M.S.S. v. BELGIUM AND GREECE JUDGMENT – SEPARATE OPINIONS
101
duration. The Greek Government should have proved that the placement
was not in an overcrowded place in appalling conditions of hygiene and
cleanliness, amounting to degrading treatment prohibited by Article 3, but
they failed to do so. Of course, in A.A. v. Greece (no. 12186/08, §§ 57-65,
22 July 2010), where these conditions were found to amount to humiliation,
the period was considerably longer, namely three months. For the Court, the
duration of the detention in the present case is comparable in its effects to
much longer stays in detention because of the assumed vulnerability of the
applicant. I do not find the applicant particularly vulnerable (see below) but
I do find the short term of detention inhuman because, as a rule, the
relatively short-term restriction of freedom under deplorable conditions of
people not accused of wrongdoing (as is the case here, at least for the first
period of detention) causes considerable humiliation in itself.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
BY GREECE BECAUSE OF THE APPLICANT’S LIVING
CONDITIONS
According to the Court, the applicant, as an asylum-seeker, is a member
of a particularly underprivileged and vulnerable population group in need of
special protection (see paragraph 251 of the judgment). To my mind,
although many asylum-seekers are vulnerable persons, they cannot be
unconditionally considered as a particularly vulnerable group, in the sense
in which the jurisprudence of the Court uses the term (as in the case of
persons with mental disabilities, for example), where all members of the
group, due to their adverse social categorisation, deserve special protection.
In the context of the Dublin system, “particularly vulnerable person or
people” refers to specific categories within refugees, namely to victims of
torture and unaccompanied children only1, and their treatment is unrelated
to their classification.
The concept of a vulnerable group has a specific meaning in the
jurisprudence of the Court. True, if a restriction on fundamental rights
applies to a particularly vulnerable group in society who have suffered
considerable discrimination in the past, such as people with mental
disabilities, then the State’s margin of appreciation is substantially narrower
and it must have very weighty reasons for the restrictions in question (cf.
also the examples of those subjected to discrimination on the ground of their
gender: see Abdulaziz, Cabales and Balkandali v. the United Kingdom,
28 May 1985, § 78, Series A no. 94; race: see D.H. and Others v. the Czech
Republic [GC], no. 57325/00, § 182, ECHR 2007-IV; or sexual orientation:
see E.B. v. France [GC], no. 43546/02, § 94, 22 January 2008). The reason
1. It seems that in international humanitarian law, “particularly vulnerable group” refers to
priority treatment of certain categories of refugees.
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