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ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09
This case examined the compatibility of the Dublin II Regulation with the European Convention on Human Rights regarding transfers to Greece under the Dublin II Regulation. The Court found that there was a violation of Article 3 ECHR by the Greece Government because of the applicant’s conditions of detention, violation of Article 3 ECHR by Greece concerning the applicant’s living conditions in Greece, violation of Article 13 taken in conjunction with Article 3 ECHR against Greece because of the deficiencies in the asylum procedure followed in the applicant’s case and the risk of his expulsion to Afghanistan without any serious examination of the merits of his asylum application and without any access to an effective remedy. The Court also found in relation to Belgium that there was a violation of Article 3 by sending the applicant back to Greece and exposing him to risks linked to the deficiencies in the asylum procedure in that State, also held against Belgium a violation of Article 3 for sending him to Greece and exposing him to detention and living conditions there that were in breach of that ECHR article. The Court also found a violation of Article 13 ECHR taking in conjunction with Article 3 ECHR against Belgium.
The facts of the case concerned an Afghan asylum seeker who fled Kabul in 2008, entered the European Union through Greece and travelled on to Belgium where he applied for asylum. According to the Dublin rules, Greece was held to be the responsible Member State for the examination of his asylum application. Therefore the Belgian authorities transferred him there in June 2009 where he faced detention in insalubrious conditions before living on the streets without any material support. At issue in the judgment was the risk of violating Article 2 (the right to life), Article 3 (prohibition of inhuman or degrading treatment or punishment) and/or Article 13 (the right to an effective remedy).
The AIRE Centre, Amnesty International, UNHCR and the Greek Helsinki Monitor as well as the Commissioner for Human Rights were authorized to intervene as well as the Netherlands and the UK governments.
Violations by Greece:
- Violation of Article 3 by Greece due to the conditions of the applicant’s detention
The Court recapitulated the general principles concerning detention and the scope of Article 3 ECHR. Article 3 requires the State to ensure that detention conditions are compatible with respect for human dignity, that the manner & method of the execution of the measure do not subject the detainees to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (Kudla v Poland no. 30210/96)
The Court referred to previous case law on detention conditions in Greece:
SD v Greece(no. 53541/07); Tabesh v Greece (no. 8256/07); A.A. v Greece (no. 12186/08)
The Court noted that the situation for States, which form the external borders of the European Union, is exacerbated by the transfer of asylum seekers by other Member States in the application of the Dublin Regulation. However, given the absolute character of Article 3, that cannot absolve a State of its obligations under that provision. The Court did not agree that the difficult situation in Greece should be taken into account when examining the applicant’s complaints under Article 3.
General Remarks on Detention Conditions in Greece
- The Court relied upon various reports by NGOs and international bodies (UNHCR, CoE, ECRE etc) (para. 160), which pointed to the widespread Greek practice of systematic placement of asylum seekers in detention without informing them of the reasons for their detention.
- The Court took into account that the applicant’s allegations of being subjected to brutality and insults by the police was consistent with numerous accounts collected by international organisations (particular reference made to European Committee for the Prevention of Torture reports – para 163 & 227)
- The applicant’s allegations concerning living conditions in the holding centre were consistent with similar findings by CPT, UNHCR, Amnesty International and Medecins sans Frontieres.
- Reference was made inter alia to overcrowding, dirt, lack of space & ventilation, insufficient hygienic conditions etc
- Conditions at the holding centre near Athens Airport were considered unacceptable by the Court.
Duration of Detention
- Regarding the length of time in detention the Court disagreed with the Greek government’s submission that it was not degrading treatment as the two periods of detention were only brief. The duration of the two periods of detention (4 days in June 2009 & 1 week in August 2009) were held to not be insignificant. P. 232
- The Court placed particularly emphasis on the fact that the applicant was an asylum seeker P. 232 “…the Court must take into account that the applicant, being an asylum seeker, was particularly vulnerable because of everything he had been through during his migration and the traumatic experiences he was likely to have endured previously”.
The detention conditions experienced by the applicant was held to amount to degrading treatment within the meaning of Article 3. The Court, in reaching this conclusion took into account the fact that the applicant was an asylum seeker.
P. 233 “It considers, that taken together, the feeling of arbitrariness and the feeling of inferiority and anxiety often associated with it, as well as the profound effect such conditions of detention indubitably have on a person’s dignity, constitute degrading treatment contrary to Article 3 of the Convention. In addition, the applicant’s distress was accentuated by the vulnerability inherent in his situation as an asylum seeker.”
Violation of Article 3 against Greece due to the conditions of the applicant’s detention.
- Violation of Article 3 by Greece because of the applicant’s living conditions
Obligations under Article 3
P. 249 Article 3 cannot be interpreted as obliging Contracting Parties to provide everyone within their jurisdiction with a home (Chapman). Nor does Article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living (Muslim v Turkey no. 53566/99)
The Court distinguishes the present case from Muslim in holding that now there is a positive obligation to provide accommodation and decent material conditions to impoverished asylum seekers under EU Law – Directive 2003/9 the ‘Reception Directive’.
Status as an asylum seeker
- Considerable importance attached to the applicant’s status as an asylum seeker and as such (P.251) “a member of a particularly underprivileged and vulnerable population group in need of special protection”
- The particular vulnerability of asylum seekers is emphasised by the Court p.251 “broad consensus at the international and European level concerning the need for special protection”
Does a situation of extreme material poverty raise an issue under Article 3?
The Court reiterated that it has not excluded the possibility that the State’s responsibility is engaged under Article 3 when an applicant, wholly dependent on State support, found herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity (Budina v Russia, no. 45603/05)
Living Conditions in Greece
- The conditions the applicant in this present case faced were particularly serious: months living in extreme poverty/unable to cater for basic needs: food, hygiene, place to live (p.254)
- Additional factors: ever-present fear of being robbed & attacked & total lack of any likelihood of his situation improving.
- This situation exists on a large scale (UNHCR, European Commissioner for Human Rights) for a large number of asylum seekers with the same profile as the applicant
- The Greek government themselves acknowledge that there are fewer than 1,000 places in reception centres to accommodate tens of thousands of asylum seekers.
- Access to the job market is so riddled with administrative obstacles that this cannot be considered a realistic alternative (p. 160, 172, 261) – also lack of command of Greek language, lack of support network, unfavourable economic climate.
P. 262 In it’s reasoning the Court further notes that the Greek authorities could have substantially alleviated the applicant’s suffering by examining the applicants’ asylum request promptly.
The Court’s finding of a violation takes into account a number of factors including the obligations on the Greek authorities as set out in the Reception Directive, the authorities lack of inaction to resolve the situation for the applicant, the prolonged uncertainty and the humiliating living conditions the applicant experienced (p.263).
“The Court considers that the applicant has been the victim of humiliating treatment showing a lack of respect for his dignity and that this situation has, without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. It considers that such living conditions, combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving, have attained the level of severity required to fall within the scope of Article 3 of the Convention.”
Accordingly a violation of Article 3 was held against Greece due to the applicant’s living conditions there.
- Violation of Article 13 taken in conjunction with Article 3 by Greece due to the shortcomings in the asylum procedure.
General Principles (Article 3 & 13):
P.293 “In view of the importance which the Court attaches to Article 3 of the Convention and the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises, the effectiveness of a remedy within the meaning of Article 13 imperatively requires close scrutiny by a national authority, independent & rigorous scrutiny of any claim that there exists substantial grounds for fearing a real risk of treatment contrary to Article 3 as well as particularly prompt response; it also requires that the person concerned should have access to a remedy with automatic suspensive effect (case law cited omitted).”
Arguable Claim – Return to Afghanistan
The applicant had arguable grounds to assert that his removal to Afghanistan would infringe Article 2 & 3 on the basis of copies of his certificates showing that he previously worked as an interpreter there. The Court also placed reliance on the UNHCR Guidelines on Afghanistan. Together this information was prima facie evidence that the situation in Afghanistan continues to pose a widespread problem of insecurity and that the applicant fits into a category of people particularly exposed to reprisals from anti-government forces (P.296).
Assessment of the Asylum Procedure in Greece
Court’s primary concern is whether effective guarantees exist in the present case to protect the applicant against arbitrary removal directly or indirectly back to his country of origin.
- The Court considered that for a number of years UNHCR, European Commissioner for Human Rights as well as other NGO’s have revealed repeatedly that the asylum system in Greece was marked by major structural deficiencies.
- P.301 (p. 173-188): Major shortcomings in access to the asylum procedure and in the examination of applications for asylum: insufficient information about the procedures, difficult access to Attica Police Headquarters, no reliable communication system, shortage of interpreters, lack of training, lack of legal aid, excessively lengthy delays in receiving a decision.
- First-instance decisions are negative and drafted in a stereotyped manner without any reasoning (p.302, UNHCR Survey).
- Refugee Advisory Committees at second instances have been removed & UNHCR no longer plays a part in the asylum procedure.
- Lack of access to information concerning the asylum procedure = major obstacle in accessing those procedures/ Text of information brochure was very ambiguous in its wording.
- The Court notes the extremely low rate of asylum or subsidiary protection granted by the Greek authorities (p. 125-126) – P. 313 compared with other European Member States.
Procedure concerning the applicant’s particular situation
- Lack of communication and information: Court concludes that the Greek authorities have not taken any steps to communicate with the applicant or reached any decision in his case (p.313).
- Court cannot ignored that forced returns by Greece to high-risk countries has regularly been denounced by third-party interveners & several reports.
- Of concern to the Court is the risk of refoulement the applicant faces in practice before any decision is taken on the merits of his case; the applicant having escaped expulsion once and claims to have escaped a second attempt by the police to deport him to Turkey (p. 315).
Application to the Supreme Administrative Court for Judicial Review
- Accessibility of a remedy in practice is decisive when assessing its effectiveness.
- Greek Procedure: Ineffective due to lack of communication between applicant and asylum authorities and lack of information
- No information concerning access to organisations who offer legal aid
- Shortage of lawyers on the legal aid list, which renders the system ineffective in practice.
- Contrary to the Greek authorities argumentation, the length of the proceedings before the Supreme Administrative Court is relevant – importance of swift action in cases concerning ill-treatment by State agents (p.320, p.293) – swift action is even more necessary in the precarious situation the applicant faces in violation of Article 3.
- The Court holds that an appeal to the Supreme Administrative Court does not offset the lack of guarantees surrounding the examination of asylum applications on the merits.
The Court holds that there is a violation of Article 13 of the Convention in conjunction with Article 3 because of the deficiencies in the Greek authorities examination of the applicant’s asylum request and the risk he faces of being returned directly or indirectly to his country of origin without any serious examination of the merits of his asylum application and without having access to an effective remedy.
No need to examine Article 13 in conjunction with Article 2
Violations by Belgium
- Violation of Article 3 by Belgium for exposing the applicant to the risks arising from the deficiencies in the asylum procedure in Greece
State responsibility under the Convention
The Bosphorus judgment was referred to by the Court in holding that the Convention does not prevent Contracting parties from transferring sovereign powers to an international organisation for the purpose of co-operation in certain activities however the State remains responsible under the Convention for all actions and omissions of their bodies under their domestic law or under international legal obligations (p. 338). The State is also held fully responsible under the Convention for all acts falling outside its strict legal obligations, notably where it exercised discretion (Bosphorus p. 155-57). The Court makes reference to Article 3(2) of the Dublin Regulation (the discretionary ‘sovereignty clause’), which allows Member States to derogate from the general rule in Article 3(1) and examine the asylum seeker’s application themselves. Belgium could have taken this action and refrained from transferring the applicant to Greece if they have considered that Greece was not fulfilling its ECHR obligations. Therefore the Court considered that the challenged action taken by the Belgian authorities did not fall strictly within their international obligations and accordingly the presumption of equivalent protection did not arise in this case.
Application of the Dublin Regulation
As the Dublin regulation is an EU instrument whereby States co-operate in a an area where there might be implications as to the protection of fundamental rights the ECtHR has held that “it would be incompatible with the purpose and object of the Convention if they were absolved of all responsibility vis-à-vis the Convention in the area concerned” (e.g. Waite & Kennedy v Germanyno.26083/94). Therefore when applying the Dublin Regulation (p. 342) “States must make sure that the intermediary country’s asylum procedure affords sufficient guarantees to avoid an asylum seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces from the standpoint of Article 3 of the Convention.”
The Court’s motivation in the present case
The Court distinguished this present case from K.R.S in a number of ways:
- Numerous reports and materials have been added to the information available to it since the decision of K.R.S. in 2008 (reference made to ECRE publications amongst others) with a greater frequency of publication in 2008 and 2009.
- Critical importance was attached to UNHCR’s letter in April 2009 to the Belgian Minister for Immigration pleading for the suspension of transfers to Greece.
- Since 2008 the CEAS has been in a reform phase including the introduction of a proposal for a temporary suspension mechanism under the Dublin Regulation ‘to avoid asylum seekers being sent back to Member States unable to offer them a sufficient level of protection of their fundamental rights’ (p. 350/p.77-79).
- The Belgian Aliens Office procedure for Dublin cases left no possibility for the applicant to state why he should not be transferred to Greece.
Burden of Proof
- The Court held that the Belgian government could not rely upon the applicant’s alleged silence during the interview (p.346). The numerous reports and materials published by organisations including ECRE etc meant that the Belgian authorities knew the general situation in Greece.
- Therefore the applicant should not have been expected to bear the entire burden of proof. Note was taken of the fact that the Aliens Office systematically applied the Dublin Regulation to transfer people to Greece without so much as considering the possibility of making an exception.
- The Belgian government had argued that they had sought sufficient assurances from the Greek authorities. However the Court held, relying upon Saadi v Italy no.37201/06 “the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention.”
Regarding diplomatic assurances it was held that the assurances given by Greece to the Belgian authorities did not amount to a sufficient guarantee. The assurances by the Greek authorities were submitted after the expulsion order under the Dublin Regulation had been issued and the agreement document itself contained no specific guarantee concerning the individual applicant.
Rule 39 measure
The Court rejected the government’s argument that the Court itself had not considered it necessary to indicate an interim measure under Rule 39 to suspend the applicant’s transfer. In such cases, where expulsion is imminent the Court must take an urgent decision. At the stage of interim measures it is not for the Court to analyse the case in depth & it will often not have the information to do so (Paladi v Moldova no. 39806/05). In the present case the Court had requested in its correspondence that the Greek government follow the applicant’s case closely and keep it informed (p.354). Therefore this leads to the conclusion that the Court’s failure to indicate a Rule 39 interim measure in favour of the applicant has no bearing on the merits of the case under Article 3 ECHR.
Submitting a complaint to ECtHR from Greece
The Court held that the “obstacles facing asylum seekers in Greece clearly shows that applications lodged there at this point in time are illusory”. The low number of Rule 39 requests against Greece by asylum seekers in that country was also considered.
The Court held that the Belgian authorities knew or ought to have known that the applicant had no guarantee that the Greek authorities would seriously examine his asylum application. The Belgian authorities had the means of preventing his transfer to Greece by utilising the sovereignty clause. Given the evidence presented on the situation in Greece, the Belgian authorities could not presume that the applicant would be treated in conformity with ECHR obligation but it was up to the Belgian authorities to first verify how the Greek authorities applied their legislation on asylum in practice.
The applicant’s transfer by Belgium to Greece gave rise to a violation of Article 3
No need to examine Article 2
- Violation of Article 3 by Belgium for exposing the applicant to conditions of detention & living conditions contrary to Article 3
Reference was made to Soering v UK & other established case law in reiterating that the expulsion may give rise to an issue under Article 3 & hence engage the State’s responsibility, where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country.
In finding a violation of Article 3 against Belgium the following factors were taken into account:
- The Court already found the applicant’s conditions of detention and living conditions in Greece degrading.
- These facts were well known before the transfer of the applicant.
- Procedure before the Aliens Office in Belgium made no provision for the applicant to inform them why he did not wish to be transferred to Greece.
- The Belgian authorities applied the Dublin Regulation systematically.
By transferring the applicant to Greece the Belgian authorities knowingly exposed him to conditions of detention and living conditions that amounted to degrading treatment in violation of Article 3 ECHR.
- Violation by Belgium of Article 13 taken in conjunction with Article 2 & 3 because of the lack of an effective remedy against the expulsion order
Established case law: any complaint that expulsion to another country will expose an individual to treatment prohibited by Article 3 requires close and rigorous scrutiny and that, subject to a certain margin of appreciation left to the States, conformity with Article 13 requires that the competent body must be able to examine the substance of the complaint & afford proper reparation.
Article 13 requires not only that the execution of the impugned measure be stayed but also that there is a close and rigorous scrutiny of the claim (p. 388). The Court held that the extremely urgent procedure in Belgium does not allow for a rigorous examination of the complaints under Article 3.
The Court took the following points into consideration:
- The Aliens Appeals Board judgments in previous similar cases showed that the examination of complaints was not very thorough.
- The Appeals Board required concrete proof of the irreparable damage that might result from a potential violation of Article 3 ECHR & increased the burden of proof to such an extent as to hinder the examination on the merits of the alleged risk of a violation.
- Additional material submitted by applicants to the Aliens Appeal Board was not always taken into account.
- Therefore the applicants were prevented from establishing the arguable nature of their complaints under Article 3.
The Court held that the procedure for a stay of execution under the extremely urgent procedure does not meet the requirements of Article 13 ECHR. The Court also took the fact that the applicant faced several practical obstacles into account.
Suspensive effect of appeal
Regarding the possibility to continue proceedings once the applicant has been transferred – the Court stated “it fails to see how, without its decision having suspensive effect, the Aliens Appeal Board could still offer the applicant suitable redress even if it had found a violation of Article 3.”
The effectiveness of the remedy does not depend on the certainty of a favourable outcome for the applicant, however ‘the lack of any prospect of obtaining adequate redress raises an issue under Article 13.’ (Kudla p. 394)
Violation of Article 13 taken in conjunction with Article 3 ECHR against Belgium
Article 46 ECHR
The Court only exceptionally applies measures according to Article 46 however in the present case the Court considered it necessary to indicate some individual measures required for the execution of the Court ruling in respect of the applicant ‘without prejudice to the general measures required to prevent other similar violations in the future’.
Therefore the Court ordered Greece, without delay, to proceed with the examination of the merits of the applicant’s asylum request that meets the requirements of the Convention and, pending the outcome of that examination, to refrain from deporting the applicant.
Article 41 ECHR
Under Article 41 (just satisfaction) of the Convention, the Court held that Greece was to pay the applicant 1,000 euros (EUR) in respect of non-pecuniary damage and EUR 4,725 in respect of costs and expenses. It further held that Belgium was to pay the applicant EUR 24,900 in respect of non-pecuniary damage and EUR 7,350 in respect of costs and expenses.
The Court held, by a majority that there had been:
- A violation of Article 3 both due to the applicant’s detention conditions and because of his living conditions in Greece.
- A violation of Article 13 taken together with Article 3 by Greece because of the deficiencies in the asylum procedure followed in the applicant’s case.
- A violation of Article 3 by Belgium both because having exposed the applicant to risks (in sending him back under the Greece under the Dublin Regulation) linked to the deficiencies in the asylum procedure in Greece and because of having exposed him to detention and living conditions in Greece that were in breach of Article 3.
- A violation of Article 13 taken together with Article 3 by Belgium because of the lack of effective remedy against the applicant’s expulsion order.
Concurring Opinion of Judge Rozakis
Judge Rozakis emphasised two further points in the judgment:
- European Union immigration policy, including the Dublin Regulation does not reflect the present realities or do justice to the disproportionate burden that falls to the Greek immigration authorities. He states there is a clear need for a comprehensive reconsideration of the existing European Legal Regime, which should take into account the particular needs & constraints of Greece.
- The combination of the long duration of the applicant’s treatment coupled with Greece’s international obligation to treat asylum seekers in accordance with current positive law, justified the distinction the Court makes between treatment endured by other categories of people – where Article 3 has not been found to be transgressed – and the treatment of an asylum seeker, who clearly enjoys a particularly advanced level of protection.
Concurring Opinion of Judge Villiger
Judge Villiger agreed to a large extent with the judgment but holds that it does not adequately treat the issue of the applicant’s possible refoulement to Greece from Afghanistan. The judgment only approaches the issue under Article 3 together with Article 13 in respect to Greece and finds violations under both provisions. This approach is held by Villiger to be innovatory as normally it should be first examined under Article 3 by the Court and only subsequently when there is an issue concerning insufficient remedies under Article 13. Judge Villiger maintains that this has implications in respect of future cases whereby a new approach has been introduced for the examination of non-refoulement under Article 3, namely by relying primarily on Article 13. He believes this leaves open a legal loophole and amounts to a petitio principii in such a situation to invoke Article 46 in order to prevent deportation.
Partly Concurring and Partly Dissenting Opinion of Judge Sajo
This note focuses on the dissenting remarks only:
Judge Sajo finds that the applicant cannot be regarded as a victim in the sense of Article 34 as far as his conditions of stay in Greece are concerned and with regard to the deficiencies in the asylum procedure there. Regarding the Court’s emphasis on the fact that the applicant as an asylum seeker is a member of a particularly vulnerable group, Sajo holds that asylum seekers differ from the identified ‘vulnerable groups’ under ECHR jurisprudence (not homogeneous or socially classified group)(pp.66). He states that there is an over-broad concept of vulnerability and dependence in the courts reasoning. He also questions the Courts approach to Article 3 concerning living conditions in Greece – Is this to mean that when it comes to particularly vulnerable people failure by the State to provide material services that satisfy essential needs amounts to a violation of Article 3? Regarding the specificities of the case, Judge Sajo holds that the applicant by his own actions failed to co-operate with the Greek immigration system. Regarding Belgium, Judge Sajo disagrees with the reasoning of the Court in p. 392 stating that the Court only evaluates the impossibility of the applicant’s lawyer to get to an Aliens Appeal Board Hearing. However he agrees with the Court that there is a systematic problem in the Belgian deportation procedure resulting in the violation of Article 13.
Partly Dissenting Opinion of Judge Bratza
Judge Bratza disagrees with the Courts conclusion that Belgium violated Article 3 by returning the applicant to Greece. This is due to the fact that the Courts conclusion, in J. Bratza’s opinion, pays insufficient regard to the unanimous decision of the Court concerning the return of asylum seekers to Greece under the Dublin Regulation in the case of K.R.S. v UK which was delivered less than 6 months prior to the decision to transfer this applicant to Greece. In Judge Bratza’s opinion the information since the decision in K.R.S does not change the substantive content of report or otherwise affect the Court’s reasoning in the K.R.S. decision. He also has difficulties with the Court’s reliance on the proposal to modify the Dublin system including the reference to the ‘temporary suspension mechanism’ and finds in this case the fact that the Rule 39 application was refused of particular importance.
The Court found that there was a violation of Article 3 ECHR by the Greece Government because of the applicant’s conditions of detention, violation of Article 3 ECHR by Greece concerning the applicant’s living conditions in Greece, violation of Article 13 taken in conjunction with Article 3 ECHR against Greece because of the deficiencies in the asylum procedure followed in the applicant’s case and the risk of his expulsion to Afghanistan without any serious examination of the merits of his asylum application and without any access to an effective remedy. The Court also found in relation to Belgium that there was a violation of Article 3 by sending the applicant back to Greece and exposing him to risks linked to the deficiencies in the asylum procedure in that State, also held against Belgium a violation of Article 3 for sending him to Greece and exposing him to detention and living conditions there that were in breach of that ECHR article. The Court also found a violation of Article 13 ECHR taking in conjunction with Article 3 ECHR against Belgium.
In December 2014, the CoE Committee of Ministers adopted a final resolution (CM/ResDH(2014)272) wherein it found that adequate execution measures had been adopted by Belgium. On the individual level, the Court noted that the applicant had been granted the refugee status. On the general level, Belgium stopped transferring asylum seekers to Greece by applying the sovereignty clause of the “Dublin II” Regulation; practice has developed to ensure that also complaints of ill treatment in other EU countries are effectively examined; a new Law of 10 April 2014 has made the procedure in compliance with art. 13 of the Convention by strengthening the obligation of the court to assess allegations of violations of Article 3 by taking into account all the evidences at their disposal, and the situation as it is at the time of the appeal.
Furthermore, the new appeal procedure provides any asylum seeker with a remedy against expulsion with automatic suspensive effect.
In its interim decisions concerning the execution of the judgments rendered in M.S.S (& Rahimi ) v. Greece (adopted between December 2014 and December 2015), the CoE Committee of Ministers’ welcomed the creation of a new administrative authority for migration (responsible for all issues concerning the reception of asylum seekers), and the adoption of a new action plan to give full execution to the Court’s judgments. On the other hand, the CM called upon the Greek authorities for further efforts to ensure reception facilities and correlated services (included medical and psychological care) to all asylum seekers entitled to those, to guarantee the right to free legal aid, and to ensure that all unaccompanied minors are immediately referred to special accommodation centres and assisted by specialized personnel.
This is a leading Court judgment with innovative reasoning. Given the evidence presented on the conditions in Greece, the Court clearly affirms that Member States in applying the Dublin rules cannot presume that the applicant would be treated in conformity with ECHR obligations but that it is up to the national authorities to first verify how the Greek authorities applied their legislation on asylum in practice before returning asylum seekers there.This by corollary also applies whenever there is evidence that a Member State in practice is not treating asylums seekers in conformity with its ECHR obligations. P.342 “States must make sure that the intermediary country’s asylum procedure affords sufficient guarantees to avoid an asylum seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces from the standpoint of Article 3 of the Convention.”
The judgment strengthens the grounds for providing information on the Dublin procedure to asylum seekers and also guaranteeing the right to a personal interview. In considering Belgium’s interview process during the Dublin procedure the Court took into account the fact that the applicant was unable to inform them of the reasons why he should not be transferred to Greece.
Other points to note:
- This is one of the few cases where the ECtHR has found there to be a violation of Convention rights on returning a person to another CoE Contracting State Party.
- The judgment has wider implications regarding reception conditions in States in finding that there was a violation of Article 3 ECHR on account of the poor living conditions faced by the applicant in Greece. The Court highlighted the positive law obligation under the Reception Conditions Directive and took into account the State’s passivity & inaction to remedy the applicant’s situation.
- The Courts reasoning emphasised the particular vulnerability of asylum seekers– broad consensus at the international and European level concerning the need for special protection for this group.
- P.320, 293 – In considering the length of appeal proceedings the Court emphasises the importance of swift action when there is a potential violation of Article 3.
- The difficult pressure that Greece faces at the borders of the European Union should not be taken into account when examining potential violations of Article 3.
- The judgment has implications also for the detention conditions of asylum seekers who are considered by the Court to be particularly vulnerable in detention and their systematic placement there without being informed of the reasons for their detention (p.233).
- The judgment strengthens the procedural safeguards required for an effective remedy in deportation proceedings in accordance with Article 13 ECHR.
This case was also relied upon by the Grand Chamber of the CJEU in the case of N.S. and Others C-411/10. ECHR Dublin Fact Sheet provides a useful overview of relevant Dublin cases before the Court: http://www.echr.coe.int/Documents/FS_Dublin_ENG.pdf
ECtHR - Tabesh v. Greece, Application No. 8256/07
ECtHR - Amuur v. France, Application No. 19776/92
ECtHR - Chapman v The United Kingdom (Application no. 27238/95)
ECtHR - Conka v Belgium (Application no. 51564/99)
ECtHR - Çakici v. Turkey [GC], Application No. 23657/94
CJEU - C-19/08 Migrationsverket v Edgar Petrosian and Others (UP)
CJEU - C-175/08, C-176/08, C-178/08 and C-179/08, Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi, Dier Jamal v Bundesrepublik Deutschland
ECtHR - Shamayev v Georgia (April 2005) (Application no. 36378/02)
ECtHR - Jabari v Turkey, 11 July 2000, (Application no. 40035/98)
ECtHR - T.I. v United Kingdom (Application no. 43844/98)
ECtHR - KRS v United Kingdom (Application no. 32733/08)
ECtHR - Müslim v Turkey (Application no. 53566/99)
ECtHR - Ocalan v Turkey (2005) (Application no. 46221/99)
ECtHR - Doran v Ireland, Application No. 50389/99
ECtHR - Kudla v Poland [GC], Application No. 30210/96
ECtHR - Stapleton v. Ireland (dec.), Application No. 56588/07
ECtHR - Y. v. Russia, Application No. 20113/07
ECtHR - Waite and Kennedy v. Germany [GC], Application No. 26083/94
ECtHR - Thampibillai v. the Netherlands, Application No. 61350/00
ECtHR - Paladi v. Moldova [GC], Application No. 39806/05
ECtHR - Broniowski v. Poland [GC], Application No. 31443/96
ECtHR - Musiał v. Poland [GC], Application No. 24557/94
ECtHR - Sanoma Uitgevers B.V. v. the Netherlands, Application No. 38224/03
ECtHR - De Wilde, Ooms and Versyp v. Belgium, Application Nos. 2832/66, 2835/66 and 2899/66
ECtHR - Budina v. Russia, Application No. 45603/05
ECtHR - Oršuš and Others v. Croatia [GC], Application No. 15766/03
ECtHR - Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (no. 2) [GC], Application No. 32772/02
ECtHR - Popov v Russia, Application No. 26853/04
ECtHR - Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi (Bosphorus Airways) v. Ireland [GC], Application No. 45036/98
ECtHR - Assanidze v Georgia [GC], Application No. 71503/01
ECtHR - Peers v. Greece, Application No. 28524/95
ECtHR - Riad and Idiab v. Belgium, Application Nos. 29787/03 and 29810/03
ECtHR - A.A. v. Greece, Application No. 12186/08
ECtHR - Labita v. Italy [GC], Application No. 26772/95
ECtHR - Venema v. the Netherlands, Application No. 35731/97
- The Commission’s infringement proceedings against Greece were cited as well as the commencement of infringement proceedings against Belgium for not fully transposing the Asylum Procedures Directive.
- The Council of Europe Commissioner for Human Rights Recommendation concerning the rights of aliens wishing to enter a Council of Europe Member State and the enforcement of expulsion orders, September 2001 was also cited by the Court
- European Committee for the Prevention of Torture, following its visit to Greece from 27 August to 9 September 2005, published on 20 December 2006;
- Report of the LIBE Committee delegation on its visit to Greece (Samos and Athens), European Parliament, 17 July 2007;
- Pro Asyl, “The truth may be bitter but must be told - The Situation of Refugees in the Aegean and the Practices of the Greek Coast Guard”, October 2007;
- UNHCR, “Asylum in the European Union. A Study of the implementation of the Qualification Directive”, November 2007;
- European Committee for the Prevention of Torture, following its visit to Greece from 20 to 27 February 2007, 8 February 2008;
- Amnesty International, “Greece: No place for an asylum-seeker”, 27 February 2008;
- European Council on Refugees and Exiles (“ECRE”), “Spotlight on Greece – EU asylum lottery under fire”, 3 April 2008;
- Norwegian Organisation for Asylum Seekers (“NOAS”), “A gamble with the right to asylum in Europe – Greek asylum policy and the Dublin II regulation”, 9 April 2008;
- UNHCR, “Position on the return of asylum seekers to Greece under the Dublin Regulation”, 15 April 2008;
- Human Rights Watch, “Stuck in a revolving door – Iraqis and other asylum seekers and migrants at Greece/Turkey entrance to the European Union”, November 2008;
- Clandestino, “Undocumented migration: counting the uncountable: data and trends across Europe”, December 2008;
- Human Rights Watch, “Left to survive”, December 2008;
- Cimade, “Droit d’asile: les gens de Dublin II, parcours juridique de demandeurs d’asile soumis à une réadmission selon le règlement Dublin II”, December 2008;
- Council of Europe Commissioner for Human Rights, Mr T. Hammarberg, report prepared following his visit to Greece from 8 to 10 December 2008, 4 February 2009;
- Greek Council of Refugees, “The Dublin Dilemma – “Burden shifting and putting asylum seekers at risk”, 23 February 2009;
- European Committee for the Prevention of Torture, report prepared following its visit to Greece from 23 to 28 September 2008, 30 June 2009;
- Austrian Red Cross and Caritas, “The Situation of Persons Returned by Austria to Greece under the Dublin Regulation. Report on a Joint Fact-FindingMission to Greece (May 23rd - 28th 2009)”, August 2009;
- Norwegian Helsinki Committee (“NHC”), NOAS and Aitima, “Out the back door: the Dublin II Regulation and illegal deportations from Greece”, October 2009;
- Human Rights Watch, “Greece: Unsafe and Unwelcoming Shores”, October 2009;
- UNHCR, Observations on Greece as a country of asylum, December 2009;
- Amnesty International, “The Dublin II Trap: transfers of Dublin Asylum Seekers to Greece”, March 2010;
- National Commission for Human Rights (Greece), “Detention conditions in police stations and detention areas of aliens”, April 2010;
- Amnesty International, “Irregular migrants and asylum-seekers routinely detained in substandard conditions”, July 2010