80
M.S.S. v. BELGIUM AND GREECE JUDGMENT
29 May 2009, which had declared an appeal admissible even though the
applicant had already been transferred. The application was subsequently
dismissed because there had no longer been any interest at stake for the
applicant as the application concerned the order to leave the country and he
had not demonstrated in concreto that there had been any violation of
Article 3 of the Convention.
383. As regards the merits, the Government confirmed that, as it did
when determining the existence of irreparable damage at the suspension
stage, the constant case-law of the Aliens Appeals Board, which was in fact
based on that of the Court, required the applicants to demonstrate the
concrete risk they faced. However, just as the effectiveness of a remedy
within the meaning of Article 13 did not depend on the certainty of it having
a favourable outcome, the Government submitted that the prospect of an
unfavourable outcome on the merits should not be a consideration in
evaluating the effectiveness of the remedy.
384. The UNHCR, intervening as a third party, considered that the
constant case-law of the Aliens Appeals Board and the Conseil d’Etat
effectively doomed to failure any application for the suspension or review
of an order to leave the country issued in application of the Dublin
Regulation, as the individuals concerned were unable to provide concrete
proof both that they faced an individual risk and that it was impossible for
them to secure protection in the receiving country. In adopting that approach
the Belgian courts automatically relied on the Dublin Regulation and failed
to assume their higher obligations under the Convention and the
international law on refugees.
B. The Court’s assessment
385. The Court has already found that the applicant’s expulsion to
Greece by the Belgian authorities amounted to a violation of Article 3 of the
Convention (see paragraphs 359 and 360 above). The applicant’s complaints
in that regard are therefore “arguable” for the purposes of Article 13.
386. The Court notes first of all that in Belgian law an appeal to the
Aliens Appeals Board to set aside an expulsion order does not suspend the
enforcement of the order. However, the Government pointed out that a
request for a stay of execution could be lodged before the same court “under
the extremely urgent procedure” and that unlike the extremely urgent
procedure that used to exist before the Conseil d’Etat, the procedure before
the Aliens Appeals Board automatically suspended the execution of the
expulsion measure by law until the Board had reached a decision, that is, for
a maximum of seventy-two hours.
387. While agreeing that that is a sign of progress in keeping with the
judgment in Čonka (cited above, §§ 81-83, confirmed by the judgment in
Gebremedhin [Gaberamadhien], cited above, §§ 66-67), the Court reiterates
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