Euroopa Inimõiguste Kohus
21.01.2011
Facts:
The applicant, M.S.S, an Afghan national, entered the European Union via Greece in late 2008, where his fingerprints were recorded under the Dublin II Regulation. He subsequently moved to Belgium and applied for asylum in February 2009. Belgian authorities discovered his initial registration in Greece and applied to Dublin II Regulation to transfer him back to Greece. In June 2009, he was sent to Greece, where he was immediately detained in poor conditions marked by overcrowding, unsanitary spaces, lack of access to services and potential for ill-treatment. Following release, he lived on the streets without support, and attempts to secure accommodation failed. His asylum application in Greece remained unprocessed for a long time, and he faced risk of being returned to Afghanistan without any proper examination of his claim.
Complaint:
The applicant claimed violation of Article 3 (prohibition of inhuman or degrading treatment) arguing that citing detention and living conditions in Greece and risk of further expulsion or ill-treatment constituted a serious threat. He also invoked Article 13, in conjunction with Article 3, asserting that neither Greece nor Belgium provided an effective remedy to challenge his transfer or the exposure to harmful conditions.
Court’s ruling:
Greece:
The Court found that the applicant’s detention conditions in Greece were inhumane and degrading, citing severe overcrowding, unsanitary facilities, and lack of medical care. After release, the applicant lived in extreme poverty without shelter, sanitary facilities, or access to food assistance. Thus, the Court found that the detention and living conditions amounted to a violation of Article 3, which prohibits inhuman or degrading treatment.
It was also concluded that there was a violation of Article 13 in conjunction with Article 3, as the Greek asylum systems lacked the guarantees of an effective remedy. Asylum applications were often left pending for extended periods, and appeals procedures were ineffective. Thus, the Court considered that these systemic failures deprived the applicant of a real possibility to assert his rights under Article 13.
Belgium:
Belgium was found responsible for transferring the applicant to Greece, despite well-documented systemic deficiencies in the Greek asylum system and living conditions. The Court held that Belgium knew or should have known of the risks of ill-treatment due to the bad reception conditions and lack of effective protections in Greece, and therefore violated Article 3 by exposing the applicant to inhumane treatment.
The Court emphasized that the Dublin system does not absolve States of their responsibilities under the Convention, and that Belgium could have exercised the “sovereignty clause” under the Dublin Regulation to examine the applicant’s asylum claim itself.
Belgium also failed to provide an effective remedy to challenge the transfer before it took place, resulting in a violation of Article 13 and Article 3. The appeal procedures available in Belgium did not have automatic suspensive effect, meaning the applicant could be removed before his complaint was properly examined.