114
M.S.S. v. BELGIUM AND GREECE JUDGMENT – SEPARATE OPINIONS
application of the Dublin system in Greece, the deficiencies of the asylum
procedure in that country and the practice of direct or indirect refoulement
on an individual or collective basis. These reports, it is said, have been
published at regular intervals since 2006 “and with greater frequency in
2008 and 2009, and ... most of them had already been published when the
expulsion order against the applicant was issued” (paragraph 348 of the
judgment). In this regard, “critical importance” is attached in the judgment
to the letter of 2 April 2009 addressed to the Belgian Minister for Migration
and Asylum Policy which contained “an unequivocal plea for the
suspension of transfers to Greece” (paragraph 349 of the judgment).
Reliance is also placed on the fact that, since December 2008, the European
asylum system has itself entered a “reform phase” aimed at strengthening
the protection of asylum-seekers and implementing a temporary suspension
of transfers under the Dublin Regulation to avoid asylum-seekers being sent
back to member States unable to offer them a sufficient level of protection
of their fundamental rights.
8. I am unpersuaded that any of the developments relied on in the
judgment should have led the Belgian authorities in June 2009 to treat the
decision as no longer authoritative or to conclude that the return of the
applicant would violate Article 3. As to the reports and other materials
dating back to the years 2006, 2007 and 2008, while the material may be
regarded as adding to the detail or weight of the information which had
already been taken into account by the Court, it did not in my view change
the substantive content of that information or otherwise affect the Court’s
reasoning in the K.R.S. v. the United Kingdom decision. Moreover, I have
difficulty in seeing how it can be held against the Belgian authorities that
they failed to take account of material which was already in the public
domain at the time of the K.R.S. v. the United Kingdom decision itself.
9. I have similar difficulty in seeing how, in June 2009, the presumption
of Greek compliance which the Court had found to exist in December 2008
could be rebutted by the numerous reports and other information which
became available in the second half of 2009 and in 2010. The graphic detail
in those reports and in the powerful submissions to the Court by the Council
of Europe Commissioner for Human Rights and the UNHCR as to the living
conditions for asylum-seekers in Greece, the grave deficiencies in the
system of processing asylum applications in that country and the risk of
onward return to Afghanistan unquestionably provide a solid basis today on
which to treat the presumption of compliance as rebutted. But this material
post-dates the decision of the Belgian authorities to return the applicant and
cannot in my view be prayed in aid as casting doubt on the validity of the
K.R.S. v. the United Kingdom decision at that time.
10. The same I consider applies to the majority’s reliance on the
proposal to modify the Dublin system by providing for a mechanism to
suspend transfers, which proposal had not been adopted by the European
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