M.S.S. v. BELGIUM AND GREECE JUDGMENT – SEPARATE OPINIONS
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would encourage forum shopping and undermine the present European
Union refugee system, thereby causing further malfunctions and suffering.
However, all this does not affect his victim status with regard to
Belgium. Belgium should not have deported him to Greece, where he was
likely to be subjected to a humiliating process, given the known procedural
shortcomings of the asylum system (but not for lack of adequate living
conditions)1.
III. ALLEGED VIOLATION BY GREECE OF ARTICLE 13 TAKEN IN
CONJUNCTION WITH ARTICLES 2 AND 3 OF THE
CONVENTION BECAUSE OF THE SHORTCOMINGS IN THE
ASYLUM PROCEDURE AND THE SUBSEQUENT RISK OF
REFOULEMENT
I found that the applicant lacked victim status regarding his stay in
Greece during the asylum procedure. It therefore needs some explanation
why I find that the applicant has standing regarding the risks of refoulement.
Contrary to the Court, I do not find convincing the information that there is
forced refoulement to Afghanistan (paragraph 314 of the judgment). At the
material time (2009), referring to the Court’s decision in K.R.S. v. the
United Kingdom ((dec.), no. 32733/08, 2 December 2008), the UNHCR did
not consider that the danger of refoulement existed in Greece
(paragraph 195)2. However, the Government’s policy may change in this
regard. Only a system of proper review of an asylum request and/or
deportation order with suspensive effect satisfies the needs of legal certainty
and protection required in such matters. Because of the shortcomings of the
procedure in Greece, as described in paragraph 320 of the judgment, the
applicant remains without adequate protection, irrespective of his nonparticipation in the asylum procedure, irrespective of his contribution to the
alleged humiliation due to the deficiencies of the asylum procedure, and
1. Certainly, Belgium could not foresee that the applicant would make efforts to bypass the
Greek (and European Union) system as he simply wished to leave Greece. I do not find
convincing the argument that the applicant wanted to leave Greece because of his state of
need (paragraph 239 of the judgment). He left Greece six weeks after he applied for
asylum. However, this personal choice, which showed disregard for the asylum procedure,
does not absolve Belgium of its responsibilities which existed at the moment of the
applicant’s transfer to Greece. The inhuman and degrading nature of the asylum procedure
was a matter known to Belgium. This does not apply to the applicant’s detention in Greece
(see below).
2. The Court held this letter of the UNHCR of 2 April 2009 to be of critical importance
(paragraph 349 of the judgment) when it came to the determination of Belgium’s
responsibility. Further, given the assurances of the Greek Government (paragraph 354) and
the lack of conclusive proof of refoulement, there was nothing Belgium should have known
in this regard; and Belgium has no responsibility in this respect.
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