UUI, Alm.del - 2010-11 (1. samling) - Bilag 72: Brev vedrørende suspendering af overførsel af asylansøgere til Grækenland, fra integrationsministeren

PROCEDURE1. The case originated in an application (no. 30696/09) against theKingdom of Belgium and the Hellenic Republic lodged with the Courtunder Article 34 of the Convention for the Protection of Human Rights andFundamental Freedoms (“the Convention”) by an Afghan national,Mr M.S.S. (“the applicant”), on 11 June 2009. The President of theChamber to which the case had been assigned acceded to the applicant'srequest not to have his name disclosed (Rule 47 § 3 of the Rules of Court).2. The applicant was represented by Mr Z. Chihaoui, a lawyer practisingin Brussels. The Belgian Government were represented by their Agent,Mr M. Tysebaert and their co-Agent, Mrs I. Niedlispacher. The GreekGovernment were represented by Mrs M. Germani, Legal Assistant at theState Legal Council.3. The applicant alleged in particular that his expulsion by the Belgianauthorities had violated Articles 2 and 3 of the Convention and that he hadbeen subjected in Greece to treatment prohibited by Article 3; he also

complained of the lack of a remedy under Article 13 of the Convention thatwould enable him to have his complaints examined.4. The application was allocated to the Second Section of the Court(Rule 52 § 1 of the Rules). On 19 November 2009 a Chamber of thatSection communicated the application to the respondent Governments. On16 March 2010 the Chamber, composed of the following judges: IreneuCabral Barreto,President,Fran§oise Tulkens, Vladimiro Zagrebelsky,Danutė Jočienė, Dragoljub Popović, András Sajó, Nona Tsotsoria,Judges,and also Sally Dollé, Section Registrar, relinquished jurisdiction in favourof the Grand Chamber, none of the parties having objected torelinquishment (Article 30 of the Convention and Rule 72).5. The composition of the Grand Chamber was determined according tothe provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of theRules.6. In conformity with Article 29 § 1 of the Convention, it was decidedthat the Grand Chamber would examine the admissibility and the meritstogether.7. The applicant and the Governments each filed written observations onthe merits (Rule 59 § 1). Each of the parties replied to the other'sobservations at the hearing (Rule 44 § 5). Written observations were alsoreceived from the Netherlands and United Kingdom Governments and fromthe Centre for Advice on Individual Rights in Europe (“the AireCentre”) and Amnesty International, whom the acting President of theChamber had authorised to intervene (Article 36 § 2 of the Convention andRule 44 § 2). Observations were also received from the EuropeanCommissioner for Human Rights (“the Commissioner”), the Office of theUnited Nations High Commissioner for Refugees (“the UNHCR”) and theGreek Helsinki Monitor (“GHM”), whom the President of the Court hadauthorised to intervene. The Netherlands and United KingdomGovernments, the Commissioner and the UNHCR were also authorised totake part in the oral proceedings.8. A hearing took place in public in the Human Rights Building,Strasbourg, on 1 September 2010 (Rule 59 § 3).There appeared before the Court:–for the Belgian Government,Mr Marc Tysebaert, Agent of the Government,Mrs Isabelle Niedlispacher, co-Agent,Mrs Edda Materne, lawyer,Mrs Valérie Demin,attachée,Aliens Office,Agent;Counsel;Adviser.

–for the Netherlands Government, third-party intervener,Mr Roeland Böcker,Agent,Mr Martin Kuijer, Ministry of Justice,Mrs Clarinda Coert, Immigration and Naturalisation Department,Advisers;–the European Commissioner for Human Rights, third-party intervener,Mr Thomas Hammarberg, CommissionerMr Nikolaos Sitaropoulos, Deputy Director,Mrs Anne Weber,Advisers;–for the Office of the United Nations High Commissioner for Refugees,third-party intervener,MrVolkerTürk,DirectoroftheInternationalProtection Division,Counsel,Mrs Madeline Garlick, Head of Unit, Policy and Legal Support,Europe Office,Mr Cornelis Wouters, principal adviser on the law of refugees,National Protection Division,Advisers.The Court heard addresses and replies to its questions fromMrs Niedlispacher, Mrs Materne, Mrs Germani, Mr Chihaoui, Mr Böcker,Ms Giovanetti, Mr Türk and Mr Hammarberg.

A. Entry into the European Union9. The applicant left Kabul early in 2008 and, travelling via Iran andTurkey, entered the European Union through Greece, where his fingerprintswere taken on 7 December 2008 in Mytilene.10. He was detained for a week and, when released, was issued with anorder to leave the country. He did not apply for asylum in Greece.B. Asylum procedure and expulsion procedure in Belgium11. On 10 February 2009, after transiting through France, the applicantarrived in Belgium, where he presented himself to the Aliens Office with noidentity documents and applied for asylum.12. The examination and comparison of the applicant's fingerprintsgenerated a Eurodac “hit” report on 10 February 2009 revealing that theapplicant had been registered in Greece.13. The applicant was placed initially in the Lanaken open receptioncentre for asylum seekers.14. On 18 March 2009, by virtue of Article 10 § 1 of Regulationno. 343/2003/EC (the Dublin Regulation, see paragraphs 65-82 below), theAliens Office submitted a request for the Greek authorities to take charge ofthe asylum application. When the Greek authorities failed to respond withinthe two-month period provided for in Article 18 § 1 of the Regulation, theAliens Office considered this to be a tacit acceptance of the request to takecharge of the application, pursuant to paragraph 7 of that provision.15. During his interview under the Dublin Regulation on 18 March2009 the applicant told the Aliens Office that he had fled Afghanistan withthe help of a smuggler he had paid 12,000 dollars and who had taken hisidentity papers. He said he had chosen Belgium after meeting some BelgianNorth Atlantic Treaty Organisation (NATO) soldiers who had seemed veryfriendly. He also requested that the Belgian authorities examine his fears.He told them he had a sister in the Netherlands with whom he had lostcontact. He also mentioned that he had had hepatitis B and had been treatedfor eight months.16. On 2 April 2009, the UNHCR sent a letter to the Belgian Ministerfor Migration and Asylum Policy criticising the deficiencies in the asylumprocedure and the conditions of reception of asylum seekers in Greece and

recommending the suspension of transfers to Greece (see paragraphs 194and 195, below). A copy was sent to the Aliens Office.17. On 19 May 2009, in application of section 51/5 of the Act of15 December 1980 on the entry, residence, settlement and expulsion ofaliens (“the Aliens Act”), the Aliens Office decided not to allow theapplicant to stay and issued an order directing him to leave the country. Thereasons given for the order were that, according to the Dublin Regulation,Belgium was not responsible for examining the asylum application; Greecewas responsible and there was no reason to suspect that the Greekauthorities would fail to honour their obligations in asylum matters underCommunity law and the 1951 Geneva Convention relating to the Status ofRefugees. That being so, the applicant had the guarantee that he would beable, as soon as he arrived in Greece, to submit an application for asylum,which would be examined in conformity with the relevant rules andregulations. The Belgian authorities were under no obligation to apply thederogation clause provided for in Article 3 § 2 of the Regulation. Lastly, theapplicant suffered from no health problem that might prevent his transferand had no relatives in Belgium.18. On the same day the applicant was taken into custody with a viewto the enforcement of that decision and placed in closed facility 127 bis forillegal aliens, in Steenokkerzeel.19. On 26 May 2009 the Belgian Committee for Aid to Refugees, theUNHCR's operational partner in Belgium, was apprised of the contactdetails of the lawyer assigned to the applicant.20. On 27 May 2009 the Aliens Office scheduled his departure for29 May 2009.21. At 10.25 a.m. on the appointed day, in Tongres, the applicant'sinitial counsel lodged an appeal by fax with the Aliens Appeals Board tohave the order to leave the country set aside, together with a request for astay of execution under the extremely urgent procedure. The reasons given,based in particular on Article 3 of the Convention, referred to a risk ofarbitrary detention in Greece in appalling conditions, including a risk ofill-treatment. The applicant also relied on the deficiencies in the asylumprocedure in Greece, the lack of effective access to judicial proceedings andhis fear of being sent back to Afghanistan without any examination of hisreasons for having fled that country.22. The hearing was scheduled for the same day, at 11.30 a.m., at theseat of the Aliens Appeals Board in Brussels. The applicant's counsel didnot attend the hearing and the application for a stay of execution wasrejected on the same day, for failure to attend.23. The applicant refused to board the aircraft on 29 May 2009 and hisrenewed detention was ordered under section 27, paragraph 1, of the AliensAct.

24. On 4 June 2009 the Greek authorities sent a standard documentconfirming that it was their responsibility under Articles 18 § 7 and 10 § 1of the Dublin Regulation to examine the applicant's asylum request. Thedocument ended with the following sentence: “Please note that if he sowishes this person may submit an application [for asylum] when he arrivesin Greece.”25. On 9 June 2009 the applicant's detention was upheld by order of thechambre du conseilof the Brussels Court of First Instance.26. On appeal on 10 June, the Indictments Chamber of the BrusselsCourt of Appeal scheduled a hearing for 22 June 2009.27. Notified on 11 June 2009 that his departure was scheduled for15 June, the applicant lodged a second request, through his current lawyer,with the Aliens Appeals Board to set aside the order to leave the territory.He relied on the risks he would face in Afghanistan and those he would faceif transferred to Greece because of the slim chances of his application forasylum being properly examined and the appalling conditions of detentionand reception of asylum seekers in Greece.28. A second transfer was arranged on 15 June 2009, this time underescort.29. By two judgments of 3 and 10 September 2009, the Aliens AppealsBoard rejected the applications for the order to leave the country to be setaside – the first because the applicant had not filed a request for theproceedings to be continued within the requisite fifteen days of service ofthe judgment rejecting the request for a stay of execution lodged under theextremely urgent procedure, and the second on the ground that the applicanthad not filed a memorial in reply.30. No administrative appeal on points of law was lodged with theConseil d'Etat.C. Request for interim measures against Belgium31. In the meantime, on 11 June 2009, the applicant applied to theCourt, through his counsel, to have his transfer to Greece suspended. Inaddition to the risks he faced in Greece, he claimed that he had fledAfghanistan after escaping a murder attempt by the Taliban in reprisal forhis having worked as an interpreter for the international air force troopsstationed in Kabul. In support of his assertions, he produced certificatesconfirming that he had worked as an interpreter.32. On 12 June 2009 the Court refused to apply Rule 39 but informedthe Greek Government that its decision was based on its confidence thatGreece would honour its obligations under the Convention and comply withEU legislation on asylum. The letter sent to the Greek Government read asfollows:

“That decision was based on the express understanding that Greece, as a ContractingState, would abide by its obligations under Articles 3, 13 and 34 of the Convention.The Section also expressed its confidence that your Government would comply withtheir obligations under the following:- the Dublin Regulation referred to above;- Council Directive 2005/85/EC of 1 December 2005 on minimum standards onprocedures in Member States for granting and withdrawing refugee status; and- Council Directive 2003/9/EC of 27 January 2003 laying down minimum standardsfor the reception of asylum seekers.I should be grateful therefore if your Government would undertake to inform theCourt of the progress of any asylum claim made by the applicant in Greece as well asthe place of detention, if he is detained on arrival in Greece.”

D. Indication of interim measures against Greece33. On 15 June 2009 the applicant was transferred to Greece. Onarriving at Athens international airport he gave his name as that used in theagreement to take responsibility issued by the Greek authoritieson 4 June 2009.34. On 19 June 2009 the applicant's lawyer received a first text message(sms), in respect of which he informed the Court. It stated that upon arrivalthe applicant had immediately been placed in detention in a building next tothe airport, where he was locked up in a small space with 20 other detainees,had access to the toilets only at the discretion of the guards, was not allowedout into the open air, was given very little to eat and had to sleep on a dirtymattress or on the bare floor.35. When released on 18 June 2009, he was given an asylum seeker'scard (“pink card”, see paragraph 89 below). At the same time the policeissued him with the following notification (translation provided by theGreek Government):“In Spata, on 18.06.2009 at 12.58 p.m., I, the undersigned police officer [...],notified the Afghan national [...], born on [...], of no registered address, that he mustreport within two days to the Aliens Directorate of the Attica Police AsylumDepartment to declare his home address in Greece so that he can be informed ofprogress with his asylum application.”

39. The Greek authorities were given until 29 June 2009 to provide thisinformation, it being specified that: “Should you not reply to our letterwithin the deadline, the Court will seriously consider applying Rule 39against Greece.”40. On 2 July 2009, having regard to the growing insecurity inAfghanistan, the plausibility of the applicant's story concerning the risks hehad faced and would still face if he were sent back to that country and thelack of any reaction on the part of the Greek authorities, the Court decidedto apply Rule 39 and indicate to the Greek Government, in the parties'interest and that of the smooth conduct of the proceedings, not to have theapplicant deported pending the outcome of the proceedings before theCourt.41. On 23 July 2009 the Greek Government informed the Court, in replyto its letter of 22 June 2009, that on arriving at Athens airporton 15 June 2009 the applicant had applied for asylum and the asylumprocedure had been set in motion. The Government added that the applicanthad then failed to go to the Attica police headquarters within the two-daytime-limit to fill in the asylum application and give them his address.42. In the meantime the applicant's counsel kept the Court informed ofhis exchanges with the applicant. He confirmed that he had applied forasylum at the airport and had been told to go to the Attica policeheadquarters to give them his address for correspondence in theproceedings. He had not gone, however, as he had no address to give them.E. Subsequent events43. On 1 August 2009, as he was attempting to leave Greece, theapplicant was arrested at the airport in possession of a false Bulgarianidentity card.44. He was placed in detention for seven days in the same building nextto the airport where he had been detained previously. In a text message tohis counsel he described his conditions of detention, alleging that he hadbeen beaten by the police officers in charge of the centre, and said that hewanted to get out of Greece at any cost so as not to have to live in suchdifficult conditions.

45. On 3 August 2009 he was sentenced by the Athens Criminal Courtto two months' imprisonment, suspended for three years, for attempting toleave the country with false papers.46. On 4 August 2009, the Ministry of Public Order (now the Ministryof Civil Protection) adopted an order stipulating that in application ofsection 76 of Law no. 3386/2005 on the entry, residence and socialintegration of third-country nationals in Greece, the applicant was thesubject of an administrative expulsion procedure. It further stipulated thatthe applicant could be released as he was not suspected of intending toabscond and was not a threat to public order.47. On 18 December 2009 the applicant went to the Attica policeheadquarters, where they renewed his pink card for six months. In a letteron the same day the police took note in writing that the applicant hadinformed them that he had nowhere to live, and asked the Ministry of Healthand Social Solidarity to help find him a home.48. On 20 January 2010 the decision to expel the applicant wasautomatically revoked by the Greek authorities because the applicant hadmade an application for asylum prior to his arrest.49. In a letter dated 26 January 2010 the Ministry of Health and SocialSolidarity informed the State Legal Council that, because of strong demand,the search for accommodation for the applicant had been delayed, but thatsomething had been found; in the absence of an address where he could becontacted, however, it had not been possible to inform the applicant.50. On 18 June 2010 the applicant went to the Attica policeheadquarters, where his pink card was renewed for six months.51. On 21 June 2010 the applicant received a notice in Greek, which hesigned in the presence of an interpreter, inviting him to an interview at theAttica police headquarters on 2 July 2010. The applicant did not attend theinterview.52. Contacted by his counsel after the hearing before the Court, theapplicant informed him that the notice had been handed to him in Greekwhen his pink card had been renewed and that the interpreter had made nomention of any date for an interview.53. In a text message to his counsel dated 1 September 2010 theapplicant informed him that he had once again attempted to leave Greece forItaly, where he had heard reception conditions were more decent and hewould not have to live on the street. He was stopped by the police in Patrasand taken to Salonika, then to the Turkish border for expulsion there. At thelast moment, the Greek police decided not to expel him, according to theapplicant because of the presence of the Turkish police.

A. The 1951 Geneva Convention relating to the Status of Refugees54. Belgium and Greece have ratified the 1951 Geneva Conventionrelating to the Status of Refugees (“the Geneva Convention”), which definesthe circumstances in which a State must grant refugee status to those whorequest it, as well as the rights and duties of such persons.55. In the present case, the central Article is Article 33 § 1 of the GenevaConvention, which reads as follows:“1. No Contracting State shall expel or return (" refouler ") a refugee in any mannerwhatsoever to the frontiers of territories where his life or freedom would be threatenedon account of his race, religion, nationality, membership of a particular social groupor political opinion.”

56. In its note of 13 September 2001 on international protection(A/AC.96/951, § 16), the UNHCR, whose task it is to oversee how theStates Parties apply the Geneva Convention, stated that the principle of“non-refoulement” was:“a cardinal protection principle enshrined in the Convention, to which noreservations are permitted. In many ways, the principle is the logical complement tothe right to seek asylum recognized in the Universal Declaration of Human Rights. Ithas come to be considered a rule of customary international law binding on all States.In addition, international human rights law has establishednon-refoulementas afundamental component of the absolute prohibition of torture and cruel, inhuman ordegrading treatment or punishment. The duty not torefouleis also recognized asapplying to refugees irrespective of their formal recognition, thus obviously includingasylum-seekers whose status has not yet been determined. It encompasses anymeasure attributable to a State which could have the effect of returning an asylum-seeker or refugee to the frontiers of territories where his or her life or freedom wouldbe threatened, or where he or she would risk persecution. This includes rejection at thefrontier, interception and indirectrefoulement,whether of an individual seekingasylum or in situations of mass influx.”

“The Union is founded on the values of respect for human dignity,freedom, democracy, equality, the rule of law and respect for humanrights, including the rights of persons belonging to minorities...”Article 6“1. The Union recognises the rights, freedoms and principles set out in the Charterof Fundamental Rights of the European Union of 7 December 2000, as adapted atStrasbourg, on 12 December 2007, which shall have the same legal value as theTreaties....3. Fundamental rights, as guaranteed by the European Convention for the Protectionof Human Rights and Fundamental Freedoms and as they result from theconstitutional traditions common to the Member States, shall constitute generalprinciples of the Union's law.”

2. The Treaty on the Functioning of the European Union (as amendedby the Treaty of Lisbon, which entered into force on 1 December2009)58. The issues of particular relevance to the present judgment arecovered by Title V – Area of Freedom, Security and Justice – of Part Threeof the Treaty on the Functioning of the European Union on Union Policiesand internal action of the Union. In Chapter 1 of this Title, Article 67stipulates:“1. The Union shall constitute an area of freedom, security and justice with respectfor fundamental rights and the different legal systems and traditions of the MemberStates.2. It ... shall frame a common policy on asylum, immigration and external bordercontrol, based on solidarity between Member States, which is fair towards third-country nationals. ...”

4. The “Dublin” asylum system62. Since the European Council of Tampere in 1999, the EuropeanUnion has organised the implementation of a common European asylumsystem.63. The first phase (1999-2004) saw the adoption of several legalinstruments setting minimum common standards in the fields of thereception of asylum seekers, asylum procedures and the conditions to bemet in order to be recognised as being in need of international protection, aswell as rules for determining which Member State is responsible forexamining an application for asylum (“the Dublin system”).64. The second phase is currently under way. The aim is to furtherharmonise and improve protection standards with a view to introducing acommon European asylum system by 2012. The Commission announcedcertain proposals in its policy plan on asylum of 17 June 2008 (COM(2008)360).(a) The Dublin Regulation and the Eurodac Regulation

65. Council Regulation No. 343/2003 of 18 February 2003 establishingthe criteria and mechanisms for determining the Member State responsiblefor examining an asylum application lodged in one of the Member States bya third-country national (“the Dublin Regulation”) applies to the MemberStates of the European Union and to Norway, Iceland and Switzerland.66. The Regulation replaces the provisions of the Dublin Convention fordetermining the State responsible for examining applications for asylumlodged in one of the Member States of the European Communities, signedon 15 June 1990.67. An additional regulation, Regulation no. 1560/2003 of 2 September2003, lays down rules for the application of the Dublin Regulation.68. The first recital of the Dublin Regulation states that it is part of acommon policy on asylum aimed at progressively establishing an area of

freedom, security and justice open to those who, forced by circumstances,legitimately seek protection in the Community.69. The second recital affirms that the Regulation is based on thepresumption that the member States respect the principle ofnon-refoulementenshrined in the Geneva Convention and are considered assafe countries.70. Under the Regulation, the Member States must determine, based ona hierarchy of objective criteria (Articles 5 to 14), which Member Statebears responsibility for examining an asylum application lodged on theirterritory. The aim is to avoid multiple applications and to guarantee thateach asylum seeker's case is dealt with by a single Member State.71. Where it is established that an asylum seeker has irregularly crossedthe border into a Member State having come from a third country, theMember State thus entered is responsible for examining the application forasylum (Article 10 § 1). This responsibility ceases twelve months after thedate on which the irregular border crossing took place.72. Where the criteria in the regulation indicate that another MemberState is responsible, that State is requested to take charge of the asylumseeker and examine the application for asylum. The requested State mustanswer the request within two months from the date of receipt of thatrequest. Failure to reply within two months is stipulated to mean that therequest to take charge of the person has been accepted (Articles 17 and 18§§ 1 and 7).73. Where the requested Member State accepts that it should take chargeof an applicant, the Member State in which the application for asylum waslodged must notify the applicant of the decision to transfer him or her,stating the reasons. The transfer must be carried out at the latest within sixmonths of acceptance of the request to take charge. Where the transfer doesnot take place within that time-limit, responsibility for processing theapplication lies with the Member State in which the application for asylumwas lodged (Article 19).74. By way of derogation from the general rule, each Member State mayexamine an application for asylum lodged with it by a third-countrynational, even if such examination is not its responsibility under the criterialaid down in the Regulation (Article 3 § 2). This is called the “sovereignty”clause. In such cases the State concerned becomes the Member Stateresponsible and assumes the obligations associated with that responsibility.75. Furthermore, any Member State, even where it is not responsibleunder the criteria set out in the Regulation, may bring together familymembers, as well as other dependent relatives, on humanitarian groundsbased in particular on family or cultural considerations (Article 15 § 1). Thisis known as the “humanitarian” clause. In this case that Member State will,at the request of another Member State, examine the application for asylumof the person concerned. The persons concerned must consent.

76. Another Council Regulation, no. 2725/2000 of 11 December 2000,provides for the establishment of the Eurodac system for the comparison offingerprints (“the Eurodac Regulation”). It requires the States to registerasylum seekers' fingerprints. The data is transmitted to Eurodac's centralunit, run by the European Commission, which stores it in its centraldatabase and compares it with the data already stored there.77. On 6 June 2007 the European Commission transmitted a report tothe European Parliament and the Council on the evaluation of the Dublinsystem (COM(2007)299 final). On 3 December 2008 it made public itsproposal for a recasting of the Dublin Regulation (COM(2008) 820 final/2).The purpose of the reform is to improve the efficiency of the system andensure that all the needs of persons seeking international protection arecovered by the procedure for determining responsibility.78. The proposal aims to set in place a mechanism for suspendingtransfers under the Dublin system, so that, on the one hand, member Stateswhose asylum systems are already under particularly heavy pressure are notplaced under even more pressure by such transfers and, on the other hand,asylum seekers are not transferred to Member States which cannot offerthem a sufficient level of protection, particularly in terms of receptionconditions and access to the asylum procedure (Article 31 of the proposal).The State concerned must apply to the European Commission for adecision. The transfers may be suspended for up to six months. TheCommission may extend the suspension for a further six months at its owninitiative or at the request of the State concerned.79. The proposal, examined under the codecision procedure, wasadopted by the European Parliament at first reading on 7 May 2009 andsubmitted to the Commission and the Council.80. At the Informal Justice and Home Affairs Council meeting inBrussels on 15 and 16 July 2010, the Belgian Presidency of the Council ofthe European Union placed on the agenda an exchange of views on themeans of arriving at a single asylum procedure and a uniform standard ofinternational protection by 2012. Discussion focused in particular on whatpriority the Council should give to negotiations on the recasting of theDublin Regulation and on whether the ministers would back the inclusion ofthe temporary suspension clause.81. The Court of Justice of the European Communities (CJEC), whichbecame the Court of Justice of the European Union (CJEU) upon the entryinto force of the Treaty of Lisbon, has delivered one judgment concerningthe Dublin Regulation. In thePetrosiancase (C-19/08, judgment of29 January 2009) it was asked to clarify the interpretation of Article 20 §§ 1and 2 concerning the taking of responsibility for an asylum application andthe calculation of the deadline for making the transfer when the legislationof the requesting Member State provided for appeals to have suspensive

83. Three other European texts supplement the Dublin Regulation.84.Directive 2003/9 of 27 January 2003, laying down minimumstandards for the reception of asylum seekers in the Member States(“the Reception Directive”), entered into force on the day of its publicationin the Official Journal (OJ L 31 of 6.2.2003). It requires the States toguarantee asylum seekers:-certain material reception conditions, including accommodation;food and clothing, in kind or in the form of monetary allowances;the allowances must be sufficient to protect the asylum seeker fromextreme need;-arrangements to protect family unity;-medical and psychological care;-access for minors to education, and to language classes whennecessary for them to undergo normal schooling.In 2007 the European Commission asked the CJEC (now the CJEU) toexamine whether Greece was fulfilling its obligations concerning thereception of refugees. In a judgment of 19 April 2007 (case C-72/06), theCJEC found that Greece had failed to fulfil its obligations under theReception Directive. The Greek authorities subsequently transposed theReception Directive.On 3 November 2009 the European Commission sent a letter to Greeceannouncing that it was bringing new proceedings against it.85.Directive 2005/85 of 1 December 2005 on minimum standards onprocedures in Member States for granting and withdrawing refugee statusin the Member States(the “Procedures Directive”), which entered into forceon the day of its publication in the Official Journal (OJ L 326/13 of13.12.2005), guarantees the following rights:-an application for asylum cannot be rejected on the sole ground thatit has not been made as soon as possible. In addition, applicationsmust be examined individually, objectively and impartially;-asylum applicants have the right to remain in the Member Statepending the examination of their applications;-the Member States are required to ensure that decisions onapplications for asylum are given in writing and that, where anapplication is rejected, the reasons are stated in the decision andinformation on how to challenge a negative decision is given inwriting;

asylum seekers must be informed of the procedure to be followed, oftheir rights and obligations, and of the result of the decision taken bythe determining authority;-asylum seekers must receive the services of an interpreter forsubmitting their case to the competent authorities whenevernecessary;-asylum seekers must not be denied the opportunity to communicatewith the UNHCR. More generally, the Member States must allowthe UNHCR to have access to asylum applicants, including those indetention, as well as to information on asylum applications andprocedures, and to present its views to any competent authority;-applicants for asylum must have the opportunity, at their own cost,to consult a legal adviser in an effective manner. In the event of anegative decision by a determining authority, Member States mustensure that free legal assistance is granted on request. This right maybe subject to restrictions (choice of counsel restricted to legaladvisers specifically designated by national law, appeals limited tothose likely to succeed, or free legal aid limited to applicants wholack sufficient resources).The European Commission initiated proceedings against Greece inFebruary 2006 for failure to honour its obligations, because of theprocedural deficiencies in the Greek asylum system, and brought the casebefore the CJEC (now the CJEU). Following the transposition of theProcedures Directive into Greek law in July 2008, the case was struck out ofthe list.On 24 June 2010 the European Commission brought proceedings againstBelgium in the CJEU on the grounds that the Belgian authorities had notfully transposed the Procedures Directive – in particular, the minimumobligations concerning the holding of personal interviews.In its proposal for recasting the Procedures Directive, presented on21 October 2009 (COM(2009) 554 final), the Commission contemplatedstrengthening the obligation to inform the applicant. It also provided for afull and ex nunc review of first-instance decisions by a court or tribunal andspecified that the notion of effective remedy required a review of both factsand points of law. It further introduced provisions to give appeals automaticsuspensive effect. The proposed amendments were intended to improveconsistency with the evolving case-law regarding such principles as theright to defence, equality of arms, and the right to effective judicialprotection.86.Directive 2004/83 of 29 April 2004 concerns minimum standards forthe qualification and status of third-country nationals or stateless personsas refugees or as persons who otherwise need international protection andthe content of the protection granted(“the Qualification Directive”). It

entered into force 20 days after it was published in the Official Journal(OJ L 304 of 30.09.2004).This Directive contains a set of criteria for granting refugee or subsidiaryprotection status and laying down the rights attached to each status. Itintroduces a harmonised system of temporary protection for persons notcovered by the Geneva Convention but who nevertheless need internationalprotection, such as victims of widespread violence or civil war.The CJEC (now the CJEU) has delivered two judgments concerning theQualification Directive:theElgafaji(C-465/07)judgmentof17 February 2009 and theSalahadin Abdulla and Othersjudgment of2 March 2010 (joined cases C-175, 176, 178 and 179/08).C. Relevant texts of the European Commissioner for Human Rights87. In addition to the reports published following his visits to Greece(see paragraph 160 below), the Commissioner issued a recommendation“concerning the rights of aliens wishing to enter a Council of Europemember State and the enforcement of expulsion orders”, dated19 September 2001, which states,inter alia:“1. Everyone has the right, on arrival at the border of a member State, to be treatedwith respect for his or her human dignity rather than automatically considered to be acriminal or guilty of fraud.2. On arrival, everyone whose right of entry is disputed must be given a hearing,where necessary with the help of an interpreter whose fees must be met by the countryof arrival, in order to be able, where appropriate, to lodge a request for asylum. Thismust entail the right to open a file after having being duly informed, in a languagewhich he or she understands, about the procedure to be followed. The practice ofrefoulement“at the arrival gate” thus becomes unacceptable.3. As a rule there should be no restrictions on freedom of movement. Whereverpossible, detention must be replaced by other supervisory measures, such as theprovision of guarantees or surety or other similar measures. Should detention remainthe only way of guaranteeing an alien's physical presence, it must not take place,systematically, at a police station or in a prison, unless there is no practical alternative,and in such case must last no longer than is strictly necessary for organising a transferto a specialised centre....9. On no account must holding centres be viewed as prisons....11. It is essential that the right of judicial remedy within the meaning of Article 13of the ECHR be not only guaranteed in law but also granted in practice when a personalleges that the competent authorities have contravened or are likely to contravene aright guaranteed by the ECHR. The right of effective remedy must be guaranteed to

A. The conditions of reception of asylum seekers1. Residence88. The conditions of reception of asylum seekers in Greece areregulated primarily by Presidential Decree (“PD”) no. 220/2007 transposingthe Reception Directive. The provisions of this text applicable to the presentjudgment may be summarised as follows.89. The authority responsible for receiving and examining the asylumapplication issues an asylum applicant's card free of charge immediatelyafter the results of the fingerprint check become known and in any event nolater than three days after the asylum application was lodged. This card,called the “pink card”, permits the applicant to remain in Greece throughoutthe period during which his or her application is being examined. The cardis valid for six months and renewable until the final decision is pronounced(Article 5 § 1).90. Under Article 12 §§ 1 and 3 the competent authorities must takeadequate steps to ensure that the material conditions of reception are madeavailable to asylum seekers. They must be guaranteed a standard of living inkeeping with their state of health and sufficient for their subsistence and toprotect their fundamental rights. These measures may be subjected to thecondition that the persons concerned are indigent.91. An asylum seeker with no home and no means of paying foraccommodation will be housed in a reception centre or another place uponapplication to the competent authorities (Article 6 § 2). According toinformation provided by the Greek Ministry of Health and Social Solidarity,in 2009 there were fourteen reception centres for asylum seekers in differentparts of the country, with a total capacity of 935 places. Six of them werereserved for unaccompanied minors.92. Asylum seekers who wish to work are issued with temporary workpermits, in conformity with the conditions laid down in PD no. 189/1998(Article 10 § 1 of PD no. 220/2007). Article 4 c) of PD 189/1998 requiresthe competent authority to issue the permit after making sure the jobconcerned does not interest “a Greek national, a citizen of the EuropeanUnion, a person with refugee status, a person of Greek origin, and so on”.

93. Asylum seekers have access to vocational training programmesunder the same conditions as Greek nationals (Article 11).94. If they are financially indigent and not insured in any way, asylumseekers are entitled to free medical care and hospital treatment. First aid isalso free (Article 14 of PD no. 220/2007).2. Detention95. When the administrative expulsion of an alien is permitted undersection 76(1) of Law no. 3386/2005 (see paragraph 119, below) and thatalien is suspected of intending to abscond, considered to be a threat topublic order or hinders the preparation of his or her departure or theexpulsion procedure, provisional detention is possible until the adoption,within three days, of the expulsion decision (section 76(2)). Until Law3772/2009 came into force, administrative detention was for three months.It is now six months and, in certain circumstances, may be extended bytwelve months.96. An appeal to the Supreme Administrative Court against an expulsionorder does not suspend the detention (section 77 of Law no. 3386/2005).97. Where section 76(1) is found to apply upon arrival at Athensinternational airport, the persons concerned are placed in the detentioncentre next to the airport. Elsewhere in the country, they are held either indetention centres for asylum seekers or in police stations.98. Under Article 13 § 1 of PD no. 90/2008, lodging an application forasylum is not a criminal offence and cannot, therefore, justify the applicant'sdetention, even if he or she entered the country illegally.B. The asylum procedure1. Applicable provisions99. The provisions applicable to the applicant's asylum application arefound in the following Presidential Decrees: PD no. 61/1999 on the grantingof refugee status and its withdrawal and the expulsion of an alien, residencepermits for family members and means of cooperation with the UNHCR;and PD no. 90/2008 transposing Procedures Directive 2005/85, as amendedby PD no. 81/2009.(a) Access to the procedure

101. The authorities immediately inform asylum seekers of their rightsand obligations by giving them a brochure, in a language they understand,describing the procedure for examining asylum applications and the asylumseeker's rights and obligations. If the asylum seeker does not understand thelanguage used in the form, or is illiterate, he is informed orally, with theassistance of an interpreter (Article 1 § 6 of PD 61/1999 and Article 8 § 1a) of PD no. 90/2008).102. An information brochure has been drafted in collaboration with theUNHCR and exists in six languages (Arabic, English, French, Greek,Persian and Turkish).103. When asylum seekers arrive at Athens international airport, theobligation to provide this information lies with the security services presentin the airport. Interpretation is provided by interpreters from Attica policeheadquarters, non-governmental organisations or airport staff.104. Asylum seekers must cooperate with the competent authorities(Article 9 § 1 of PD no. 90/2008). In particular, they must inform them ofany change of address (Article 6 § 1 of PD no. 220/2007).105. If they have not already done so at the airport, asylum seekers mustthen report, on a Saturday, to the Aliens Directorate at Attica policeheadquarters, to submit their applications for asylum. Since PD no. 81/2009(Article 1) entered into force, the lodging of asylum applications has beendecentralised to the fifty-two police headquarters in different parts of thecountry.106. Asylum seekers who have applied for asylum at the airport mustreport within three days to Attica police headquarters to register their placeof residence.107. They are then invited to the police headquarters for an individualinterview, during which they may be represented. The interview is held withthe assistance of an interpreter and the person concerned is asked to confirmall the information contained in the application and to give details of theiridentity, by what route they arrived in Greece and the reasons why they fledtheir country of origin (Article 10 § 1 of PD no. 90/2008).(b) Examination of the application for asylum at first instance

108. Until 2009, after the interview the police officer in charge of theinterview transmitted the asylum application to one of the three refugeeadvisory committees within the Ministry of Public Order (now the Ministryof Civil Protection) for an opinion. These committees were made up ofpolice officers and municipal representatives and in some cases the UNHCRwas an observer. The committee to which the application was referredtransmitted an opinion, in the form of an internal report, to the Attica policeheadquarters, which gave its decision.109. PD no. 81/2009 provides for the decentralisation of the examinationof asylum applications at first instance and the setting up of refugee

advisory committees in all fifty-two police headquarters round the country(Article 3). The examination procedure itself has not changed, but it nowtakes place in all fifty-two police headquarters in the different regions.110. The decisions are taken on an individual basis, after careful,objective and impartial examination. The authorities gather and assessprecise, detailed information from reliable sources, such as that supplied bythe UNHCR on the general situation in the country of origin (Article 6 § 2of PD no. 90/2008). As at every stage of the procedure, applicants areprovided with an interpreter at the State's expense (Article 8 § 1 b) of PD90/2008).111. They have the right to consult a legal or other counsel at their ownexpense (Article 11 § 1 of PD no. 90/2008).112. The decision is served on the applicant or his or her lawyer or legalrepresentative (Article 8 § 1 d) of PD no. 90/2008). On this subject, point 10in the brochure reads as follows:“...The [pink] card must mention the place of residence you have declared or thereception centre assigned to you for your stay. When the decision is given, it will besent to the address you declared; that is why it is important to inform the police of anychange of address without delay.”

115. Until 2009, the refugee advisory committees examined asylumapplications at second instance when these had been rejected (Article 25 ofPD no. 90/2008). The UNHCR sat on these committees (Article 26 of PDno. 90/2008). Thereafter it was possible to apply to the SupremeAdministrative Court to quash the decision. Article 5 of PD no. 81/2009 didaway with the second-instance role of the refugee advisory committees.Since 2009 appeals against the first-instance decision have lain directly tothe Supreme Administrative Court. In July 2009 the UNHCR decided that itwould no longer take part in the procedure.116. Unless the applicant has already been given the relevantinformation in writing, a decision to reject an application must mention thepossibility of lodging an appeal, the time-limit for doing so and theconsequences of letting the deadline pass (Articles 7 § 3 and 8 § 1 e) of PD90/2008).117. Appeals to the Supreme Administrative Court do not suspend theexecution of an expulsion order issued following a decision to reject an

application for asylum. However, aliens have the right to appeal against adeportation order within five days of receiving notification thereof. Thedecision is then given within three working days from the day on which theappeal was lodged. This type of appeal does suspend the enforcement of theexpulsion decision. Where detention is ordered at the same time asexpulsion, the appeal suspends the expulsion but not the detention (section77 of Law no. 3386/2005).118. Asylum seekers are entitled to legal aid for appeals to the SupremeAdministrative Court provided that the appeals are not manifestlyinadmissible or ill-founded (Article 11 § 2 of PD no. 90/2008).(d) Protection againstrefoulement

119. Law no. 3386/2005, as amended by Law no. 3772/2009 (section76(1) c), authorises the administrative expulsion of an alien in particularwhen his or her presence in Greece is a threat to public order or nationalsecurity. Aliens are considered to represent such a threat if there arecriminal proceedings pending against them for an offence punishable bymore than three months' imprisonment. Illegally leaving the country using afalse passport or other travel document is a criminal offence under sections83(1) and 87(7) of Law no. 3386/2005.120. However, asylum applicants and refugees are excluded from thescope of this Law (sections 1 c) and 79 d)). Asylum seekers may remain inthe country until the administrative procedure for examining theirapplication has been completed, and cannot be removed by any means(Article 1 § 1 of PD no. 61/1999 and Article 5 § 1 of PD no. 90/2008).(e) Authorisation to stay for humanitarian reasons and subsidiary protection

121. In exceptional cases, particularly for humanitarian reasons, theMinister of Public Order (now the Minister of Civil Protection) mayauthorise the temporary residence of an alien whose application for refugeestatus has been rejected, until it becomes possible for him or her to leave thecountry (section 25(6) of Law no. 1975/1991). Where such authorisation isgiven for humanitarian reasons the criteria taken into account are theobjective impossibility of removal or return to the country of origin forreasons offorce majeure,such as serious health reasons, an internationalboycott of the country of origin, civil conflicts with mass human rightsviolations, or the risk of treatment contrary to Article 3 of the Conventionbeing inflicted in the country of origin (Article 8 § 2 of PD no. 61/1999). Inthis last case the Supreme Administrative Court considers that taking intoconsideration the risks in respect of Article 3 of the Convention is not anoption but an obligation for the administrative authorities (see, for example,judgments nos. 4055/2008 and 434/2009).122. Subsidiary protection may also be granted in conformity with PDno. 96/2008, which transposes Directive 2004/83/EC on minimum standards

123. Following the parliamentary elections held in Greece in October2009, the new Government set up an expert committee to give an opinionon the reform of the asylum system in Greece. Composed of experts fromthe Ministries of Civil Protection, the Interior and Health, and from theUNHCR, the Greek Council for refugees and the Ombudsman's office, aswell as academics, the committee was asked to propose amendments to thecurrent law and practice and make suggestions concerning the compositionand modus operandi of a new civil authority to deal with applications forasylum, composed not of police officers, like today, but of public servants.It is also envisaged to restore the appellate role of the refugee advisorycommittees.124. The proposals of the expert committee were submitted to the GreekGovernment on 22 December 2009 and a draft bill is being prepared.According to Greek Prime Minister George Papandreou, speaking at a pressconference on 20 January 2010 with the participation of the United NationsHigh Commissioner for Refugees, Antonio Guterres, the aim pursued is toreform the legislative framework “to bring it into line with the 1951Convention on refugees and with European law”.2. Statistical data on asylum in Greece125. According to statistics published by the UNHCR, in 2008 Greecewas in seventh place on the list of European Union Member States in termsof the number of asylum applicants received, with a total of 19,880applications lodged that year (compared with 15,930 in 2009)(AsylumLevels and Trends in Industrialized Countries,2009). 88% of theforeign nationals who entered the European Union in 2009 entered throughGreece.126. For 2008, the UNHCR reports a success rate at first instance(proportion of positive decisions in relation to all the decisions taken) of0.04% for refugee status under the Geneva Convention (eleven people), and0.06% for humanitarian or subsidiary protection (eighteen people)(UNHCR,Observation on Greece as a country of asylum,2009). 12,095appeals were lodged against unfavourable decisions. They led to 25 peoplebeing granted refugee status by virtue of the Geneva Convention and 11 forhumanitarian reasons or subsidiary protection. Where appeals wereconcerned, the respective success rates were 2.87% and 1.26%. Bycomparison, in 2008 the average success rate at first instance was 36.2% infive of the six countries which, along with Greece, receive the largestnumber of applications (France, the United Kingdom, Italy, Sweden and

Germany) (UNHCR,Global Trends 2008, Refugees, Asylum-seekers,Returnees, Internally Displaced and Stateless Persons).127. Until 2009, 95% of asylum applications went through Attica policeheadquarters. Since the processing of asylum applications was decentralisedout to police headquarters all over the country, about 79% of theapplications have been handled by Attica police headquarters.IV. RELEVANT LAW AND PRACTICE IN BELGIUM128. The Aliens Act organises the different stages of the asylumprocedure. Where “Dublin” asylum seekers are concerned, the relevantprovisions may be summarised as follows.A. The Aliens Office129. The Aliens Office is the administrative body responsible forregistering asylum applications after consulting the Eurodac database. It isalso responsible for interviewing asylum seekers about their background inorder to determine whether Belgium is the country responsible under theDublin Regulation for examining the asylum application. These aspects ofthe procedure are regulated by section 51/5 of the Aliens Act.130. After the interview, the Aliens Office completes the “Dublin”request form. The form contains sections for general information about theasylum seekers and for more specific details of how they got to Belgium,their state of health and their reasons for coming to Belgium. There is noprovision for asylum seekers to be assisted by a lawyer during the interview.131. Where the Aliens Office considers that Belgium is responsible(positive decision) under the Dublin criteria or by application of the specialclauses, or because the deadline for transfer has passed, it transmits theapplication to the Office of the Commissioner General for Refugees andStateless Persons (“the CGRSP”), the Belgian body responsible forexamining asylum applications.132. Where the Aliens Office considers that Belgium is not responsiblefor examining the application (negative decision), it submits a request to theState responsible to take charge of the application. If that State agrees,explicitly or tacitly, the Aliens Office rejects the asylum application andissues a decision refusing a residence permit, together with an order to leavethe country.133. Reasons must be given for negative decisions ordering the transferof asylum seekers. When the transfer is to Greece, the reasoning for theorder to leave the country refers to the presumption that Greece honours itsCommunity and international obligations in asylum matters and to the factthat recourse to the sovereignty clause is not obligatory in the DublinRegulation. In some cases mention is made of the fact that the applicant has

adduced no evidence demonstrating the concrete consequences of thegeneral situation for his or her individual situation.134. There are no accurate statistics for determining in what proportionthe Aliens Office applies the sovereignty clause. The positive decisionstaken do not specify. At most it appears, from the data given in the AliensOffice's 2009 annual report, that in 2009 Belgium issued 1,116 requests toother Member States to take charge of asylum applications, 420 of whichwere to Greece, and that a total of 166 applications were referred to theCGRSP.135. While efforts are being made to determine which State isresponsible, the alien may be held or detained in a given place for as long asis strictly necessary, but no longer than one month.B. The Aliens Appeals Board136. Decisions taken by the Aliens Office concerning residence may bechallenged by appealing to the Aliens Appeals Board. The Aliens AppealsBoard is an administrative court established by the Law of15 September 2006 reforming theConseil d'Etatand setting up an AliensAppeals Board. It took over the powers of theConseil d'Etatin disputesconcerning aliens, as well as those of the Permanent Refugee AppealsBoard.137. Appeals against orders to leave the country do not have suspensiveeffect. The law accordingly provides for the possibility of lodging anapplication for a stay of execution of such an order. Such an application fora stay of execution must be lodged prior to or, at the latest, at the same timeas the appeal against the order.1. Stay of execution under the extremely urgent procedure138. By virtue of section 39/82 of the Aliens Act, where imminentdanger is alleged, an application for a stay of execution of an order to leavethe country may be lodged under the extremely urgent procedure. TheAliens Appeals Board will grant the application if it considers that thegrounds relied on are sufficiently serious to justify setting aside theimpugned decision, and if immediate execution of the decision is likely tocause serious, virtually irreparable damage to the person concerned. Theapplication for a stay of execution must be lodged no later than five days,but no earlier than three working days, following notification of the order toleave the country. Prior to the entry into force on 25 May 2009 of the Lawof 6 May 2009, the deadline was twenty-four hours. An application for astay of execution under the extremely urgent procedure suspends theenforcement of the expulsion order.139. Section 39/82(4) provides for an application for a stay of executionunder the extremely urgent procedure to be examined within forty-eight

hours of its receipt by the Aliens Appeals Board. If the President of thedivision or the judge concerned does not give a decision within that time,the First President or the President must be informed and must make surethat a decision is taken within seventy-two hours of the application beingreceived. They may even examine the case and take the decisionthemselves.140. Under the case-law established by theConseil d'Etatand taken overby the Aliens Appeals Board, deprivation of liberty is enough to establishthe imminent nature of the risk, without a departure having actually beenscheduled.2. Examination of the merits141. The Aliens Appeals Board then proceeds to review the lawfulnessof the impugned decision under section 39/2(2) of the Aliens Act, verifyingthat the administrative authority's decision relies on facts contained in theadministrative file, that in the substantive and formal reasons given for itsdecision it did not, in its interpretation of the facts, make a manifest error ofappreciation, and that it did not fail to comply with essential proceduralrequirements or with statutory formalities required on pain of nullity, orexceed or abuse its powers (see, for example, Aliens Appeals Board,judgment no. 14.175 of 31 July 2008).142. Where the application for a stay of execution is rejected and theapplicant deported, the proceedings on the merits continue. The AliensAppeals Board may dismiss appeals against the order to leave the country,however, on the grounds that as the applicants are no longer in the countrythey no longer have any interest in challenging that order(judgment no. 28.233 of 29 May 2009; see also judgment no. 34.177of 16 November 2009).3. Case-law of the Aliens Appeals Board in “Dublin” cases143. The first cases in which asylum seekers reported difficulties inaccessing the asylum procedure in Greece date back to April 2008. In itsjudgment no. 9.796 of 10 April 2008, the Aliens Appeals Board stayed theexecution of a “Dublin” transfer to Greece under the extremely urgentprocedure because the Greek authorities had not responded to the requestfor them to take charge of the asylum application concerned and the AliensOffice had not sought individual guarantees. The Aliens Appeals Boardfound that a tacit agreement failed to provide sufficient guarantees ofeffective processing of the asylum application by the Greek authorities.Since March 2009, however, the Aliens Office no longer seeks suchguarantees and takes its decisions based on tacit agreements. The AliensAppeals Board no longer questions this approach, considering that Greecehas transposed the Qualification and Procedures directives.

144. In assessing the reasoning for the order to leave the country theAliens Appeals Board takes into consideration first and foremost the factsrevealed to the Aliens Office during the Dublin interview and recorded inthe administrative file. Should evidence be adduced subsequently, includingdocuments of a general nature, in a letter to the Aliens Office during theDublin examination process or in an appeal against the order to leave thecountry, it is not systematically taken into account by the Aliens AppealsBoard, on the grounds that it was not adduced in good time or that, becauseit was not mentioned in the asylum applicant's statements to the AliensOffice, it is not credible (see, for example, judgments no. 41.482of 9 April 2010 and no. 41.351 of 1 April 2010).145. In cases where the Aliens Appeals Board has taken into accountinternational reports submitted by Dublin asylum applicants confirming therisk of violation of Article 3 of the Convention because of the deficienciesin the asylum procedure and the conditions of detention and reception inGreece, its case-law is divided as to the conclusions to be drawn.146. Certain divisions have generally been inclined to take the generalsituation in Greece into account. For example, in judgments nos. 12.004 and12.005 of 29 May 2008, the Board considered that the Aliens Office shouldhave considered the allegations of ill-treatment in Greece:“The applicant party informed the other party in good time that his removal toGreece would, in his opinion, amount to a violation of Article 3 of the Convention, inparticular because of the inhuman and degrading treatment he alleged that he hadsuffered and would no doubt suffer again there. ... The Board notes that in arguingthat he faced the risk, in the event that he was sent back to Greece, of being exposedto inhuman and degrading treatment contrary to Article 3 of the Convention, and inbasing his arguments on reliable documentary sources which he communicated to theother party, the applicant formulated an explicit and detailed objection concerning animportant dimension of his removal to Greece. The other party should therefore havereplied to that objection in its decision in order to fulfil its obligations with regard toreasoning.”

147. In the same vein, in judgment no. 25.962 of 10 April 2009, theAliens Appeals Board stayed execution of a transfer to Greece in thefollowing terms:“The Board considers that the terms of the report of 4 February 2009 of theCommissioner for Human Rights of the Council of Europe, (...), and the photosillustrating the information contained in it concerning the conditions of detention ofasylum seekers are particularly significant. ... While it postdates the judgments of theBoard and of the European Court of Human Rights cited in the decision taken, thecontent of this report is clear enough to establish that despite its recent efforts tocomply with proper European standards in matters of asylum and the fundamentalrights of asylum seekers, the Greek authorities are not yet able to offer asylumapplicants the minimum reception or procedural guarantees.”

judgment no. 37.916 of 27 February 2009, rejecting a request for a stay ofexecution of a transfer to Greece, the Aliens Appeals Board reasoned asfollows:[Translation by the Registry]“The general information provided by the applicant in his file mainly concerns thesituation of aliens seeking international protection in Greece, the circumstances inwhich they are transferred to and received in Greece, the way they are treated and theway in which the asylum procedure in Greece functions and is applied. The materialsestablish no concrete link showing that the deficiencies reported would result inGreece violating itsnon-refoulementobligation vis-à-vis aliens who, like theapplicant, were transferred to Greece ... Having regard to the above, the applicant hasnot demonstrated that the enforcement of the impugned decision would expose him toa risk of virtually irreparable harm”.

149. In three cases in 2009 the same divisions took the oppositeapproach and decided to suspend transfers to Athens, considering that theAliens Office, in its reasoning, should have taken into account theinformation on the general situation in Greece. These are judgments nos.25.959 and 25.960 of 10 April 2009 and no. 28.804 of 17 June 2009).150. In order to harmonise the case-law, the President of the AliensAppeals Board convened a plenary session on 26 March 2010 whichdelivered three judgments (judgments nos. 40.963, 40.964 and 10.965) inwhich the reasoning may be summarised as follows:- Greece is a member of the European Union, governed by the rule oflaw, a Party to the Convention and the Geneva Convention and boundby Community legislation in asylum matters;- based on the principle of intra-community trust, it must be presumedthat the State concerned will comply with its obligations (reference tothe Court's case-law inK.R.S. v. the United Kingdom(dec.),no. 32733/08, ECHR 2008-...);- in order to reverse that presumption the applicant must demonstratein concretothat there is a real risk of his being subjected to treatmentcontrary to Article 3 of the Convention in the country to which he isbeing removed;- simple reference to general reports from reliable sources showingthat there are reception problems or thatrefoulementis practised or themere fact that the asylum procedure in place in a European UnionMember State is defective does not suffice to demonstrate theexistence of such a risk.

151. In substance, the same reasoning is behind the judgments of theAliens Appeals Board when it examines appeals to set aside a decision.Thus, after having declared the appeal inadmissible as far as the order toleave the country was concerned, because the applicant had already beenremoved, the aforementioned judgment no. 28.233 of 29 May 2009 went onto analyse the applicant's complaints under the Convention – particularlyArticle 3 – and rejected the appeal because the applicant had failed todemonstrate any concrete link between the general situation in Greece andhis individual situation.C.The Conseil d'Etat152. The provisions concerning referrals to theConseil d'Etatand thelatter's powers are found in the laws on theConseil d'Etatcoordinated on12 January 1973.153. A lawyer may lodge an administrative appeal with theConseild'Etatwithin thirty days of notification of the judgment of the AliensAppeals Board.154. If the appeal is to be examined by theConseil d'Etat,it must bedeclared admissible. It will be declared admissible if it is not manifestlyinadmissible or devoid of purpose; if it is claimed that there has been abreach of the law or a failure to comply with essential proceduralrequirements or with statutory formalities required on pain of nullity, aslong as that claim is not manifestly ill-founded and the alleged error mayhave influenced the decision and is sufficient to justify setting it aside; or ifits examination is necessary to guarantee the consistency of the case-law.155. This procedure is not of suspensive effect. TheConseil d'Etatgivesjudgment on the admissibility of the application in principle within eightdays.156. Where the application is declared admissible, theConseil d'Etatgives a ruling within six months and may overturn decisions of the AliensAppeals Board for breach of the law or for failure to comply with essentialprocedural requirements or with statutory formalities required on pain ofnullity.157. The judgments referred to in the case file show that theConseild'Etatdoes not question the approach of the Aliens Appeals Boardexplained above and considers that no problem is raised under Article 13 oftheConvention(see,forexample,judgmentno.5115of 15 December 2009).D. The courts and tribunals158. Decisions taken by the Aliens Office concerning detention (orders todetain applicants in a given place and orders to redetain them) may be

A. Reports published since 2006159. Since 2006 reports have regularly been published by national,international and non-governmental organisations deploring the conditionsof reception of asylum seekers in Greece.160. The following is a list of the main reports:-European Committee for the Prevention of Torture, following itsvisit to Greece from 27 August to 9 September 2005, published on20 December 2006;Report of the LIBE Committee delegation on its visit to Greece(Samos and Athens), European Parliament, 17 July 2007;Pro Asyl, “Thetruth may be bitter but must be told - The Situation ofRefugees in the Aegean and the Practices of the Greek CoastGuard”,October 2007;UNHCR, “Asylumin the European Union. A Study of theimplementation of the Qualification Directive”,November 2007;European Committee for the Prevention of Torture, following itsvisit to Greece from 20 to 27 February 2007, 8 February 2008;Amnesty International, “Greece:No place for an asylum-seeker”,27 February 2008;European Council on Refugees and Exiles (“ECRE”), “SpotlightonGreece – EU asylum lottery under fire”,3 April 2008;Norwegian Organisation for Asylum Seekers (“NOAS”), “Agamblewith the right to asylum in Europe – Greek asylum policy and theDublin II regulation”,9 April 2008;UNHCR, “Positionon the return of asylum seekers to Greece underthe Dublin Regulation”,15 April 2008;Human Rights Watch, “Stuckin a revolving door – Iraqis and otherasylum seekers and migrants at Greece/Turkey entrance to theEuropean Union”,November 2008;

Clandestino, “Undocumentedmigration: counting the uncountable:data and trends across Europe”,December 2008;Human Rights Watch, “Leftto survive”,December 2008;Cimade, “Droitd'asile: les gens de Dublin II, parcours juridique dedemandeurs d'asile soumis à une réadmission selon le règlementDublin II”,December 2008;European Commissioner for Human Rights, Mr T. Hammarberg,report prepared following his visit to Greece from 8 to10 December 2008, 4 February 2009;Greek Council of Refugees, “The Dublin Dilemma – “Burdenshifting and putting asylum seekers at risk”,23 February 2009;European Committee for the Prevention of Torture, report preparedfollowing its visit to Greece from 23 to 28 September 2008,30 June 2009;Austrian Red Cross and Caritas, “TheSituation of Persons Returnedby Austria to Greece under the Dublin Regulation. Report on a JointFact-Finding Mission to Greece (May 23rd - 28th 2009)”,August 2009;Norwegian Helsinki Committee (“NHC”), NOAS and Aitima, “Outthe back door: the Dublin II Regulation and illegal deportationsfrom Greece”,October 2009;Human Rights Watch, “Greece:Unsafe and Unwelcoming Shores”,October 2009;UNHCR, Observations on Greece as a country of asylum,December 2009;Amnesty International, “TheDublin II Trap: transfers of DublinAsylum Seekers to Greece”,March 2010;National Commission for Human Rights (Greece), “Detentionconditions in police stations and detention areas of aliens”,April 2010;Amnesty International, “Irregularmigrants and asylum-seekersroutinely detained in substandard conditions”,July 2010B. Conditions of detention

little or no possibility of taking a walk, no place to relax, insufficientmattresses, dirty mattresses, no free access to toilets, inadequate sanitaryfacilities, no privacy, limited access to care. Many of the people interviewedalso complained of insults, particularly racist insults, proffered by staff andthe use of physical violence by guards.163. For example, following its visit to Greece from 27 August to9 September 2005 the CPT reported:“The building of the new special holding facilities for foreigners (...) represented anopportunity for Greece to adopt an approach more in line with the norms andstandards developed within Europe. Regrettably, the authorities have maintained acarceral approach, often in threadbare conditions and with no purposeful activities andminimal health provision, for persons who are neither convicted nor suspected of acriminal offence and who have, as described by many Greek interlocutors, oftenexperienced harrowing journeys to arrive in Greece.”

In February 2007 the CPT inspected 24 police stations and holdingcentres for migrants run by the Ministry for Public Order and concluded that“persons deprived of their liberty by law enforcement officials in Greecerun a real risk of being ill-treated”. It added:“[Since the CPT's last visit to Greece, in 2005] there has been no improvement asregards the manner in which persons detained by law enforcement agencies aretreated. The CPT's delegation heard, once again, a considerable number of allegationsof ill- treatment of detained persons by law enforcement officials. Most of theallegations consisted of slaps, punches, kicks and blows with batons, inflicted uponarrest or during questioning by police officers. (...) In several cases, the delegation'sdoctors found that the allegations of ill-treatment by law enforcement officials wereconsistent with injuries displayed by the detained persons concerned.”

In its December 2008 report Cimade observed:““In 2003 1,000 people arrived in Lesbos; in 2007 they numbered 6,000 and in thefirst eight months of 2008 there were 10,000 arrivals. (...) A group of demonstratorsare waiting for us: chanting “no border, no nation, no deportation”, about ten of themdemanding that the place be closed down. Arms reach out through the fencing, callingfor help. Three large caged-in rooms each holding 85 men: Afghans, Palestinians,Somalians, locked up all day long in appalling squalor. It is chilly in the late Greeksummer and people are sleeping on the bare concrete floor. There is a strong smellthat reminds me of the makeshift holding areas in the waiting zone at Roissy (...).Most of the men have been there several days, some for a month. They do notunderstand why they are there. The men have been separated from the women and

In his report dated February 2009, the European Commissioner forHuman Rights declared:“During the meeting with the Commissioner, the authorities in Evros departmentinformed him that as at 1 December 2008 there were 449 irregular migrants detainedby the police in six different places of detention in that department. The five mostcommon nationalities were: Iraq (215), Afghanistan (62), Georgia (49), Pakistan (37)and Palestine (27). On 9 December 2008, date of the Commissioner's visit, at the twoseparate warehouse-type detention rooms of the Feres border guard station, whichdates from 2000, there were 45 young, male, irregular migrants in detention, most ofthem Iraqis. (...) They were in fact crammed in the rooms, sleeping and stepping uponmattresses that had been placed on the floor and on a cement platform, one next to theother. In the bathrooms the conditions were squalid. Some detainees had obvious skinrashes on their arms and one with bare feet complained that the authorities did notprovide him with shoes and clean clothes. (...). On 9 December 2008 the policeauthorities informed the Commissioner that at Kyprinos (Fylakio) there were 320inmates in seven detention rooms, the majority of them being of Iraqi and Afghannationalities.”

164. The CPT visited the detention centre next to Athens internationalairport in August and September 2005. It noted:“The conditions in the separate cell-block are of concern to the CPT's delegation.Each cell (measuring 9.5m�) had an official capacity of five persons, already too high.In fact, the registers showed that on many occasions, for example in May and June2005 the occupancy rate reached six and even as high as nine persons per cell. Anexamination of the cells seemed to indicate that originally they had been designed forone person as there was only a single plinth in the cells – certainly no more than threepersons, preferably no more than two, should be held overnight in such cells. Thesanitary facilities were outside the cells and the delegation heard many complaints thatthe police guards did not respond rapidly to requests to go to the toilet; further, accessto the shower appeared extremely limited, and five persons, in the same cell, claimedthey had not had a shower in seven days – the overbearing hot, sweaty stench lentmuch credence to their allegation. The delegation also met a man who had spent oneand a half months in one of the cells with no change of clothes, no access to fresh airnor any exercise nor any purposeful activity.”

Following its visit to Greece in 2007, the CPT noted that there had beenno improvement as regards the manner in which persons detained weretreated and reported cases of ill-treatment at the hands of the police officersin the deportation cell at Athens International Airport:“At Petru Rali Alien detention facility, a Bangladeshi national alleged that he hadbeen slapped and kicked by the escorting police officers in the deportation cell atAthens International Airport after he had refused deportation. He further alleged thatthey had compressed his throat, pressed their fingers into his eye sockets, twisted hishands behind his back and kicked him on the back of the legs, the buttocks and in the

abdomen, after which he had fainted. On examination by one of the medical membersof the delegation, the following injuries were observed: a small abrasion(approximately 0.3 cm) on the lower lip and a red linear contusion on the left cheekbeneath the eye (2 cm), which had two abrasions therein; diffuse areas of purplishbruising on both sides of the forehead and a reddish bruise (2 cm) on the centre of thechest; swelling over the thyroid cartilage on the front of the neck and swelling of theouter parts of both upper arms; on the right leg, beneath and lateral to the kneecap, adiffuse area of purplish bruising with a reddish area (approximately 2 cm x 2 cm) inits proximal part.

165. At the time of its visits in October 2009 and May 2010, AmnestyInternational described the detention centre next to the airport as follows:“The facility is divided into three sectors. The first consists of three cells, eachapproximately 7m2. There is one window in each cell, and the sector has two separatetoilets and showers. The second consists of three large cells, each approximately50m2. There are separate toilets in the corridor outside the cells. The third sectorconsists of nine very small cells, each approximately 10m2. The cells are arranged ina row, off a small corridor where a card phone is situated. On the opposite side of thecorridor there are two toilets and two showers.During the October 2009 visit, Amnesty International delegates were able to viewthe first two sectors where Dublin II returnees and other asylum-seekers were beingheld. The delegates observed that detainees were held in conditions of severeovercrowding and that the physical conditions were inadequate. Many asylum-seekersreported that they had been verbally abused by police officers.During the organization's visit in May 2010, Amnesty International representativeswere allowed to visit all three sectors. The police authorities told delegates that thefirst sector was used for the detention of Dublin II returnees and other asylum-seekers,the second for the detention of female irregular migrants convicted for attempting toleave Greece with false documents and the third for the detention of male irregularmigrants convicted for attempting to leave Greece with false documents.During the May 2010 visit, there were seven asylum-seekers held in the first sector(six male and one female) but no Dublin II returnees. In the second sector, 15 femaleswere held in one cell, three of them pregnant. One of the pregnant women complainedseveral times that she could not breathe, and was asking when she could go outsideher cell. In another cell there was a man with an injured leg. Those held in the firstand second sector told Amnesty International delegates that the police rarely unlockedthe doors of their sectors. As a result, they did not have access to the water coolersituated outside, and were forced to drink water from the toilets. At the time of thevisit approximately 145 detainees were held in the third sector in conditions of severeovercrowding. Among them, delegates found a Dublin II returnee. There were ninecells in total. The delegates were able to view two of the cells, each of whichcontained only one bed (a concrete base with a mattress on top) and held between 14and 17 individuals. There were not enough mattresses, and detainees slept on thefloor. As a result of the overcrowding and mattresses on the floor, there was no spaceto move around. The detainees told Amnesty International that, because of the lack ofspace, they could not all lie down and sleep at the same time. While the cells viewedhad windows, the overcrowding meant that the ventilation was not sufficient. The heatin the cells was unbearable.

Detainees held in the third sector told Amnesty International that the police officersdid not allow them to walk in the corridor outside their cells, and that there weresevere difficulties in gaining access to the toilets. At the time of the organization'svisit, detainees were knocking on the cell doors and desperately asking the police tolet them go to the toilet. Amnesty International delegates observed that some peoplewho were allowed to go to the toilet were holding a plastic water bottle half or almostcompletely full of urine. The police authorities admitted that in every cell detaineesused plastic bottles for their toilet needs which they emptied when they were allowedto go to the toilet. The delegates also observed that the toilet facilities were dirty andthe two showers had neither door nor curtain, and thus lacked any privacy.The Athens airport police authorities told Amnesty International that the impositionof prison sentences on irregular migrants or asylum-seekers arrested at the airport forusing false documents, who were unable to pay trial expenses, contributed to theovercrowding of the detention area.At the time of the visit, the organization observed a complete lack of hygieneproducts such as soap, shampoo and toilet paper in all sectors. In addition, many ofthose detained told the delegates they had no access to their luggage, so they did nothave their personal belongings, including changes of clothes. Some said that, as aresult, they had been wearing the same clothes for weeks. Furthermore, there was noopportunity for outside exercise at all. Two individuals complained that they did nothave access to their medication because it was in their luggage. Similar reports werereceived during the October 2009 visit. In addition, concerns regarding access tomedical assistance remained unchanged since October 2009. The airport authoritiestold Amnesty International that there was no regular doctor in the facility and medicalcare was provided only when requested by a detainee by calling the airport's first aiddoctors.”

166. Following their visit on 30 April 2010,Médecins sans Frontières–Greecepublished a report which also described overcrowding in thedetention centre (300 detainees) and appalling sanitary and hygieneconditions. In three cells for families, with a capacity of eight to twelvepeople, 155 people were being held without ventilation and with only threetoilets and showers.C. Living conditions167. According to the people interviewed for the reports listed inparagraph 160 above, when asylum seekers were released the practicevaried. At Athens international airport they were either given a pink carddirectly or they were told to report to Attica police headquarters to get one.Sometimes those in Greece for the first time were directly issued with anorder to leave the country within a few days. If they arrived and weredetained elsewhere in the country, the practice was more consistent andconsisted of issuing them with an order to leave the country and sendingthem to a large city like Athens or Patras.168. In any event it appears that they are given no information about thepossibilities of accommodation. In particular, the people interviewed

reported that no one told them that they should inform the authorities thatthey had nowhere to live, which is a prerequisite for the authorities to try tofind them some form of accommodation.169. Those persons who have no family or relations in Greece andcannot afford to pay a rent just sleep in the streets. As a result, manyhomeless asylum seekers, mainly single men but also families, haveillegally occupied public spaces, like the makeshift camp in Patras, whichwas evacuated and torn down in July 2009, or the old appeal court andcertain parks in Athens.170. Many of those interviewed reported a permanent state of fear ofbeing attacked and robbed, and of complete destitution generated by theirsituation (difficulty in finding food, no access to sanitary facilities, etc.).171. Generally, the people concerned depend for their subsistence oncivil society, the Red Cross and some religious institutions.172. Having a pink card does not seem to be of any benefit in obtainingassistance from the State and there are major bureaucratic obstacles toobtaining a temporary work permit. For example, to obtain a tax number theapplicant has to prove that he has a permanent place of residence, whicheffectively excludes the homeless from the employment market. In addition,the health authorities do not appear to be aware of their obligations toprovide asylum seekers with free medical treatment or of the additionalhealth risks faced by these people.In November 2008, Human Right Watch reported:“Asylum seekers of all nationalities who manage to obtain and maintain their redcards have little hope of receiving support from the government during the oftenprotracted time their claims are pending. The homeless and destitute among themoften lack housing accommodation and other basic forms of social assistance, in part,because Greece only has reception centre spaces for 770 of the most needy andvulnerable asylum seekers. Although three of the 10 reception centres are reserved forunaccompanied children, Human Rights Watch met unaccompanied children, amongothers, who were living in the streets, parks, and in abandoned buildings because of alack of accommodations and other social services. A 15-year-old Nigerian boyregistered with the police, but at the time Human Rights Watch interviewed him wasliving on the street with no assistance whatsoever: “I still don't have a place for me tolive. The lawyers gave me an appointment to have a place to live. Now I sleep out onthe streets. I don't live anywhere. I have cold in my body. I don't feel safe. I walkaround until after 1 or 2 am and then I find a park to sleep in”. The NorwegianOrganization for Asylum Seekers (NOAS), the Norwegian Helsinki Committee, andGreek Helsinki Monitor reported jointly in April 2008 on accommodations and socialconditions awaiting Dublin II returnees to Greece, finding the number of actual placesavailable to such destitute asylum seekers to be “negligible” and the conditions of thefew accommodation centres “deplorable.” They observed, “The large majority ofasylum seekers remain completely without social assistance with regard toaccommodation and/or other forms of social assistance. Greece is in practice acountry where asylum seekers and refugees are almost entirely left to their owndevices.”

D. The asylum procedure1. Access to the asylum procedure173. The reports mentioned in paragraph 160 above describe thenumerous obstacles that bar access to the asylum procedure or make it verydifficult in practice for both first-time arrivals and persons transferred underthe Dublin Regulation who pass through Athens international airport.174. The first-hand accounts collected by international organisations andnon-governmental organisations and the resulting conclusions may besummarised as follows.175. Very few applications for asylum are lodged directly with thesecurity services at the international airport because of the lack of staff butalso, in certain cases, because of the lack of information that the serviceseven exist.176. When they arrive at the airport asylum seekers are systematicallyplaced directly in detention before their situation has been clarified.177. When they are released, those who have come to Greece for thefirst time are sometimes issued with an order to leave the country, printed inGreek, without having first been informed of the possibility of applying forasylum or contacting a lawyer for that purpose. It has even been known tohappen that persons returned under the Dublin Regulation who had appliedfor asylum when they first arrived in Greece were issued with an order toleave the country on the grounds that, in their absence, all the time-limits forlodging an appeal had expired.178. At Athens airport several organisations have reported that theinformation brochure on the asylum procedure is not always given topersons returned under the Dublin Regulation. Nor are they given any otherinformation about the procedures and deadlines or the possibility ofcontacting a lawyer or a non-governmental organisation to seek legaladvice.179. On the contrary, the police use “tricks” to discourage them fromfollowing the procedure. For example, according to several witnesses thepolice led them to believe that declaring an address was an absolutecondition for the procedure to go ahead.180. The three-day time-limit asylum seekers are given to report topolice headquarters is in fact far too short in practice. The offices concernedare practically inaccessible because of the number of people waiting andbecause asylum applications can be lodged only on one day in the week. Inaddition, the selection criteria at the entrance to the offices are arbitrary andthere is no standard arrangement for giving priority to those wishing to enterthe building to apply for asylum. There are occasions when thousands ofpeople turn up on the appointed day and only 300 to 350 applications areregistered for that week. At the present time about twenty applications are

being registered per day, while up to 2,000 people are waiting outside tocomplete various formalities. This results in a very long wait beforeobtaining an appointment for a first interview.181. Because of the clearly insufficient provision for interpretation, thefirst interview is often held in a language the asylum seeker does notunderstand. The interviews are superficial and limited in substance to askingthe asylum seeker why he came to Greece, with no questions at all about thesituation in the country of origin. Further, in the absence of any legal aid theapplicants cannot afford a legal adviser and are very seldom accompaniedby a lawyer.182. As to access to the Court, although any asylum seeker can, intheory, lodge an application with the Court and request the application ofRule 39 of the Rules of Court, it appears that the shortcomings mentionedabove are so considerable that access to the Court for asylum seekers isalmost impossible. This would explain the small number of applications theCourt receives from asylum seekers and the small number of requests itreceives for interim measures against Greece.2. Procedure for examining applications for asylum183. The above-listed reports also denounce the deficiencies in theprocedure for examining asylum applications.184. In the vast majority of cases the applications are rejected at firstinstance because they are considered to have been lodged for economicreasons. Research carried out by the UNHCR in 2010 reveals that out of202 decisions taken at first instance, 201 were negative and worded in astereotyped manner with no reference whatsoever to information about thecountries of origin, no explanation of the facts on which the decision wasbased and no legal reasoning.185. The reports denounce the lack of training, qualifications and/orcompetence of the police officers responsible for examining the asylumapplications. In 2008, according to the UNHCR, only eleven of thesixty-five officers at Attica police headquarters responsible for examiningasylum applications were specialists in asylum matters.186. According to several accounts, it was not unusual for the decisionrejecting the application and indicating the time-limit for appeal to benotified in a document written in Greek at the time of issue or renewal ofthe pink card. As the cards were renewed every six months, the asylumseekers did not understand that their applications had in fact been rejectedand that they had the right to appeal. If they failed to do so within theprescribed deadline, however, they were excluded from the procedure,found themselves in an illegal situation and faced the risk of being arrestedand placed in detention pending their expulsion.187. The European Commissioner for Human Rights and the UNHCRalso emphasised that the notification procedure for “persons with no known

address” did not work in practice. Thus, many asylum seekers were unableto follow the progress of their applications and missed the deadlines.188. The time taken for asylum applications to be examined at firstinstance and on appeal is very long. According to the UNHCR, in July2009, 6,145 cases at first instance and 42,700 cases on appeal were affectedby delays. According to information sent to the Commissioner by the GreekMinistry of Civil Protection, the total number of asylum applicationspending had reached 44,650 in February 2010.3. Remedies189. Being opposed,inter alia,to the abolition in 2009 of thesecond-instance role played by the refugee advisory committees(see paragraph 122 above), the UNHCR announced in a press releaseon 17 July 2009 that it would no longer be taking part in the asylumprocedure in Greece.190. Concerning appeals to theConseil d'Etat,the reports mentioned inparagraph 160 above denounce the excessive length of the proceedings.According to the European Commissioner for Human Rights, the averageduration at the present time was five and a half years. They also emphasisethat an appeal against a negative decision does not automatically suspendthe expulsion order and that separate proceedings have to be initiated inorder to seek a stay of execution. These can last between ten days and fouryears. Furthermore, they consider that the review exercised by theConseild'Etatis not extensive enough to cover the essential details of complaintsalleging Convention violations.191. Lastly, they remark that in practice the legal aid system for lodgingan appeal with theConseil d'Etatdoes not work. It is hindered by thereluctance and the resulting lack of lawyers on the legal aid list because ofthe length of the proceedings and the delays in their remuneration.4. Risk of refoulement192. The risk ofrefoulementof asylum seekers by the Greek authorities,be it indirectly, to Turkey, or directly to the country of origin, is a constantconcern. The reports listed in paragraph 161 above, as well as the press,have regularly reported this practice, pointing out that the Greek authoritiesdeport, sometimes collectively, both asylum seekers who have not yetapplied for asylum and those whose applications have been registered andwho have been issued with pink cards. Expulsions to Turkey are effectedeither at the unilateral initiative of the Greek authorities, at the border withTurkey, or in the framework of the readmission agreement between Greeceand Turkey. It has been established that several of the people thus expelledwere then sent back to Afghanistan by the Turkish authorities without theirapplications for asylum being considered.

193. Several reports highlight the serious risk ofrefoulementas soon asthe decision is taken to reject the asylum application, because an appeal totheConseil d'Etathas no automatic suspensive effect.5. Letter of the UNHCR of 2 April 2009194. On 2 April 2009 the UNHCR sent a letter to the Belgian Ministerof Migration and Asylum Policy criticising the deficiencies in the asylumprocedure and the conditions of reception of asylum seekers in Greece andrecommending the suspension of transfers to Greece. A copy was sent to theAliens Office. The letter read as follows (extracts):“The UNHCR is aware that the Court, in its decision inK.R.S. v. the UnitedKingdom... recently decided that the transfer of an asylum seeker to Greece did notpresent a risk ofrefoulementfor the purposes of Article 3 of the Convention.However, the Court did not give judgment on compliance by Greece with itsobligations under international law on refugees. In particular, the Court said nothingabout whether the conditions of reception of asylum seekers were in conformity withregional and international standards of human rights protection, or whether asylumseekers had access to fair consideration of their asylum applications, or even whetherrefugees were effectively able to exercise their rights under the Geneva Convention.The UNHCR believes that this is still not the case.”

VI. INTERNATIONAL DOCUMENTS DESCRIBING THE SITUATIONIN AFGHANISTAN196. Afghanistan has been embroiled in an armed conflict since 1979.The present situation is based on the civil war of 1994-2001, during whichtheMujahidin(the veterans of the anti-Soviet resistance, many of whoseleaders now hold public office) fought the Taliban movement, and fall-outfrom the attacks of 11 September 2001 in the United States.197. According to the UNHCR (“Guidelines for assessing theinternational protection needs of Afghan asylum seekers”, July 2009, whichreplaced those of December 2007), the situation in Afghanistan can bedescribed as an intensifying armed conflict accompanied by serious andwidespread targeted human rights violations. The Government and theirinternational allies are pitted against groups of insurgents including theTaliban, the Hezb-e Eslami and Al-Qaeda. A complex array of legal andillegal armed groups and organised criminal groups also play an importantrole in the conflict. Despite efforts at reform, Afghanistan is still faced with

widespread corruption, lack of due process and an ineffective administrationof justice. Human rights violations are rarely addressed or remedied by thejustice system and impunity continues to be pervasive. The progressivestrengthening of religious conservatism has pressured the Government andParliament into curtailing fundamental rights and freedoms.198. In the above-mentioned document, the UNHCR says that most ofthe fighting is still in the south and south-eastern part of the country. In thesouth the provinces of Helmand and Kandahar, Taliban strongholds, are thescene of fierce fighting. The conflict raging in the southern, south-easternand eastern regions has displaced the population and caused numerouscivilian casualties.199. There is more and more evidence that the people implementing orthought to be implementing government projects and the non-governmentalorganisations or civil firms actually working or thought to be working withthe international forces in Afghanistan face a very high risk of beingtargeted by anti-government factions.200. As to the possibilities of internal relocation, the UNHCR points outthat no region of Afghanistan is safe and that even if one were to be found,it might not be accessible as many of the main roads in Afghanistan aredangerous.201. In Kabul the situation has deteriorated. Rising economic emigrationis putting increasing pressure on the employment market and on resourcessuch as infrastructure, land and drinking water. The situation is exacerbatedby persistent drought, with the resultant spread of water-related diseases.Endemic unemployment and under-employment limit many people's abilityto cater for their basic needs.202. The UNHCR generally considers internal relocation as a reasonablealternative solution when protection can be provided in the relocation areaby the person's family in the broad sense, their community or their tribe.However, these forms of protection are limited to regions where family ortribal links exist. Even in such situations case-by-case analysis is necessary,as traditional social bonds in the country have been worn away by thirtyyears of war, mass displacement of refugees and the growing rural exodus.203. Bearing in mind the recommendations contained in these directives,the Belgian body responsible for examining asylum applications(the CGRSP, see paragraph 131 above) stated in a February 2010 documententitled “the Office of the Cimmissioner General for Refugees and StatelessPersons Policy on Afghan Asylum Seekers” that they granted protection to alarge number of Afghan asylum seekers from particularly dangerousregions.

A. The parties' submissions1. The applicant206. The applicant complained about both periods of detention – the firstone, from 15 to 18 June 2009, following his arrival at Athens internationalairport, and the second one, from 1 to 7 August 2009, following his arrest atthe airport. He submitted that the conditions of detention at the centre nextto Athens international airport were so appalling that they had amounted toinhuman and degrading treatment. The applicant described his conditions ofdetention as follows: he had been locked in a small room with twenty otherpeople, had had access to the toilets only at the discretion of the guards, hadnot been allowed out into the open air, had been given very little to eat andhad had to sleep on a dirty mattress or on the bare floor. He furthercomplained that during his second period of detention he had been beatenby the guards.2. The Greek Government207. The Government disputed that the applicant's rights under Article 3had been violated during his detention. The applicant had adduced noevidence that he had suffered inhuman or degrading treatment.208. In contrast with the description given by the applicant, theGovernment described the holding centre as a suitably equipped short-stayaccommodation centre specially designed for asylum seekers, where theywere adequately fed.209. In their observations in reply to the questions posed by the Courtduring the hearing before the Grand Chamber, the Government gave more

detailed information about the layout and facilities of the centre. It had asection reserved for asylum seekers, comprising three rooms, ten beds andtwo toilets. The asylum seekers shared a common room with peopleawaiting expulsion, where there was a public telephone and a waterfountain. The applicant had been held there in June 2009 pending receipt ofhis pink card.210. The Government stated that in August 2009 the applicant had beenheld in a section of the centre separate from that reserved for asylumseekers, designed for aliens who had committed a criminal offence. Thepersons concerned had an area of 110 m2, containing nine rooms and twotoilets. There was also a public telephone and a water fountain.211. Lastly, the Government stressed the short duration of the periods ofdetention and the circumstances of the second period, which had resultednot from the applicant's asylum application but from the crime he hadcommitted in attempting to leave Greece with false documents.B. Observations of the European Commissioner for Human Rightsand the Office of the United Nations High Commissioner forRefugees, intervening as third parties212. The Commissioner stated that he had been informed byMédecinssans Frontières – Greece(see paragraph 166 above) of the conditions ofdetention in the centre next to the airport.213. The UNHCR had visited the centre in May 2010 and found theconditions of detention there unacceptable, with no fresh air, no possibilityof taking a walk in the open air and no toilets in the cells.C. The Court's assessment1. Admissibility214. The Court considers that the applicant's complaints under Article 3of the Convention concerning the conditions of his detention in Greece raisecomplex issues of law and fact, the determination of which requires anexamination of the merits.215. It follows that this part of the application is not manifestlyill-founded within the meaning of Article 35 § 3 of the Convention. Nor is itinadmissible on any other grounds. It must therefore be declared admissible.

216. The Court reiterates that the confinement of aliens, accompaniedby suitable safeguards for the persons concerned, is acceptable only in orderto enable States to prevent unlawful immigration while complying withtheir international obligations, in particular under the 1951 GenevaConvention relating to the Status of Refugees and the European Conventionon Human Rights. States' legitimate concern to foil the increasingly frequentattempts to circumvent immigration restrictions must not deprive asylumseekers of the protection afforded by these conventions (seeAmuur v.France,25 June 1996, § 43,Reports of Judgments and Decisions1996-III).217. Where the Court is called upon to examine the conformity of themanner and method of the execution of the measure with the provisions ofthe Convention, it must look at the particular situations of the personsconcerned (seeRiad and Idiab v. Belgium,nos. 29787/03 and 29810/03,§ 100, ECHR 2008-... (extracts)).218. The States must have particular regard to Article 3 of theConvention, which enshrines one of the most fundamental values ofdemocratic societies and prohibits in absolute terms torture and inhuman ordegrading treatment or punishment irrespective of the circumstances and ofthe victim's conduct (see, among other authorities,Labita v. Italy[GC],no. 26772/95, § 119, ECHR 2000-IV).219. The Court has held on numerous occasions that to fall within thescope of Article 3 the ill-treatment must attain a minimum level of severity.The assessment of this minimum is relative; it depends on all thecircumstances of the case, such as the duration of the treatment and itsphysical or mental effects and, in some instances, the sex, age and state ofhealth of the victim (see, for example,Kudła v. Poland[GC], no. 30210/96,§ 91, ECHR 2000-XI).220. The Court considers treatment to be “inhuman” when it was“premeditated, was applied for hours at a stretch and caused either actualbodily injury or intense physical or mental suffering”.Treatment is considered to be “degrading” when it humiliates or debasesan individual, showing a lack of respect for, or diminishing, his or herhuman dignity, or arouses feelings of fear, anguish or inferiority capable ofbreaking an individual's moral and physical resistance (ibid., § 92, andPretty v. the United Kingdom,no. 2346/02, § 52, ECHR 2002-III). It maysuffice that the victim is humiliated in his or her own eyes, even if not in theeyes of others (see, among other authorities,Tyrer v. the United Kingdom,25 April 1978, § 32, Series A no. 26). Lastly, although the question whetherthe purpose of the treatment was to humiliate or debase the victim is a factorto be taken into account, the absence of any such purpose cannot

conclusively rule out a finding of violation of Article 3 (seePeers v.Greece,no. 28524/95, § 74, ECHR 2001-III).221. Article 3 of the Convention requires the State to ensure thatdetention conditions are compatible with respect for human dignity, that themanner and method of the execution of the measure do not subject thedetainees to distress or hardship of an intensity exceeding the unavoidablelevel of suffering inherent in detention and that, given the practical demandsof imprisonment, their health and well-being are adequately secured(see, for example,Kudła,cited above, § 94).222. The Court has held that confining an asylum seeker to aprefabricated cabin for two months without allowing him outdoors or tomake a telephone call, and with no clean sheets and insufficient hygieneproducts, amounted to degrading treatment within the meaning of Article 3of the Convention (seeS.D. v. Greece,no. 53541/07, §§ 49 to 54,11 June 2009). Similarly, a period of detention of six days, in a confinedspace, with no possibility of taking a walk, no leisure area, sleeping on dirtymattresses and with no free access to a toilet is unacceptable with respect toArticle 3 (ibid., § 51). The detention of an asylum seeker for three monthson police premises pending the application of an administrative measure,with no access to any recreational activities and without proper meals hasalso been considered as degrading treatment (seeTabesh v. Greece,no. 8256/07, §§ 38 to 44, 26 November 2009). Lastly, the Court has foundthat the detention of an applicant, who was also an asylum seeker, for threemonths in an overcrowded place in appalling conditions of hygiene andcleanliness, with no leisure or catering facilities, where the dilapidated stateof repair of the sanitary facilities rendered them virtually unusable andwhere the detainees slept in extremely filthy and crowded conditionsamounted to degrading treatment prohibited by Article 3 (seeA.A. v.Greece,no. 12186/08, §§ 57 to 65, 22 July 2010).(b) Application in the present case

223. The Court notes first of all that the States which form the externalborders of the European Union are currently experiencing considerabledifficulties in coping with the increasing influx of migrants and asylumseekers. The situation is exacerbated by the transfers of asylum seekers byother Member States in application of the Dublin Regulation(see paragraphs 65-82 above). The Court does not underestimate the burdenand pressure this situation places on the States concerned, which are all thegreater in the present context of economic crisis. It is particularly aware ofthe difficulties involved in the reception of migrants and asylum seekers ontheir arrival at major international airports and of the disproportionatenumber of asylum seekers when compared to the capacities of some of theseStates. However, having regard to the absolute character of Article 3, thatcannot absolve a State of its obligations under that provision.

224. That being so, the Court does not accept the argument of the GreekGovernment that it should take these difficult circumstances into accountwhen examining the applicant's complaints under Article 3.225. The Court deems it necessary to take into account thecircumstances of the applicant's placement in detention and the fact that inspite of what the Greek Government suggest, the applicant did not, on theface of it, have the profile of an “illegal immigrant”. On the contrary,following the agreement on 4 June 2009 to take charge of the applicant, theGreek authorities were aware of the applicant's identity and of the fact thathe was a potential asylum seeker. In spite of that, he was immediatelyplaced in detention, without any explanation being given.226. The Court notes that according to various reports by internationalbodies and non-governmental organisations (see paragraph 160 above), thesystematic placement of asylum seekers in detention without informingthem of the reasons for their detention is a widespread practice of the Greekauthorities.227. The Court also takes into consideration the applicant's allegationsthat he was subjected to brutality and insults by the police during his secondperiod of detention. It observes that these allegations are not supported byany documentation such as a medical certificate and that it is not possible toestablish with certainty exactly what happened to the applicant. However,the Court is once again obliged to note that the applicant's allegations areconsistent with numerous accounts collected from witnesses byinternational organisations (see paragraph 160 above). It notes, in particular,that following its visit to the holding centre next to Athens internationalairport in 2007, the European Committee for the Prevention of Torturereported cases of ill-treatment at the hands of police officers (see paragraph163 above).228. The Court notes that the parties disagree about the sectors in whichthe applicant was held. The Government submit that he was held in twodifferent sectors and that the difference between the facilities in the twosectors should be taken into account. The applicant, on the other hand,claims that he was held in exactly the same conditions during both periodsof detention. The Court notes that the assignment of detainees to one sectoror another does not follow any strict pattern in practice but may varydepending on the number of detainees in each sector (see paragraph 165above). It is possible, therefore, that the applicant was detained twice in thesame sector. The Court concludes that there is no need for it to take intoaccount the distinction made by the Government on this point.229. It is important to note that the applicant's allegations concerningliving conditions in the holding centre are supported by similar findings bythe CPT (see paragraph 163 above), the UNHCR (see paragraph 213above), Amnesty International andMédecins sans Frontières – Greece

(paragraphs 165 and 166 above) and are not explicitly disputed by theGovernment.230. The Court notes that, according to the findings made byorganisations that visited the holding centre next to the airport, the sector forasylum seekers was rarely unlocked and the detainees had no access to thewater fountain outside and were obliged to drink water from the toilets. Inthe sector for arrested persons, there were 145 detainees in a 110 sq. mspace. In a number of cells there was only one bed for fourteen to seventeenpeople. There were not enough mattresses and a number of detainees weresleeping on the bare floor. There was insufficient room for all the detaineesto lie down and sleep at the same time. Because of the overcrowding, therewas a lack of sufficient ventilation and the cells were unbearably hot.Detainees' access to the toilets was severely restricted and they complainedthat the police would not let them out into the corridors. The police admittedthat the detainees had to urinate in plastic bottles which they emptied whenthey were allowed to use the toilets. It was observed in all sectors that therewas no soap or toilet paper, that sanitary and other facilities were dirty, thatthe sanitary facilities had no doors and the detainees were deprived ofoutdoor exercise.231. The Court reiterates that it has already considered that suchconditions, which are found in other detention centres in Greece, amountedto degrading treatment within the meaning of Article 3 of the Convention(see paragraph 222 above). In reaching that conclusion, it took into accountthe fact that the applicants were asylum seekers.232. The Court sees no reason to depart from that conclusion on thebasis of the Greek Government's argument that the periods when theapplicant was kept in detention were brief. It does not regard the duration ofthe two periods of detention imposed on the applicant – four days in June2009 and a week in August 2009 – as being insignificant. In the present casethe Court must take into account that the applicant, being an asylum seeker,was particularly vulnerable because of everything he had been throughduring his migration and the traumatic experiences he was likely to haveendured previously.233. On the contrary, in the light of the available information on theconditions at the holding centre near Athens airport, the Court considers thatthe conditions of detention experienced by the applicant were unacceptable.It considers that, taken together, the feeling of arbitrariness and the feelingof inferiority and anxiety often associated with it, as well as the profoundeffect such conditions of detention indubitably have on a person's dignity,constitute degrading treatment contrary to Article 3 of the Convention. Inaddition, the applicant's distress was accentuated by the vulnerabilityinherent in his situation as an asylum seeker.234. There has therefore been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTIONBY GREECE BECAUSE OF THE APPLICANT'S LIVINGCONDITIONS235. The applicant alleged that the state of extreme poverty in which hehad lived since he arrived in Greece amounted to inhuman and degradingtreatment within the meaning of Article 3, cited above.A. The parties' submissions1. The applicant236. The applicant complained that the Greek authorities had given himno information about possible accommodation and had done nothing toprovide him with any means of subsistence even though they were aware ofthe precarious situation of asylum seekers in general and of his case inparticular. He submitted that he had been given no information brochureabout the asylum procedure and that he had told the authorities several timesthat he was homeless. This was demonstrated, he submitted, by the words“no known place of residence” that appeared on the notification issued tohim on 18 June 2009.237. The applicant pointed out that steps had been taken to find himaccommodation only after he had informed the police, on 18 December2009, that his case was pending before the Court. He submitted that he hadpresented himself at the police headquarters a number of times in Decemberand early January 2010 and waited for hours to find out whether anyaccommodation had been found. As no accommodation was ever offered hehad, eventually, given up.238. With no means of subsistence, he, like many other Afghan asylumseekers, had lived in a park in the middle of Athens for many months. Hespent his days looking for food. Occasionally he received material aid fromthe local people and the church. He had no access to any sanitary facilities.At night he lived in permanent fear of being attacked and robbed. Hesubmitted that the resulting situation of vulnerability and material andpsychological deprivation amounted to treatment contrary to Article 3.239. The applicant considered that his state of need, anxiety anduncertainty was such that he had no option but to leave Greece and seekrefuge elsewhere.2. The Greek Government240. The Government submitted that the situation in which the applicanthad found himself after he had been released was the result of his ownchoices and omissions. The applicant had chosen to invest his resources in

fleeing the country rather than in accommodation. Furthermore, he hadwaited until 18 December 2009 before declaring that he was homeless. Hadhe followed the instructions in the notification of 18 June 2009 and gone tothe Attica police headquarters earlier to let them know he had nowhere tostay, the authorities could have taken steps to find him accommodation. TheGovernment pointed out that the words “no known place of residence” thatappeared on the notification he was given simply meant that he had notinformed the authorities of his address.241. Once the authorities had been informed of the applicant's situation,the necessary steps had been taken and he had now been found a place in ahostel. The authorities had been unable to inform the applicant of this,however, as he had left no address where they could contact him. Inaddition, since June 2009 the applicant had had a “pink card” that entitledhim to work, vocational training, accommodation and medical care, andwhich had been renewed twice.242. The Government argued that in such circumstances it was up to theapplicant to come forward and show an interest in improving his lot.Instead, however, everything he had done in Greece indicated that he had nowish to stay there.243. In any event the Greek Government submitted that to find in favourof the applicant would be contrary to the provisions of the Convention, noneof which guaranteed the right to accommodation or to political asylum. Torule otherwise would open the doors to countless similar applications fromhomeless persons and place an undue positive obligation on the States interms of welfare policy. The Government pointed out that the Court itselfhad stated that “while it is clearly desirable that every human being have aplace where he or she can live in dignity and which he or she can call home,there are unfortunately in the Contracting States many persons who have nohome. Whether the State provides funds to enable everyone to have a homeis a matter for political not judicial decision” (Chapmanv. the UnitedKingdom[GC], no. 27238/95, § 99, ECHR 2001-I).B. Observations of the European Commissioner for Human Rights,the Office of the United Nations High Commissioner for Refugees,the Aire Centre and Amnesty International, intervening as thirdparties244. The Commissioner pointed out that in comparison with the numberof asylum applications lodged in Greece each year, the country's receptioncapacity – which in February 2010 he said amounted to eleven receptioncentres with a total of 741 places – was clearly insufficient. He said that thematerial situation of asylum seekers was very difficult and mentioned themakeshift camp at Patras which, until July 2009, had housed around 3,000people, mainly Iraqis and Afghans, in unacceptable conditions from the

point of view of housing and hygiene standards. During his visit in February2010 he noted that in spite of the announcement made by the Government in2008, construction work on a centre capable of housing 1,000 people hadnot yet started. The police authorities in Patras had informed him that about70 % of the Afghans were registered asylum seekers and holders of “pinkcards”. He also referred to the case of three Afghans in the region of Patraswho had been in Greece for two years, living in cardboard shelters with nohelp from the Greek State. Only the local Red Cross had offered them foodand care.245. The UNHCR shared the same concern. According to data for 2009,there were twelve reception centres in Greece with a total capacity of 865places. An adult male asylum seeker had virtually no chance at all of beingoffered a place in a reception centre. Many lived in public spaces orabandoned houses or shared the exorbitant cost of a room with no supportfrom the State. According to a survey carried out from February to April2010, all the “Dublin” asylum seekers questioned were homeless. At thehearing the UNHCR emphasised how difficult it was to gain access to theAttica police headquarters – making it virtually impossible to comply withthe deadlines set by the authorities – because of the number of peoplewaiting and the arbitrary selection made by the security staff at the entranceto the building.246. According to the Aire Centre and Amnesty International, thesituation in Greece today is that asylum seekers are deprived not only ofmaterial support from the authorities but also of the right to provide for theirown needs. The extreme poverty thus produced should be considered astreatment contrary to Article 3 of the Convention, in keeping with theCourt's case-law in cases concerning situations of poverty brought about bythe unlawful action of the State.C. The Court's assessment1. Admissibility247. The Court considers that the applicant's complaints under Article 3of the Convention because of his living conditions in Greece raise complexissues of law and fact, the determination of which requires an examinationof the merits.248. It follows that this part of the application is not manifestlyill-founded within the meaning of Article 35 § 3 of the Convention. Nor is itinadmissible on any other grounds. It must therefore be declared admissible.

2. Merits249. The Court has already reiterated the general principles found in thecase-law on Article 3 of the Convention and applicable in the instant case(see paragraphs 216-222 above). It also considers it necessary to point outthat Article 3 cannot be interpreted as obliging the High Contracting Partiesto provide everyone within their jurisdiction with a home (seeChapman,cited above, § 99). Nor does Article 3 entail any general obligation to giverefugees financial assistance to enable them to maintain a certain standardof living (seeMüslim v. Turkey,no. 53566/99, § 85, 26 April 2005).250. The Court is of the opinion, however, that what is at issue in theinstant case cannot be considered in those terms. Unlike in the above-citedMüslim case (§§ 83 and 84), the obligation to provide accommodation anddecent material conditions to impoverished asylum seekers has now enteredinto positive law and the Greek authorities are bound to comply with theirown legislation, which transposes Community law, namely Directive2003/9 laying down minimum standards for the reception of asylum seekersin the Member States (“the Reception Directive” – see paragraph 84 above).What the applicant holds against the Greek authorities in this case is that,because of their deliberate actions or omissions, it has been impossible inpractice for him to avail himself of these rights and provide for his essentialneeds.251. The Court attaches considerable importance to the applicant'sstatus as an asylum seeker and, as such, a member of a particularlyunderprivileged and vulnerable population group in need of specialprotection (see,mutatis mutandis, Oršuš and Others v. Croatia[GC],no. 15766/03, § 147, ECHR 2010-...). It notes the existence of a broadconsensus at the international and European level concerning this need forspecial protection, as evidenced by the Geneva Convention, the remit andthe activities of the UNHCR and the standards set out in the EuropeanUnion Reception Directive.252. That said, the Court must determine whether a situation of extremematerial poverty can raise an issue under Article 3.253. The Court reiterates that it has not excluded “the possibility thatthe responsibility of the State may be engaged [under Article 3] in respect oftreatment where an applicant, who was wholly dependent on State support,found herself faced with official indifference in a situation of seriousdeprivation or want incompatible with human dignity” (seeBudina v.Russia,dec., no. 45603/05, ECHR 2009...).254. It observes that the situation in which the applicant has foundhimself is particularly serious. He allegedly spent months living in a state ofthe most extreme poverty, unable to cater for his most basic needs: food,hygiene and a place to live. Added to that was the ever-present fear of beingattacked and robbed and the total lack of any likelihood of his situation

improving. It was to escape from that situation of insecurity and of materialand psychological want that he tried several times to leave Greece.255. The Court notes in the observations of the EuropeanCommissioner for Human Rights and the UNHCR, as well as in the reportsof non-governmental organisations (see paragraph 160 above) that thesituation described by the applicant exists on a large scale and is theeveryday lot of a large number of asylum seekers with the same profile asthat of the applicant. For this reason the Court sees no reason to question thetruth of the applicant's allegations.256. The Greek Government argue that the applicant is responsible forhis situation, that the authorities acted with all due diligence and that heshould have done more to improve his situation.257. The parties disagree as to whether the applicant was issued withthe information brochure for asylum seekers. The Court fails to see therelevance of this, however, as the brochure does not state that asylumseekers can tell the police they are homeless, nor does it contain anyinformation about accommodation. As to the notification the applicantreceived informing him of the obligation to go to the Attica policeheadquarters to register his address (see paragraph 35 above), in the Court'sopinion its wording is ambiguous and cannot reasonably be considered assufficient information. It concludes that the applicant was not duly informedat any time of the possibilities of accommodation that were available to him,assuming that there were any.258. In any event the Court does not see how the authorities could havefailed to notice or to assume that the applicant was homeless in Greece. TheGovernment themselves acknowledge that there are fewer than 1,000 placesin reception centres to accommodate tens of thousands of asylum seekers.The Court also notes that, according to the UNHCR, it is a well-known factthat at the present time an adult male asylum seeker has virtually no chanceof getting a place in a reception centre and that according to a survey carriedout from February to April 2010, all the Dublin asylum seekers questionedby the UNHCR were homeless. Like the applicant, a large number of themlive in parks or disused buildings (see paragraphs 169, 244 and 242 above).259. Although the Court cannot verify the accuracy of the applicant'sclaim that he informed the Greek authorities of his homelessness severaltimes prior to December 2009, the above data concerning the capacity ofGreece's reception centres considerably reduce the weight of theGovernment's argument that the applicant's inaction was the cause of hissituation. In any event, given the particular state of insecurity andvulnerability in which asylum seekers are known to live in Greece, theCourt considers that the Greek authorities should not simply have waited forthe applicant to take the initiative of turning to the police headquarters toprovide for his essential needs.

260. The fact that a place in a reception centre has apparently beenfound in the meantime does not change the applicant's situation since theauthorities have not found any way of informing him of this fact. Thesituation is all the more disturbing in that this information was alreadyreferred to in the Government's observations submitted to the Courton 1 February 2010, and the Government informed the Grand Chamber thatthe authorities had seen the applicant on 21 June 2010 and handed him asummons without, however, informing him that accommodation had beenfound.261. The Court also fails to see how having a pink card could have beenof any practical use whatsoever to the applicant. The law does provide forasylum seekers who have been issued with pink cards to have access to thejob market, which would have enabled the applicant to try to solve hisproblems and provide for his basic needs. Here again, however, the reportsconsulted reveal that in practice access to the job market is so riddled withadministrative obstacles that this cannot be considered a realistic alternative(see paragraphs 160 and 172 above). In addition the applicant had personaldifficulties due to his lack of command of the Greek language, the lack ofany support network and the generally unfavourable economic climate.262. Lastly, the Court notes that the situation the applicant complains ofhas lasted since his transfer to Greece in June 2009. It is linked to his statusas an asylum seeker and to the fact that his asylum application has not yetbeen examined by the Greek authorities. In other words, the Court is of theopinion that, had they examined the applicant's asylum request promptly,the Greek authorities could have substantially alleviated his suffering.263. In the light of the above and in view of the obligations incumbenton the Greek authorities under the European Reception Directive(see paragraph 84 above), the Court considers that the Greek authoritieshave not had due regard to the applicant's vulnerability as an asylum seekerand must be held responsible, because of their inaction, for the situation inwhich he has found himself for several months, living in the street, with noresources or access to sanitary facilities, and without any means ofproviding for his essential needs. The Court considers that the applicant hasbeen the victim of humiliating treatment showing a lack of respect for hisdignity and that this situation has, without doubt, aroused in him feelings offear, anguish or inferiority capable of inducing desperation. It considers thatsuch living conditions, combined with the prolonged uncertainty in whichhe has remained and the total lack of any prospects of his situationimproving, have attained the level of severity required to fall within thescope of Article 3 of the Convention.264. It follows that, through the fault of the authorities, the applicant hasfound himself in a situation incompatible with Article 3 of the Convention.Accordingly, there has been a violation of that provision.

A. The parties' submissions1. The applicant267. The applicant submitted that he had fled Afghanistan after escapingan attempt on his life by the Taliban in reprisal for his having worked as aninterpreter for the international air force troops based in Kabul. Sincearriving in Europe he had had contacts with members of his family back inAfghanistan, who strongly advised him not to come home because theinsecurity and the threat of reprisals had grown steadily worse.268. The applicant wanted his fears to be examined and had applied forasylum in Greece for that purpose. He had no confidence in the functioningof the asylum procedure, however.269. Firstly, he complained about the practical obstacles he had faced.For example, he alleged that he had never been given an informationbrochure about the asylum procedure at the airport but had merely been told

that he had to go to the Attica police headquarters to register his address. Hehad not done so because he had had no address to register. He had beenconvinced that having an address was a condition for the procedure to be setin motion. He had subsequently presented himself, in vain, at the policeheadquarters on several occasions, where he had had to wait for hours, sofar without any prospect of his situation being clarified.270. Secondly, the applicant believed that he had escaped being sentback to his own country only because of the interim measure indicated bythe Court to the Greek Government. Apart from that “protection”, he had noguarantee at this stage that his asylum procedure would follow its course.Even if it did, the procedure offered no guarantee that the merits of his fearswould be seriously examined by the Greek authorities. He argued that hedid not have the wherewithal to pay for a lawyer's services, that there wasno provision for legal aid at this stage, that first-instance interviews wereknown to be superficial, that he would not have the opportunity to lodge anappeal with a body competent to examine the merits of his fears, that anappeal to the Supreme Administrative Court did not automatically havesuspensive effect and that the procedure was a lengthy one. According tohim, the almost non-existent record of cases where the Greek authorities hadgranted international protection of any kind whatsoever at first instance oron appeal showed how ineffective the procedure was.2. The Greek Government271. The Government submitted that the applicant had not suffered theconsequences of the alleged shortcomings in the asylum procedure andcould therefore not be considered as a victim for the purposes of theConvention.272. The applicant's attitude had to be taken into account: he had, inbreach of the legislation, failed to cooperate with the authorities and hadshown no interest in the smooth functioning of the procedure. By failing toreport to the Attica police headquarters in June 2009 he had failed tocomply with the formalities for initiating the procedure and had not takenthe opportunity to inform the police that he had no address, so that theycould notify him of any progress through another channel. Furthermore, hehad assumed different identities and attempted to leave Greece while hidingfrom the authorities the fact that he had applied for asylum there.273. The Government considered that the Greek authorities hadfollowed the statutory procedure in spite of the applicant's negligence andthe errors of his ways. They argued in particular that this was illustrated bythe fact that the applicant was still in Greece and had not been deported inspite of the situation he had brought upon himself by trying to leave thecountry in August 2009.274. In the alternative, the Government alleged that the applicant'scomplaints were unfounded. They maintained that Greek legislation was in

conformity with Community and international law on asylum, including thenon-refoulementprinciple. Greek law provided for the examination of themerits of asylum applications with regard to Articles 2 and 3 of theConvention. Asylum seekers had access to the services of an interpreter atevery step of the proceedings.275. The Government confirmed that the applicant's application forasylum had not yet been examined by the Greek authorities but assured theCourt that it would be, with due regard for the standards mentioned above.276. In conformity with Article 13 of the Convention, unsuccessfulasylum seekers could apply for judicial review to the SupremeAdministrative Court. According to the Government, such an appeal was aneffective safety net that offered the guarantees the Court had requested in itsBryan v. the United Kingdomjudgment (22 November 1995, § 47, Series Ano. 335-A). They produced various judgments in which the SupremeAdministrative Court had set aside decisions rejecting asylum applicationsbecause the authorities had failed to take into account certain documentsthat referred, for example, to a risk of persecution. In any event, theGovernment pointed out that providing asylum seekers whose applicationshad been rejected at first instance with an appeal on the merits was not arequirement of the Convention.277. According to the Government, complaints concerning possiblemalfunctions of the legal aid system should not be taken into accountbecause Article 6 did not apply to asylum procedures. In the same manner,any procedural delays before the Supreme Administrative Court fell withinthe scope of Article 6 of the Convention and could therefore not beexamined by the Court in the present case.278. Moreover, as long as the asylum procedure had not beencompleted, asylum seekers ran no risk of being returned to their country oforigin and could, if necessary, ask the Supreme Administrative Court to staythe execution of an expulsion order issued following a decision rejecting theasylum application, which would have the effect of suspending theenforcement of the measure. The Government provided several judgmentsin support of that affirmation.279. The Government averred in their oral observations before theGrand Chamber that even in the present circumstances the applicant ran norisk of expulsion to Afghanistan at any time as the policy at the momentwas not to send anyone back to that country by force. The forced returns bycharter flight that had taken place in 2009 concerned Pakistani nationalswho had not applied for asylum in Greece. The only Afghans who had beensent back to Afghanistan – 468 in 2009 and 296 in 2010 – had been sentback on a voluntary basis as part of the programme financed by theEuropean Return Fund. Nor was there any danger of the applicant beingsent to Turkey because, as he had been transferred to Greece by another

European Union Member State, he did not fall within the scope of thereadmission agreement concluded between Greece and Turkey.280. In their oral observations before the Grand Chamber, theGovernment further relied on the fact that the applicant had not kept theappointment of 21 June 2010 for an initial interview on 2 July 2010, whenthat interview would have been an opportunity for him to explain his fearsto the Greek authorities in the event of his return to Afghanistan. Itfollowed, according to the Government, that not only had the applicantshown no interest in the asylum procedure, but he had not exhausted theremedies under Greek law regarding his fears of a violation of Articles 2and 3 of the Convention.B. Observations of the European Commissioner for Human Rights,the Office of the United Nations High Commissioner for Refugees,the Aire Centre, Amnesty International and the Greek HelsinkiMonitor, intervening as third parties281. The Commissioner, the UNHCR, the Aire Centre, AmnestyInternational and GHM were all of the opinion that the current legislationand practice in Greece in asylum matters were not in conformity withinternational and European human rights protection standards. Theydeplored the lack of adequate information, or indeed of any properinformation at all about the asylum procedure, the lack of suitably trainedstaff to receive and process asylum applications, the poor quality of first-instance decisions owing to structural weaknesses and the lack of proceduralguarantees, in particular access to legal aid and an interpreter and theineffectiveness as a remedy of an appeal to the Supreme AdministrativeCourt because of the excessively long time it took, the fact that it had noautomatic suspensive effect and the difficulty in obtaining legal aid. Theyemphasised that “Dublin” asylum seekers were faced with the sameobstacles in practice as other asylum seekers.282. The Commissioner and the UNHCR expressed serious concernabout the continuing practice by the Greek authorities of forced returns toTurkey, be they collective or individual. The cases they had identifiedconcerned both persons arriving for the first time and those alreadyregistered as asylum seekers.C. The Court's assessment1. Admissibility283. The Greek Government submitted that the applicant was not avictim within the meaning of Article 34 of the Convention because he alone

was to blame for the situation, at the origin of his complaint, in which hefound himself and he had not suffered the consequences of anyshortcomings in the procedure. The Government further argued that theapplicant had not gone to the first interview at the Attica police headquarterson 2 July 2010 and had not given the Greek authorities a chance to examinethe merits of his allegations. This meant that he had not exhausted thedomestic remedies and the Government invited the Court to declare this partof the application inadmissible and reject it pursuant to Article 35 §§ 1 and4 of the Convention.284. The Court notes that the questions raised by the Government'spreliminary objections are closely bound up with those it will have toconsider when examining the complaints under Article 13 of theConvention taken in conjunction with Articles 2 and 3, because of thedeficiencies of the asylum procedure in Greece. They should therefore beexamined together with the merits of those complaints.285. Moreover, the Court considers that this part of the applicationraises complex issues of law and fact which cannot be determined withoutan examination of the merits. It follows that it is not manifestly ill-foundedwithin the meaning of Article 35 § 3(a) of the Convention. Nor is itinadmissible on any other grounds. It must therefore be declared admissible.2. Merits(a) Recapitulation of general principles

286. In cases concerning the expulsion of asylum seekers the Court hasexplained that it does not itself examine the actual asylum applications orverify how the States honour their obligations under the GenevaConvention. Its main concern is whether effective guarantees exist thatprotect the applicant against arbitraryrefoulement,be it direct or indirect, tothe country from which he or she has fled (see, among other authorities,T.I. v. the United Kingdom(dec. no. 43844/98, ECHR 2000-III), andMüslim,cited above, §§ 72 to 76).287. By virtue of Article 1 (which provides: “The High ContractingParties shall secure to everyone within their jurisdiction the rights andfreedoms defined in Section I of this Convention”), the primaryresponsibility for implementing and enforcing the guaranteed rights andfreedoms is laid on the national authorities. The machinery of complaint tothe Court is thus subsidiary to national systems safeguarding human rights.This subsidiary character is articulated in Articles 13 and 35 § 1 of theConvention (seeKudła v. Poland[GC], no. 30210/96, § 152, ECHR2000-XI).

288. As the Court has held on many occasions, Article 13 of theConvention guarantees the availability at national level of a remedy toenforce the substance of the Convention rights and freedoms in whateverform they may happen to be secured in the domestic legal order. The effectof Article 13 is thus to require the provision of a domestic remedy to dealwith the substance of an “arguable complaint” under the Convention and togrant appropriate relief. The scope of the Contracting States' obligationsunder Article 13 varies depending on the nature of the applicant's complaint;however, the remedy required by Article 13 must be “effective” in practiceas well as in law (seeKudlacited above, § 157).289. The “effectiveness” of a “remedy” within the meaning of Article 13does not depend on the certainty of a favourable outcome for the applicant.Nor does the “authority” referred to in that provision necessarily have to bea judicial authority; but if it is not, its powers and the guarantees which itaffords are relevant in determining whether the remedy before it is effective.Also, even if a single remedy does not by itself entirely satisfy therequirements of Article 13, the aggregate of remedies provided for underdomestic law may do so (seeGebremedhin [Gaberamadhien] v. France,no. 25389/05, § 53, ECHR 2007-V § 53).290. In order to be effective, the remedy required by Article 13 must beavailable in practice as well as in law, in particular in the sense that itsexercise must not be unjustifiably hindered by the acts or omissions of theauthorities of the respondent State (seeÇakıcı v. Turkey[GC],no. 23657/94, § 112, ECHR 1999-IV).291. Article 13 requires the provision of a domestic remedy allowing thecompetent national authority both to deal with the substance of the relevantConvention complaint and to grant appropriate relief, although ContractingStates are afforded some discretion as to the manner in which they conformto their obligations under this provision (seeJabari v. Turkey,no. 40035/98,§ 48, ECHR 2000-VIII).292. Particular attention should be paid to the speediness of the remedialaction itself, it not being excluded that the adequate nature of the remedycan be undermined by its excessive duration (seeDoran v. Ireland,no. 50389/99, § 57, ECHR 2003-X).293. Lastly, in view of the importance which the Court attaches toArticle 3 of the Convention and the irreversible nature of the damage whichmay result if the risk of torture or ill-treatment materialises, theeffectiveness of a remedy within the meaning of Article 13 imperativelyrequires close scrutiny by a national authority (seeShamayev and Others v.Georgia and Russia,no. 36378/02, § 448, ECHR 2005-III), independentand rigorous scrutiny of any claim that there exist substantial grounds forfearing a real risk of treatment contrary to Article 3 (seeJabari,cited above,§ 50), as well as a particularly prompt response (seeBatı and Others v.Turkey,nos. 33097/96 and 57834/00, § 136, ECHR 2004-IV (extracts)); it

294. In order to determine whether Article 13 applies to the present case,the Court must ascertain whether the applicant can arguably assert that hisremoval to Afghanistan would infringe Article 2 or Article 3 of theConvention.295. It notes that, when lodging his application the applicant produced,in support of his fears concerning Afghanistan, copies of certificatesshowing that he had worked as an interpreter (see paragraph 31 above). Italso has access to general information about the current situation inAfghanistan and to the Guidelines for Assessing the International ProtectionNeeds of Asylum-Seekers from Afghanistan published by the UNHCR andregularly updated (see paragraphs 197-202 above).296. For the Court, this information isprima facieevidence that thesituation in Afghanistan has posed and continues to pose a widespreadproblem of insecurity and that the applicant belongs to a category of personsparticularly exposed to reprisals at the hands of the anti-government forcesbecause of the work he did as an interpreter for the international air forces.It further notes that the gravity of the situation in Afghanistan and the risksthat exist there are not disputed by the parties. On the contrary, the GreekGovernment have stated that their current policy is not to send asylumseekers back to that country by force precisely because of the high-risksituation there.297. The Court concludes from this that the applicant has an arguableclaim under Article 2 or Article 3 of the Convention.298. This does not mean that in the present case the Court must rule onwhether there would be a violation of those provisions if the applicant werereturned. It is in the first place for the Greek authorities, who haveresponsibility for asylum matters, themselves to examine the applicant'srequest and the documents produced by him and assess the risks to which hewould be exposed in Afghanistan. The Court's primary concern is whethereffective guarantees exist in the present case to protect the applicant againstarbitrary removal directly or indirectly back to his country of origin.299. The Court notes that Greek legislation, based on Community lawstandards in terms of asylum procedure, contains a number of guaranteesdesigned to protect asylum seekers from removal back to the countries fromwhich they have fled without any examination of the merits of their fears(see paragraphs 99-121 above). It notes the Government's assurances thatthe applicant's application for asylum will be examined in conformity withthe law.

300. The Court observes, however, that for a number of years theUNHCR and the European Commissioner for Human Rights as well asmany international non-governmental organisations have revealedrepeatedly and consistently that Greece's legislation is not being applied inpractice and that the asylum procedure is marked by such major structuraldeficiencies that asylum seekers have very little chance of having theirapplications and their complaints under the Convention seriously examinedby the Greek authorities, and that in the absence of an effective remedy, atthe end of the day they are not protected against arbitrary removal back totheir countries of origin (see paragraphs 160 and 173-195 above).301. The Court notes, firstly, the shortcomings in access to the asylumprocedure and in the examination of applications for asylum(see paragraphs 173-188 above): insufficient information for asylum seekersabout the procedures to be followed, difficult access to the Attica policeheadquarters, no reliable system of communication between the authoritiesand the asylum seekers, shortage of interpreters and lack of training of thestaff responsible for conducting the individual interviews, lack of legal aideffectively depriving the asylum seekers of legal counsel, and excessivelylengthy delays in receiving a decision. These shortcomings affect asylumseekers arriving in Greece for the first time as well as those sent back therein application of the Dublin Regulation.302. The Court is also concerned about the findings of the differentsurveys carried out by the UNHCR, which show that almost allfirst-instance decisions are negative and drafted in a stereotyped mannerwithout any details of the reasons for the decisions being given (seeparagraph 184 above). In addition, the watchdog role played by the refugeeadvisory committees at second instance has been removed and the UNHCRno longer plays a part in the asylum procedure (see paragraphs 114 and 189above).303. The Government maintained that whatever deficiencies there mightbe in the asylum procedure, they had not affected the applicant's particularsituation.304. The Court notes in this connection that the applicant claims not tohave received any information about the procedures to be followed. Withoutwishing to question the Government's good faith concerning the principle ofan information brochure being made available at the airport, the Courtattaches more weight to the applicant's version because it is corroborated bya very large number of accounts collected from other witnesses by theCommissioner, the UNHCR and various non-governmental organisations.In the Court's opinion, the lack of access to information concerning theprocedures to be followed is clearly a major obstacle in accessing thoseprocedures.

305. The Government also criticised the applicant for not setting theprocedure in motion by going to the Attica police headquarters within thetime-limit prescribed in the notification.306. On this point the Court notes firstly that the three-day time-limit theapplicant was given was a very short one considering how difficult it is togain access to the police headquarters concerned.307. Also, it must be said that the applicant was far from the only one tohave misinterpreted the notice and that many asylum seekers do not go tothe police headquarters because they have no address to declare.308. Moreover, even if the applicant did receive the informationbrochure, the Court shares his view that the text is very ambiguous as to thepurpose of the convocation (see paragraph 112 above), and that nowhere isit stated that asylum seekers can inform the Attica police headquarters thatthey have no address in Greece, so that information can be sent to themthrough another channel.309. In such conditions the Court considers that the Government canscarcely rely on the applicant's failure to comply with this formality and thatthey should have proposed a reliable means of communicating with theapplicant so that he could follow the procedure effectively.310. Next, the Court notes that the parties agree that the applicant'sasylum request has not yet been examined by the Greek authorities.311. According to the Government, this situation is due at present to thefact that the applicant did not keep the appointment on 2 July 2010 to beinterviewed by the refugee advisory committee. The Government have notexplained the impact of that missed appointment on the progress of thedomestic proceedings. Be that as it may, the applicant informed the Court,through his counsel, that the convocation had been given to him in Greekwhen he renewed his pink card, and that the interpreter had made nomention of any date for an interview. Although not in a position to verifythe truth of the matter, the Court again attaches more weight to theapplicant's version, which reflects the serious lack of information andcommunication affecting asylum seekers.312. In such conditions the Court does not share the Government's viewthat the applicant, by his own actions, failed to give the domestic authoritiesan opportunity to examine the merits of his complaints and that he has notbeen affected by the deficiencies in the asylum procedure.313. The Court concludes that to date the Greek authorities have nottaken any steps to communicate with the applicant or reached any decisionin his case, offering him no real and adequate opportunity to defend hisapplication for asylum. What is more, the Court takes note of the extremelylow rate of asylum or subsidiary protection granted by the Greek authoritiescompared with other European Union member States (see paragraphs125-126 above). The importance to be attached to statistics varies, ofcourse, according to the circumstances, but in the Court's view they tend

here to strengthen the applicant's argument concerning his loss of faith inthe asylum procedure.314. The Court is not convinced by the Greek Government'sexplanations concerning the policy of returns to Afghanistan organised on avoluntary basis. It cannot ignore the fact that forced returns by Greece tohigh-risk countries have regularly been denounced by the third-partyinterveners and several of the reports consulted by the Court (see paragraphs160, 192 and 282).315. Of at least equal concern to the Court are the risks ofrefoulementthe applicant faces in practice before any decision is taken on the merits ofhis case. The applicant did escape expulsion in August 2009, by applicationof PD no. 90/2008 (see paragraphs 43-48 and 120 above). However, heclaimed that he had barely escaped a second attempt by the police to deporthim to Turkey. The fact that in both cases the applicant had been trying toleave Greece cannot be held against him when examining the conduct of theGreek authorities with regard to the Convention and when the applicant wasattempting to find a solution to a situation the Court considers contrary toArticle 3 (see paragraphs 263 and 264 above).316. The Court must next examine whether, as the Government alleged,an application to the Supreme Administrative Court for judicial review of apossible rejection of the applicant's request for asylum may be considered asa safety net protecting him against arbitraryrefoulement.317. The Court begins by observing that, as the Government havealleged, although such an application for judicial review of a decisionrejecting an asylum application has no automatic suspensive effect, lodgingan appeal against an expulsion order issued following the rejection of anapplication for asylum does automatically suspend enforcement of the order.318. However, the Court reiterates that the accessibility of a remedy inpractice is decisive when assessing its effectiveness. The Court has alreadynoted that the Greek authorities have taken no steps to ensurecommunication between the competent authorities and the applicant. Thatfact, combined with the malfunctions in the notification procedure in respectof “persons of no known address” reported by the European Commissionerfor Human Rights and the UNHCR (see paragraph 187 above), makes itvery uncertain whether the applicant will be able to learn the outcome of hisasylum application in time to react within the prescribed time-limit.319. In addition, although the applicant clearly lacks the wherewithal topay a lawyer, he has received no information concerning access toorganisations which offer legal advice and guidance. Added to that is theshortage of lawyers on the list drawn up for the legal aid system(see paragraphs 191 and 281 above), which renders the system ineffective inpractice. Contrary to the Government's submissions, the Court considersthat this situation may also be an obstacle hindering access to the remedy

and falls within the scope of Article 13, particularly where asylum seekersare concerned.320. Lastly, the Court cannot consider, as the Government havesuggested, that the length of the proceedings before the SupremeAdministrative Court is irrelevant for the purposes of Article 13. The Courthas already stressed the importance of swift action in cases concerningill-treatment by State agents (see paragraph 293 above). In addition itconsiders that such swift action is all the more necessary where, as in thepresent case, the person concerned has lodged a complaint under Article 3in the event of his deportation, has no procedural guarantee that the meritsof his complaint will be given serious consideration at first instance,statistically has virtually no chance of being offered any form of protectionand lives in a state of precariousness that the Court has found to be contraryto Article 3. It accordingly considers that the information supplied by theEuropean Commissioner for Human Rights concerning the length ofproceedings (see paragraph 190 above), which the Government have notcontradicted, is evidence that an appeal to the Supreme AdministrativeCourt does not offset the lack of guarantees surrounding the examination ofasylum applications on the merits.(c) Conclusion

321. In the light of the above, the preliminary objections raised by theGreek Government (see paragraph 283 above) cannot be accepted and theCourt finds that there has been a violation of Article 13 of the Conventiontaken in conjunction with Article 3 because of the deficiencies in the Greekauthorities' examination of the applicant's asylum request and the risk hefaces of being returned directly or indirectly to his country of origin withoutany serious examination of the merits of his asylum application and withouthaving access to an effective remedy.322. In view of that finding and of the circumstances of the case, theCourt considers that there is no need for it to examine the applicant'scomplaints lodged under Article 13 taken in conjunction with Article 2.IV. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THECONVENTION BY BELGIUM FOR EXPOSING THE APPLICANTTO THE RISKS ARISING FROM THE DEFICIENCIES IN THEASYLUM PROCEDURE IN GREECE323. The applicant alleged that by sending him to Greece under theDublin Regulation when they were aware of the deficiencies in the asylumprocedure in Greece and had not assessed the risk he faced, the Belgianauthorities had failed in their obligations under Articles 2 and 3 of theConvention, cited above.

A. The parties' submissions1. The applicant324. The applicant submitted that at the time of his expulsion theBelgian authorities had known that the asylum procedure in Greece was sodeficient that his application for asylum had little chance of being seriouslyexamined by the Greek authorities and that there was a risk of him beingsent back to his country of origin. In addition to the numerous internationalreports already published at the time of his expulsion, his lawyer had clearlyexplained the situation regarding the systematic violation of thefundamental rights of asylum seekers in Greece. He had done this in supportof the appeal lodged with the Aliens Appeals Board on 29 May 2009 andalso in the appeal lodged with the Indictments Chamber of the BrusselsCourt of Appeal on 10 June 2009. The applicant considered that the Belgianauthorities' argument that he could not claim to have been a victim of thedeficiencies in the Greek asylum system before coming to Belgium wasirrelevant. In addition to the fact that formal proof of this could not beadducedin abstractoand before the risk had materialised, the Belgianauthorities should have taken the general situation into account and nottaken the risk of sending him back.325. In the applicant's opinion, in keeping with what had been learntfrom the case ofT.I.(dec., cited above) the application of the DublinRegulation did not dispense the Belgian authorities from verifying whethersufficient guarantees againstrefoulementexisted in Greece, with regard tothe deficiencies in the procedure or the policy of direct or indirectrefoulementto Afghanistan. Without such guarantees and in view of theevidence adduced by the applicant, the Belgian authorities themselvesshould have verified the risk the applicant faced in his country of origin, inaccordance with Articles 2 and 3 of the Convention and with the Court'scase-law (in particular the case ofNA. v. the United Kingdom,no. 25904/07,17 July 2008). In this case, however, the Belgian Government had taken noprecautions before deporting him. On the contrary, the decision to deporthim had been taken solely on the basis of the presumption – by virtue of thetacit acceptance provided for in the Dublin Regulation – that the Greekauthorities would honour their obligations, without any individual guaranteeconcerning the applicant. The applicant saw this as a systematic practice ofthe Belgian authorities, who had always refused and continued to refuse toapply the sovereignty clause in the Dublin Regulation and not transferpeople to Greece.2. The Belgian Government326. The Government submitted that in application of the DublinRegulation Belgium was not responsible for examining the applicant's

request for asylum, and it was therefore not their task to examine theapplicant's fears for his life and his physical safety in Afghanistan. TheDublin Regulation had been drawn up with due regard for the principle ofnon-refoulementenshrined in the Geneva Convention, for fundamentalrights and for the principle that the Member States were safe countries. Onlyin exceptional circumstances, on a case-by-case basis, did Belgium availitself of the derogation from these principles provided for in Article 3 § 2 ofthe Regulation, and only where the person concerned showed convincinglythat he was at risk of being subjected to torture or inhuman or degradingtreatment within the meaning of Article 3. Indeed, that approach wasconsistent with the Court's case-law, which required there to be a linkbetween the general situation complained of and the applicant's individualsituation (as in the cases ofSultani,cited above,Thampibillai v. theNetherlands,no. 61350/00, 17 February 2004, andY. v. Russia,no. 20113/07, 4 December 2008).327. The Belgian Government did not know in exactly whatcircumstances the sovereignty clause was used, as no statistics wereprovided by the Aliens Office, and when use was made of it no reasonswere given for the decisions. However, in order to show that they did applythe sovereignty clause when the situation so required, the Governmentproduced ten cases where transfers to the country responsible had beensuspended for reasons related, by deduction, to the sovereignty clause. Inhalf of those cases Poland was the country responsible for the applications,in two cases it was Greece and in the other cases Hungary and France. Inseven cases the reason given was the presence of a family member inBelgium; in two, the person's health problems; and the last case concerned aminor. In the applicant's case Belgium had had no reason to apply the clauseand no information showing that he had personally been a victim in Greeceof treatment prohibited by Article 3. On the contrary, he had not told theAliens Office that he had abandoned his asylum application or informed itof his complaints against Greece. Indeed, the Court itself had not consideredit necessary to indicate an interim measure to the Belgian Government tosuspend the applicant's transfer.328. However, the Government pointed out that the order to leave thecountry had been issued based on the assurance that the applicant would notbe sent back to Afghanistan without the merits of his complaints havingbeen examined by the Greek authorities. Concerning access to the asylumprocedure and the course of that procedure, the Government relied on theassurances given by the Greek authorities that they had finally acceptedresponsibility, and on the general information contained in the summarydocument drawn up by the Greek authorities and in the observations Greecehad submitted to the Court in other pending cases. The Belgian authoritieshad noted, based on that information, that if an alien went through with anasylum application in Greece, the merits of the application would be

examined on an individual basis, the asylum seeker could be assisted by alawyer and an interpreter would be present at every stage of theproceedings. Remedies also existed, including an appeal to the SupremeAdministrative Court. Accordingly, although aware of the possibledeficiencies of the asylum system in Greece, the Government submitted thatthey had been sufficiently convinced of the efforts Greece was making tocomply with Community law and its obligations in terms of human rights,including its procedural obligations.329. As to the risk ofrefoulementto Afghanistan, the Government hadalso taken into account the assurances Greece had given the Court inK.R.S.v. the United Kingdom(dec. cited above) and the possibility for theapplicant, once in Greece, to lodge an application with the Court and, ifnecessary, a request for the application of Rule 39. On the strength of theseassurances, the Government considered that the applicant's transfer had notbeen in violation of Article 3.B. Observations of the Governments of the Netherlands and theUnited Kingdom, and of the Office of the United Nations HighCommissioner for Refugees, the Aire Centre and AmnestyInternational and the Greek Helsinki Monitor, intervening asthird parties330. According to the Government of the Netherlands, it did not followfrom the possible deficiencies in the Greek asylum system that the legalprotection afforded to asylum seekers in Greece was generally illusory,much less that the Member States should refrain from transferring people toGreece because in so doing they would be violating Article 3 of theConvention. It was for the Commission and the Greek authorities, with thelogistical support of the other Member States, and not for the Court, to worktowards bringing the Greek system into line with Community standards.The Government of the Netherlands therefore considered that they werefully assuming their responsibilities by making sure, through an official attheir embassy in Athens, that any asylum seekers transferred would bedirected to the asylum services at the international airport. In keeping withthe Court's decision inK.R.S.(cited above), it was to be assumed thatGreece would honour its international obligations and that transferees wouldbe able to appeal to the domestic courts and subsequently, if necessary, tothe Court. To reason otherwise would be tantamount to denying theprinciple of inter-State confidence on which the Dublin system was based,blocking the application of the Regulation by interim measures, andquestioning the balanced, nuanced approach the Court had adopted, forexample in its judgment in the case ofBosphorus Hava Yolları Turizm veTicaret Anonim Şirketi v. Ireland[GC] (no. 45036/98, ECHR 2005 VI), inassessing the responsibility of the States when they applied Community law.

331. The Government of the United Kingdom emphasised that theDublin Regulation afforded a fundamental advantage in speeding up theexamination of applications, so that the persons concerned did not have timeto develop undue social and cultural ties in a State. That being so, it shouldbe borne in mind that calling to account under Article 3 the Stateresponsible for the asylum application prior to the transfer, as in the presentcase, was bound to slow down the whole process no end. The Governmentof the United Kingdom were convinced that such complaints, which wereunderstandable in cases of expulsion to a State not bound by theConvention, should be avoided when the State responsible for handling theasylum application was a party to the Convention. In such cases, as theCourt had found inK.R.S.decision (cited above), the normal interpretationof the Convention would mean the interested parties lodging theircomplaints with the courts in the State responsible for processing theasylum application and subsequently, perhaps, to the Court. According tothe United Kingdom Government, this did not absolve the transferringStates of their responsibility for potential violations of the Convention, butit meant that their responsibility could be engaged only in whollyexceptional circumstances where it was demonstrated that the personsconcerned would not have access to the Court in the State responsible fordealing with the asylum application. No such circumstances were present inthe instant case, however.332. In the opinion of the UNHCR, as they had already stated in theirreport published in April 2008, asylum seekers should not be transferredwhen, as in the present case, there was evidence that the State responsiblefor processing the asylum application effected transfers to high-riskcountries, that the persons concerned encountered obstacles in their accessto asylum procedures, to the effective examination of their applications andto an effective remedy, and where the conditions of reception could result ina violation of Article 3 of the Convention. Not transferring asylum seekersin these conditions was provided for in the Dublin Regulation itself and wasfully in conformity with Article 33 of the Geneva Convention and with theConvention. The UNHCR stressed that this was not a theoretical possibilityand that, unlike in Belgium, the courts in certain States had suspendedtransfers to Greece for the above-mentioned reasons. In any event, as theCourt had clearly stated in the case ofT.I.(dec. cited above), eachContracting State remained responsible under the Convention for notexposing people to treatment contrary to Article 3 through the automaticapplication of the Dublin system.333. The Aire Centre and Amnesty International considered that in itspresent form, without a clause on the suspension of transfers to countriesunable to honour their international obligations in asylum matters, theDublin Regulation exposed asylum seekers to a risk ofrefoulementinbreach of the Convention and the Geneva Convention. They pointed out

considerable disparities in the way European Union Member States appliedthe Regulation and the domestic courts assessed the lawfulness of thetransfers when it came to evaluating the risk of violation of fundamentalrights, in particular when the State responsible for dealing with the asylumapplication had not properly transposed the other Community measuresrelating to asylum. The Aire Centre and Amnesty International consideredthat States which transferred asylum seekers had their share of responsibilityin the way the receiving States treated them, in so far as they could preventhuman rights violations by availing themselves of the sovereignty clause inthe Regulation. The possibility for the European Commission to take actionagainst the receiving State for failure to honour its obligations was not, intheir opinion, an effective remedy against the violation of the asylumseekers' fundamental rights. Nor were they convinced, as the CJEU had notpronounced itself on the lawfulness of Dublin transfers when they couldlead to such violations, of the efficacy of the preliminary question procedureintroduced by the Treaty of Lisbon.334. GHM pointed out that at the time of the applicant's expulsion therehad already been a substantial number of documents attesting to thedeficiencies in the asylum procedure, the conditions in which asylumseekers were received and the risk of direct or indirectrefoulementtoTurkey. GHM considered that the Belgian authorities could not have beenunaware of this, particularly as the same documents had been used ininternal procedures to order the suspension of transfers to Greece.According to GHM, the documents concerned, particularly those of theUNHCR, should make it possible to reverse the Court's presumption inK.R.S.(dec. cited above) that Greece fulfilled its international obligations inasylum matters.C. The Court's assessment1. Admissibility335. The Belgian Government criticised the applicant for not havingcorrectly used the procedure for applying for a stay of execution under theextremely urgent procedure, not having lodged an appeal with the AliensAppeals Board to have the order to leave the country set aside and nothaving lodged an administrative appeal on points of law with theConseild'Etat.They accordingly submitted that he had not exhausted the domesticremedies and invited the Court to declare this part of the applicationinadmissible and reject it pursuant to Article 35 §§ 1 and 4 of theConvention.336. The Court notes that the applicant also complained of not havinghad a remedy that met the requirements of Article 13 of the Convention forhis complaints under Articles 2 and 3, and maintained, in this context, that

the remedies in question were not effective within the meaning of thatprovision (see paragraphs 370-377 below). It considers that theGovernment's objection of non-exhaustion of domestic remedies should bejoined to the merits of the complaints under Article 13 taken in conjunctionwith Articles 2 and 3 of the Convention and examined together.337. That said, the Court considers that this part of the applicationcannot be rejected for non-exhaustion of domestic remedies (see paragraphs385-396 below) and that it raises complex issues of law and fact whichcannot be determined without an examination of the merits; it follows that itis not manifestly ill-founded within the meaning of Article 35 § 3 of theConvention. Nor is it inadmissible on any other grounds. It must thereforebe declared admissible.2. The responsibility of Belgium under the Convention338. The Court notes the reference to theBosphorusjudgment by theGovernment of the Netherlands in their observations lodged as third-partyinterveners (see paragraph 330 above).The Court reiterated in that case that the Convention did not prevent theContracting Parties from transferring sovereign powers to an internationalorganisation for the purposes of cooperation in certain fields of activity(seeBosphorus,cited above, § 152). The States nevertheless remainresponsible under the Convention for all actions and omissions of theirbodies under their domestic law or under their international legal obligations(ibid., § 153). State action taken in compliance with such legal obligationsis justified as long as the relevant organisation is considered to protectfundamental rights in a manner which can be considered at least equivalentto that for which the Convention provides. However, a State would be fullyresponsible under the Convention for all acts falling outside its strictinternational legal obligations, notably where it exercised State discretion(ibid., §§ 155-57).The Court found that the protection of fundamental rights afforded byCommunity law was equivalent to that provided by the Convention system(ibid., § 165). In reaching that conclusion it attached great importance to therole and powers of the ECJ – now the CJEU – in the matter, considering inpractice that the effectiveness of the substantive guarantees of fundamentalrights depended on the mechanisms of control set in place to ensure theirobservance (ibid., § 160). The Court also took care to limit the scope of theBosphorusjudgment to Community law in the strict sense – at the time the“first pillar” of European Union law (ibid., § 72).339. The Court notes that Article 3 § 2 of the Dublin Regulationprovides that, by derogation from the general rule set forth in Article 3 § 1,each Member State may examine an application for asylum lodged with itby a third-country national, even if such examination is not its responsibilityunder the criteria laid down in the Regulation. This is the so-called

“sovereignty” clause. In such a case the State concerned becomes theMember State responsible for the purposes of the Regulation and takes onthe obligations associated with that responsibility.340. The Court concludes that, under the Regulation, the Belgianauthorities could have refrained from transferring the applicant if they hadconsidered that the receiving country, namely Greece, was not fulfilling itsobligations under the Convention. Consequently, the Court considers thatthe impugned measure taken by the Belgian authorities did not strictly fallwithin Belgium's international legal obligations. Accordingly, thepresumption of equivalent protection does not apply in this case.3. Merits of the complaints under Articles 2 and 3 of the Convention(a) TheT.I.andK.R.S.decisions

341. In these two cases the Court had the opportunity to examine theeffects of the Dublin Convention, then the Dublin Regulation with regard tothe Convention.342. The case ofT.I.(dec., cited above) concerned a Sri Lankan nationalwho had unsuccessfully sought asylum in Germany and had then submitteda similar application in the United Kingdom. In application of the DublinConvention, the United Kingdom had ordered his transfer to GermanyIn its decision the Court considered that indirect removal to anintermediary country, which was also a Contracting Party, left theresponsibility of the transferring State intact, and that State was required, inaccordance with the well-established case-law, not to deport a person wheresubstantial grounds had been shown for believing that the person inquestion, if expelled, would face a real risk of being subjected to treatmentcontrary to Article 3 in the receiving country.Furthermore, the Court reiterated that where States cooperated in an areawhere there might be implications as to the protection of fundamental rights,it would be incompatible with the purpose and object of the Convention ifthey were absolved of all responsibilityvis-à-visthe Convention in the areaconcerned (see, among other authorities,Waite and Kennedy v. Germany[GC], no. 26083/94, § 67, ECHR 1999-I).When they apply the Dublin Regulation, therefore, the States must makesure that the intermediary country's asylum procedure affords sufficientguarantees to avoid an asylum seeker being removed, directly or indirectly,to his country of origin without any evaluation of the risks he faces from thestandpoint of Article 3 of the Convention.Although in theT. I.case the Court rejected the argument that the factthat Germany was a party to the Convention absolved the United Kingdomfrom verifying the fate that awaited an asylum seeker it was about totransfer to that country, the fact that the asylum procedure in Germanyapparently complied with the Convention, and in particular Article 3,

enabled the Court to reject the allegation that the applicant's removal toGermany would make him run a real and serious risk of treatment contraryto that Article. The Court considered that there was no reason in thatparticular case to believe that Germany would have failed to honour itsobligations under Article 3 of the Convention and protect the applicant fromremoval to Sri Lanka if he submitted credible arguments demonstrating thathe risked ill-treatment in that country.343. That approach was confirmed and developed in theK.R.S.decision(cited above). The case concerned the transfer by the United Kingdomauthorities, in application of the Dublin Regulation, of an Iranian asylumseeker to Greece, through which country he had passed before arriving inthe United Kingdom in 2006. Relying on Article 3 of the Convention, theapplicant complained of the deficiencies in the asylum procedure in Greeceand the risk of being sent back to Iran without the merits of his asylumapplication being examined, as well as the reception reserved for asylumseekers in Greece.After having confirmed the applicability of theT.I.case-law to theDublin Regulation (see also on this pointStapleton v. Ireland(dec.),no. 56588/07, § 30, ECHR 2010-...), the Court considered that in theabsence of proof to the contrary it must assume that Greece complied withthe obligations imposed on it by the Community directives laying downminimum standards for asylum procedures and the reception of asylumseekers, which had been transposed into Greek law, and that it wouldcomply with Article 3 of the Convention.In the Court's opinion, in view of the information available at the time tothe United Kingdom Government and the Court, it was possible to assumethat Greece was complying with its obligations and not sending anybodyback to Iran, the applicant's country of origin.Nor was there any reason to believe that persons sent back to Greeceunder the Dublin Regulation, including those whose applications for asylumhad been rejected by a final decision of the Greek authorities, had been orcould be prevented from applying to the Court for an interim measure underRule 39 of the Rules of Court.(b) Application of these principles to the present case

346. The Court disagrees with the Belgian Government's argument that,because he failed to voice them at his interview, the Aliens Office had notbeen aware of the applicant's fears in the event of his transfer back toGreece at the time when it issued the order for him to leave the country.347. The Court observes first of all that numerous reports and materialshave been added to the information available to it when it adopted itsK.R.S.decision in 2008. These reports and materials, based on field surveys, allagree as to the practical difficulties involved in the application of the Dublinsystem in Greece, the deficiencies of the asylum procedure and the practiceof direct or indirectrefoulementon an individual or a collective basis.348. The authors of these documents are the UNHCR and the EuropeanCommissioner for Human Rights, international non-governmentalorganisations like Amnesty International, Human Rights Watch, Pro-Asyland the European Council on Refugees and Exiles, and non-governmentalorganisations present in Greece such as Greek Helsinki Monitor and theGreek National Commission for Human Rights (see paragraph 160 above).The Court observes that such documents have been published at regularintervals since 2006 and with greater frequency in 2008 and 2009, and thatmost of them had already been published when the expulsion order againstthe applicant was issued.349. The Court also attaches critical importance to the letter sent by theUNHCR in April 2009 to the Belgian Minister in charge of immigration.The letter, which states that a copy was also being sent to the Aliens Office,contained an unequivocal plea for the suspension of transfers to Greece(see paragraphs 194 and 195 above).350. Added to this is the fact that since December 2008 the Europeanasylum system itself has entered a reform phase and that, in the light of thelessons learnt from the application of the texts adopted during the firstphase, the European Commission has made proposals aimed at substantiallystrengthening the protection of the fundamental rights of asylum seekers andimplementing a temporary suspension of transfers under the DublinRegulation to avoid asylum seekers being sent back to Member Statesunable to offer them a sufficient level of protection of their fundamentalrights (see paragraphs 77-79 above).351. Furthermore, the Court notes that the procedure followed by theAliens Office in application of the Dublin Regulation left no possibility forthe applicant to state the reasons militating against his transfer to Greece.The form the Aliens Office filled in contains no section for such comments(see paragraph 130 above).352. In these conditions the Court considers that the general situationwas known to the Belgian authorities and that the applicant should not beexpected to bear the entire burden of proof. On the contrary, it considers itestablished that in spite of the few examples of application of thesovereignty clause produced by the Government, which, incidentally, do not

concern Greece, the Aliens Office systematically applied the DublinRegulation to transfer people to Greece without so much as considering thepossibility of making an exception.353. The Belgian Government argued that in any event they had soughtsufficient assurances from the Greek authorities that the applicant faced norisk of treatment contrary to the Convention in Greece. In that connection,the Court observes that the existence of domestic laws and accession tointernational treaties guaranteeing respect for fundamental rights inprinciple are not in themselves sufficient to ensure adequate protectionagainst the risk of ill-treatment where, as in the present case, reliablesources have reported practices resorted to or tolerated by the authoritieswhich are manifestly contrary to the principles of the Convention(see,mutatis mutandis, Saadi v. Italy[GC], no. 37201/06, § 147, ECHR2008-...).354. The Court is also of the opinion that the diplomatic assurancesgiven by Greece to the Belgian authorities did not amount to a sufficientguarantee. It notes first of all that the agreement to take responsibility inapplication of the Dublin Regulation was sent by the Greek authorities afterthe order to leave the country had been issued, and that the expulsion orderhad therefore been issued solely on the basis of a tacit agreement by theGreek authorities. Secondly, it notes that the agreement document is wordedin stereotyped terms (see paragraph 24 above) and contains no guaranteeconcerning the applicant in person. No more did the information documentthe Belgian Government mentioned, provided by the Greek authorities,contain any individual guarantee; it merely referred to the applicablelegislation, with no relevant information about the situation in practice.355. The Court next rejects the Government's argument that the Courtitself had not considered it necessary to indicate an interim measure underRule 39 to suspend the applicant's transfer. It reiterates that in cases such asthis, where the applicant's expulsion is imminent at the time when the matteris brought to the Court's attention, it must take an urgent decision. Themeasure indicated will be a protective measure which on no accountprejudges the examination of the application under Article 34 of theConvention. At this stage, when an interim measure is indicated, it is not forthe Court to analyse the case in depth – and indeed it will often not have allthe information it needs to do so (see,mutatis mutandis, Paladi v. Moldova[GC], no. 39806/05, § 89, ECHR 2009-...). In the instant case, moreover,the letters sent by the Court clearly show that, fully aware of the situation inGreece, it asked the Greek Government to follow the applicant's caseclosely and to keep it informed (see paragraphs 32 and 39, above).356. The respondent Government, supported by the third-partyintervening Governments, lastly submitted that asylum seekers should lodgeapplications with the Court only against Greece, after having exhausted thedomestic remedies in that country, if necessary requesting interim measures.

357. While considering that this is in principle the most normal courseof action under the Convention system, the Court deems that its analysis ofthe obstacles facing asylum seekers in Greece clearly shows thatapplications lodged there at this point in time are illusory. The Court notesthat the applicant is represented before it by the lawyer who defended himin Belgium. Considering the number of asylum applications pending inGreece, no conclusions can be drawn from the fact that some asylumseekers have brought cases before the Court against Greece. In thisconnection it also takes into account the very small number of Rule 39requests for interim measures against Greece lodged by asylum seekers inthat country, compared with the number lodged by asylum seekers in theother States.358. In the light of the foregoing, the Court considers that at the time ofthe applicant's expulsion the Belgian authorities knew or ought to haveknown that he had no guarantee that his asylum application would beseriously examined by the Greek authorities. They also had the means ofrefusing to transfer him.359. The Government argued that the applicant had not sufficientlyindividualised, before the Belgian authorities, the risk of having no access tothe asylum procedure and being sent back by the Greek authorities. TheCourt considers, however, that it was in fact up to the Belgian authorities,faced with the situation described above, not merely to assume that theapplicant would be treated in conformity with the Convention standards but,on the contrary, to first verify how the Greek authorities applied theirlegislation on asylum in practice. Had they done this, they would have seenthat the risks the applicant faced were real and individual enough to fallwithin the scope of Article 3. The fact that a large number of asylum seekersin Greece find themselves in the same situation as the applicant does notmake the risk concerned any less individual where it is sufficiently real andprobable (see,mutatis mutandis, Saadi,cited above, § 132).(c) Conclusion

V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTIONBY BELGIUM FOR EXPOSING THE APPLICANT TOCONDITIONS OF DETENTION AND LIVING CONDITIONSCONTRARY TO ARTICLE 3362. The applicant alleged that because of the conditions of detentionand existence to which asylum seekers were subjected in Greece, byreturning him to that country in application of the Dublin Regulation theBelgian authorities had exposed him to treatment prohibited by Article 3 ofthe Convention, cited above.363. The Government disputed that allegation, just as it refused to see aviolation of Article 3 because of the applicant's expulsion and the ensuingrisk resulting from the deficiencies in the asylum procedure.364. The Court considers that the applicant's allegations under theabove-cited provision of the Convention raise complex issues of law andfact which cannot be determined without an examination of the merits; itfollows that this part of the application is not manifestly ill-founded withinthe meaning of Article 35 § 3 of the Convention. Nor is it inadmissible onany other grounds. It must therefore be declared admissible.365. On the merits, the Court reiterates that according to itswell-established case-law the expulsion of an asylum seeker by aContracting State may give rise to an issue under Article 3, and henceengage the responsibility of that State under the Convention, wheresubstantial grounds have been shown for believing that the personconcerned faces a real risk of being subjected to torture or inhuman ordegrading treatment or punishment in the receiving country. In suchcircumstances, Article 3 implies an obligation not to expel the individual tothat country (seeSoering v. the United Kingdom,judgment of 7 July 1989,Series A no. 161, §§ 90-91;Vilvarajah and Others v. the United Kingdom,judgment of 30 October 1991, Series A no. 125, § 103;H.L.R. v. France,judgment of 29 April 1997, Reports 1997-III, § 34;Jabaricited above,§ 38;Salah Sheekh v. the Netherlands,no. 1948/04, § 135, ECHR 2007-I(extracts), no. 1948/04; andSaadi,cited above, § 152).366. In the instant case the Court has already found the applicant'sconditions of detention and living conditions in Greece degrading(see paragraphs 233, 234, 263 and 264 above). It notes that these facts werewell known before the transfer of the applicant and were freelyascertainable from a wide number of sources (see paragraphs 162-164above). It also wishes to emphasise that it cannot be held against theapplicant that he did not inform the Belgian administrative authorities of thereasons why he did not wish to be transferred to Greece. It has establishedthat the procedure before the Aliens Office made no provision for suchexplanations and that the Belgian authorities applied the Dublin Regulationsystematically (see paragraph 352 above).

367. Based on these conclusions and on the obligations incumbent onthe States under Article 3 of the Convention in terms of expulsion, the Courtconsiders that by transferring the applicant to Greece the Belgian authoritiesknowingly exposed him to conditions of detention and living conditions thatamounted to degrading treatment.368. That being so, there has been a violation of Article 3 of theConvention.VI. ALLEGED VIOLATION BY BELGIUM OF ARTICLE 13 TAKENIN CONJUNCTION WITH ARTICLES 2 AND 3 OF THECONVENTION BECAUSE OF THE LACK OF AN EFFECTIVEREMEDY AGAINST THE EXPULSION ORDER369. The applicant maintained that there was no remedy under Belgianlaw, as required by Article 13 of the Convention, cited above, by which hecould have complained about the alleged violations of Articles 2 and 3 ofthe Convention.A. The parties' submissions1. The applicant370. The applicant submitted that he had acted as swiftly as possible inthe circumstances in lodging a first application for a stay of execution of theexpulsion measure under the extremely urgent procedure. He had come upagainst practical obstacles, however, which had hindered his access to theurgent procedure.371. First, he explained that on the day the order to leave the countrywas issued, on 19 May 2009, he was taken into custody and placed in aclosed centre for illegal aliens. Not until five days later, after the longAscension Day weekend, had a lawyer been appointed, at his request, by theBelgian authorities, or had the Belgian Committee for Aid to Refugees atleast been able to identify that lawyer to pass on general information to himconcerning Dublin asylum seekers. This first lawyer, who was not aspecialist in asylum cases, lodged an application for a stay of executionunder the extremely urgent procedure after having had the file for threedays, which in the applicant's opinion was by no means an excessively longtime.372. Secondly, the case had been scheduled for examination only onehour after the application was lodged, preventing the applicant's lawyer,whose office was 130 km away from the Aliens Appeals Board, fromattending the hearing. According to the applicant, his counsel had had nopractical means of having himself represented because it was not the task of

the permanent assistance service of the “aliens” section of the legal aidoffice to replace in an emergency lawyers who could not attend a hearing. Insupport of this affirmation he adduced a note written by the president of thesection concerned. The applicant further submitted that as his departure wasnot imminent but scheduled for 27 May, his request might well have beenrejected anyway because there was no urgency.373. In addition to the practical inaccessibility of the urgent procedurein his case, the applicant submitted that in any event appeals before theAliens Appeals Board were not an effective remedy within the meaning ofArticle 13 of the Convention in respect of the risk of violations of Articles 2and 3 in the event of expulsion. It could therefore not be held against himthat he had failed to exhaust that remedy.374. First, he submitted that at the time of his removal his request for astay of execution had no chance of succeeding because of the constant case-law of certain divisions of the Aliens Appeals Board, which systematicallyfound that there was no virtually irreparable damage because it was to bepresumed that Greece would fulfil its international obligations in asylummatters, and that presumption could not be rebutted based on reports on thegeneral situation in Greece, without the risk to the person beingdemonstratedin concreto.Only a handful of judgments to the contrary hadbeen delivered, but in a completely unforeseeable manner and with noexplanation of the reasons.375. In the applicant's opinion this increase in the burden of proofwhere the individuals concerned demonstrated that they belonged to avulnerable group who were systematically subjected in Greece to treatmentcontrary to Article 3 of the Convention made appeals to the Aliens AppealsBoard totally ineffective. Subsequent events had proved him right as he hadeffectively suffered,in concreto,from the very risks of which he hadcomplained.376. Subsequently, once his application under the extremely urgentprocedure had been rejected, there had no longer been any point in theapplicant continuing the proceedings on the merits as these would have hadno suspensive effect and could not have prevented his removal. In fact itwas the constant practice of the Aliens Appeals Board to dismiss suchappeals because in such conditions the applicants no longer had any interestin having the measure set aside. Lastly, even if the Aliens Appeals Boardhad not declared the case inadmissible on that ground, the applicant couldnot have had the order to leave the country set aside because of the aforesaidconstant case-law.377. The applicant added that where administrative appeals on points oflaw against judgments of this type were lodged with theConseil d'Etatthelatter did not question the approach of the Aliens Appeals Board andconsidered that the situation raised no issue under Article 13 of theConvention.

2. The Belgian Government378. The Belgian Government affirmed that the applicant had hadseveral remedies open to him before the domestic courts that met therequirements of Article 13 of the Convention, but he had not properlyexhausted them.379. On the question of the extremely urgent procedure for applying fora stay of execution the Government pointed out that appeals could be lodgedwith the Aliens Appeals Board at any time, without interruption and withsuspensive effect, and that the Court had confirmed the effectiveness of theprocedure in the case ofQuraishi v. Belgium(application no. 6130/08,decision of 12 May 2009). They alleged that the applicant had placedhimself in an urgent situation by appealing to the Aliens Appeals Boardonly a few hours before his departure, when he had been taken into custodyten days earlier, under an order to leave the country. Penalising anapplicant's lack of diligence was a long-standing practice of theConseild'Etat,and was justified by the exceptional nature of the procedure, whichreduced the rights of the defence and the investigation of the case to aminimum. The fact that the flight had not been scheduled until 27 May wasimmaterial because, except in the example given by the applicant, theconstant case-law of the Aliens Appeals Board showed that deprivation ofliberty sufficed to justify the imminent nature of the danger.380. Furthermore there was the fact that, in view of its urgency, the casehad been scheduled for immediate examination but no one had attended thehearing, even though the applicant's counsel could have asked thepermanent service of the legal aid office in Brussels to represent him beforethe Aliens Appeals Board.381. The Government disputed the applicant's argument that his requestfor a stay of execution had no chance of succeeding, producing five of theBoard's judgments from 2008 and 2009 ordering the suspension of transfersto Greece under the extremely urgent procedure on the grounds that, in viewof the gravity of the applicants' complaints under Article 3 of theConvention, the order to leave the country was not,prima facie,sufficientlywell-reasoned. According to the Government it was always in theapplicants' interest to proceed with their applications for judicial review soas to give the Aliens Appeals Board and then theConseil d'Etatanopportunity to propose a solution and analyse the lawfulness of theimpugned measures.382. The fact that the applicant had been removed in the interim shouldnot have deterred him from continuing. In support of that affirmation theGovernment cited the Aliens Appeals Board's judgment no. 28.233 of 29May 2009, which had declared an appeal admissible even though theapplicant had already been transferred. The application was subsequentlydismissed because there had no longer been any interest at stake for theapplicant as the application concerned the order to leave the country and he

had not demonstratedin concretothat there had been any violation ofArticle 3 of the Convention.383. Concerning the merits, the Government confirmed that, as it didwhen determining the existence of irreparable damage at the suspensionstage, the constant case-law of the Aliens Appeals Board, which was in factbased on that of the Court, required the applicants to demonstrate theconcrete risk they faced. However, just as the effectiveness of a remedywithin the meaning of Article 13 did not depend on the certainty of it havinga favourable outcome, the Government submitted that the prospect of anunfavourable outcome on the merits should not be a consideration inevaluating the effectiveness of the remedy.384. The UNHCR, intervening as a third party, considered that theconstant case-law of the Aliens Appeals Board and theConseild'Etateffectively doomed to failure any application for the suspension orreview of an order to leave the country issued in application of the DublinRegulation, as the individuals concerned were unable to provide concreteproof both that they faced an individual risk and that it was impossible forthem to secure protection in the receiving country. In adopting that approachthe Belgian courts automatically relied on the Dublin Regulation and failedto assume their higher obligations under the Convention and theinternational law on refugees.B. The Court's assessment385. The Court has already found that the applicant's expulsion toGreece by the Belgian authorities amounted to a violation of Article 3 of theConvention (see paragraphs 359 and 360 above). The applicant's complaintsin that regard are therefore “arguable” for the purposes of Article 13.386. The Court notes first of all that in Belgian law an appeal to theAliens Appeals Board to set aside an expulsion order does not suspend theenforcement of the order. However, the Government pointed out that arequest for a stay of execution could be lodged before the same court “underthe extremely urgent procedure” and that unlike the extremely urgentprocedure that used to exist before theConseil d'Etat,the procedure beforethe Aliens Appeals Board automatically suspended the execution of theexpulsion measure by law until the Board had reached a decision, that is, fora maximum of seventy-two hours.387. While agreeing that that is a sign of progress in keeping with theČonkajudgment, cited above (§§ 81-83, confirmed by theGebremedhinjudgment, cited above, §§ 66-67), the Court reiterates that it is alsoestablished in its case-law (paragraph 293 above) that any complaint thatexpulsion to another country will expose an individual to treatmentprohibited by Article 3 of the Convention requires close and rigorousscrutiny and that, subject to a certain margin of appreciation left to the

States, conformity with Article 13 requires that the competent body must beable to examine the substance of the complaint and afford proper reparation.388. In the Court's view the requirement flowing from Article 13 thatexecution of the impugned measure be stayed cannot be considered as asubsidiary measure, that is, without regard being had to the requirementsconcerning the scope of the scrutiny. The contrary would amount toallowing the States to expel the individual concerned without havingexamined the complaints under Article 3 as rigorously as possible.389. However, the extremely urgent procedure leads precisely to thatresult. The Government themselves explain that this procedure reduces therights of the defence and the examination of the case to a minimum. Thejudgments of which the Court is aware (paragraphs 144 and 148 above)confirm that the examination of the complaints under Article 3 carried outby certain divisions of the Aliens Appeals Board at the time of theapplicant's expulsion was not thorough. They limited their examination toverifying whether the persons concerned had produced concrete proof of theirreparable nature of the damage that might result from the alleged potentialviolation of Article 3, thereby increasing the burden of proof to such anextent as to hinder the examination on the merits of the alleged risk of aviolation. Furthermore, even if the individuals concerned did attempt to addmore material to their files along these lines after their interviews with theAliens Office, the Aliens Appeals Board did not always take that materialinto account. The persons concerned were thus prevented from establishingthe arguable nature of their complaints under Article 3 of the Convention.390. The Court concludes that the procedure for applying for a stay ofexecution under the extremely urgent procedure does not meet therequirements of Article 13 of the Convention.391. The fact that a few judgments, against the flow of the establishedcase-law at the time, have suspended transfers to Greece (see paragraph 149above) does not alter this finding as the suspensions were based not on anexamination of the merits of the risk of a violation of Article 3 but rather onthe Appeals Board's finding that the Aliens Office had not given sufficientreasons for its decisions.392. The Court further notes that the applicant also faced severalpractical obstacles in exercising the remedies relied on by the Government.It notes that his request for a stay of execution under the extremely urgentprocedure was rejected on procedural grounds, namely his failure to appear.Contrary to what the Government suggest, however, the Court considersthat in the circumstances of the case, this fact cannot be considered to reveala lack of diligence on the applicant's part. It fails to see how his counselcould possibly have reached the seat of the Aliens Appeals Board in time.As to the possibility of requesting assistance from a round-the-clock service,the Court notes in any event that the Government have supplied no proof ofthe existence of such a service in practice.

393. Regarding the usefulness of continuing proceedings to have theorder to leave the country set aside even after the applicant had beentransferred, the Court notes that the only example put forward by theGovernment (see paragraphs 151 and 382) confirms the applicant's beliefthat once the person concerned has been deported the Aliens Appeals Boarddeclares the appeal inadmissible as there is no longer any point in seeking areview of the order to leave the country. While it is true that the AliensAppeals Board did examine the complaints under Article 3 of theConvention in that judgment, the Court fails to see how, without its decisionhaving suspensive effect, the Aliens Appeals Board could still offer theapplicant suitable redress even if it had found a violation of Article 3.394. In addition, the Court notes that the parties appear to agree toconsider that the applicant's appeal had no chance of success in view of theconstant case-law, mentioned above, of the Aliens Appeals Board and theConseil d'Etat,and of the impossibility for the applicant to demonstratein concretothe irreparable nature of the damage done by the allegedpotential violation. The Court reiterates that while the effectiveness of aremedy does not depend on the certainty of a favourable outcome for theapplicant, the lack of any prospect of obtaining adequate redress raises anissue under Article 13 (seeKudla,cited above, § 157).395. Lastly, the Court points out that the circumstances of the presentcase clearly distinguish it from theQuraishicase relied on by theGovernment. In the latter case, which concerns events dating back to 2006and proceedings before the Aliens Appeals Board in 2007, that is to say afew months after the Board began its activities, the applicants had obtainedthe suspension of their expulsion through the intervention of the courts.What is more, they had not at that stage been expelled when the Court heardtheir case and the case-law of the Aliens Appeals Board in Dublin cases hadnot by then been established.396. In view of the foregoing, the Court finds that there has been aviolation of Article 13 taken in conjunction with Article 3. It follows thatthe applicant cannot be faulted for not having properly exhausted thedomestic remedies and that the Belgian Government's preliminary objectionof non-exhaustion (see paragraph 335 above) cannot be allowed.397. Having regard to that conclusion and to the circumstances of thecase, the Court considers that there is no need to examine the applicant'scomplaints under Article 13 taken in conjunction with Article 2.

399. Under Article 46 of the Convention the High Contracting Partiesundertake to abide by the final judgment of the Court in the cases to whichthey are parties, the Committee of Ministers being responsible forsupervising the execution of the judgments. This means that when the Courtfinds a violation the respondent State is legally bound not only to pay theinterested parties the sums awarded in just satisfaction under Article 41, butalso to adopt the necessary general and/or, where applicable, individualmeasures. As the Court's judgments are essentially declaratory in nature, itis primarily for the State concerned to choose, subject to supervision by theCommittee of Ministers, the means to be used in order to discharge its legalobligation under Article 46 of the Convention, provided that those meansare compatible with the conclusions contained in the Court's judgment. Incertain particular situations, however, the Court may find it useful toindicate to the respondent State the type of measures that might be taken inorder to put an end to the – often systemic – situation that gave rise to thefinding of a violation (see, for example,Öcalan v. Turkey[GC],no. 46221/99, § 210, ECHR 2005-IV, andPopov v. Russia,no. 26853/04,§ 263, 13 July 2006). Sometimes the nature of the violation found may besuch as to leave no real choice as to the measures required to remedy it(seeAssanidzé v. Goorgia[GC], no. 71503/01, 8 April 2004, § 198, ECHR2004-II;Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2)[GC], no. 32772/02, of 30 June 2009, §§ 85 and 88, ECHR 2009-..).400. In the instant case the Court considers it necessary to indicatesome individual measures required for the execution of the presentjudgment in respect of the applicant, without prejudice to the generalmeasures required to prevent other similar violations in the future(see,mutatis mutandis, Broniowski v. Poland[GC], no. 31443/96, § 193,ECHR 2004-V).401. The Court has found a violation by Greece of Article 3 of theConvention because of the applicant's living conditions in Greece combinedwith the prolonged uncertainty in which he lived and the lack of any

prospect of his situation improving (see paragraph 263 above). It has alsofound a violation of Article 13 in conjunction with Article 3 of theConvention because of the shortcomings in the asylum procedure as appliedto the applicant and the risk ofrefoulementto Afghanistan without anyserious examination of his asylum application and without his having hadaccess to an effective remedy (see paragraph 322 above).402. Having regard to the particular circumstances of the case and theurgent need to put a stop to these violations of Articles 13 and 3 of theConvention, the Court considers it incumbent on Greece, without delay, toproceed with an examination of the merits of the applicant's asylum requestthat meets the requirements of the Convention and, pending the outcome ofthat examination, to refrain from deporting the applicant.B. Article 41 de la Convention403. Article 41 of the Convention provides:“If the Court finds that there has been a violation of the Convention or the Protocolsthereto, and if the internal law of the High Contracting Party concerned allows onlypartial reparation to be made, the Court shall, if necessary, afford just satisfaction tothe injured party.”

404. The applicant claimed 1,000 euros (EUR) in compensation for thenon-pecuniary damage sustained during the two periods of detention.405. The Greek Government considered this claim ill-founded.406. The Court has found that the applicant's conditions of detentionviolated of Article 3 of the Convention. It considers that the applicant musthave experienced certain distress which cannot be compensated for by theCourt's findings of violations alone. Having regard to the nature of theviolations found in the instant case, the Court considers it equitable touphold the applicant's claim and awards him EUR 1,000 in respect of non-pecuniary damage.(b) In respect of Belgium

408. The Belgian Government argued that if the Court were to findBelgium liable the applicant could take legal action in the Belgian courts toobtain compensation for any non-pecuniary damage caused by his detention.In any event the Government considered the claim ill-founded, the applicanthaving failed to demonstrate any fault on the part of the State or to establishany causal link between the alleged fault and the non-pecuniary damageallegedly sustained.409. The Court reiterates that it can award sums in respect of the justsatisfaction provided for in Article 41 where the loss or damage claimedhave been caused by the violation found, while the State is not required topay sums in respect of damage for which it is not responsible (seeSaadi,cited above, § 186). In the present case the Court has not found a violationof the Convention because of the applicant's detention in Belgium prior tohis transfer to Greece. It accordingly rejects this part of the claim.410. Concerning the alleged damage because of the transfer to Greece,the Court has found that the transfer gave rise to a violation of Article 3 ofthe Convention both because it exposed the applicant to treatmentprohibited by that provision, in detention and during his stay in Greece, andbecause it exposed the applicant to the risks inherent in the deficiencies inthe asylum procedure in Greece. It reiterates that the fact that the applicantcould claim compensation in the Belgian courts does not oblige the Court toreject the claim as being ill-founded (seeDe Wilde, Ooms and Versyp v.Belgium(Article 50), 10 March 1972, § 16, Series A no. 14).411. The Court considers that the applicant must have experiencedcertain distress for which the Court's findings of violations alone cannotconstitute just satisfaction. Having regard to the nature of the violationsfound in the instant case, the Court considers it equitable to uphold theapplicant's claim and awards him EUR 24,900 in respect of non-pecuniarydamage.2. Costs and expenses(a) In respect of Greece

412. The applicant claimed the reimbursement of the cost of his defencebefore the Court against the Greek Government. According to the list offees and expenses submitted by the applicant's lawyer, the costs andexpenses as at 15 March 2010 totalled EUR 3,450 based on an hourly fee ofEUR 75. The lawyer indicated that he had agreed with the applicant that thelatter would pay him by instalments based on the above-mentioned hourlyfee if he won the case before the Court.413. The Greek Government found this claim excessive andunsubstantiated.414. The Court considers it established that the applicant effectivelyincurred the costs he claimed in so far as, being a client, he entered into a

415. The applicant claimed the reimbursement of his costs and expensesbefore the Belgian courts and before the Court. The applicant's lawyersubmitted a list of fees and expenses according to which the costs andexpenses as at 15 March 2010 totalled EUR 7,680 based on an hourly fee ofEUR 75, EUR 1,605 were claimed for the proceedings before the Belgiancourts and EUR 6,075 for the proceedings before the Court againstBelgium.416. The Belgian Government invited the Court to reject the claim.They submitted that the applicant was entitled to free legal aid and toassistance with legal costs. It had therefore been unnecessary for him toincur any costs. His lawyer could obtain compensation for any costsincurred before the Belgian courts and before the Court in conformity withthe provisions of the Judicial Code concerning legal aid. The Code providedfor a system of reimbursement in the form of “points” corresponding to theservices provided by the lawyer. In 2010 one point corresponded toEUR 26.91. The figure had been EUR 23.25 in 2009. Had these provisionsbeen complied with the lawyer should already have been authorised toreceive payment for the costs incurred in 2009. The Government alsopointed out that under Article 1022 of the Judicial Code concerningreimbursement of legal costs, the party which lost the case was required topay all or part of the legal costs of the other party. In cases where theproceedings could not be evaluated in monetary terms, the sum payable wasdetermined by the courts. Where legal aid was granted and the costsawarded in the proceedings were higher, the Treasury could recover the sumpaid in legal aid.417. The applicant's lawyer confirmed that he had been appointed bythe Belgian State as a legal aid lawyer, but only to defend the applicantbefore the first-instance court. For this he was entitled to “ten points”. Hesaid that he had not yet received any payment for legal aid. For the otherproceedings he had agreed with the applicant that the applicant would payhim by instalments based on the above-mentioned hourly fee if he won thecase before the Court. That commitment had been honoured in part.According to the applicant, there was no danger of the Belgian authoritiespaying him too much compensation because the procedural costs awardedwere deducted from the legal aid payable. It followed that if the formerexceeded the latter his lawyer would ask the legal aid office to stop the legalaid and that if the costs and expenses awarded by the Court were higher than

the amount awarded in legal aid, his lawyer would receive nothing in termsof legal aid.418. According to the Court's established case-law, costs and expenseswill not be awarded under Article 41 unless it is established that they wereactually and necessarily incurred, and were reasonable as to quantum.Furthermore, legal costs are only recoverable in so far as they relate to theviolation found (see, among many other authorities,Sanoma Uitgevers B.V.v. the Netherlands,cited above, 109).419. The Court first considers the costs and expenses relating to theproceedings before the domestic courts. It notes that the applicant hassubmitted no breakdown of the sum claimed in respect of the differentproceedings brought. This prevents it from determining precisely whatamounts correspond to the violations found in the instant case and to whatextent they have been or could be covered by the legal aid. Because of thislack of clarity (see,mutatis mutandis, Musiał v. Poland[GC], no. 24557/94,§ 61, ECHR 1999-II), the Court rejects these claims.420. Turning its attention to the costs and expenses incurred in theproceedings before it against Belgium, the Court reiterates that it does notconsider itself bound by domestic scales and practices, even if it may takeinspiration from them (seeVenema v. the Netherlands,no. 35731/97, § 116,ECHR 2002-X). In any event, for the same reasons as in respect of Greece(see paragraph 414 above), it awards the applicant EUR 6,075.(c) In respect of Belgium and Greece

421. The applicant lastly claimed the reimbursement of the costs andfees incurred in connection with the hearing before the Court. According tothe list of fees and expenses submitted by the applicant's lawyer, theyamounted to EUR 2,550 for the pleadings and their preparation (at an hourlyrate of EUR 75). Without submitting any receipts, he also claimed thereimbursement of EUR 296.74 EUR for his lawyer's travel to andaccommodation in Strasbourg.422. According to its established case-law, the Court rejects the part ofthe claim which is not substantiated by the requisite receipts.423. For the remainder, considering it established that the costs andexpenses claimed were necessarily incurred and were reasonable as toquantum, it awards the applicant EUR 2,550. Having regard to theresponsibility for the different violations of the Convention found by theCourt, Belgium and Greece will each pay half of that sum.(d) Default interest

FOR THESE REASONS, THE COURT1.Joins to the merits,by sixteen votes to one, the preliminary objectionsraised by the Greek Government andrejectsthem;2.Declares admissible,unanimously, the complaint under Article 3 of theConvention concerning the conditions of the applicant's detention inGreece;3.Holds,unanimously, that there has been a violation by Greece of Article3 of the Convention because of the applicant's conditions of detention;4.Declares admissible,by a majority, the complaint under Article 3 of theConvention concerning the applicant's living conditions in Greece;5.Holds,by sixteen votes to one, that there has been a violation by Greeceof Article 3 of the Convention because of the applicant's livingconditions in Greece;6.Declares admissible,unanimously, the complaint against Greece underArticle 13 taken in conjunction with Article 3 of the Convention;7.Holds,unanimously, that there has been a violationby Greeceof Article13 taken in conjunction with Article 3 of the Convention because of thedeficiencies in the asylum procedure followed in the applicant's case andthe risk of his expulsion to Afghanistan without any serious examinationof the merits of his asylum application and without any access to aneffective remedy;8.Holds,unanimously, that there is no need to examine the applicant'scomplaints under Article 13 taken in conjunction with Article 2 of theConvention;9.Joins to the merits,unanimously, the preliminary objection raised by theBelgian Government,rejectsit anddeclares admissible,unanimously,the complaints lodged against Belgium;10.Holds,by sixteen votes to one, that there has been a violation byBelgium of Article 3 of the Convention because, by sending him back toGreece, the Belgian authorities exposed the applicant to risks linked tothe deficiencies in the asylum procedure in that State;

11.Holds,unanimously, that there is no need to examine the applicant'scomplaints under Article 2 of the Convention;12.Holds,by fifteen votes to two, that there has been a violation byBelgium of Article 3 of the Convention because, by sending him back toGreece, the Belgian authorities exposed the applicant to detention andliving conditions in that State that were in breach of that Article;13.Holds,unanimously, that there has been a violation by Belgium ofArticle 13 taken in conjunction with Article 3 of the Convention;14.Holds,unanimously, that there is no need to examine the applicant'scomplaints under Article 13 taken in conjunction with Article 2 of theConvention;15.Holds,unanimously,(a) that the Greek State is to pay the applicant, within three months, thefollowing amounts,(i) EUR 1,000 (one thousand euros) in respect of non-pecuniarydamage, plus any tax that may be chargeable;(ii) EUR 4,725 (four thousand seven hundred and twenty-fiveeuros) in respect of costs and expenses, plus any tax that may bechargeable to the applicant;(b) that from the expiry of the above-mentioned three months untilsettlement simple interest shall be payable on the above amounts at arate equal to the marginal lending rate of the European Central Bankduring the default period plus three percentage points;16.Holds,(a) by fifteen votes to two, that the Belgian State is to pay the applicant,within three months, EUR 24,900 (twenty-four thousand nine hundredeuros) in respect of non-pecuniary damage, plus any tax that may bechargeable;(b) by sixteen votes to one, that the Belgian State is to pay the applicant,within three months, EUR 7,350 (seven thousand three hundred and fiftyeuros) in respect of costs and expenses, plus any tax that may bechargeable to the applicant;(c) that from the expiry of the above-mentioned three months untilsettlement simple interest shall be payable on the above amounts at arate equal to the marginal lending rate of the European Central Bankduring the default period plus three percentage points;17.Rejects,unanimously, the remainder of the claim for just satisfaction.

CONCURRING OPINION OF JUDGE ROZAKISI have voted, with the majority, to find a violation on all countsconcerning Greece, and am fully in agreement with the reasoning leading tothe violations. Still, I would like to further emphasise two points, alreadymentioned in the judgment, to which I attach particular importance.The first point concerns the Court's reference to the considerabledifficulties that States forming the European external borders are currentlyexperiencing “in coping with the increasing influx of migrants and asylumseekers”. This statement, which is analysed and elaborated further inparagraph 223 of the judgment, correctly describes the general situationwhich prevails in many northern Mediterranean coastal countries. However,in the case of Greece, with its extensive northern borders but also aconsiderable maritime front, the migratory phenomenon has acquired a trulydramatic dimension in recent years. Statistics clearly show that the greatmajority of foreign immigrants – mainly of Asian origin – attempt to enterEurope through Greece, and either settle there or move on to seek a new lifein other European countries. As it has alrealdy been stated, almost 88 % ofthe immigrants (and among them asylum seekers) entering the EuropeanUnion today cross the Greek borders to land in our continent. In thesecircumstances it is clear that European Union immigration policy –including Dublin II – does not reflect the present realities, or do justice tothe disproportionate burden that falls to the Greek immigration authorities.There is clearly an urgent need for a comprehensive reconsideration of theexisting European legal regime, which should duly take into account theparticular needs and constraints of Greece in this delicate domain of humanrights protection.The second point concerns the Court's reference to the applicant's livingconditions while in Greece, and the finding of a violation of Article 3 of theConvention. In paragraph 249 of the judgment the Court considered itnecessary “to point out that Article 3 cannot be interpreted as obliging theHigh Contracting Parties to provide everyone within their jurisdiction with ahome. Nor does Article 3 entail any general obligation to give refugeesfinancial assistance to enable them to maintain a certain standard of living”.However, as the Court rightly points out, in the circumstances of the case“the obligation to provide accommodation and decent material conditions toimpoverished asylum seekers has now entered into positive law and theGreek authorities are bound to comply with their own legislation, whichtransposes Community law” (paragraph 250). What the Court meant by“positive law” is duly explained in paragraph 251, where it referred to the“existence of a broad consensus at the international and European levelconcerning [the need for special protection of asylum seekers as aparticularly underprivileged and vulnerable population group], as evidencedby the Geneva Convention, the remit and the activities of the UNHCR and

the standards set out in the European Union Reception Directive”. Indeedthis last European document clearly requires that the European Union'smembers guarantee asylum seekers “certain material reception conditions,including accommodation, food and clothing, in kind or in the form ofmonetary allowances. The allowances must be sufficient to protect theasylum seekers from extreme need”.The existence of those international obligations of Greece – and notably,vis-à-vis the European Union – to treat asylum seekers in conformity withthese requirements weighed heavily in the Court's decision to find aviolation of Article 3. The Court has held on numerous occasions that to fallwithin the scope of Article 3 ill-treatment must attain a minimum level ofseverity. The assessment of this minimum is relative and it depends on allthe circumstances of the case (such as the duration of the treatment, itsphysical and mental effects and, in some instances, the sex, age and state ofhealth of the victim). In the circumstances of the present case thecombination of the long duration of the applicant's treatment, coupled withGreece's international obligation to treat asylum seekers in accordance withwhat the judgment calls current positive law, justifies the distinction theCourt makes between treatment endured by other categories of people –where Article 3 has not been found to be transgressed – and the treatment ofan asylum seeker, who clearly enjoys a particularly advanced level ofprotection.

CONCURRING OPINION OF JUDGE VILLIGERI agree to a large extent with the judgment. However, as regards theconclusion that there has been a violation by Greece of Article 13 takentogether with Article 3 of the Convention (see the judgment atparagraph 321), I respectfully submit that the judgment does not adequatelytreat the issue under Article 3 of the Convention in respect of the applicant'spossible deportation (refoulement) from Greece to Afghanistan. (Thereappears in this context also to be an issue under Article 2 of the Conventionin the case file, but for convenience's sake I shall henceforth refer solely toArticle 3.)1. Is there a separate complaint under Article 3 of the Convention?The starting point is whether the applicant is raising a complaint underArticle 3 of the Convention about his possible deportation to Afghanistan.The judgment mentions not a word about this. In my opinion, there can belittle doubt that he is. Thus, from the outset in the proceedings before theCourt the applicant referred to:“the risks he had faced and would still face if he were sent back to that country[i.e. Afghanistan]”(§ 40).

Actually, one could argue that the entire application in all itsconfigurations essentially turns on the applicant's fear that he will suffertreatment contrary to Article 3 if he is returned to Afghanistan.In this respect, it does not surprise that the judgment contains a wholepage on the situation in Afghanistan (see paragraphs 196 et seq.).What does surprise is that the judgment refuses to acknowledge such acomplaint under Article 3.2. The issue: the approach chosen by the judgmentDespite the importance of this complaint, the judgment does not examineit separately under Article 3, at least not as regards Greece. Instead, itexamines it only together with Article 13 of the Convention(see paragraphs 294 et seq.). This approach is, as far as I can see,

innovatory. In previous cases the Court has had no hesitations in examiningthe issue ofrefoulementfirst under Article 3 and then under Article 13 andfinding violations under both provisions (see, for example, Chahal v. theUnited Kingdom, 15 November 1996, Reports of Judgments and Decisions1996 V, andJabariv. Turkey, no. 40035/98, ECHR 2000 VIII). It isdifficult to comprehend the new approach which is now proposed. For, ifthe complaint is “arguable” under Article 3 (see section 1 above), surely itshould first be examined under this provision, and only subsequently – if anadditional complaint is raised about insufficient remedies – also underArticle 13 of the Convention.This is not merely a theoretical assessment of the relative position of theConvention provisions to each other. On the one hand, Article 3, expressingitself on the prohibition of torture or inhuman and degrading treatment orpunishment, is a fundamental provision – a fortiori as this complaint lies atthe basis of the present case (see section 1 above). The applicant's complaintraised under Article 3 merits per se to be treated on its own. On the otherhand, as I shall point out, this innovatory approach entails practicalconsequences for the applicant (see section 6 below).3. The criterion of this new approachAccording to the new approach which examines Article 3 solely togetherwith Article 13 in respect of the complaint against Greece concerningrefoulement,it is stated in the judgment that:“[i]t is in the first place for the Greek authorities, who have responsibility forasylum matters, themselves to examine the applicant's request and the documentsproduced by him and assess the risks to which he would be exposed in Afghanistan.The Court's primary concern is whether effective procedural guarantees exist in thepresent case to protect the applicant against arbitrary removal directly or indirectlyback to his country of origin” (§ 299).

Without stating as much, the Court is very likely applying here theprinciple of subsidiarity, as it transpires from Article 1 of the Convention.According to this principle, it falls primarily to the States to guarantee andimplement the rights enshrined in the Convention. The function of theConvention and the Court remains to provide a European minimumstandard (Handyside v. the United Kingdom, 7 December 1976, § 48, SeriesA no. 24). I am all in favour of the principle of subsidiarity, but I think hereis the wrong place to apply it. Tribute has already been paid to subsidiarityin this case by testing the complaint expressly or implicitly with variousadmissibility conditions and in particular with that of the exhaustion ofdomestic remedies (which is in itself an application of the principle ofsubsidiarity par excellence). Subsidiarity plays an important part, forinstance, in applying the second paragraphs of Articles 8-11 of theConvention. Its role must surely be more restricted in the light of a cardinalprovision such as Article 3 and in view of the central importance of theapplicant'srefoulementfor this case. In any event, in my opinion,subsidiarity does not permit such a complaint to be “downgraded” so that itis 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 examinewhether there is a risk of treatment in the applicant's home country whichwould be contrary to Article 3 of the Convention. The Court does this all thetime. Even if domestic authorities have examined the implications of thedeportation, 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 thesituation in the receiving State even after domestic authorities have dealtwith the matter.To mention but one example: in the case ofSaadiv. Italy, concerningdeportation to Tunisia, the domestic authorities' reasons for allowing thatapplicant'srefoulementconcerned mainly assurances which the TunisianGovernment had given to Italy – assurances which the Court in its judgmentfound to be insufficient. The Court was then obliged to examine itself, andin detail, the situation in Tunisia, relyinginter aliaon Reports of AmnestyInternational and Human Rights Watch (seeSaadiv. Italy [GC],

A final question concerns a discrepancy in the judgment itself. While theCourt refuses to examine Article 3 separately in respect of Greece, it doesprecisely so in respect of Belgium, where it finds, first, a violation ofArticle 3 and then a further one under Article 13 taken together withArticle 3 of the Convention (see paragraphs 344 et seq.). Indeed, thereasoning under Articles 13 and 3 concerns circumstances which are quitesimilar to those concerning Greece.5. Dangers for the applicantThe judgment points out on various occasions that there was, and is, aclear danger of the proceedings in Greece malfunctioning and the applicantbeing sent back to Afghanistan during the proceedings without a completeexamination of his complaints having taken place. For instance, it is statedin the judgment that:“[s]everal reports highlight the serious risk ofrefoulementas soon as the decision istaken to reject the asylum application, because an appeal to the [Greek] SupremeAdministrative Court has no automatic suspensive effect ” (§ 194).

6. Implications for the Greek GovernmentAs it stands, the judgment bases the finding of a violation solely onArticle 13 of the Convention taken together with Article 3. The judgment isbinding for the parties according to Article 46 of the Convention, and theyare obliged to comply with it. But equally clearly, it hardly follows from thefinding of a violation under Article 13 that a State is not allowed to deportthe applicant to his home country. Such a finding would be overstretchingthe potential of a complaint under Article 13.In the light of the present judgment, the Greek authorities may nowconduct proceedings concerning the applicant's complaint (which they haveassured the Court they will do – see paragraph 275). If the authoritieseventually decide that the applicant may be deported to Afghanistan, he isof course free to file a further complaint before the Court with a renewedrequest for interim measures under Rule 39 of the Rules of Court. Here liesnot the problem (other than the additional workload for the Court which thisnew approach implies).The problem is, rather, whether the applicant will in future at all be ableto file a new complaint once the proceedings in Greece have beenterminated and while he is still on Greek territory. I need not even speculateon the circumstances of this risk, for the judgment itself stronglyemphasises that there is no certainty whatsoever that the applicant willdefactobe able to do so while still in Greece (see the various citations insection 5 above). As far as I am concerned, the Government's assurances inthe present case may appear entirely credible. But what if in other, futurecases in respect of other Governments no such assurances are given, or ifthey are not upheld?In sum, such dangers are the direct result of treating the complaint aboutrefoulementnot separately under Article 3, but together with Article 13 ofthe Convention, as in the present judgment.7. Invoking Article 46 of the ConventionObviously, the judgment is aware of these weaknesses and worries andreacts to them by intervening with Article 46 as a form ofdeus ex machinaand instructing the Greek Government not to deport the applicant to

Afghanistan during the pending proceedings (see the last line ofparagraph 402). This instruction is begging the question, it is apetitioprincipii.Article 46 should only be applied if the Court has previouslyfound a violation of the Convention – which it patently has not done whereArticle 3 of the Convention as regards the applicant's fear of deportation toAfghanistan is concerned. On what ground, indeed by what authority, canthe judgment prohibit the deportation, if the Court has nowhere examinedwhether such deportation would be harmful to the applicant?The Court has a very restricted role as regards the implementation of itsjudgments. The principle of subsidiarity requires that this task fallsprimarily to the Convention States under the supervision of the Committeeof Ministers of the Council of Europe. This explains why the Court has sofar only exceptionally applied measures according to Article 46 (importantexamples are mentioned in paragraph 399 of the judgment). By giving aninstruction based on Article 46 in the present case, the judgment createsconfusion as to the meaning and scope of this provision and sadly weakensthe authority of the “tool” which Article 46 offers the Court to handleexceptional circumstances.8. Alternative manner of proceedingHad the applicant's complaint aboutrefoulementbeen examinedseparately under Article 3 of the Convention, and had the Court found thatthere was a risk of treatment contrary to Article 3 in the event of theapplicant's return to Afghanistan, the Court's conclusion in the operativepart of the judgment would have been that “in the event of [the respondentState's] decision to deport [the applicant] to [the particular State], therewould be a violation of Article 3 of the Convention” (see,mutatis mutandis,the Court's conclusion under Article 3 of the Convention inChahal,citedabove). The effect would be to prevent the Greek authorities from deportingthe applicant to his home country. By warning against such a “potentialviolation” (“would be”) the Court would in effect be prolonging themeasure under Rule 39 of the Rules of Court which it upheld throughout theproceedings.9. ConclusionThe judgment has implications not only for the present case but, moregenerally, in respect of future cases. A new approach (and condition) hasbeen introduced for the examination of arefoulementunder Article 3,namely by relying primarily on Article 13. It leaves open a legal loopholewhereby a person, despite the finding by the Court of a violation underArticle 13 of the Convention taken together with Article 3, can neverthelessbe deported to a country where he or she may be subjected to ill-treatment

PARTLY CONCURRING AND PARTLY DISSENTINGOPINION OF JUDGE SAJÓI welcome most of the expected consequences of this judgment, namelythe hoped-for improvements in the management of asylum proceedingsunder the Dublin system. It is therefore to my sincere regret that I have todissent on a number of points.My disagreements are partly of a technical nature. While I agree with thefinding that Article 13 was violated as no effective remedy was available inGreece against a potential violation of Article 3, I find that the applicantcannot be regarded a victim in the sense of Article 34 of the Convention asfar as the conditions of his stay in Greece are concerned, and also in regardto the deficiencies in the asylum procedure there. I agree with the Court thatthere was a violation regarding the conditions of his detention, but onslightly different grounds. I dissent as to the finding that Belgium is inviolation of Article 3 of the Convention for returning the applicant intodetention in Greece.I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION BYGREECE BECAUSE OF THE CONDITIONS OF THE APPLICANT'SDETENTIONI agree with the Court that the conditions of the applicant's detention atthe Athens Airport Detention Center amount to inhuman and degradingtreatment, notwithstanding the doubts that remain as to the actual conditionsof his detention. There seem to be important differences between thedifferent sectors of the Athens Airport Detention Center, and the actualconditions at the time of the applicant's two periods of detention may havevaried. It may well be that at least one of the sectors did satisfy minimumrequirements.I am reluctant to ground a finding of inhuman and degrading treatmentbecause of detention conditions on information relating to conditions atotherpremises or at timesotherthan the material one. However, theinsufficiency of the conditions of detention of migrants and asylum seekersin Greece has been repeatedly established by the Court in a number of cases(paragraph 222), and the shortcomings of the Athens Airport DetentionCenter were reported by the UNHCR. In such circumstances theGovernment should have provided convincing evidence about theconditions of the applicant's actual detention. However, the Governmentfailed to provide the Court with reliable information as to which sector theapplicant was actually held in (cf. paragraph 228). Given the above-mentioned legitimate suspicion, the absence of appropriate documentationbecomes decisive, even if the detention was of short duration. The GreekGovernment should have proved that the placement was not in an

overcrowded place in appalling conditions of hygiene and cleanliness,amounting to degrading treatment prohibited by Article 3, but they failed todo so. Of course, inA.A. v. Greece,no. 12186/08, §§ 57 to 65, 22 July 2010,where these conditions were found to amount to humiliation, the period wasconsiderably longer, namely 3 months. For the Court the duration of thedetention in the present case is comparable in its effects to much longerstays in detention because of the assumed vulnerability of the applicant. I donot find the applicant particularly vulnerable (see below) but I do find theshort term of detention inhuman because, as a rule, the relatively short-termrestriction of freedom under deplorable conditions of people not accused ofwrongdoing (as is the case here, at least for the first period of detention)causes considerable humiliation in itself.II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTIONBY GREECE BECAUSE OF THE APPLIANT'S LIVINGCONDITIONSAccording to the Court the applicant, as an asylum seeker, is a memberof a particularly underprivileged and vulnerable population group in need ofspecial protection (paragraph 251). To my mind, although many asylumseekers are vulnerable persons, they cannot be unconditionally consideredas a particularly vulnerable group, in the sense in which the jurisprudence ofthe Court uses the term (as in the case of persons with mental disabilities,for example), where all members of the group, due to their adverse socialcategorisation, deserve special protection. In the context of the Dublinsystem, particularly “vulnerable person or people” refers to specificcategories within refugees, namely to victims of torture and unaccompaniedchildren only1, and their treatment is unrelated to their classification.The concept of a vulnerable group has a specific meaning in thejurisprudence of the Court. True, if a restriction on fundamental rightsapplies to a particularly vulnerable group in society who have sufferedconsiderable discrimination in the past, such as people with mentaldisabilities, then the State's margin of appreciation is substantially narrowerand it must have very weighty reasons for the restrictions in question(cf. also the examples of those subjected to discrimination on the grounds oftheir gender –Abdulaziz, Cabales and Balkandali v. the United Kingdom,28 May 1985, § 78, Series A no. 94 –, race –D.H. and Others v. the CzechRepublic[GC], no. 57325/00, § 182, ECHR 2007 – or sexual orientation –E.B. v. France[GC], no. 43546/02, § 94, ECHR 2008). The reason for thisapproach, which questions certain classificationsper se,is that such groupswere historically subjected to prejudice with lasting consequences, resulting1

in their social exclusion. Such prejudice may entail legislative stereotypingwhich prohibits the individualised evaluation of their capacities and needs(cf.Shtukaturov v. Russia,no. 44009/05, § 95, 27 March 2008, andAlajosKiss v. Hungary,no. 38832/06, 42 § ..., ECHR 2010-). Where a group isvulnerable, special consideration should be given to their needs, as in thecase of the Roma, who have become a disadvantaged and vulnerable groupas a result of their history (Oršušand Others v. Croatia[GC], no. 15766/03,§§ 147-148, ECHR 2010-...).Asylum seekers differ to some extent from the above-identified“particularly vulnerable groups”. They are not a group historically subject toprejudice with lasting consequences, resulting in their social exclusion. Infact, they are not socially classified, and consequently treated, as a group.For the reasons identified by the Court it is possible that some or manyasylum seekers are vulnerable, i.e. they will feel a degree of deprivationmore humiliating than the man on the Clapham omnibus, but this does notamount to a rebuttable presumption in regard to the members of the “class”.Asylum seekers are far from being homogeneous, if such a group exists atall.Could the treatment of asylum seekers by the Greek authorities amountto inhuman and degrading treatment? Where treatment humiliates ordebases an individual, showing a lack of respect for, or diminishing, his orher human dignity, or arouses feelings of fear, anguish or inferiority capableof breaking an individual's moral and physical resistance, it may becharacterised as degrading and also fall within the prohibition of Article 3(amongst other authorities,Price v. the United Kingdom,no. 33394/96,§§ 24-30, ECHR 2001-VII, andValašinas v. Lithuania,no. 44558/98,§ 117, ECHR 2001-VIII).Under Article 3 the humiliation or debasement and the lack of respectshown should originate from the State or, in exceptional circumstances,from private actors in a dominant position in a situation at leastoverwhelmingly controlled by the State, as is the case, for example, wherethe State tolerates prisoners abusing their fellow inmates. Moreover, thepurpose of the State action or omission is also a matter for consideration,although even in the absence of such a purpose one cannot conclusively ruleout a finding of a violation of Article 3 (Peers v.Greece,no. 28524/95,§§ 67-68, 74, andValašinas,cited above, § 101). In the present case, even ifthe authorities were careless and insensitive in the asylum procedure, thereis no evidence of any intention to humiliate.The Court took into consideration the lack of accommodation (paragraph258) and the failure to provide for the applicant's essential needs. This madethe Court conclude that Article 3 of the Convention was violated as a resultof the “living conditions” of the applicant. In this approach, for people who,like the applicant, are vulnerable (paragraph 263), such deprivations amountto inhuman and degrading treatment. Is this to mean that when it comes to

particularly vulnerable people, failure by the State to provide materialservices that satisfy essential needs amounts to a violation of Article 3?The Court's present construction of insufficient living conditions asinhuman and degrading treatment is not without antecedents. The Court hasalready conceded,obiter dicta,that State responsibility could arise for“inhuman and degrading treatment” where an applicant,in circumstanceswholly dependent on State support,found herself faced with officialindifference when in a situation of serious deprivation or want incompatiblewith human dignity (Budinav. Russia,Dec. no. 45603/05, CEDH 2009 -...).In that case the Court did in fact admit the possibility of social welfareobligations of the State in the context of Article 3 of the Convention. It didso in the name of dignity, and relying on a theory of positive obligations ofthe State. Such obligations would include the prevention of seriousdeprivation through appropriate government-provided services. Thisposition, of course, would be perfectly compatible with the concept of thesocial welfare state and social rights, at least for a constitutional courtadjudicating on the basis of a national constitution that hasconstitutionalised the social welfare state.Relying on theBudinareasoning, the Court concludes “thatthe Greekauthorities have not had due regard to the applicant's vulnerability as anasylum seeker and must be held responsible, because of their inaction, forthe situation in which he has found himself for several months, living in thestreet, with no resources...”(paragraph 263). With the above formulationthe Court's position regarding Article 3 of the Convention and theconstitutional position of a welfare state are getting even closer. The currentposition seems to be that with regard to vulnerable groups in an undignifiedmaterial situation, the State is responsible under Article 3 if it is passiveover a lengthy period of time. The position of the Court implies that theapplicant is living “in circumstances wholly dependent on State support”.(However, being in possession of the “pink card”, even the penniless havesome independencevis-à-visthe State.)The above position is open to criticism and not only because of the over-broad concept of vulnerability and dependence. In order to avoid theundignified situation of alleged total dependency, the Court seems to requirethat the Greek State should handle applications within a reasonably shorttime and with utmost care – a requirement that I fully agree with - and/orthat it should provide adequately for basic needs (a conclusion I cannotfollow.) There seems to be only a small step between the Court's presentposition and that of a general and unconditional positive obligation of theState to provide shelter and other material services to satisfy the basic needsof the “vulnerable”. The Court seems to indicate that the welfare obligationarises in respect of vulnerable people only where it is the State's passivitythat causes the unacceptable conditions (“theauthorities must be heldresponsible, because of their inaction, for the situation in which he has

found himself for several months”).Perhaps, without delays in the asylumprocedure and/or by affording asylum seekers a genuine opportunity to takecare of themselves (e.g. by effectively engaging in gainful activities), therewould be no State responsibility for the situation1.Even if the Court is not tempted to follow the path of the welfarerevolution, an odd situation will arise.. For example, the mentally disabled,vulnerable as they may be, will not be entitled to the care of the State astheir vulnerability is attributable to Nature and the conditions causing theirsuffering and humiliation are not attributable to the passivity of the State.Unlike this undeniably vulnerable group, however, asylum seekers will beentitled to government-provided services. In terms of vulnerability,dependence, and so on, the mentally disabled (and other vulnerable groups,whose members are subject to social prejudice) are in a more difficultsituation than asylum seekers, who are not a homogeneous group subject tosocial categorisation and related discrimination. The passivity of the Statedid not cause the alleged vulnerability of the asylum seekers; they might becaught up in a humanitarian crisis, but this was not caused by the State,although the authorities' passivity may have contributed to it (see below).Even if asylum seekers were as vulnerable as the traditionally discriminatedvulnerable groups, which they are not, the Grand Chamber confirmed againa year ago inOrsus v. Croatia(§ 148) that the duty of the State is to give“special consideration” to their needs, but not to provide adequate livingconditions.On a personal level, I find attractive the position that humanitarianconsiderations (“humanitarian standards”) must guide the actions of theState. This is explicitly required by the Dublin Regulation: nationalauthorities shall not sit idle when it comes to the misery of asylum seekersand migrants; but I find that human rights as defined by the Conventiondiffer from humanitarian concerns. Greece has an obligation to take care ofsome basic needs ofneedyasylum seekers, but only because this is requiredunder the applicable European Union law. There is a difference in thisregard between EU law and conventional obligations which originate fromthe prohibition of inhuman and degrading treatment.The European Commission (COM (2009) 554, final, 21 October, 2009)found that the current European Union asylum procedure system isdefective. In particular, the minimum standards are (a) insufficient and (b)vague, thus lacking the potential to ensure fair and efficient examinations,and additional measures are to be taken to grant applicants a realistic1

opportunity to substantiate their requests for international protection. This isthe gist of the present problem.Asylum seekers are generally at leastsomewhatvulnerable because oftheir past experiences and the fact that they live in a new and differentenvironment; more importantly, the uncertainty about their future can makethem vulnerable. Waiting and hoping endlessly for a final official decisionon a fundamental existential issue in legal uncertainty caused by officialneglect arouses feelings of fear, anguish or inferiority capable of breakingan individual's moral and physical resistance, and therefore it may becharacterised as degrading. The well-documented insufficiencies of theGreek asylum system (including the extremely low likelihood of success inthe applications – 1% in Greece against more than 60 % in Malta) turn sucha system into a degrading one.An asylum system with a rate of recognition not exceeding 1 percent issuspectper sein terms of the fairness of the procedure; the Governmentfailed to provide any justification for this apparent statistical aberration. Theauthorities should handle the applications in a timely and fair manner; wheninterviews are granted on Saturdays only (paragraph 105), and when evenaccess to the Attica police headquarters is difficult, State passivity becomespervasive. This mismanagement was never explained by the Government.Such passivity precludes a timely and fair procedure; in the absence of sucha procedure, existential angst will become common. I find it decisive thatasylum seekers are negatively affected by the lack of timely evaluation oftheir asylum applications (a matter clearly to be attributed to the State) in aprocess where their claim is not evaluated fairly. “Asylum seekers whoremain in the asylum procedure for more than two years have a significantlyhigher risk of psychiatric disorders, compared to those who just arrived inthe country. This risk is higher than the risk of adverse life events in thecountry of origin.”1Given the high likelihood of a medical conditionresulting from the passivity of the State in a procedure that is decisive forthe fate of people living in dependency, there is an Article 3 responsibilityof the State in situations like the present one. Had he been a victim underArticle 34, the applicant's rights could have been found to have beenviolated.The Court accepts that the applicant suffered degrading treatment as healleges. This acceptance is based on general assumptions. The evidencerelied upon is the general negative picture painted by international observersof the everyday lot of a large number of asylum seekers with the same1

profile as that of the applicant.1For this reason the Court sees no reason toquestion the truth of the applicant's allegations (paragraph 255). Likewise,for the Court, given the particular state of insecurity and vulnerability inwhich asylum seekers are known to live in Greece, the Court considers thatthe Greek authorities should not simply have waited for the applicant to takethe initiative of turning to the prefecture to provide for his essential needs(paragraph 259). I do not consider asylum seekers as a group of people whoare incapacitated or have lost control over their own fate.General assumptions alone are insufficient to establish the internationallaw responsibility of a State beyond reasonable doubt.2Let us turn to the specifics of the applicant's case. The applicant was inpossession of considerable means, as he paid USD12,000 to a smuggler toget him out of Afghanistan, managed to get from Greece to Belgium andhad the means to obtain false Bulgarian identity papers and a ticket to Italy.Moreover, as a former interpreter he was capable of communicating in aforeign environment.While the Greek asylum procedures are generally marked by too manyproblems, this does not exempt an asylum-seeker in the applicant's positionfrom cooperating with the authorities in good faith. Lack of suchcooperation would further undermine the system. The applicant failed tocooperate with the immigration system and, when a place in a receptioncentre was offered to him once he finally asked for it, he failed to cooperate.He did not allow the authorities to examine his alleged complaints.Therefore he cannot claim to be a victim of the system, which is otherwisegenerally degrading and humiliating. The insufficiencies of the system andthe applicant's desire to live in Belgium are insufficient reasons not to relyon the asylum procedure available in Greece as the country of entry. Theapplicant, by his own actions, failed to give the domestic authorities anopportunity to examine the merits of his claims. To conclude differentlywould encourage forum shopping and undermine the present EuropeanUnion refugee system, thereby causing further malfunctions and suffering.However, all this does not affect his victim status in regard to Belgium.Belgium should not have deported him to Greece, where he was likely to besubjected to a humiliating process, given the known procedural

Once again, it is hard to accept that the typical asylum seeker or refugee has the sameprofile as the applicant, who had money and speaks English.2The Court’s case-law required there to be a link between the general situation complainedof and the applicant’s individual situation (Thampibillaiv. the Netherlands,no. 61350/00,17 February 2004, andY. v. Russia,no. 20113/07, 4 December 2008). Where there is amandatory procedure the general situation will applyinevitablyto the applicant, thereforethe nexus is established, and Greece is responsible; likewise Belgium, as it was aware ofthis fact. But it was not inevitable that M.S.S. would be kept for three days at a detentioncentre, as this does not follow from Greek law and there is no evidence of a standardpractice in this regard; Belgium cannot be held responsible for the degrading detention.

shortcomings of the asylum system (but not for lack of adequate livingconditions).1III. ALLEGED VIOLATION BY GREECE OF ARTICLE 13 TAKEN INCONJUNCTION WITH ARTICLES 2 AND 3 OF THECONVENTION BECAUSE OF THE SHORTCOMINGS IN THEASYLUM PROCEDURE AND THE SUBSEQUENT RISK OFREFOULEMENTI found that the applicant lacked victim status regarding his stay inGreece during the asylum procedure. It therefore needs some explanationwhy I find that the applicant has standing regarding the risks ofrefoulement.Contrary to the Court, I do not find convincing the information that there isforcedrefoulementto Afghanistan (paragraph 314). At the material time(2009), referring to the Court's judgment inK.R.S. v. the United Kingdom,the UNCHR did not consider that the danger ofrefoulementexisted inGreece (paragraph 195).2However, the Government's policy may change inthis regard. Only a system of proper review of an asylum request and/ordeportation order with suspensive effect satisfies the needs of legal certaintyand protection required in such matters. Because of the shortcomings of theprocedure in Greece, as described in paragraph 320, the applicant remainswithout adequate protection, irrespective of his non-participation in theasylum procedure, irrespective of his contribution to the alleged humiliationdue to the deficiencies of the asylum procedure, and irrespective of thepresent risk ofrefoulement.For this reason the measure required by JudgeVilliger should apply.

Certainly, Belgium could not foresee that he would make efforts to bypass the Greek (andEuropean Union) system as he simply wished to leave Greece. I do not find convincing theargument that the applicant wanted to leave Greece because of his state of need (paragraph239). He left Greece six weeks after he applied for asylum. However, this personal choicewhich showed disregard for the asylum procedure does not absolve Belgium of itsresponsibilities which existed at the moment of the applicant’s transfer to Greece. Theinhuman and degrading nature of the asylum procedure was a matter known to Belgium.This does not apply to the applicant’s detention in Greece (see below).2The Court held this letter of the UNHCR of 2 April 2009 to be of critical importance(paragraph 349) when it came to the determination of Belgium’s responsibility. Further,given the assurances of the Greek Government (paragraph 354) and the lack of conclusiveproof ofrefoulement,there was nothing Belgium should have known in this regard; andBelgium has no responsibility in this respect.

IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTIONBY BELGIUM FOR EXPOSING THE APPLICANT TOCONDITIONS OF DETENTION AND LIVING CONDITIONSCONTRARY TO ARTICLE 3For the Court, the expulsion of an asylum seeker by a Contracting Statemay give rise to an issue under Article 3, and hence engage theresponsibility of that State under the Convention, where substantial groundshave been shown for believing that the person concerned faces a real risk ofbeing subjected to torture or inhuman or degrading treatment or punishmentin the receiving country.I agree that Belgium had enough information to foresee that the Greekasylum procedure did not offer sufficient safeguards against the humiliationinherent in this inefficient procedure, which was the basis for the finding ofa violation of Article 3 in that regard (paragraph 360). (Here again, I findthe living-conditions-based considerations irrelevant.) I could not come tothe same conclusion regarding the applicant's detention. It was notforeseeable that the applicant would be detained, or for how long. Thedetention of transferred asylum seekers is not mandatory and there is noevidence in the file that such a practice is followed systematically. Even ifone could not rule out that at the beginning of the asylum process, in theevent of illegal entry, some restriction of liberty might occur, the BelgianState could not have foreseen that the applicant would not be placed in asection of the Airport Detention Centre that might have been consideredsatisfactory, at least for a short stay, and was designed to handle people in asituation comparable to that of the applicant. The Belgian State couldcertainly not have foreseen that the applicant would attempt to leave Greeceillegally, for which he was again detained in one of the sections of theAirport Detention Centre and sentenced to two months imprisonment. It isfor this same reason that I found the sum Belgium was ordered to pay inrespect of non-pecuniary damage excessive.V. ALLEGED VIOLATION BY BELGIUM OF ARTICLE 13 TAKEN INCONJUNCTION WITH ARTICLES 2 AND 3 OF THECONVENTION BECAUSE OF THE LACK OF AN EFFECTIVEREMEDY AGAINST THE EXPULSION ORDERThe applicant was ordered to leave Belgium and detained on19 May 2009, and on 27 May 2009 the departure date was set for 29 May.There was enough time to organise adequate representation (the lawyermade an application only after studying the file for 3 days) and to takeproper legal action. (However, the Aliens Appeals Board dismissed hisapplication, while his personal appearance was hindered by his detention.)Appeals could be lodged with the Aliens Appeals Board at any time, round

the clock and with suspensive effect. The Court had confirmed theeffectiveness of the procedure in the case ofQuraishi v. Belgium(application no. 6130/08, decision of 12 May 2009). In the present case theCourt evaluates only the impossibility for the applicant's lawyer to get to thehearing. For these reasons, I cannot follow the Court's conclusion inparagraph 392.Nevertheless, I agree with the Court that there is a systemic problem inthe Belgian deportation procedure resulting in the violation of Article 13.While the effectiveness of a remedy does not depend on the certainty of afavourable outcome for the applicant, the lack of any prospect of obtainingadequate redress in Belgian courts (paragraph 394) is decisive underArticle 13. This in itself is sufficient for the finding of a violation.

PARTLY DISSENTING OPINION OF JUDGE BRATZA1. It is with regret that I find myself in disagreement with the otherjudges of the Grand Chamber in their conclusion that Belgium violatedArticle 3 of the Convention by returning the applicant to Greece in June2009. I could readily accept that, if Belgium or any other Member Statewere, in the light of the Court's findings in the present judgment as to therisk ofrefoulementin Greece and the conditions of detention and livingconditions of asylum seekers there, forcibly to return to Greece anindividual from a “suspect” country of origin such as Afghanistan, it wouldviolate Article 3 even in the absence of an interim measure being applied bythe Court. What I cannot accept is the majority's conclusion that thesituation in Greece and the risks posed to asylum seekers there were so clearsome 18 months ago as to justify the serious finding that Belgium violatedArticle 3, even though the Court itself had found insufficient grounds at thattime to apply Rule 39 of the Rules of Court to prevent the return to Greeceof the applicant and many others in a similar situation. The majority'sconclusion appears to me to pay insufficient regard to the unanimousdecision of the Court concerning the return of asylum seekers to Greeceunder the Dublin Regulation in the lead case ofK.R.S. v. the UnitedKingdom,which was delivered in December 2008, less than 6 months priorto the return of the present applicant, and which has been relied on not onlyby national authorities but by the Court itself in rejecting numerous requestsfor interim measures.2. As was noted in theK.R.S.decision itself, the Court had received, inthe light of the UNHCR position paper of 15 April 2008, an increasingnumber of Rule 39 requests from applicants in the United Kingdom whowere to be removed to Greece: between 14 May and 16 September 2008 theActing President of the Section responsible had granted interim measures ina total of 80 cases. The Court's principal concern related to the risk thatasylum seekers from “suspect” countries – in theK.R.S.case itself, Iran –would be removed from Greece to their country of origin without havinghad the opportunity to make an effective asylum claim to the domesticauthorities or, should the need arise, an application to the Court under Rule39. To this end, the Court sought and obtained certain assurances from theGreek authorities through the United Kingdom Government. These includedassurances that no asylum seeker was returned by Greece to such countriesas Afghanistan, Iraq, Iran, Somalia, Sudan or Eritrea even if his asylumapplication was rejected by the Greek authorities; that no asylum applicantwas expelled from Greece unless all stages of the asylum procedure werecompleted and all the legal rights for review had been exhausted, accordingto the provisions of the Geneva Convention; and that an asylum seeker hada right to appeal against any expulsion decision made and to apply to theCourt for a Rule 39 indication.

3. The Court in theK.R.S.decision also took express account of reportsand other evidential material before it, including:(i) the judgment of the Court of Justice of the European Communities(“the ECJ”) of 19 April 2007 inCommission v. Greece,in which the ECJfound that Greece had failed to implement Council Directive 2003/9/EC,laying down minimum standards for the reception of asylum seekers: theDirective was subsequently transposed into Greek law in November 2007;(ii) a report of the Committee for the Prevention of Torture and Inhumanand Degrading Treatment or Punishment (“the CPT”) dated 8 February2008 in which the CPT published its findings on a visit to Greece inFebruary 2007. Having reviewed the conditions of detention for asylumseekers, the CPT made a series of recommendations concerning thedetention and treatment of detainees, including a revision of occupancyrules so as to offer a minimum of 4 square metres of space per detainee,unimpeded access to toilet facilities and the provision of products andequipment for personal hygiene. The CPT also found the staffingarrangements in the detention facilities to be totally inadequate and directedthat proper health care services be provided to detainees;(iii) a report of Amnesty International of 27 February 2008, entitled “Noplace for an asylum seeker in Greece”, which described the poor conditionsin which immigration detainees were held in that country and the lack oflegal guarantees with regard to the examination of their asylum claims,particularly the conduct of interviews in the absence of an interpreter orlawyer. While noting that Greece did not return persons to Afghanistan, thereport criticised Greece for failing to process their applications in a prompt,fair way, leaving them without legal status and therefore without legalrights;(iv) a report of 9 April 2008 of the Norwegian Organisation for AsylumSeekers, Norwegian Helsinki Committee and Greek Helsinki Monitorrecording,inter alia,the keeping of asylum seekers in Greece in policecustody; the very limited resources in the country for handling asylumapplications; the lack of legal assistance for asylum seekers; the very smallnumber of residence permits granted; the inadequate number of receptioncentre places; and the small number of police officers assigned to interviewmore than 20,000 asylum seekers arriving in Greece in the course of a yearand the short and superficial nature of the asylum interviews;(v) the position paper of the UNHCR of 15 April 2008, advising MemberStates of the European Union to refrain from returning asylum seekers fromGreece under the Dublin Regulation until further notice. The position papercriticised the reception procedures for “Dublin returnees” at Athens Airportand at the central Police Asylum Department responsible for registeringasylum applications. The paper characterised the percentage of asylumseekers who were granted refugee status in Greece as “disturbingly low”and criticised the quality of asylum decisions. Concern was further

expressed about the extremely limited reception facilities for asylum seekersand the lack of criteria for the provision of a daily financial allowance.4. In its decision inK.R.S.the Court recalled its ruling inT.I. v. theUnited Kingdomto the effect that removal of an individual to anintermediary country which was also a Contracting State did not affect theresponsibility of the returning State to ensure that the person concerned wasnot, as a result of the decision to expel, exposed to treatment contrary toArticle 3 of the Convention. In this regard, the Court noted the concernsexpressed by the UNHCR and shared by the various Non-GovernmentalOrganisations and attached weight to the fact that, in recommending thatparties to the Dublin Regulation should refrain from returning asylumseekers to Greece, the UNHCR believed that the prevalent situation inGreece called into question whether “Dublin returnees” would have accessto an effective remedy as foreseen by Article 13 of the Convention.5. Despite these concerns, the Court concluded that the removal of theapplicant to Greece would not violate Article 3 of the Convention. In sofinding, the Court placed reliance on a number of factors:(i) On the evidence before the Court, which included the findings of theEnglish Court of Appeal in the case ofR. (Nasseri) v. the Secretary of Statefor the Home Department,Greece did not remove individuals to Iran,Afghanistan, Iraq, Somalia or Sudan and there was accordingly no risk thatthe applicant would be removed to Iran on his arrival in Greece.(ii) The Dublin Regulation was one of a number of measures agreed inthe field of asylum policy at European Union level and had to be consideredalongside European Union Member States' additional obligations under thetwo Council Directives to adhere to minimum standards in asylumprocedures and to provide minimum standards for the reception of asylumseekers. The presumption had to be that Greece would abide by itsobligations under those Directives. In this connection, note had to be takenof the new legislative framework for asylum applications introduced inGreece and referred to in the letter provided to the Court by the GreekGovernment.(iii) There was nothing to suggest that those returned to Greece under theDublin Regulation ran the risk of onward removal to a third country wherethey would face ill-treatment contrary to Article 3 without being afforded areal opportunity, on the territory of Greece, of applying to the Court for aRule 39 measure to prevent such removal. Assurances had been obtainedfrom the Greek Dublin Unit that asylum applicants in Greece had a right ofappeal against any expulsion decision and to seek interim measures from theCourt under Rule 39. There was nothing in the materials before the Courtwhich would suggest that Dublin returnees had been or might be preventedfrom applying for interim measures on account of the timing of their onwardremoval or for any other reason.

(iv) Greece, as a Contracting State, had undertaken to abide by itsConvention obligations and to secure to everyone within its jurisdiction therights and freedoms defined therein, including those guaranteed by Article3: in concrete terms, Greece was required to make the right of any returneeto lodge an application with the Court under Article 34 of the Conventionboth practical and effective. In the absence of any proof to the contrary, ithad to be presumed that Greece would comply with that obligation inrespect of returnees, including the applicant.(v) While the objective information before the Court on conditions ofdetention in Greece was of serious concern, not least given Greece'sobligations under Council Directive 2003/9/EC and Article 3 of theConvention, should any claim arise from these conditions, it could andshould be pursued first with the Greek domestic authorities and thereafter inan application to the Court.In consequence of the Court's decision inK.R.S.,the interim measuresunder Rule 39 which had been applied by the Court pending the decision inthat case were lifted.6. Whether or not, with the benefit of hindsight, theK.R.S.case shouldbe regarded as correctly decided by the Court, Member States concernedwith the removal of persons to Greece under the Dublin Regulation were, inmy view, legitimately entitled to follow and apply the decision in theabsence of any clear evidence of a change in the situation in Greece whichhad been the subject of examination by the Court or in the absence ofspecial circumstances affecting the position of the particular applicant. It isapparent that theK.R.S.case was applied by national authorities as a recentand authoritative decision on the compatibility with the Convention ofreturns to Greece, more particularly by the House of Lords in theNassericase, in which judgment was delivered on 6 May 2009. The decision wasalso expressly relied on by the Aliens Office in Belgium in rejecting thepresent applicant's request for asylum.7. The majority of the Grand Chamber take the view that, as a result ofdevelopments before and since theK.R.S.case, the presumption that theGreek authorities would respect their international obligations in asylummatters should have been treated as rebutted by the Belgian authorities inJune 2009. It is noted in the judgment that numerous reports and materialshave been added to the information which was available to the Court whenit adopted itsK.R.S.decision, which agree as to the practical difficultiesinvolved in the application of the Dublin system in Greece, the deficienciesof the asylum procedures in that country and the practice of direct orindirectrefoulementon an individual or collective basis. These reports, it issaid, have been published at regular intervals since 2006 “and with greaterfrequency in 2008 and 2009 and ... most of them had already been publishedwhen the expulsion order against the applicant was issued” (paragraph 348).In this regard “critical importance” is attached in the judgment to the letter

of 2 April 2009 addressed to the Belgian Immigration Minister whichcontained “an unequivocal plea for the suspension of transfers to Greece”(paragraph 349). Reliance is also placed on the fact that, since December2008, the European asylum system has itself entered a “reform phase”aimed at strengthening the protection of asylum seekers and implementing atemporary suspension of transfers under the Dublin Regulation to avoidasylum seekers being sent back to Member States unable to offer them asufficient level of protection of their fundamental rights.8. I am unpersuaded that any of the developments relied on in thejudgment decision should have led the Belgian authorities in June 2009 totreat the decision as no longer authoritative or to conclude that the return ofthe applicant would violate Article 3. As to the reports and other materialsdating back to the years 2006, 2007 and 2008, while the material may beregarded as adding to the detail or weight of the information which hadalready been taken into account by the Court, it did not in my view changethe substantive content of that information or otherwise affect the Court'sreasoning in theK.R.S.decision. Moreover, I have difficulty in seeing howit can be held against the Belgian authorities that they failed to take accountof material which was already in the public domain at the time of theK.R.S.decision itself.9. I have similar difficulty in seeing how, in June 2009, the presumptionof Greek compliance which the Court had found to exist in December 2008could be rebutted by the numerous reports and other information whichbecame available in the second half of 2009 and in 2010. The graphic detailin those reports and in the powerful submissions to the Court by theEuropean Commissioner of Human Rights and the UNHCR as to the livingconditions for asylum seekers in Greece, the grave deficiencies in thesystem of processing asylum applications in that country and the risk ofonward return to Afghanistan, unquestionably provide a solid basis today onwhich to treat the presumption of compliance as rebutted. But this materialpost-dates the decision of the Belgian authorities to return the applicant andcannot in my view be prayed in aid as casting doubt on the validity of theK.R.S.decision at that time.10. The same I consider applies to the majority's reliance on the proposalto modify the Dublin system by providing for a mechanism to suspendtransfers, which proposal had not been adopted by the Commission orCouncil or implemented at the time of the applicant's return to Greece. Theproposal has still not been adopted at the present day.11. The letter of the UNHCR of April 2009 is clearly a document ofsome importance, coming as it did from an authority whose independenceand objectivity are beyond doubt. The letter noted that, although the CourtinK.R.S.had decided that the transfer of asylum seekers to Greece did notpresent a risk ofrefoulementunder Article 3, the Court had not givenjudgment on compliance by Greece with its obligations under international

law on refugees. The letter went on to express the belief of the UNHCR thatit was still not the case that the reception of asylum seekers in Greececomplied with human rights standards or that asylum seekers had access tofair consideration of their asylum applications or that refugees wereeffectively able to exercise their rights under the Geneva Convention. TheUNHCR concluded the letter by maintaining its assessment of the Greekasylum system and the recommendation which had been formulated in itsposition paper in April 2008, which had been expressly taken into accountby the Court in itsK.R.S.decision.Significant as the letter may be, it provides to my mind too fragile afoundation for the conclusion that the Belgian authorities could no longerrely on theK.R.S.decision or that the return of the applicant to Greecewould violate his rights under Article 3 of the Convention.12. The diplomatic assurances given by Greece to the Belgianauthorities are found in the judgment not to amount to a sufficient guaranteesince the agreement of Greece to take responsibility for receiving theapplicant under the Dublin Regulation was sent after the order to leaveBelgium had been issued and since the agreement document was worded instereotyped terms and contained no guarantee concerning the applicant inperson.It is true that the assurances of the kind sought by the United Kingdomauthorities in theK.R.S.case after interim measures had been applied andafter specific questions had been put by the Court to the respondentGovernment, were not sought by the Belgian authorities in the present case.However, the assurances given inK.R.S.were similarly of a general natureand were not addressed to the individual circumstances of the applicant inthe case. Moreover, there was no reason to believe in June 2009 that thegeneral practice and procedures in Greece, which had been referred to in theassurances and summarised in theK.R.S.decision, had changed or were nolonger applicable. In particular, there was not at that time any evidence thatpersons were being directly or indirectly returned by Greece to Afghanistanin disregard of the statements relied on by the Court inK.R.S.Suchevidence did not become available until August 2009, when reports firstemerged of persons having been forcibly returned from Greece toAfghanistan on a recent flight, leading the Court to reapply Rule 39 in thecase of the return of Afghan asylum seekers to Greece.13. It is indeed the Court's practice prior to August 2009 with regard tointerim measures in the case of returns to Greece to which I attach particularimportance in the present case. The majority of the Grand Chamber aredismissive of the respondent Government's argument that the Court itselfhad not considered it necessary to suspend the applicant's transfer to Greeceby applying Rule 39. It is pointed out that interim measures do not prejudgethe examination of an application under Article 34 of the Convention andthat, at the stage when interim measures are applied for, the Court is

required to take an urgent decision, often without the material with which toanalyse the claim in depth.14. I can accept that a State is not absolved from its responsibility underthe Convention in returning an individual to a country where substantialgrounds exist for believing that he faces a real risk of ill-treatment in breachof Article 3 by the mere fact that a Rule 39 application has not been grantedby the Court. The role of the Court on any such application is not onlydifferent from that of national immigration authorities responsible fordeciding on the return of the person concerned but is one which isfrequently carried out under pressure of time and on the basis of inadequateinformation.Nevertheless, the refusal of the Rule 39 application in the present case isnot, I consider, without importance. I note, in particular, that it isacknowledged in the judgment (paragraph 355) that, at the time of refusingthe application, the Court was “fully aware of the situation in Greece”, asevidenced by its request to the Greek Government in its letterof 12 June 2009 to follow the applicant's case closely and to keep itinformed. I also note that in that letter it was explained that it had beendecided not to apply Rule 39 against Belgium, “considering that theapplicant's complaint was more properly made against Greece” and that thedecision had been “based on the express understanding that Greece, as aContracting State, would abide by its obligations under Articles 3, 13 and34 of the Convention”.However, of even greater significance in my view than the Court'srefusal to apply Rule 39 in the present case, is the general practice followedby the Court at the material time in the light of itsK.R.S.decision. Not onlydid the Court (in a decision of a Chamber or of the President of a Chamber)lift the interim measures in the numerous cases in which Rule 39 had beenapplied prior to that decision, but, in the period until August 2009, itconsistently declined the grant of interim measures to restrain the return ofAfghan asylum seekers to Greece in the absence of special circumstancesaffecting the individual applicant. In the period between 1 June and12 August 2009 alone, interim measures were refused by the Court in 68cases of the return of Afghan nationals to Greece from Austria, Belgium,Denmark, France, the Netherlands, Sweden and the United Kingdom.I find it quite impossible in these circumstances to accept that Belgiumand other Member States should have known better at that time or that theywere not justified in placing the same reliance on the Court's decision inK.R.S.as the Court itself.15. For these reasons, I am unable to agree with the majority of theGrand Chamber that, by returning the applicant to Greece in June 2009,Belgium was in violation of Article 3 of the Convention, either on thegrounds of his exposure to the risk ofrefoulementarising from deficiencies

in the asylum procedures in Greece, or on the grounds of the conditions ofdetention or the living conditions of asylum seekers in that country.16. Notwithstanding this view, the present case has thrown up a series ofdeficiencies in Belgium's own system of remedies in respect of expulsionorders which are arguably claimed to violate an applicant's rights underArticles 2 or 3 of the Convention. These deficiencies are, in my view,sufficiently serious to amount to a violation of Article 13 and, in this regard,I share the conclusion and reasoning in the Court's judgment. While thisfinding alone would justify an award of just satisfaction against Belgium, itwould not in my view justify an award of the full sum claimed by theapplicant, hence my vote against the award which is made against Belgiumin the judgment.