificates, showing the particular seriousness of his state of health and the possible consequences to which the transfer might lead, the authorities of the requesting Member State cannot ignore that evidence and are under an obligation to assess the risk that such consequences could occur. It is, therefore, for national authorities of the requesting Member State to eliminate all serious doubts concerning the impact of the transfer on the state of health (psychical or psychological) of the person concerned.

However, relying on ECtHR jurisprudence (Karim v. Sweden, Kochieva and Others v. Sweden), the CJEU affirmed that states are not obliged to refrain from proceeding with the removal or expulsion of a person, as long as the person is fit for travel and necessary appropriate measures, adapted to the person’s state of health, are taken in that regard. Similarly, the fact that a person whose expulsion has been ordered has threatened to commit suicide does not require a State to refrain from enforcing the envisaged measure, provided that concrete measures are taken to prevent those threats from being realised (Dragan and Others v. Germany).

Consequently, it follows that a Member State carrying out a Dublin transfer must be able to organise it in such a way that the asylum seeker concerned is accompanied, during transportation, by adequate medical staff with the necessary equipment, resources and medication, so as to prevent any worsening of his health or any act of violence by him towards himself or other persons. Member States must also be able to ensure that care is immediately received upon arrival. It is only where precautions cannot be taken or are not sufficient to ensure that the transfer will result in a real risk of a significant and permanent worsening of the applicant’s state of health that the execution of the transfer shall be suspended.

In light of the above, the CJEU rejected the European Commission’s argument that only the existence of systemic flaws in the Member State responsible is capable of affecting the obligation to transfer an asylum seeker to that Member State.

Finally, the CJEU concludes that Member States may choose, but are not obliged, to make use of the “discretionary clause” (Article 17(1) DRIII) in those cases.