M.S.S. v. BELGIUM AND GREECE JUDGMENT
63
interveners and several of the reports consulted by the Court (see
paragraphs 160, 192 and 282 above).
315. Of at least equal concern to the Court are the risks of refoulement
the applicant faces in practice before any decision is taken on the merits of
his case. The applicant did escape expulsion in August 2009, by application
of PD no. 90/2008 (see paragraphs 43-48 and 120 above). However, he
claimed that he had barely escaped a second attempt by the police to deport
him to Turkey. The fact that in both cases the applicant had been trying to
leave Greece cannot be held against him when examining the conduct of the
Greek authorities with regard to the Convention and when the applicant was
attempting to find a solution to a situation the Court considers contrary to
Article 3 (see paragraphs 263 and 264 above).
316. The Court must next examine whether, as the Government alleged,
an application to the Supreme Administrative Court for judicial review of a
possible rejection of the applicant’s request for asylum may be considered
as a safety net protecting him against arbitrary refoulement.
317. The Court begins by observing that, as the Government have
alleged, although such an application for judicial review of a decision
rejecting an asylum application has no automatic suspensive effect, lodging
an appeal against an expulsion order issued following the rejection of an
application for asylum does automatically suspend enforcement of the order.
318. However, the Court reiterates that the accessibility of a remedy in
practice is decisive when assessing its effectiveness. The Court has already
noted that the Greek authorities have taken no steps to ensure
communication between the competent authorities and the applicant. That
fact, combined with the malfunctions in the notification procedure in respect
of “persons of no known address” reported by the Council of Europe
Commissioner for Human Rights and the UNHCR (see paragraph 187
above), makes it very uncertain whether the applicant will be able to learn
the outcome of his asylum application in time to react within the prescribed
time-limit.
319. In addition, although the applicant clearly lacks the wherewithal to
pay a lawyer, he has received no information concerning access to
organisations which offer legal advice and guidance. Added to that is the
shortage of lawyers on the list drawn up for the legal aid system (see
paragraphs 191 and 281 above), which renders the system ineffective in
practice. Contrary to the Government’s submissions, the Court considers
that this situation may also be an obstacle hindering access to the remedy
and falls within the scope of Article 13, particularly where asylum-seekers
are concerned.
320. Lastly, the Court cannot consider, as the Government have
suggested, that the length of the proceedings before the Supreme
Administrative Court is irrelevant for the purposes of Article 13. The Court
has already stressed the importance of swift action in cases concerning ill-
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