M.S.S. v. BELGIUM AND GREECE JUDGMENT
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considerable disparities in the way European Union member States applied
the Dublin Regulation and the domestic courts assessed the lawfulness of
the transfers when it came to evaluating the risk of violation of fundamental
rights, in particular when the State responsible for dealing with the asylum
application had not properly transposed the other Community measures
relating to asylum. The AIRE Centre and Amnesty International considered
that States which transferred asylum-seekers had their share of
responsibility in the way the receiving States treated them, in so far as they
could prevent human rights violations by availing themselves of the
sovereignty clause in the Dublin Regulation. The possibility for the
European Commission to take action against the receiving State for failure
to honour its obligations was not, in their opinion, an effective remedy
against the violation of the asylum-seekers’ fundamental rights. Nor were
they convinced, as the Court of Justice of the European Union (CJEU) had
not pronounced itself on the lawfulness of “Dublin” transfers when they
could lead to such violations, of the efficacy of the preliminary ruling
procedure introduced by the Treaty of Lisbon.
334. The Greek Helsinki Monitor (GHM) pointed out that at the time of
the applicant’s expulsion there had already been a substantial number of
documents attesting to the deficiencies in the asylum procedure, the
reception conditions for asylum-seekers and the risk of direct or indirect
refoulement to Turkey. GHM considered that the Belgian authorities could
not have been unaware of this, particularly as the same documents had been
used in internal procedures to order the suspension of transfers to Greece.
According to GHM, the documents concerned, particularly those of the
UNHCR, should make it possible to reverse the Court’s presumption in
K.R.S. v. the United Kingdom (cited above) that Greece fulfilled its
international obligations in asylum matters.
C. The Court’s assessment
1. Admissibility
335. The Belgian Government criticised the applicant for not having
correctly used the procedure for applying for a stay of execution under the
extremely urgent procedure, not having lodged an appeal with the Aliens
Appeals Board to have the order to leave the country set aside and not
having lodged an administrative appeal on points of law with the Conseil
d’Etat. They accordingly submitted that he had not exhausted the domestic
remedies and invited the Court to declare this part of the application
inadmissible and reject it pursuant to Article 35 §§ 1 and 4 of the
Convention.
336. The Court notes that the applicant also complained of not having
had a remedy that met the requirements of Article 13 of the Convention for
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