MSS -v- Belgium and Greece European Court of Human Rights: Grand ChamberJudgment was delivered on January 21st, 2011, by a majority of the Grand Chamber of 17.
Judgment
Both Greece and Belgium had violated Articles 3 (prohibition of inhuman or degrading treatment or punishment) and 13 (right to an effective remedy) of the European Convention on Human Rights in their treatment of an Afghan asylum seeker. Greece was to pay the applicant €1,000 damages and €4,725 in costs and expenses and consider his application in line with convention standards. Belgium was to pay the applicant €24,900 in damages and €7,350 in costs and expenses.
Background
The case concerned the expulsion of an Afghan asylum seeker to Greece by the Belgian authorities in accordance with the EU Dublin II Regulation, which require that an asylum seeker seek asylum in the first EU state in which he arrives, and permits his return to that state to have his or her application processed.
The applicant, MSS, left Kabul early in 2008 and entered the EU through Greece. On February 10th, 2009 he arrived in Belgium, where he applied for asylum.
The Belgian Aliens Office submitted a request under the Dublin II Regulation for the Greek authorities to take charge of the asylum application. While the case was pending, the United Nations High Commissioner for Refugees (UNHCR) sent a letter to the Belgian Minister for Migration and Asylum Policy criticising the deficiencies in the asylum procedure and the conditions of reception of asylum seekers in Greece and recommending the suspension of transfers to Greece.
Nevertheless in late May 2009, the Aliens Office ordered the applicant to leave the country for Greece, where he would be able to submit an application for asylum. The applicant lodged an appeal with the Aliens Appeals Board, arguing that he ran the risk of detention in Greece in appalling conditions, that there were deficiencies in the asylum system in Greece and that he feared ultimately being sent back to Afghanistan without any examination of the reasons why he had fled that country. This was rejected and he was transferred to Greece on June 15th, 2009.
On arriving at Athens airport, he was placed in detention in an adjacent building, where he was locked up in a small space with 20 other detainees, access to the toilets was restricted, detainees were not allowed out into the open air, were given very little to eat and had to sleep on dirty mattresses or on the bare floor.
Following his release and the issuance of an asylum seeker’s card on June 18th, 2009, he lived in the street, with no means of subsistence. Having attempted to leave Greece with a false identity card, the applicant was arrested and again placed in the detention facility for one week, where he alleges he was beaten by the police. After his release he continued to live on the street.
He alleged the conditions of his detention and his living conditions in Greece amounted to inhuman and degrading treatment in violation of Article 3, and that he had no effective remedy in Greek law in respect of his complaints under Articles 2 (right to life) and 3, in violation of Article 13.
He further complained that Belgium had exposed him to the risks arising from the deficiencies in the asylum procedure in Greece, in violation of Articles 2 and 3, and to the poor detention and living conditions to which asylum seekers were subjected there, in violation of Article 3 and that there was no effective remedy under Belgian law in respect of those complaints, in violation of Article 13.
Decision
Referring to the Article 3 complaint, the court said that while it did not underestimate the burden currently placed on the states forming the external borders of the EU, that could not absolve Greece of its obligations under Article 3.
The court noted that various reports by international bodies and non-governmental organisations of recent years confirmed that the systematic placement of asylum seekers in detention without informing them of the reasons was a widespread practice of the Greek authorities. The applicant’s allegations that he was subjected to brutality by the police during his second period of detention were equally consistent with numerous accounts collected from witnesses by international organisations.
The court considered there had been a violation of Article 3 because the conditions of detention the applicant experienced had been unacceptable and constituted degrading treatment. In addition, as an asylum seeker he was particularly vulnerable because of his migration and the traumatic experiences he was likely to have endured. Had the authorities examined his asylum request promptly they could have substantially alleviated his suffering.
In relation to Article 13, the court pointed out that the UNHCR, the European Commissioner for Human Rights and other organisations had repeatedly and consistently revealed that the relevant legislation in Greece was not being applied in practice and that the asylum procedure was marked by major structural deficiencies.
As a result, asylum seekers had very little chance of having their applications seriously examined. Indeed, a 2008 UNHCR report showed a success rate at first instance of less than 0.1 per cent, compared to the average success rate of 36.2 per cent in five of the six EU countries which, along with Greece, received the largest number of applications.
The organisations intervening as third parties had regularly denounced forced returns of asylum seekers by Greece to high-risk countries.
The court pointed out that the applicant had received no information about legal advice and there was a shortage of lawyers in the legal aid system which rendered the system ineffective in practice. Further, the average duration of appeals is five years. Thus there had been a violation of Article 13.
The court considered that the deficiencies of the asylum procedure in Greece must have been known to the Belgian authorities when they issued the expulsion order. The UNHCR had alerted the Belgian government to that situation while the applicant’s case was pending. It had been up to the Belgian authorities to verify how the Greek authorities applied their legislation on asylum in practice, which they had failed to do.
By transferring the applicant to Greece the Belgian authorities knowingly exposed him to detention and living conditions that amounted to degrading treatment, thus giving rise to a violation of Article 3.
The court also considered that the procedure whereby the applicant could have requested a stay of execution from the Aliens Appeals Board did not meet the requirement of access to an effective remedy, and there had been a violation of Article 13.
The full judgment is on echr.coe.int