98 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