56
M.S.S. v. BELGIUM AND GREECE JUDGMENT
conformity with Community and international law on asylum, including the
principle of non-refoulement. Greek law provided for the examination of the
merits of asylum applications with regard to Articles 2 and 3 of the
Convention. Asylum-seekers had access to the services of an interpreter at
every step of the proceedings.
275. The Government confirmed that the applicant’s application for
asylum had not yet been examined by the Greek authorities but assured the
Court that it would be, with due regard for the standards mentioned above.
276. In conformity with Article 13 of the Convention, unsuccessful
asylum-seekers could apply for judicial review to the Supreme
Administrative Court. According to the Government, such an appeal was an
effective safety net that offered the guarantees the Court had requested in its
Bryan v. the United Kingdom judgment (22 November 1995, § 47, Series A
no. 335-A). They produced various judgments in which the Supreme
Administrative Court had set aside decisions rejecting asylum applications
because the authorities had failed to take into account certain documents
that referred, for example, to a risk of persecution. In any event, the
Government pointed out that providing asylum-seekers whose applications
had been rejected at first instance with an appeal on the merits was not a
requirement of the Convention.
277. According to the Government, complaints concerning possible
malfunctions of the legal aid system should not be taken into account
because Article 6 did not apply to asylum procedures. In the same manner,
any procedural delays before the Supreme Administrative Court fell within
the scope of Article 6 of the Convention and could therefore not be
examined by the Court in the present case.
278. Moreover, as long as the asylum procedure had not been
completed, asylum-seekers ran no risk of being returned to their country of
origin and could, if necessary, ask the Supreme Administrative Court to stay
the execution of an expulsion order issued following a decision rejecting the
asylum application, which would have the effect of suspending the
enforcement of the measure. The Government provided several judgments
in support of that affirmation.
279. The Government averred in their oral observations before the
Grand Chamber that even in the present circumstances the applicant ran no
risk of expulsion to Afghanistan at any time as the policy at the moment
was not to send anyone back to that country by force. The forced returns by
charter flight that had taken place in 2009 concerned Pakistani nationals
who had not applied for asylum in Greece. The only Afghans who had been
sent back to Afghanistan – 468 in 2009 and 296 in 2010 – had been sent
back on a voluntary basis as part of the programme financed by the
European Return Fund. Nor was there any danger of the applicant being
sent to Turkey because, as he had been transferred to Greece by another
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