M.S.S. v. BELGIUM AND GREECE JUDGMENT – SEPARATE OPINIONS 96 courts. This is precisely what the Court could and should have done in the present case. (d) Preliminary examination Indeed, one could argue that by describing the applicant’s complaint about refoulement as being “arguable” (see section 1 above), the Court has already undertaken precisely such an examination of the matter. Had the complaint been inadmissible as being manifestly ill-founded, the Court could not have examined it in conjunction with Article 13 of the Convention for lack of an “arguable claim” (on this case-law, see Soering v. the United Kingdom, 7 July 1989, § 117, Series A no. 161). (e) Contradictory conclusion in respect of Belgium A final question concerns a discrepancy in the judgment itself. While the Court refuses to examine Article 3 separately in respect of Greece, it does precisely so in respect of Belgium, where it finds, firstly, a violation of Article 3 and then a further one under Article 13 taken in conjunction with Article 3 of the Convention (see paragraphs 344 et seq.). Indeed, the reasoning under Articles 13 and 3 concerns circumstances which are quite similar to those concerning Greece. 5. Dangers for the applicant The judgment points out on various occasions that there was, and is, a clear danger of the proceedings in Greece malfunctioning and the applicant being sent back to Afghanistan during the proceedings without a complete examination of his complaints having taken place. For instance, the judgment states as follows: “Several reports highlight the serious risk of refoulement as soon as the decision is taken to reject the asylum application, because an appeal to the [Greek] Supreme Administrative Court has no automatic suspensive effect.” (paragraph 193) And: “Of at least equal concern to the Court are the risks of refoulement the applicant faces in practice before any decision is taken on the merits of his case. The applicant did escape expulsion in August 2009, by application of [Presidential Decree] no. 90/2008 ... However, he claimed that he had barely escaped a second attempt by the police to deport him to Turkey.” (paragraph 315) Moreover: “That fact, combined with the malfunctions in the notification procedure in respect of ‘persons of no known address’ reported by the Council of Europe Commissioner for Human Rights and the UNHCR ... makes it very uncertain whether the applicant will be able to learn the outcome of his asylum application in time to react within the prescribed time-limit.” (paragraph 318)