M.S.S. v. BELGIUM AND GREECE JUDGMENT
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effective processing of the asylum application by the Greek authorities.
Since March 2009, however, the Aliens Office no longer seeks such
guarantees and takes its decisions based on tacit agreements. The Aliens
Appeals Board no longer questions this approach, considering that Greece
has transposed the Qualification and Procedures Directives.
144. In assessing the reasoning for the order to leave the country, the
Aliens Appeals Board takes into consideration first and foremost the facts
revealed to the Aliens Office during the “Dublin” interview and recorded in
the administrative file. Should evidence be adduced subsequently, including
documents of a general nature, in a letter to the Aliens Office during the
“Dublin” examination process or in an appeal against the order to leave the
country, it is not systematically taken into account by the Aliens Appeals
Board, on the grounds that it was not adduced in good time or that, because
it was not mentioned in the asylum applicant’s statements to the Aliens
Office, it is not credible (see, for example, judgment no. 41.351 of 1 April
2010 and judgment no. 41.482 of 9 April 2010).
145. In cases where the Aliens Appeals Board has taken into account
international reports submitted by “Dublin” asylum applicants confirming
the risk of a violation of Article 3 of the Convention because of the
deficiencies in the asylum procedure and the conditions of detention and
reception in Greece, its case-law is divided as to the conclusions to be
drawn.
146. Certain divisions have largely been inclined to take the general
situation in Greece into account. For example, in judgments nos. 12.004 and
12.005 of 29 May 2008, the Board considered that the Aliens Office should
have considered the allegations of ill-treatment in Greece:
“The applicant party informed the other party in good time that his removal to
Greece would, in his opinion, amount to a violation of Article 3 of the Convention, in
particular because of the inhuman and degrading treatment he alleged that he had
suffered and would no doubt suffer again there. ... The Board notes that in arguing
that he faced the risk, in the event that he was sent back to Greece, of being exposed
to inhuman and degrading treatment contrary to Article 3 of the Convention, and in
basing his arguments on reliable documentary sources which he communicated to the
other party, the applicant formulated an explicit and detailed objection concerning an
important dimension of his removal to Greece. The other party should therefore have
replied to that objection in its decision in order to fulfil its obligations with regard to
reasoning.”
147. In the same vein, in judgment no. 25.962 of 10 April 2009, the
Aliens Appeals Board stayed the execution of a transfer to Greece in the
following terms:
“The Board considers that the terms of the report of 4 February 2009 of the
Commissioner for Human Rights of the Council of Europe ... and the photos
illustrating the information contained in it concerning the conditions of detention of
asylum-seekers are particularly significant. ... While it post-dates the judgments of the
Board and of the European Court of Human Rights cited in the decision taken, the
content of this report is clear enough to establish that despite its recent efforts to