C. K. and Others v Republika Slovenija.
Date: 2017-02-16
53


In that respect, it must be recalled that the Court has already held, with regard to the ‘sovereignty clause’ under Article 3(2) of the Dublin II Regulation, the terms of which coincide, in essence, with those of the ‘discretionary clause’ laid down in Article 17(1) of the Dublin III Regulation and the interpretation of which is, accordingly, transposable to the latter, that the discretion which it allows the Member States is an integral part of the system for determining the Member State responsible developed by the EU legislature (‘the Dublin system’). It follows that a Member State implements EU law, within the meaning of Article 51(1) of the Charter, also when it makes use of that clause (see judgment of 21 December 2011, N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 64 to 68). Consequently, the application of the ‘discretionary clause’ laid down in Article 17(1) of the Dublin III Regulation does indeed involve an interpretation of EU law, within the meaning of Article 267 TFEU.
54


In the light of the foregoing considerations, the answer to the first question is that Article 17(1) of the Dublin III Regulation must be interpreted as meaning that the question of the application, by a Member State, of the ‘discretionary clause’ laid down in that provision is not governed solely by national law and by the interpretation given to it by the constitutional court of that Member State, but is a question concerning the interpretation of EU law, within the meaning of Article 267 TFEU.
57


The Dublin system, of which that regulation forms part, seeks, as is apparent from recitals 4 and 5 thereof, to make it possible, in particular, to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of processing applications for international protection expeditiously.
58


In that context, a Member State with which an asylum application has been lodged is required to follow the procedures laid down in Chapter VI of that regulation for the purposes of determining the Member State responsible for examining that application, to call upon that Member State to take charge of the applicant concerned and, once that request has been accepted, to transfer that person to the Member State.
59


However, in accordance with the settled case-law of the Court, the rules of secondary EU law, including the provisions of the Dublin III Regulation, must be interpreted and applied in a manner consistent with the fundamental rights guaranteed by the Charter (see, by analogy, as regards the Dublin II Regulation, judgment of 21 December 2011, N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 77 and 99). The prohibition of inhuman or degrading treatment or punishment, laid down in Article 4 of the Charter, is, in that regard, of fundamental importance, to the extent that it is absolute in that it is closely linked to respect for human dignity, which is the subject of Article 1 of the Charter (see, to that effect, judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 85 and 86).
60


In its judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 86 to 94 and 106), the Court stressed that the transfer of asylum seekers within the framework of the Dublin system may, in certain circumstances, be incompatible with the prohibition laid down in Article 4 of the Charter. It thus held that an asylum seeker would run a real risk of being subjected to inhuman or degrading treatment, within the meaning of that article, in the event of a transfer to a Member State in which there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the conditions for the reception of applicants. Consequently, in accordance with the prohibition laid down in that article, the Member States may not carry out transfers within the framework of the Dublin system to a Member State in the case where they cannot be unaware that such flaws exist in that Member State.
62


The Court has, therefore, already held that, with regard to the rights granted to asylum seekers, the Dublin III Regulation differs in essential respects from the Dublin II Regulation (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 34).
63


As regards the fundamental rights that are conferred on them, in addition to the codification, in Article 3(2) of the Dublin III Regulation, of the case-law arising from the judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), referred to in paragraph 60 of the present judgment, the EU legislature stressed, in recitals 32 and 39 of that regulation, that the Member States are bound, in the application of that regulation, by the case-law of the European Court of Human Rights and by Article 4 of the Charter.
65


It follows from all of the preceding considerations that the transfer of an asylum seeker within the framework of the Dublin III Regulation 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, within the meaning of Article 4 of the Charter.
67


It must be recalled that the prohibition of inhuman or degrading treatment laid down in Article 4 of the Charter corresponds to that laid down in Article 3 of the ECHR and that, to that extent, its meaning and scope are, in accordance with Article 52(3) of the Charter, the same as those conferred on it by that convention.
68


It follows from the case-law of the European Court of Human Rights relating to Article 3 of the ECHR, which must be taken into account when interpreting Article 4 of the Charter (see, to that effect, judgment of 21 December 2011, N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 87 to 91), that the suffering which flows from naturally occurring illness, whether physical or mental, may be covered by Article 3 of the 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 (see, to that effect, ECtHR, 13 December 2016, Paposhvili v. Belgium, CE:ECHR:2016:1213JUD004173810, § 174 and 175).
70


In that regard, it must be stated, as regards the reception conditions and the care available in the Member State responsible, that the Member States bound by the ‘reception’ directive, including the Republic of Croatia, are required, including in the context of the procedure under the Dublin III Regulation, in accordance with Articles 17 to 19 of that directive, to provide asylum seekers with the necessary health care and medical assistance including, at least, emergency care and essential treatment of illnesses and of serious mental disorders. In those circumstances, and in accordance with the mutual confidence between Member States, there is a strong presumption that the medical treatments offered to asylum seekers in the Member States will be adequate (see, by analogy, judgment of 21 December 2011, N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 78, 80 and 100 to 105).
72


Moreover, while it is possible that, for certain acute and specific medical illnesses, appropriate medical treatment is available only in certain Member States (see, by analogy, judgment of 5 June 2014, I, C‑255/13, EU:C:2014:1291, paragraphs 56 and 57), the appellants in the main proceedings have not alleged that this is the case as far as they are concerned.
74


In that context, it must be held that, in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in his state of health, that transfer would constitute inhuman and degrading treatment, within the meaning of that article.
75


Consequently, where an asylum seeker provides, particularly in the context of an effective remedy guaranteed to him by Article 27 of the Dublin III Regulation, objective evidence, such as medical certificates concerning his person, capable of showing the particular seriousness of his state of health and the significant and irreversible consequences to which his transfer might lead, the authorities of the Member State concerned, including its courts, cannot ignore that evidence. They are, on the contrary, under an obligation to assess the risk that such consequences could occur when they decide to transfer the person concerned or, in the case of a court, the legality of a decision to transfer, since the execution of that decision may lead to inhuman or degrading treatment of that person (see, by analogy, judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 88).
76


It is, therefore, for those authorities to eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned. In this regard, in particular in the case of a serious psychiatric illness, it is not sufficient to consider only the consequences of physically transporting the person concerned from one Member State to another, but all the significant and permanent consequences that might arise from the transfer must be taken into consideration.
88


Where necessary, if it is noted that the state of health of the asylum seeker concerned is not expected to improve in the short term, or that the suspension of the procedure for a long period would risk worsening the condition of the person concerned, the requesting Member State may choose to conduct its own examination of his application by making use of the ‘discretionary clause’ laid down in Article 17(1) of the Dublin III Regulation (see, to that effect, judgment of 30 May 2013, Halaf, C‑528/11, EU:C:2013:342, paragraph 38). The fact nevertheless remains that that provision, read in the light of Article 4 of the Charter, cannot be interpreted, in a situation such as that at issue in the main proceedings, as meaning that it implies an obligation on that Member State to make use of it in that way.
94


Likewise, the interpretation of Article 4 of the Charter in the present judgment is not invalidated by the judgment of 10 December 2013, Abdullahi (C‑394/12, EU:C:2013:813, paragraph 60), in which the Court held, with regard to the Dublin II Regulation, in essence, that, in circumstances such as those of the case giving rise to that judgment, the only way in which an asylum seeker could call his transfer into question was by pleading systemic flaws in the Member State responsible. Apart from the fact that the Court has held, as recalled in paragraph 62 of the present judgment, that, with regard to the rights enjoyed by an asylum seeker, the Dublin III Regulation differs in essential respects from the Dublin II Regulation, it must be recalled that that judgment was delivered in a case involving a national who had not claimed, before the Court of Justice, any particular circumstances indicating that his transfer would, in itself, be contrary to Article 4 of the Charter. The Court thereby merely recalled its previous judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), concerning the impossibility of proceeding with any transfer of asylum seekers to a Member State experiencing systemic flaws in the asylum procedure or the conditions for their reception.