94 M.S.S. v. BELGIUM AND GREECE JUDGMENT – SEPARATE OPINIONS violations under both provisions (see, for example, Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996-V, and Jabari v. Turkey, no. 40035/98, ECHR 2000-VIII). It is difficult to comprehend the new approach which is now proposed. For, if the complaint is “arguable” under Article 3 (see section 1 above), surely it should first be examined under this provision, and only subsequently – if an additional complaint is raised about insufficient remedies – also under Article 13 of the Convention. This is not merely a theoretical assessment of the relative position of the Convention provisions to each other. On the one hand, Article 3, expressing itself on the prohibition of torture or inhuman and degrading treatment or punishment, is a fundamental provision – a fortiori as this complaint lies at the basis of the present case (see section 1 above). The applicant’s complaint raised under Article 3 merits per se to be treated on its own. On the other hand, as I shall point out, this innovatory approach entails practical consequences for the applicant (see section 6 below). 3. The criterion of this new approach According to the new approach which examines Article 3 solely in conjunction with Article 13 in respect of the complaint against Greece concerning refoulement, the judgment states as follows: “It is in the first place for the Greek authorities, who have responsibility for asylum matters, themselves to examine the applicant’s request and the documents produced by him and assess the risks to which he would be exposed in Afghanistan. The Court’s primary concern is whether effective guarantees exist in the present case to protect the applicant against arbitrary removal directly or indirectly back to his country of origin.” (paragraph 298) Thus, the judgment requires that the national authorities first examine the issue of refoulement before the Court can do so. 4. Questions as to this new approach The Court’s new approach – that the authorities must first have examined the complaint about refoulement under Article 3 before the Court can do so – raises a number of questions. (a) Exhaustion of domestic remedies To begin with, it is not clear what the relationship is between this condition and the rule of the exhaustion of domestic remedies according to Article 35 § 1 of the Convention. Had it been found in the present case that the applicant did not bring his complaint before all the competent Greek authorities, surely the complaint should then have been declared inadmissible for non-exhaustion of domestic remedies (see Bahaddar v. the