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M.S.S. v. BELGIUM AND GREECE JUDGMENT – SEPARATE OPINIONS
paragraph 402). This instruction is begging the question, it is a petitio
principii. Article 46 should only be applied if the Court has previously
found a violation of the Convention – which it patently has not done where
Article 3 of the Convention as regards the applicant’s fear of deportation to
Afghanistan is concerned. On what ground, indeed by what authority, can
the judgment prohibit the deportation, if the Court has nowhere examined
whether such deportation would be harmful to the applicant?
The Court has a very restricted role as regards the implementation of its
judgments. The principle of subsidiarity requires that this task falls
primarily to the Convention States under the supervision of the Committee
of Ministers of the Council of Europe. This explains why the Court has so
far only exceptionally applied measures according to Article 46 (important
examples are mentioned in paragraph 399 of the judgment). By giving an
instruction based on Article 46 in the present case, the judgment creates
confusion as to the meaning and scope of this provision and sadly weakens
the authority of the “tool” which Article 46 offers the Court to handle
exceptional circumstances.
8. Alternative manner of proceeding
Had the applicant’s complaint about refoulement been examined
separately under Article 3 of the Convention, and had the Court found that
there was a risk of treatment contrary to Article 3 in the event of the
applicant’s return to Afghanistan, the Court’s conclusion in the operative
part of the judgment would have been that “in the event of [the respondent
State’s] decision to deport [the applicant] to [the particular State], there
would be a violation of Article 3 of the Convention” (see, mutatis mutandis,
the Court’s conclusion under Article 3 of the Convention in Chahal, cited
above). The effect would be to prevent the Greek authorities from deporting
the applicant to his home country. By warning against such a “potential
violation” (“would be”) the Court would in effect be prolonging the
measure under Rule 39 of the Rules of Court which it upheld throughout the
proceedings.
9. Conclusion
The judgment has implications not only for the present case but, more
generally, in respect of future cases. A new approach (and condition) has
been introduced for the examination of a refoulement under Article 3,
namely by relying primarily on Article 13. It leaves open a legal loophole
whereby a person, despite the finding by the Court of a violation under
Article 13 of the Convention taken in conjunction with Article 3, can
nevertheless be deported to a country where he or she may be subjected to
ill-treatment contrary to Article 3 of the Convention. It amounts to a petitio
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