M.S.S. v. BELGIUM AND GREECE JUDGMENT – SEPARATE OPINIONS
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by the Court in 68 cases of the return of Afghan nationals to Greece from
Austria, Belgium, Denmark, France, the Netherlands, Sweden and the
United Kingdom.
I find it quite impossible in these circumstances to accept that Belgium
and other member States should have known better at that time or that they
were not justified in placing the same reliance on the Court’s decision in
K.R.S. v. the United Kingdom as the Court itself.
15. For these reasons, I am unable to agree with the majority of the
Grand Chamber that, by returning the applicant to Greece in June 2009,
Belgium was in violation of Article 3 of the Convention, either on the
ground of his exposure to the risk of refoulement arising from deficiencies
in the asylum procedures in Greece, or on the ground of the conditions of
detention or the living conditions of asylum-seekers in that country.
16. Notwithstanding this view, the present case has thrown up a series of
deficiencies in Belgium’s own system of remedies in respect of expulsion
orders which are arguably claimed to violate an applicant’s rights under
Articles 2 or 3 of the Convention. These deficiencies are, in my view,
sufficiently serious to amount to a violation of Article 13 and, in this regard,
I share the conclusion and reasoning in the Court’s judgment. While this
finding alone would justify an award of just satisfaction against Belgium, it
would not in my view justify an award of the full sum claimed by the
applicant, hence my vote against the award which is made against Belgium
in the judgment.
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