Comment: The European Court of Human Rights ruled that an Afghan translator could not be sent from Belgium to Greece due to the lack of human rights of refugees. The ruling has already had an impact on Finland. The Finnish Immigration Service announced today that they will not longer send asylum-seekers to Greece anymore under the Dublin Convention, which requires refugees to apply for asylum in the first EU country they arrive in.
According to the ruling, Belgium and Greece violated the European Union Convention on Human Rights. Migrant Tales published in December on whether the Dublin Convention should be spiked.
Below is an interesting story written about the landmark ruling on Migrants’ Rights Network.
Do you think the ruling will help asylum-seekers?
The European Court of Human Rights ruled last week in the case of M.S.S. v Belgium and Greece. It found that the Belgian authorities had violated the rights of asylum seeker M.S.S., and an Afghan national by sending him to Greece using the Dublin II regulation. This in effect means that asylum seekers from the UK cannot be returned to Greece under the Dublin regulation.
The Dublin II regualtion established a procedure which allows EU country governments to send asylum seekers to the country deemed tobe responsible for determining an application for protection under the terms of the Refugee Convention and other humanitarian instruments.
The Dublin regulation presumes that the country to which the asylum seeker is to be returned will itself support the individual’s human rights and will determine the application for refugee status in accordance with the standards of international law. Lawyers for M.S.S. argued before the Court that asylum procedures in Greece were in such a state of disarray that it could not be presumed that the requirements of international law with respect to refugees were being met.
The press release of the ECHR follows.
In today’s Grand Chamber judgment in the case M.S.S. v. Belgium and Greece (application no. 30696/09), which is final1, the European Court of Human Rights held, by a majority, that there had been:
- A violation of Article 3 (prohibition of inhuman or degrading treatment or punishment) of the European Convention on Human Rights by Greece both because of the applicant’s detention conditions and because of his living conditions in Greece;
- A violation of Article 13 (right to an effective remedy) taken together with Article 3 by Greece because of the deficiencies in the asylum procedure followed in the applicant’s case;
- A violation of Article 3 by Belgium both because of having exposed the applicant to risks linked to the deficiencies in the asylum procedure in Greece and because of having exposed him to detention and living conditions in Greece that were in breach of Article 3;
- A violation of Article 13 taken together with Article 3 by Belgium because of the lack of an effective remedy against the applicant’s expulsion order.
The case concerned the expulsion of an asylum seeker to Greece by the Belgian authorities in application of the EU Dublin II Regulation.
The applicant, M.S.S., an Afghan national, left Kabul early in 2008 and, travelling via Iran and Turkey, entered the European Union (EU) through Greece.
On 10 February 2009, he arrived in Belgium, where he applied for asylum. By virtue of the “Dublin II” Regulation2, the Belgian Aliens Office submitted a request for the Greek authorities to take charge of the asylum application. While the case was pending, the 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. In late May 2009, the Aliens Office nevertheless ordered the applicant to leave the country for Greece, where he would be able to submit an application for asylum. The Aliens Office received no answer from the Greek authorities within the two-month period provided for by the Regulation, which it treated as a tacit acceptance of its request. It argued that Belgium was not the country responsible for examining the asylum application under the Dublin II Regulation and that there was no reason to suspect that the Greek authorities would fail to honour their obligations in asylum matters.
1 Grand Chamber judgments are final (Article 44 of the Convention). All final judgments are transmitted to the Committee of Ministers of the Council of Europe for supervision of their execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution
2 An EC regulation under which EU Member States are required to determine, based on a hierarchy of criteria, which Member State is responsible for examining an asylum application lodged on their territory.
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, where he claimed he had escaped a murder attempt by the Taliban in reprisal for his having worked as an interpreter for the air force troops stationed in Kabul.
His application for a stay of execution having been rejected, the applicant was transferred to Greece on 15 June 2009. On arriving at Athens airport, he was immediately placed in detention in an adjacent building, where, according to his reports, 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 issuance of an asylum seeker’s card on 18 June 2009, he lived in the street, with no means of subsistence.
Having subsequently attempted to leave Greece with a false identity card, the applicant was arrested and again placed in the detention facility next to the airport for one week, where he alleges he was beaten by the police. After his release, he continued to live in the street, occasionally receiving aid from local residents and the church. On renewal of his asylum seeker’s card in December 2009, steps were taken to find him accommodation, but according to his submissions no housing was ever offered to him.
Complaints, procedure and composition of the Court
The applicant alleged that 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. He further maintained that there was no effective remedy under Belgian law in respect of those complaints, in violation of Article 13.
The application was lodged with the European Court of Human Rights on 11 June 2009. On 12 June 2009, the applicant’s request for an interim measure under Rule 39 of the Rules of Court to have his transfer to Greece suspended was rejected. On 2 July 2009 it was decided to apply Rule 39 against Greece, to the effect that he would not be deported to Afghanistan pending the outcome of the proceedings before the Court.
On 16 March 2010 the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber and on 1 September 2010 a public hearing was held. The Governments of the Netherlands and the United Kingdom, the Council of Europe Commissioner for Human Rights and the UNHCR were given leave to intervene in the oral proceedings as third parties. Written observations were also received from those parties and from the Centre for Advice on Individual Rights in Europe (“the Aire Centre”), Amnesty International and the Greek Helsinki Monitor.
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