66
M.S.S. v. BELGIUM AND GREECE JUDGMENT
applicant’s request for asylum, and it was therefore not their task to examine
the applicant’s fears for his life and his physical safety in Afghanistan. The
Dublin Regulation had been drawn up with due regard for the principle of
non-refoulement enshrined in the Geneva Convention, for fundamental
rights and for the principle that the member States were safe countries. Only
in exceptional circumstances, on a case-by-case basis, did Belgium avail
itself of the derogation from these principles provided for in Article 3 § 2 of
the Regulation, and only where the person concerned showed convincingly
that he was at risk of being subjected to torture or inhuman or degrading
treatment within the meaning of Article 3. Indeed, that approach was
consistent with the Court’s case-law, which required there to be a link
between the general situation complained of and the applicant’s individual
situation (see, for example, Sultani v. France, no. 45223/05, ECHR
2007-IV; Thampibillai v. the Netherlands, no. 61350/00, 17 February 2004;
and Y. v. Russia, no. 20113/07, 4 December 2008).
327. The Belgian Government did not know in exactly what
circumstances the sovereignty clause was used, as no statistics were
provided by the Aliens Office, and when use was made of it no reasons
were given for the decisions. However, in order to show that they did apply
the sovereignty clause when the situation so required, the Government
produced ten cases where transfers to the country responsible had been
suspended for reasons related, by deduction, to the sovereignty clause. In
half of those cases Poland was the country responsible for the applications,
in two cases it was Greece and in the other cases France and Hungary. In
seven cases the reason given was the presence of a family member in
Belgium; in two, the person’s health problems; and the last case concerned a
minor. In the applicant’s case, Belgium had had no reason to apply the
clause and no information showing that he had personally been a victim in
Greece of treatment prohibited by Article 3. On the contrary, he had not told
the Aliens Office that he had abandoned his asylum application or informed
it of his complaints against Greece. Indeed, the Court itself had not
considered it necessary to indicate an interim measure to the Belgian
Government to suspend the applicant’s transfer.
328. However, the Government pointed out that the order to leave the
country had been issued based on the assurance that the applicant would not
be sent back to Afghanistan without the merits of his complaints having
been examined by the Greek authorities. As regards access to the asylum
procedure and the course of that procedure, the Government relied on the
assurances given by the Greek authorities that they had finally accepted
responsibility, and on the general information contained in the summary
document drawn up by the Greek authorities and in the observations Greece
had submitted to the Court in other pending cases. The Belgian authorities
had noted, based on that information, that if an alien decided to lodge an
application for asylum in Greece, the merits of the application would be
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