Transfers within the EU and associated countries The ECtHR found a transfer of an asylum seeker within the EU to be in violation of the non-refoulement principle for the first time, in its landmark decision M.S.S. v Greece and Belgium in regard to an asylum seeker, in applying the EU Dublin Regulations.100 The ECtHR found that the presumption of respect of fundamental rights in the ”intra-EU inter-state cooperation mechanism set out in the Dublin Regulation was rebuttable.”101 In light of this, it held that it was a matter for Belgium “not merely to assume that the applicant would be treated in conformity with the Convention standards, but on the contrary, to first verify how the Greek authorities applied their legislation on asylum in practice”.102 Since it was recognised that the Greek asylum system suffered from systematic deficiencies, Belgium was found to be in violation of the ECHR. In later cases the ECtHR reaffirmed this principle, and it was developed further with regard not only to asylum proceedings, but also criminal justice matters. In Tarakhel v Switzerland103, the applicant argued a violation of Article 3, Article 8 (right to privacy) and Article 13 (effective remedy). The Court noted the applicants’ arguments, which essentially raised the systemic failures in Italy, and that in the absence of individual guarantees, their rights under Article 3 ECHR were at risk. The Court considered the deficiencies described in the M.S.S. case, including the living conditions and the Greek asylum procedures and noted that although there existed many deficiencies, the overall situation in Italy could not result in a ‘blanket ban’ when considering the returns of families. Therefore, rather than requiring a general finding of systemic deficiency in order to examine the compatibility of a State action with fundamental rights, the Court made clear that effective protection of fundamental rights necessitates an assessment of the impact of a decision on the rights of the specific individual in the particular case before the Court.104 The Court specifically noted that the presumption that a State participating in an automated transfer system such as Dublin complies with the prohibition of ill-treatment can be rebutted in the face of systemic deficiencies, and went beyond, emphasising that States were under the obligation to carry out a ‘thorough and individualised examination of the fundamental rights situation of the person concerned.’105 Consequently, the Court found a breach of the Convention with regard to specific individuals even in a case where generalised systemic deficiencies in the receiving State had not been ascertained.106 Furthermore, the Court concluded “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 that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.”107 100 M.S.S. v Belgium and Greece, Application No 30696/09 (ECtHR, 21 Jan. 2011). 101 Mitsilegas, Research Handbook of EU Criminal Law 2016, p. 161. 102 M.S.S. v Belgium and Greece, Application No 30696/09 (ECtHR, 21 Jan. 2011) para. 359. 103 Tarakhel v Switzerland, Application No 29217/12 (ECtHR, 4 Nov. 2014). 104 According to Halberstam, Tarakhel is a strong warning signal to Luxembourg that the CJEU’s standard better comport either in words or in practice with what Strasbourg demands or else the Dublin system violates the Convention. See Daniel Halberstam, ‘ ”It’s the Autonomy, Stupid!” A Modest Defence of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward’, University of Michigan Public Law Research Paper No. 439 (Feb. 2015) p. 27. 105 Tarakhel v Switzerland, Application No 29217/12 (ECtHR, 4 Nov. 2014) para.104 (emphasis added). 106 Tarakhel v Switzerland, Application No. 29217/12 (ECtHR, 4 Nov. 2014) para.115. 107 Tarakhel v Switzerland, Application No. 29217/12 (ECtHR, 4 Nov. 2014) para. 143 (2). 30