104
M.S.S. v. BELGIUM AND GREECE JUDGMENT – SEPARATE OPINIONS
arises in respect of vulnerable people only where it is the State’s passivity
that causes the unacceptable conditions (“the ... authorities ... must be held
responsible, because of their inaction, for the situation in which he has
found himself for several months”). Perhaps, without delays in the asylum
procedure and/or by affording asylum-seekers a genuine opportunity to take
care of themselves (e.g. by effectively engaging in gainful activities), there
would be no State responsibility for the situation1.
Even if the Court is not tempted to follow the path of the welfare
revolution, an odd situation will arise. For example, the mentally disabled,
vulnerable as they may be, will not be entitled to the care of the State as
their vulnerability is attributable to nature and the conditions causing their
suffering and humiliation are not attributable to the passivity of the State.
Unlike this undeniably vulnerable group, however, asylum-seekers will be
entitled to government-provided services. In terms of vulnerability,
dependence, and so on, the mentally disabled (and other vulnerable groups,
whose members are subject to social prejudice) are in a more difficult
situation than asylum-seekers, who are not a homogeneous group subject to
social categorisation and related discrimination. The passivity of the State
did not cause the alleged vulnerability of the asylum-seekers; they might be
caught up in a humanitarian crisis, but this was not caused by the State,
although the authorities’ passivity may have contributed to it (see below).
Even if asylum-seekers were as vulnerable as the traditionally discriminated
vulnerable groups, which they are not, the Grand Chamber confirmed again
a year ago in Oršuš and Others (cited above, § 148) that the duty of the
State is to give “special consideration” to their needs, but not to provide
adequate living conditions.
On a personal level, I find attractive the position that humanitarian
considerations (“humanitarian standards”) must guide the actions of the
State. This is explicitly required by the Dublin Regulation: national
authorities shall not sit idle when it comes to the misery of asylum-seekers
and migrants; but I find that human rights as defined by the Convention
differ from humanitarian concerns. Greece has an obligation to take care of
some basic needs of needy asylum-seekers, but only because this is required
under the applicable European Union law. There is a difference in this
regard between European Union law and conventional obligations which
originate from the prohibition of inhuman and degrading treatment.
The European Commission (COM(2009) 554 final, 21 October 2009)
found that the current European Union asylum procedure system is
1. Third-party interveners claimed that asylum-seekers are deprived of the right to provide
for their needs (paragraph 246 of the judgment). If this were corroborated and shown to be
attributable to the State (e.g. if the practical difficulties of employment that were mentioned
originated from restrictive regulation or official practice), I would find the State responsible
under Article 3 for the misery of the asylum-seekers. This point was, however, not fully
substantiated.
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