M.S.S. v. BELGIUM AND GREECE JUDGMENT – SEPARATE OPINIONS
95
Netherlands, 19 February 1998, §§ 45 et seq., Reports 1998-I)? Instead,
however, not only does the present judgment not declare the complaint
under Article 3 concerning refoulement inadmissible, it even declares it
“arguable” (see the citation above in section 1).
(b) Principle of subsidiarity
Without stating as much, the Court is very likely applying here the
principle of subsidiarity, as it transpires from Article 1 of the Convention.
According to this principle, it falls primarily to the States to guarantee and
implement the rights enshrined in the Convention. The function of the
Convention and the Court remains to provide a European minimum
standard (see Handyside v. the United Kingdom, 7 December 1976, § 48,
Series A no. 24). I am all in favour of the principle of subsidiarity, but I
think here is the wrong place to apply it. Tribute has already been paid to
subsidiarity in this case by testing the complaint expressly or implicitly with
various admissibility conditions and in particular with that of the exhaustion
of domestic remedies (which is in itself an application of the principle of
subsidiarity par excellence). Subsidiarity plays an important part, for
instance, in applying the second paragraphs of Articles 8 to 11 of the
Convention. Its role must surely be more restricted in the light of a cardinal
provision such as Article 3 and in view of the central importance of the
applicant’s refoulement for this case. In any event, in my opinion,
subsidiarity does not permit such a complaint to be “downgraded” so that it
is no longer independently examined.
(c) The Court’s experience in examining such issues
There is nothing new in the fact that the Court will on its own examine
whether there is a risk of treatment in the applicant’s home country which
would be contrary to Article 3 of the Convention. The Court does this all the
time. Even if domestic authorities have examined the implications of the
deportation, it is not at all certain that their conclusions enable the Court,
without any further examination of the case, to dispose of the matter. Often,
the Court itself will have to undertake the necessary investigations as to the
situation in the receiving State even after the domestic authorities have dealt
with the matter.
To mention but one example: in the Saadi v. Italy case ([GC],
no. 37201/06, ECHR 2008), concerning deportation to Tunisia, the domestic
authorities’ reasons for allowing that applicant’s refoulement concerned
mainly assurances which the Tunisian government had given to Italy –
assurances which the Court in its judgment found to be insufficient. The
Court was then obliged to examine itself, and in detail, the situation in
Tunisia, relying, inter alia, on reports of Amnesty International and Human
Rights Watch. These arguments had not been examined by the Italian
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