M.S.S. v. BELGIUM AND GREECE JUDGMENT – SEPARATE OPINIONS
97
This risk of being expelled actually constitutes the very reason why the
Court eventually finds a violation of Article 13 taken in conjunction with
Article 3, namely “because of the ... risk [which the applicant] faces of
being returned directly or indirectly to his country of origin without any
serious examination of the merits of his asylum application and without
having access to an effective remedy.” (paragraph 321)
6. Implications for the Greek Government
As it stands, the judgment bases the finding of a violation solely on
Article 13 of the Convention taken in conjunction with Article 3. The
judgment is binding for the parties according to Article 46 of the
Convention, and they are obliged to comply with it. But equally clearly, it
hardly follows from the finding of a violation under Article 13 that a State is
not allowed to deport the applicant to his home country. Such a finding
would be overstretching the potential of a complaint under Article 13.
In the light of the present judgment, the Greek authorities may now
conduct proceedings concerning the applicant’s complaint (which they have
assured the Court they will do – see paragraph 275). If the authorities
eventually decide that the applicant may be deported to Afghanistan, he is
of course free to file a further complaint before the Court with a renewed
request for interim measures under Rule 39 of the Rules of Court. Here lies
not the problem (other than the additional workload for the Court which this
new approach implies).
The problem is, rather, whether the applicant will in future at all be able
to file a new complaint once the proceedings in Greece have been
terminated and while he is still on Greek territory. I need not even speculate
on the circumstances of this risk, for the judgment itself strongly
emphasises that there is no certainty whatsoever that the applicant will de
facto be able to do so while still in Greece (see the various citations in
section 5 above). As far as I am concerned, the Government’s assurances in
the present case may appear entirely credible. But what if in other, future
cases in respect of other Governments no such assurances are given, or if
they are not upheld?
In sum, such dangers are the direct result of treating the complaint about
refoulement not separately under Article 3, but in conjunction with
Article 13 of the Convention, as in the present judgment.
7. Invoking Article 46 of the Convention
Obviously, the judgment is aware of these weaknesses and worries and
reacts to them by intervening with Article 46 as a form of deus ex machina
and instructing the Greek Government not to deport the applicant to
Afghanistan during the pending proceedings (see the last line of
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