82
M.S.S. v. BELGIUM AND GREECE JUDGMENT
a lack of diligence on the applicant’s part. It fails to see how his counsel
could possibly have reached the seat of the Aliens Appeals Board in time.
As to the possibility of requesting assistance from a round-the-clock service,
the Court notes in any event that the Government have supplied no proof of
the existence of such a service in practice.
393. Regarding the usefulness of continuing proceedings to have the
order to leave the country set aside even after the applicant had been
transferred, the Court notes that the only example put forward by the
Government (see paragraphs 151 and 382 above) confirms the applicant’s
belief that once the person concerned has been deported the Aliens Appeals
Board declares the appeal inadmissible as there is no longer any point in
seeking a review of the order to leave the country. While it is true that the
Aliens Appeals Board did examine the complaints under Article 3 of the
Convention in that judgment, the Court fails to see how, without its decision
having suspensive effect, the Aliens Appeals Board could still offer the
applicant suitable redress even if it had found a violation of Article 3.
394. In addition, the Court notes that the parties appear to agree to
consider that the applicant’s appeal had no chance of success in view of the
constant case-law, mentioned above, of the Aliens Appeals Board and the
Conseil d’Etat, and of the impossibility for the applicant to demonstrate in
concreto the irreparable nature of the damage caused by the alleged
potential violation. The Court reiterates that while the effectiveness of a
remedy does not depend on the certainty of a favourable outcome for the
applicant, the lack of any prospect of obtaining adequate redress raises an
issue under Article 13 (see Kudła, cited above, § 157).
395. Lastly, the Court points out that the circumstances of the present
case clearly distinguish it from the Quraishi case (cited above) relied on by
the Government. In the latter case, which concerns events dating back to
2006 and proceedings before the Aliens Appeals Board in 2007, that is to
say a few months after the Board began its activities, the applicants had
obtained the suspension of their expulsion through the intervention of the
courts. What is more, they had not at that stage been expelled when the
Court heard their case and the case-law of the Aliens Appeals Board in
“Dublin” cases had not by then been established.
396. In view of the foregoing, the Court finds that there has been a
violation of Article 13 taken in conjunction with Article 3 of the
Convention. It follows that the applicant cannot be faulted for not having
properly exhausted the domestic remedies and that the Belgian
Government’s preliminary objection of non-exhaustion (see paragraph 335
above) cannot be allowed.
397. Having regard to that conclusion and to the circumstances of the
case, the Court considers that there is no need to examine the applicant’s
complaints under Article 13 taken in conjunction with Article 2 of the
Convention.
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