Mutual Trust and the Dublin Regulation: Protection of Fundamental Rights in the EU and the Burden of Proof

Abstract

In 2011, two landmark judgments dealing with the application of mutual trust within the framework of the Dublin Regulation were published by respectively the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The Dublin Regulation or Regulation 343/2003 allocates the responsibility of Member States for the assessment of individual asylum applications within the EU. One of the key conclusions in both judgments is that with regard to the absolute protection of the non-refoulement of asylum seekers, a 'non-rebuttable trust' between EU Member States is not allowed. This contribution analyzes both judgments, assessing when or in which specific circumstances national authorities (including courts) are obliged to consider 'trust' to be rebutted. This contribution explores which criteria can be derived from the aforementioned judgments with regard to 'rebuttal of trust' in the framework of the Dublin system and what this means for the national procedures in practice.

Keywords: mutual trust, Dublin Regulation, non-refoulement, European Convention on Human Rights, Charter of Fundamental Rights of the European Union, European Arrest Warrant