Communication concerning European Union (EU) Member States’ obligations regarding asylum seekers; living conditions and detention conditions as inhuman or degrading treatment; obligation of non-refoulment; asylum seekers as a vulnerable group.
An Afghan citizen (Mr. M.S.S.) presented an asylum application in Belgium after entering the EU through Greece. Pursuant to the Dublin Regulations (EU law that determines which country has responsibility for processing specific asylum petitions), Belgium transferred him back to Greece in order for Greece to process the asylum petition. Greece detained the applicant in degrading conditions and then released him into the country to await a decision on his application. During this time, Mr. M.S.S. was homeless, not permitted to work, and had no access to sanitary facilities or any resources. The applicant brought claims against Greece and Belgium for violations of the European Convention on Human Rights (ECHR). In particular, he alleged that his expulsion by the Belgian authorities had violated Articles 2 (right to life) and 3 (prohibition on torture or to inhuman or degrading treatment or punishment) and that he had been subjected in Greece to treatment prohibited by Article 3; he also complained of the lack of a remedy under Article 13 (right to an effective remedy) that would enable him to have his complaints examined.
The Court held that Greece had violated Article 3 of the ECHR in relation to both the detention of the applicant in degrading conditions and to his release to live in conditions of extreme poverty while he awaited a hearing on his application. The Court considered that “such living conditions, combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving” were severe enough to be incompatible with Article 3. The Court also found Greece violated Article 13 taken in conjunction with Article 3 due to the deficiencies in the Greek authorities’ examination of the asylum request and the risk the applicant faced 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. In its analysis, the Court noted that the applicant’s version of events was corroborated by many reports of international public and non-profit institutions.
With respect to the claims against Belgium, the Court held that Belgium had violated Article 3 of the ECHR by transferring the applicant to Greece without prior verification of Greek compliance with EU and Greek standards in terms of its asylum procedures, and for exposing the applicant to conditions of detention and living conditions contrary to Article 3. The Court found that there were ample sources available to the Belgian authorities highlighting the fact that Greece’s asylum procedures violated the ECHR and pointed to the fact that several countries had already suspended transfers to Greece on these grounds. The Court further found that Belgium violated Article 13 of the ECHR as persons were prevented under the relevant procedure from establishing the arguable nature of a risk of an Article 3 violation upon expulsion to another country. The Court reiterated that “any complaint that expulsion to another country will expose an individual to treatment prohibited by Article 3 of the Convention requires close and rigorous scrutiny and that, subject to a certain margin of appreciation left to the States, conformity with Article 13 requires that the competent body must be able to examine the substance of the complaint and afford proper reparation.”
Greece and Belgium were ordered to pay €25,900 in respect of non-pecuniary damages (with the vast majority attributed to Belgium), plus costs and expenses. The Court further stated it was incumbent upon Greece to proceed with an examination of the applicant’s asylum request which met the requirements of the ECHR and to refrain from deporting him pending the outcome.
The case is widely cited and set important standards regarding many aspects of the treatment of asylum seekers and the protection of their human rights both in and outside detention. In practice however, in a 2015 report the European Council on Refugees and Exiles noted the continued overcrowding of reception places in Greece, destitution and homelessness of applicants and high risk of racist violence. More broadly, this case should also be considered in conjunction with subsequent decisions of the Court with respect to determining state responsibility for asylum applications, most notably: Tarakhel v Switzerland (App. no. 29217/12, Grand Chamber judgment of 4 November 2014) and A.M.E. v The Netherlands (App. no. 51428/10, inadmissibility decision of 13 January 2015). Collectively, these cases provide guidance regarding the Court’s approach to assessing: (1) structural deficiencies of asylum procedures; and (2) the circumstances in which an applicant, personally, will face a concrete risk of ill-treatment contrary to Article 3, including in regard to detention conditions and the applicant’s vulnerability.
This was the first time that the Court held a Member State’s failure to satisfy basic socio-economic needs constituted a violation of Article 3 of the ECHR. The ruling also clearly established the obligation of Member States to ensure compliance with EU asylum law and standards before returning asylum seekers to other member States, and it confirmed that the Dublin Regulations’ presumption that participating states respect their human rights obligations under the ECHR may be rebutted. States would be held accountable for returning asylum-seekers to face conditions that result (or could result) in violation of Article 3. Member States must also ensure that asylum seekers claims are thoroughly examined and proper judicial review processes and remedies are available.
Centre for Advice on Individual Rights in Europe (AIRE Centre); Amnesty International; Council of Europe Commissioner for Human Rights; United Nations High Commissioner for Refugees; Greek Helsinki Monitor; The governments of the Netherlands and the United Kingdom
