M.S.S. v. BELGIUM AND GREECE JUDGMENT
81
that it is also established in its case-law (see paragraph 293 above) that any
complaint that expulsion to another country will expose an individual to
treatment prohibited by Article 3 of the Convention requires close and
rigorous scrutiny and that, subject to a certain margin of appreciation left to
the States, conformity with Article 13 requires that the competent body
must be able to examine the substance of the complaint and afford proper
reparation.
388. In the Court’s view, the requirement flowing from Article 13 that
execution of the impugned measure be stayed cannot be considered as a
subsidiary measure, that is, without regard being had to the requirements
concerning the scope of the scrutiny. The contrary would amount to
allowing the States to expel the individual concerned without having
examined the complaints under Article 3 as rigorously as possible.
389. However, the extremely urgent procedure leads precisely to that
result. The Government themselves explain that this procedure reduces the
rights of the defence and the examination of the case to a minimum. The
judgments of which the Court is aware (see paragraphs 144 and 148 above)
confirm that the examination of the complaints under Article 3 carried out
by certain divisions of the Aliens Appeals Board at the time of the
applicant’s expulsion was not thorough. They limited their examination to
verifying whether the persons concerned had produced concrete proof of the
irreparable nature of the damage that might result from the alleged potential
violation of Article 3, thereby increasing the burden of proof to such an
extent as to hinder the examination on the merits of the alleged risk of a
violation. Furthermore, even if the individuals concerned did attempt to add
more material to their files along these lines after their interviews with the
Aliens Office, the Aliens Appeals Board did not always take that material
into account. The persons concerned were thus prevented from establishing
the arguable nature of their complaints under Article 3 of the Convention.
390. The Court concludes that the procedure for applying for a stay of
execution under the extremely urgent procedure does not meet the
requirements of Article 13 of the Convention.
391. The fact that a few judgments, against the flow of the established
case-law at the time, have suspended transfers to Greece (see paragraph 149
above) does not alter this finding as the suspensions were based not on an
examination of the merits of the risk of a violation of Article 3 but rather on
the Appeals Board’s finding that the Aliens Office had not given sufficient
reasons for its decisions.
392. The Court further notes that the applicant also faced several
practical obstacles in exercising the remedies relied on by the Government.
It notes that his request for a stay of execution under the extremely urgent
procedure was rejected on procedural grounds, namely his failure to appear.
Contrary to what the Government suggest, however, the Court considers
that in the circumstances of the case, this fact cannot be considered to reveal
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