In tema di controllo della Corte europea dei diritti dell’uomo sull’operare del sistema c.d. di Dublino

In the Tarakhel case, the Grand Chamber said that ‘the current situation’ of asylum system in Italy cannot be ‘compared to the situation in Greece at the time of the M.S.S. judgement’. Yet, the Court recognized the risk that, once moved to Italy, asylum seekers, especially vulnerable ones, such as families with children, would not find an accommodation, or that the accommodation would be inadequate. By majority of its members (14 vs. 3), the Court negatively assessed the lack of ‘detailed and reliable’ information from the Italian government on the reception center where the applicants would be housed and on the existence of reception conditions adequate to the age of minors and appropriate to preserve the family unity. Therefore, the return to Italy of the asylum seekers, in the absence of adequate safeguards, is such as to violate the prohibition of inhuman and degrading treatment, enshrined in Art. 3 of the ECHR. In reaching this decision, the Strasbourg judges have chosen an approach consisting in taking into account both the general situation of the country and the particular situation of the applicants, in order to detect a real risk of treatment prohibited by Art. 3, even in the absence of ‘systemic failures’ of the asylum system. The Court upheld the role of the socalled sovereignty clause which operates in the Dublin system: the same clause allows the legal operators to dismiss the application of the Dublin criteria for determining the Member State responsible for examining an asylum application. Thus, under certain circumstances, that clause allows the legal operators to establish a balance between the objectives of the Dublin system and the need for the protection of the asylum seekers. The recognition of the vulnerability is the means to access the rights that alleviate that condition. Thus, that recognition may impact favorably on the application of Art. 3 which has the effect to ensure at an early stage conditions of treatment resulting from the obligations of the State under international and EU law.