28
M.S.S. v. BELGIUM AND GREECE JUDGMENT
comply with proper European standards in matters of asylum and the fundamental
rights of asylum-seekers, the Greek authorities are not yet able to offer asylum
applicants the minimum reception or procedural guarantees.”
148. Other divisions have opted for another approach, which consists in
taking into account the failure to demonstrate a link between the general
situation in Greece and the applicant’s individual situation. For example, in
judgment no. 37.916 of 27 February 2009, rejecting a request for a stay of
execution of a transfer to Greece, the Aliens Appeals Board reasoned as
follows:
[Translation by the Registry]
“The general information provided by the applicant in his file mainly concerns the
situation of aliens seeking international protection in Greece, the circumstances in
which they are transferred to and received in Greece, the way they are treated and the
way in which the asylum procedure in Greece functions and is applied. The materials
establish no concrete link showing that the deficiencies reported would result in
Greece violating its non-refoulement obligation vis-à-vis aliens who, like the
applicant, were transferred to Greece ... Having regard to the above, the applicant has
not demonstrated that the enforcement of the impugned decision would expose him to
a risk of virtually irreparable harm.”
149. In three cases in 2009 the same divisions took the opposite
approach and decided to suspend transfers to Athens, considering that the
Aliens Office, in its reasoning, should have taken into account the
information on the general situation in Greece. These are judgments
nos. 25.959 and 25.960 of 10 April 2009 and no. 28.804 of 17 June 2009.
150. In order to ensure the consistency of its case-law, the President of
the Aliens Appeals Board convened a plenary session on 26 March 2010
which delivered three judgments (judgments nos. 40.963, 40.964 and
10.965) in which the reasoning may be summarised as follows:
– Greece is a member of the European Union, governed by the rule of
law, a party to the Convention and the Geneva Convention and bound by
Community legislation in asylum matters;
– based on the principle of intra-Community trust, it must be presumed
that the State concerned will comply with its obligations (referring to the
Court’s case-law in K.R.S. v. the United Kingdom (dec.), no. 32733/08, 2
December 2008);
– in order to reverse that presumption the applicant must demonstrate in
concreto that there is a real risk of his being subjected to treatment contrary
to Article 3 of the Convention in the country to which he is being removed;
– simple reference to general reports from reliable sources showing that
there are reception problems or that refoulement is practised or the mere fact
that the asylum procedure in place in a European Union member State is
defective does not suffice to demonstrate the existence of such a risk.