The Italian Platform for the Humanities and Social Sciences
The 'Derogation' of the EU 'Dublin System' in the "Tarakhel" Judgment of the European Court: From 'Systemic Deficiencies' to 'Serious Doubts as to the Current Capacities' of the Italian Reception System
The judgment "Tarakhel v. Switzerland" of the European Court of Human Rights follows an approach that is 'similar' to the one adopted by the "M.S.S. v. Belgium and Greece" judgment (21 January 2011). It confirms that the presumption that a State participating in the European Union 'Dublin system' will respect the fundamental rights laid down by the European Convention is not irrebuttable. However, the "Tarakhel" judgment introduces a new level of 'derogation' of the 'Dublin system', by emphasizing the 'serious doubts as to the current capacities' of the Italian reception system of asylum seekers, even in the absence of 'systemic deficiencies'. Thus, it is stated that there would be a violation of Article 3 of the Convention if the applicants were to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities, with particular regard to the specific needs of minor children.