M.S.S. v. BELGIUM AND GREECE JUDGMENT
29
151. In substance, the same reasoning is behind the judgments of the
Aliens Appeals Board when it examines appeals to set aside a decision.
Thus, after having declared the appeal inadmissible as far as the order to
leave the country was concerned, because the applicant had already been
removed, the Board, in the above-mentioned judgment no. 28.233 of
29 May 2009, went on to analyse the applicant’s complaints under the
Convention – particularly Article 3 – and rejected the appeal because the
applicant had failed to demonstrate any concrete link between the general
situation in Greece and his individual situation.
C. The Conseil d’Etat
152. The provisions concerning referrals to the Conseil d’Etat and the
latter’s powers are found in the laws on the Conseil d’Etat consolidated on
12 January 1973.
153. A lawyer may lodge an administrative appeal with the Conseil
d’Etat within thirty days of notification of the judgment of the Aliens
Appeals Board.
154. If the appeal is to be examined by the Conseil d’Etat, it must be
declared admissible. It will be declared admissible if it is not manifestly
inadmissible or devoid of purpose; if it is claimed that there has been a
breach of the law or a failure to comply with essential procedural
requirements or with statutory formalities required on pain of nullity, as
long as that claim is not manifestly ill-founded and the alleged error may
have influenced the decision and is sufficient to justify setting it aside; or if
its examination is necessary to guarantee the consistency of the case-law.
155. This procedure does not have suspensive effect. The Conseil d’Etat
gives judgment on the admissibility of the application in principle within
eight days.
156. Where the application is declared admissible, the Conseil d’Etat
gives a ruling within six months and may overturn decisions of the Aliens
Appeals Board for breach of the law or for failure to comply with essential
procedural requirements or with statutory formalities required on pain of
nullity.
157. The judgments referred to in the case file show that the Conseil
d’Etat does not question the approach of the Aliens Appeals Board
explained above and considers that no issues are raised under Article 13 of
the Convention (see, for example, judgment no. 5115 of 15 December
2009).
D. The courts and tribunals
158. Decisions taken by the Aliens Office concerning detention (orders to
detain applicants in a given place and orders to re-detain them) may be