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