M.S.S. v. BELGIUM AND GREECE JUDGMENT
71
by a third-country national, even if such examination is not its responsibility
under the criteria laid down in the Regulation. This is the so-called
“sovereignty” clause. In such a case, the State concerned becomes the
member State responsible for the purposes of the Regulation and takes on
the obligations associated with that responsibility.
340. The Court concludes that, under the Dublin Regulation, the Belgian
authorities could have refrained from transferring the applicant if they had
considered that the receiving country, namely Greece, was not fulfilling its
obligations under the Convention. Consequently, the Court considers that
the impugned measure taken by the Belgian authorities did not strictly fall
within Belgium’s international legal obligations. Accordingly, the
presumption of equivalent protection does not apply in this case.
3. Merits of the complaints under Articles 2 and 3 of the Convention
(a) The decisions in T.I. v. the United Kingdom and K.R.S. v. the United
Kingdom
341. In these two cases, the Court had the opportunity to examine the
effects of the Dublin Convention, then the Dublin Regulation with regard to
the Convention.
342. The T.I. v. the United Kingdom case (cited above) concerned a Sri
Lankan national who had unsuccessfully sought asylum in Germany and
had then submitted a similar application in the United Kingdom. In
application of the Dublin Convention, the United Kingdom had ordered his
transfer to Germany.
In its decision, the Court considered that indirect removal to an
intermediary country, which was also a Contracting Party, left the
responsibility of the transferring State intact, and that that State was
required, in accordance with the well-established case-law, not to deport a
person where substantial grounds had been shown for believing that the
person in question, if expelled, would face a real risk of being subjected to
treatment contrary to Article 3 in the receiving country.
Furthermore, the Court reiterated that where States cooperated in an area
where there might be implications as to the protection of fundamental rights,
it would be incompatible with the purpose and object of the Convention if
they were absolved of all responsibility vis-à-vis the Convention in the area
concerned (see, among other authorities, Waite and Kennedy v. Germany
[GC], no. 26083/94, § 67, ECHR 1999-I).
When they apply the Dublin Regulation, therefore, the States must make
sure that the intermediary country’s asylum procedure affords sufficient
guarantees to avoid an asylum-seeker being removed, directly or indirectly,
to his country of origin without any evaluation of the risks he faces from the
standpoint of Article 3 of the Convention.
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