110 M.S.S. v. BELGIUM AND GREECE JUDGMENT – SEPARATE OPINIONS PARTLY DISSENTING OPINION OF JUDGE BRATZA 1. It is with regret that I find myself in disagreement with the other judges of the Grand Chamber in their conclusion that Belgium violated Article 3 of the Convention by returning the applicant to Greece in June 2009. I could readily accept that, if Belgium or any other member State were, in the light of the Court’s findings in the present judgment as to the risk of refoulement in Greece and the conditions of detention and living conditions of asylum-seekers there, forcibly to return to Greece an individual from a “suspect” country of origin such as Afghanistan, it would violate Article 3 even in the absence of an interim measure being applied by the Court. What I cannot accept is the majority’s conclusion that the situation in Greece and the risks posed to asylum-seekers there were so clear some eighteen months ago as to justify the serious finding that Belgium violated Article 3, even though the Court itself had found insufficient grounds at that time to apply Rule 39 of the Rules of Court to prevent the return to Greece of the applicant and many others in a similar situation. The majority’s conclusion appears to me to pay insufficient regard to the unanimous decision of the Court concerning the return of asylum-seekers to Greece under the Dublin Regulation in the lead K.R.S. v. the United Kingdom case ((dec.), no. 32733/08, ECHR 2008), which was delivered in December 2008, less than six months prior to the return of the present applicant, and which has been relied on not only by national authorities but by the Court itself in rejecting numerous requests for interim measures. 2. As was noted in the K.R.S. v. the United Kingdom decision itself, the Court had received, in the light of the position paper of the Office of the United Nations High Commissioner for Refugees (UNHCR) of 15 April 2008, an increasing number of Rule 39 requests from applicants in the United Kingdom who were to be removed to Greece: between 14 May and 16 September 2008 the Acting President of the Section responsible had granted interim measures in a total of 80 cases. The Court’s principal concern related to the risk that asylum-seekers from “suspect” countries – in the K.R.S. v. the United Kingdom case itself, Iran – would be removed from Greece to their country of origin without having had the opportunity to make an effective asylum claim to the domestic authorities or, should the need arise, an application to the Court under Rule 39. To this end, the Court sought and obtained certain assurances from the Greek authorities through the United Kingdom Government. These included assurances that no asylum-seeker was returned by Greece to such countries as Afghanistan, Eritrea, Iran, Iraq, Somalia or Sudan even if his asylum application was rejected by the Greek authorities; that no asylum applicant was expelled from Greece unless all stages of the asylum procedure had been completed and all the legal rights for review had been exhausted, according to the provisions of the Geneva Convention; and that an asylum-seeker had a right