M.S.S. v. BELGIUM AND GREECE JUDGMENT – SEPARATE OPINIONS
93
CONCURRING OPINION OF JUDGE VILLIGER
I agree to a large extent with the judgment. However, as regards the
conclusion that there has been a violation by Greece of Article 13 taken in
conjunction with Article 3 of the Convention (see the judgment at
paragraph 321), I respectfully submit that the judgment does not adequately
treat the issue under Article 3 of the Convention in respect of the applicant’s
possible deportation (refoulement) from Greece to Afghanistan. (There
appears in this context also to be an issue under Article 2 of the Convention
in the case file, but for convenience’s sake I shall henceforth refer solely to
Article 3.)
1. Is there a separate complaint under Article 3 of the Convention?
The starting point is whether the applicant is raising a complaint under
Article 3 of the Convention about his possible deportation to Afghanistan.
The judgment mentions not a word about this. In my opinion, there can be
little doubt that he is. Thus, from the outset in the proceedings before the
Court the applicant referred to “the risks he had faced and would still face if
he were sent back to that country [i.e., Afghanistan]” (see paragraph 40 of
the judgment).
Indeed, in view of this complaint vis-à-vis Greece, the Court applied
interim measures under Rule 39 of its Rules of Court throughout the
proceedings, thereby preventing the applicant from being deported to
Afghanistan during the proceedings (see paragraph 40). Moreover, the
Court obviously does not doubt the existence of such a complaint when it
considers in the judgment that the applicant, in this respect “has an arguable
claim under ... Article 3 of the Convention.” (see paragraph 297)
Actually, one could argue that the entire application in all its
configurations essentially turns on the applicant’s fear that he will suffer
treatment contrary to Article 3 if he is returned to Afghanistan.
In this respect, it does not surprise that the judgment contains a whole
page on the situation in Afghanistan (see paragraphs 196 et seq.).
What does surprise is that the judgment refuses to acknowledge such a
complaint under Article 3.
2. The issue: the approach chosen by the judgment
Despite the importance of this complaint, the judgment does not examine
it separately under Article 3, at least not as regards Greece. Instead, it
examines it only in conjunction with Article 13 of the Convention (see
paragraphs 294 et seq.). This approach is, as far as I can see, innovatory. In
previous cases, the Court has had no hesitations in examining the issue of
refoulement first under Article 3 and then under Article 13 and finding
اختر الفقرة المستهدفة3
الاتصال بفقرة
Connect to an entity
Disable highlights
أضف إلى جدول المحتويات