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M.S.S. v. BELGIUM AND GREECE JUDGMENT – SEPARATE OPINIONS
for this approach, which questions certain classifications per se, is that such
groups were historically subjected to prejudice with lasting consequences,
resulting in their social exclusion. Such prejudice may entail legislative
stereotyping which prohibits the individualised evaluation of their capacities
and needs (compare Shtukaturov v. Russia, no. 44009/05, § 95, ECHR 2008,
and Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010). Where a
group is vulnerable, special consideration should be given to their needs, as
in the case of the Roma, who have become a disadvantaged and vulnerable
group as a result of their history (see Oršuš and Others v. Croatia [GC],
no. 15766/03, §§ 147-48, ECHR 2010).
Asylum-seekers differ to some extent from the above-identified
“particularly vulnerable groups”. They are not a group historically subject to
prejudice with lasting consequences, resulting in their social exclusion. In
fact, they are not socially classified, and consequently treated, as a group.
For the reasons identified by the Court, it is possible that some or many
asylum-seekers are vulnerable (i.e. they will feel a degree of deprivation
more humiliating than the man on the Clapham omnibus), but this does not
amount to a rebuttable presumption with regard to the members of the
“class”. Asylum-seekers are far from being homogeneous, if such a group
exists at all.
Could the treatment of asylum-seekers by the Greek authorities amount
to inhuman and degrading treatment? Where treatment humiliates or
debases an individual, showing a lack of respect for, or diminishing, his or
her human dignity, or arouses feelings of fear, anguish or inferiority capable
of breaking an individual’s moral and physical resistance, it may be
characterised as degrading and also fall within the prohibition of Article 3
(see, among other authorities, Price v. the United Kingdom, no. 33394/96,
§§ 24-30, ECHR 2001-VII, and Valašinas v. Lithuania, no. 44558/98,
§ 117, ECHR 2001-VIII).
Under Article 3 the humiliation or debasement and the lack of respect
shown should originate from the State or, in exceptional circumstances,
from private actors in a dominant position in a situation at least
overwhelmingly controlled by the State, as is the case, for example, where
the State tolerates prisoners abusing their fellow inmates. Moreover, the
purpose of the State action or omission is also a matter for consideration,
although even in the absence of such a purpose one cannot conclusively rule
out a finding of a violation of Article 3 (see Peers v. Greece, no. 28524/95,
§§ 67-68 and 74, ECHR 2001-III, and Valašinas, cited above, § 101). In the
present case, even if the authorities were careless and insensitive in the
asylum procedure, there is no evidence of any intention to humiliate.
The Court took into consideration the lack of accommodation
(paragraph 258 of the judgment) and the failure to provide for the
applicant’s essential needs. This made the Court conclude that Article 3 of
the Convention was violated as a result of the “living conditions” of the
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