B. “Gross and Systematic” Violations of Human Rights as IHRL Concept

In IHRL, the UN’s initial role in relation to human rights was self-styled around “gross and systemic” or ‘”systematic” human rights violations. This term served as a loose jurisdictional threshold to legitimate a UN role, with key UN practices and even institutions—based on the UN Charter in particular—being conferred with a role focusing on such violations. As Damrosch explains, “In the case of especially egregious patterns of human rights abuses—what came to be known as gross and systematic violations—the ‘domestic jurisdiction’ constraint was more readily overcome.”Footnote ⁵ The UN’s initial foray into human rights, focusing on apartheid, was rationalised and legitimated in these terms, where “systematic” referred to a “consistent pattern of violations of human rights.”Footnote ⁶ This term has also been employed to justify various special procedures within the UN system, both country specific and thematic. As well as legitimating the UN role, the UN has also set out principles and processes to remedy “gross violations.” In 2005, the UN General Assembly approved guidelines on this topic.Footnote ⁷ In 2006, when the UN Human Rights Council was established, its mandate was also framed as to “address situations of violation of human rights, including gross and systematic violations, and make recommendations thereon.”Footnote ⁸

In international treaties too, gravity qualifiers are found that trigger further obligations: In the UN Arms Trade Treaty, for instance, arms exports are to be withheld if the arms would contribute to “serious human rights violations.”Footnote ⁹ This reflects a practice in the external relations of many states and regional bodies to focus human rights-based foreign policy tools on such violations, sometimes framed in the language of “systematic violations.”

In regional human rights law, we also find both gravity qualifiers and attempts to hone institutional responses based on the “systemic character” of the violation. For example, gravity qualifiers delineate the norm of non-refoulement in the caselaw of the ECtHR. The norm applies in the case of “substantial grounds” of a “real risk” of a violation of Article 3, 2 or—probably—4—rights that are “absolute,” whereas a claimant seeking to prevent removal to face the violation of a qualified right—typically 6 or 8—has to show a “flagrant breach” or “flagrant denial.”Footnote ¹⁰ In terms of an institutional threshold, the notion of “systemic breach” was employed in the development and delineation of the “pilot judgment” threshold, a mechanism developed to deal simultaneously with the overburdening of the Strasbourg court and repeat violations that demanded institutional remedies on the part of the violating state.Footnote ¹¹ The 1981 African Charter on Human and Peoples’ Rights also provides a mechanism for the African Commission on Human and Peoples’ Rights (ACommHPR) to draw the attention of the Assembly of Heads of State and Government to “special cases which reveal the existence of a series of serious or massive violations of human and peoples’ rights” and for the Assembly to consider appropriate measures.

We note that the systematic character of human rights violations, although it is not a clearly defined concept, nonetheless, plays an established and multifaceted role in IHRL. It serves to delineate a UN role and trigger particular approaches to remedies and reparation. From a human rights perspective, characterizing violations as systemic has a double connotation: Repeat violations are likely, so remedying a past breach alone is not enough. Moreover, as the violation emerges from a set of practices embedded in the state practice, and usually administratively endorsed, preventing repetition demands political action at the international or supranational level.

C. The Distortion of “Systemic Breaches” in EU Law and the ECtHR Response

Against this backdrop, this section demonstrates that the incorporation of the notion of “systemic breach” from the caselaw of the ECtHR to the EU legal order was a distortion of a human rights concept. Initially, it seemed to lead to a fragmentation of human rights standards at the EU level. The interplay between the two regional courts the CJEU and the ECtHR, in this particular instance, appears to have resolved this fragmentation tendency and eventually played out to the benefit of human rights. However, as we illustrate, the resulting outcome has in fact effectively failed to protect human rights when manifestly systematic violations of human rights are at stake.

In EU asylum law, we find the initial incorporation of the notion of “systemic breach” from the Grand Chamber ruling of the ECtHR in M. S.S. v Belgium and Greece,Footnote ¹² a case that broke new legal ground in many respects. The ECtHR ruled in M.S.S. v Belgium and Greece that the detention and living conditions in Greece, as well as lack of protection afforded by its asylum system, meant that there were substantial grounds to believe that returns there generally posed a real risk of treatment contrary to Article 3 ECHR. Greece’s system was deemed to have “systemic deficiencies,” evidently rebutting any presumption of safety it enjoyed as a participant in the Common European Asylum System.

In NS/ME,Footnote ¹³ the CJEU followed the reasoning of the ECtHR ruling in the main, clarifying that also as a matter of EU law, return to contexts where there are “substantial grounds for believing that the asylum seeker would be subject to inhuman or degrading treatment” were precluded. However, it also adopted the concept of “systemic deficiency” as an element in assessing the compatibility with fundamental rights of the transfer of an asylum seeker to another Member State under the Dublin Regulation. The CJEU endorsed again this approach in Opinion 2/13 in the name of the fundamental importance that the principle of mutual trust holds in the EU legal order, especially in the areas of freedom, security, and justice.^{Footnote 14} Thus, while apparently endorsing the Strasbourg approach in MSS, the CJEU, on one reading, seemed to treat “systemic breaches” as a minimum legal requirement, Dublin returns were obligatory, unless there were systemic breaches of Article 3 ECHR.Footnote ¹⁵

This argument ought to have never been seriously countenanced, given that it entails a dilution of an absolute human right—the right to protection against torture, inhuman and degrading treatment. The systemic deficiencies concept carried potential to fragment the absolute prohibition of refoulement. As Costello argued at the time, the only appropriate use of a systemic breach criterion is to alleviate or even remove entirely the applicant’s burden of proof—no transfers should take place if the system is broken down in a systemic fashion.Footnote ¹⁶

The CJEU, heeding strong interventions from the national governmental interveners, gave some credence to the notion of systemic breach as a requirement. For instance, in Abdullahi, it ruled that asylum seekers could only challenge Dublin deportations by “pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum” amounting to a violation of Article 4 EUCFR (Article 3 ECHR).Footnote ¹⁷ This ruling was in contrast to MA,Footnote ¹⁸ a case on unaccompanied minors, which held that giving due weight to the best interests of children, due to their vulnerability, “as a rule, unaccompanied minors should not be transferred to another Member State.”Footnote ¹⁹

In the wake of MSS and NS/ME, national courts and indeed the ECtHR itself—in its Rule 39 jurisdiction—failed to take a clear position on the standards for precluding Dublin returns. Italy was a particularly critical case. Some national courts did halt transfers to Italy, applying MSS and NS/ME.Footnote ²⁰ The Strasbourg litigation tended to emphasize the particular vulnerabilities of the individuals in the face of an uneven and unreliable reception conditions. In Mohammed Hussein v the Netherlands and Italy,Footnote ²¹ the ECtHR rejected as inadmissible a claim that return to Italy would amount to a violation of Article 3 ECHR on the ground that the reception conditions in the country did not meet the exceptional MSS threshold. The ECtHR also permitted transfer in Daytbegova&Magomedova v Austria,Footnote ²² where it was held that Italy was aware and prepared to cater for the applicant’s special reception needs. Halimi v Austria Footnote ²³ and Abubeker v Austria Footnote ²⁴ followed a similar pattern. Beyond Italy, the ECtHR rejected the application of MSS to suspend a transfer to Hungary in Mohammed v Austria.Footnote ²⁵ While these cases mainly focused on factual analysis, legal uncertainty prevailed also as to the significance of the reference to “systemic breaches,” and what sorts of evidence was required to rebut the presumption of safety accorded to Dublin states.

After NS/ME, some governments argued that in order to trigger Article 3 ECHR protections against removal, the asylum system in the state to which deportation was contemplated would have to be in “systemic failure.” At its worst, this criterion was treated as an additional and necessary requirement to rebut the presumption of safety Dublin states enjoy. The EU co-legislators, i.e., the European Parliament and the Council, enhanced the potential for conflated interpretations through the recast Dublin Regulation adopted in 2013. This instrument includes a paragraph referring to the impossibility of transfers where there “are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union.”Footnote ²⁶ This paragraph in essence takes up the NS/ME factual circumstances and crystallizes them to law. While in itself, this paragraph does not denote that systemic deficiencies are a requirement or the sole requirement to rebut the presumption of safety, the incorporation of a particular factual situation and type of breach in secondary law also fueled legal arguments in that direction.

The ECtHR Grand Chamber in Tarakhel effectively rejected this distortion of systemic breaches, making no reference to an additional systemic breaches test as part of its well established case law.Footnote ²⁷ It then effectively rejected the need to demonstrate systemic breaches in the specific case.Footnote ²⁸ In doing so, it set out the problematic NS/ME paragraph in full, while asserting that the “source of the risk does nothing to alter the level of protection guaranteed by the Convention or the Convention obligations of the State ordering the person’s removal.”Footnote ²⁹ It then emphasized that the presumption of safety “can therefore validly be rebutted” (emphasis added) on the normal ECHR test of “substantial grounds” and “real risk.”Footnote ³⁰

The “therefore” is laden with significance.Footnote ³¹ It means that the pertinent paragraph in NS/ME cannot alter the ECHR test, so must not be read as an additional threshold. The ECtHR thus endorsed the ruling of the UK Supreme Court in EM (Eritrea),Footnote ³² which explicitly rejected systemic breaches as an additional threshold or test.Footnote ³³ The ECtHR has the interpretative hegemony over ECHR standards, even when the CJEU purports to interpret analogous EU guarantees. It thereby asserted its baseline jurisdiction, bolstered by the UK Supreme Court. It should be recalled that in EM (Eritrea), the UK Supreme Court held that “[v]iolation of article 3 does not require (or, at least, does not necessarily require) that the complained of conditions said to constitute inhuman or degrading conditions are the product of systemic shortcomings.”Footnote ³⁴

As Costello and Mouzourakis asked:

Eventually, the CJEU resolved the discord in C.K. where it explicitly rejected the existence of an additional systemic deficiencies criterion for a real risk of inhuman or degrading treatment to be substantiated in the framework of Dublin.^{Footnote 37} It later reaffirmed this in two cases,^{Footnote 38} Jawo and Ibrahim, which concerned individuals that had been granted protection before introducing an asylum application in a different Member State. The Court held that the absolute nature of the prohibition of refoulement meant that no differentiation could be made based on the procedural stage of their application, i.e., asylum seekers or recognized international protection beneficiaries. Nevertheless, it also found this concerned returns to a situation of “extreme material poverty” that does not allow the person to meet her most basic needs such as food, hygiene, and a place to live.^{Footnote 39}

In the years since Tarakhel, judicial challenges to Dublin returns have continued. In most cases, resisting return turns on individual asylum seekers successfully arguing that they have particular vulnerabilities that, even if proven, could be overcome by diplomatic assurances that they specifically will be guaranteed access to reception facilities adapted to their specific vulnerabilities.Footnote ⁴⁰ Furthermore, the CJEU held that applicants can contest the wrongful application of the hierarchy of jurisdiction criteria the regulation contains.^{Footnote 41} Similarly, it held that applicants could contest their transfer based on procedural rules contained in the Dublin III Regulation, such as the expiration of time limits within which a transfer should have taken place.^{Footnote 42}

Insisting on individualized assessment when there is clear evidence of generalized deficiencies or systemic flaws seems to put too high a burden on applicants. While case-by-case assessment is a hallmark of a rights-compliant responsibility allocation system,^{Footnote 43} if particular individual vulnerabilities are always required even when general evidence of risk is compelling, we contend that the concept of systemic breach becomes empty. The concept, when properly construed, should serve to highlight when human rights violations are routine and repeated, and so can be assumed likely to recur, unless institutional action is forthcoming to remedy them.

After the initial MSS and NS/ME case law, both European courts’ approaches in Dublin cases tended to downplay the general situation and overwhelmingly focus on individual circumstances and procedural rules underpinning the functioning of the Dublin system. Even in AS and Jafari,^{Footnote 44} cases which concerned the potential disapplication of the Dublin III Regulation during the refugee crisis in the wake of significant-initially tolerated “secondary movements” of asylum seekers within the EU territory, the Court rejected the arguments of Advocate General Sharpston advancing a disapplication of the Dublin Regulation in these circumstances. The Court’s restrained approach reflects the political salience and controversy surrounding solidarity and fair sharing in asylum. Yet, as the next section argues, systemic asylum-related violations are persisting and challenging the rule of law in the EU. An indicator of the shortcomings of the legal status quo is that litigants in Europe have started to have recourse to UN treaty bodies concerning non-refoulement. In their views, such bodies have found violations of fundamental rights in EU border practices, including Dublin returns.Footnote ⁴⁵

D. Full or Vicious Circle? Systemic Violations in the CEAS and the Rule of Law

Fundamental rights and rule of law are deeply embedded in the EU legal order, as Tsourdi has analyzed extensively elsewhere.Footnote ⁴⁶ The links between the massive human rights violations of asylum seekers and refugees, and Europe’s rule of law decay and authoritarian legalism are complex and are now attracting the scholarly attention they are due.Footnote ⁴⁷

In this section, we explore the links between systemic violations and the rule of law. Evidently, not all violations are systemic in character. Asylum legislative harmonization has left a significant level of discretion to Member States.Footnote ⁴⁸ In this context, this has resulted in fundamental rights violations at the national level as evidenced by CJEU case law. These violations could be understood as particular, isolated, instances. For example, drawing from the principle of human dignity and the prohibition of torture, inhuman or degrading treatment, the Court has fleshed out the notion of a “dignified standard of living” included in the Reception Conditions Directive. On this basis, the CJEU has barred the practice of depriving asylum seekers subject to a “Dublin transfer” of material reception conditions,^{Footnote 49} or withdrawing said conditions as a sanction for breaching the rules of a reception center.^{Footnote 50} Similarly, it has found that where reception conditions are offered as financial allowances, they must ensure subsistence by enabling asylum seekers to obtain housing on the private rental market, if necessary.^{Footnote 51}

In contrast, systemic violations could be related to generalized non-implementation of EU norms, including in Member States that are subject to rule of law backsliding and constitutional capture. Systemic violations related to routine non-implementation of EU norms, often go unremedied, either through individual or Commission enforcement actions.Footnote ⁵² Diagnosing the roots of the implementation gap is complex. While the fair sharing of responsibility is required by EU law, in practice, its responsibility allocation system, the Dublin system,^{Footnote 53} allocates more responsibility to states at the Union’s external borders.^{Footnote 54} Worse, it fails to reinforce asylum provision as a regional public good.^{Footnote 55} Instead, once responsibility is assigned, it is for the individual Member State to provide for the refugee.^{Footnote 56} Refugee immobility permeates the system, hindering further redistributive efforts. EU support measures such as funding are limited. In addition, Member States have different levels of economic development and conceptualizations of welfare, entailing differences in protection capacity. These factors are intertwined and lead to deficient implementation; sometimes this leads to grave violations of fundamental rights, including inhuman or degrading treatment.^{Footnote 57} Combined with these structural factors pertaining to the CEAS, political scapegoating of asylum seekers and refugees, as well as outright opposition to refugee protection, is prevalent in many EU Member States.

Rule of lawproblems often lead to systemic violations. The system of decentralized administration on which the EU is based assumes that national administrations and courts function well and can guarantee the effectiveness of EU law. However, EU law is rendered ineffective when, as Von Bogdandy and Ioannidis have argued, “the institutions of a Member State are unwilling or unable to observe the rule of (domestic) law—be it due to endemic corruption, weak institutional capacities, or insufficient resources at the administrative or judicial levels.”Footnote ⁵⁸ The resultant violations will generally be systemic in the sense of being widespread and embedded in the system.

The case of Greece is illustrative. As analyzed above, as early as 2011, the ECtHR in MSS identified structural deficiencies in Greece’s asylum procedures and reception conditions:

These structural deficiencies were conceivably due to Greece’s inability and unwillingness to protect asylum seekers and refugees. Arguably, the Dublin system, which Greece perceived as unfair, incentivized these breaches of EU asylum policy. Greece has slowly been improving its national asylum system, for example through the establishment of a dedicated national administrative authority.^{Footnote 60} Nonetheless, deficiencies in asylum processing, and most notably in reception conditions, persist. The coronavirus brought asylum conditions in Greece back in focus with thousands residing in hotspots facing unsanitary conditions.Footnote ⁶¹ Beyond the COVID responses, by the end of 2022, there were reports of substandard reception conditions in different parts of the country. In the mainland, temporary camps initially created as emergency accommodation facilities, continued to operate. Some of the main issues reported are the remote location of the mainland camps, limited access to rights and services for residents, lack of sufficient equipment and electricity shortages, limited access to education for children, and the construction of the high concrete walls around a number of mainland camps, exacerbating the feeling of isolation.Footnote ⁶²

Similarly, systemic violations may emerge in the more extreme cases of constitutional captureFootnote ⁶³ referred to by Pech and Scheppele as “rule of law backsliding.” These authors understand rule of law backsliding as “the process through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party.”Footnote ⁶⁴ In these instances, the systemic violations could also reflect a deliberate targeting of asylum seekers and refugees for inhuman and degrading treatment, flagrant flouting of basic human rights norms, and a recurrent denial of the duty to respect EU and human rights norms in this field.

Hungary is a case in point. Since 2015, the Hungarian government has dismantled refugee protection through a series of legislative amendments. A detailed analysis goes beyond the scope of this article;Footnote ⁶⁵ the measures touched every aspect of the national asylum system. Among other things, they curtailed procedural rights under normal procedures; abolished integration measures for recognized beneficiaries; introduced a fully informal removal mechanism first within an eight-kilometer distance of the fence with Serbia and later throughout the whole territory; criminalized the crossing of the 175 kilometer fence; and established that a “crisis situation” permits the deprivation of liberty of asylum seekers in transit zones during the entire refugee status determination procedure.Footnote ⁶⁶

As Nagy has explained, this established that during a “crisis situation caused by mass immigration”—which the Hungarian government immediately instated and has repeatedly renewed without objective indicators to justify it—all asylum seekers are obliged to submit themselves to a forced—and escorted—removal from within Hungarian territory to the Serbian side of the fence, depriving them of effective access to the procedure.Footnote ⁶⁷ Only three exceptional categories of individuals were granted access to a regular procedure: Those in detention, those who regularly stayed in Hungary, and those under fourteen years of age.Footnote ⁶⁸ The official narrative is that removed persons could then walk along the fence to reach the Hungarian transit zone and wait for admission, with no water, sanitation or shelter provided.Footnote ⁶⁹ Admissions to the transit zone were extremely limited, benefiting just one person per day in January 2018.Footnote ⁷⁰ Within the transit zone, asylum seekers were deprived of a number of procedural rights and reception conditions, as well as their liberty.Footnote ⁷¹

These amendments led to systemic violations of asylum seekers’ fundamental rights as apparent through a host of references for preliminary rulings by Hungarian courts. These, for example, led the ECJ to find that the EU acquis and the right to an effective remedy of the Charter precluded national practices such as an eight-day time limit for lodging appeals,^{Footnote 72} or first instance authorities refusing to comply with the assessment of the appeals court.^{Footnote 73} The FMS judgment allowed the ECJ to scrutinize conditions within the transit zones, and to find multiple violations of the substantive asylum and return acquis on detention standards—i.e. arbitrary deprivation of liberty—alongside related procedural standards—i.e. no possibility of judicial review of detention.Footnote ⁷⁴ It was an infringement action initiated by the Commission that allowed the ECJ to holistically examine the dismantling of the national asylum and return systems.Footnote ⁷⁵ The Court found that the “automatic removals” of asylum seekers from Hungarian territory, the drastic limitation of the number of applicants allowed to enter the transit zones, and the system of detention in transit zones, breached a number of the EU’s asylum and return acquis provisions and the fundamental rights under the Charter—notably Arts. 6, 18 and 47.

Apart from the non-implementation of EU norms, systemic violations emerge out of the tension between the commitment to protection and efforts to deflect protection obligations. As we have argued elsewhere, this tension is a structural feature of the CEAS that entails policies and practices that are nearly certain to expose protection-seekers to recurrent human rights violations, in particular the failure to ensure legal routes to claim asylum, and the inclusion of carriers’ liability and smuggling prohibitions that render travel without proper documentation life-threatening.Footnote ⁷⁶ In contemporary Europe, as a result, border controls entail massive human rights violations.Footnote ⁷⁷ Border violence at Europe’s physical borders is well-documented, at the Spanish border in North Africa, in Greece, and at Poland’s border with Belarus in particular. The term “pushback” has been commonly employed to characterize the practice of violent returns of individuals without access to fair procedures, generally a violation of the norm of non-refoulement, and under some circumstances the prohibition of collection expulsion. These practices are systemic, in that they are now routine and likely to recur. While not confined to the Member States most closely associated with rule of law backsliding and democratic decay, they connote a collective refugee protection backsliding in the EU which affects the rule of law.

A key legal question is whether these violations are matters of purely national law, or whether there is an EU dimension. EU asylum procedures apply in Member States’ territory and their territorial waters, so no question some of these practices violate EU secondary norms and EU human rights. Many of the practices at the root of border violence have been challenged before the CJEU, but that court has evaded acknowledging the EU legal issue at stake.

One such case is the humanitarian visas case.^{Footnote 78} It had long been argued that fundamental rights obligations govern the visa policy as it is regulated by EU law in the Visa Code and would require the issuance of a form of ‘humanitarian visa’ if the applicants’ human rights would otherwise be violated.^{Footnote 79} The CJEU, however, ruled that the issue of humanitarian visas does not fall within the scope of either the EU Visa Code or of the EU asylum acquis and thus Member States are not “implementing EU law” when they are issuing such visas. Another relevant example is a case concerning the consequences of the EU-Turkey statement.^{Footnote 80} This Statement, or “deal” as it is commonly called, sought to curb irregular arrivals of—particularly Syrian—refugees in Greece, by requesting Turkey to prevent the departure of asylum seekers from its territory and to swiftly readmit those managing to arrive in the Greek islands. In exchange, Turkey was offered greater financial support, and promises of visa free travel to the EU for Turkish nationals, amongst other incentives. When asked to assess the compatibility of this text with EU fundamental rights, the EU’s General Court affirmed that it lacked jurisdiction to examine its legality as it was not authored by the EU, but rather by “the Heads of State or Government of the Member States of the European Union and the Turkish Prime Minister” in an intergovernmental framework instead of the EU institutional framework.^{Footnote 81} The CJEU dismissed an appeal against this decision as manifestly inadmissible.^{Footnote 82} The conclusion that the EU did not author the agreement absolved the CJEU from an obligation to scrutinize its compatibility with EU fundamental rights. In both cases the CJEU effectively refused to acknowledge the systemic character of the linkage between the EU actions and the measures in question.

It is important to understand the role of EU law in creating the conditions for systemic breaches, rather than focusing only on the rule of law deficits at national level. Where the CEAS leads to systemic human rights violations, then its reform is the appropriate response. On the contrary, where non-implementation also relates to defiance for ideological or political reasons, the response cannot remain policy specific. As part of broader patterns of dismantling the rule of law at national level, these failings should be examined through processes seeking to probe risks to EU values, such as Article 7 TEU procedures, infringement proceedings of a systemic nature that other commentators have conceptualized, Footnote ⁸³ or the Commission’s rule of law framework.