PARTLY DISSENTING OPINION OF JUDGE BRATZA

1. It is with regret that I find myself in disagreement with the other judges of the Grand Chamber in their conclusion that Belgium violated Article 3 of the Convention by returning the applicant to Greece in June 2009. I could readily accept that, if Belgium or any other member State were, in the light of the Court’s findings in the present judgment as to the risk of refoulement in Greece and the conditions of detention and living conditions of asylum-seekers there, forcibly to return to Greece an individual from a “suspect” country of origin such as Afghanistan, it would violate Article 3 even in the absence of an interim measure being applied by the Court. What I cannot accept is the majority’s conclusion that the situation in Greece and the risks posed to asylum-seekers there were so clear some eighteen months ago as to justify the serious finding that Belgium violated Article 3, even though the Court itself had found insufficient grounds at that time to apply Rule 39 of the Rules of Court to prevent the return to Greece of the applicant and many others in a similar situation. The majority’s conclusion appears to me to pay insufficient regard to the unanimous decision of the Court concerning the return of asylum-seekers to Greece under the Dublin Regulation in the lead K.R.S. v. the United Kingdom case ((dec.), no. 32733/08, ECHR 2008), which was delivered in December 2008, less than six months prior to the return of the present applicant, and which has been relied on not only by national authorities but by the Court itself in rejecting numerous requests for interim measures.

2. As was noted in the K.R.S. v. the United Kingdom decision itself, the Court had received, in the light of the position paper of the Office of the United Nations High Commissioner for Refugees (UNHCR) of 15 April 2008, an increasing number of Rule 39 requests from applicants in the United Kingdom who were to be removed to Greece: between 14 May and 16 September 2008 the Acting President of the Section responsible had granted interim measures in a total of 80 cases. The Court’s principal concern related to the risk that asylum-seekers from “suspect” countries – in the K.R.S. v. the United Kingdom case itself, Iran – would be removed from Greece to their country of origin without having had the opportunity to make an effective asylum claim to the domestic authorities or, should the need arise, an application to the Court under Rule 39. To this end, the Court sought and obtained certain assurances from the Greek authorities through the United Kingdom Government. These included assurances that no asylum-seeker was returned by Greece to such countries as Afghanistan, Eritrea, Iran, Iraq, Somalia or Sudan even if his asylum application was rejected by the Greek authorities; that no asylum applicant was expelled from Greece unless all stages of the asylum procedure had been completed and all the legal rights for review had been exhausted, according to the provisions of the Geneva Convention; and that an asylum-seeker had a right to appeal against any expulsion decision made and to apply to the Court for a Rule 39 indication.

3. The Court in the K.R.S. v. the United Kingdom decision also took express account of reports and other evidential material before it.

(i) The judgment of the Court of Justice of the European Communities (CJEC) of 19 April 2007 in Case C-72/06 Commission v. Greece , in which the CJEC found that Greece had failed to implement Council Directive 2003/9/EC, laying down minimum standards for the reception of asylum-seekers: the Directive was subsequently transposed into Greek law in November 2007.

(ii) A report of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) dated 8 February 2008 in which the CPT published its findings on a visit to Greece in February 2007. Having reviewed the conditions of detention for asylum-seekers, the CPT made a series of recommendations concerning the detention and treatment of detainees, including a revision of occupancy rules so as to offer a minimum of 4 sq. m of space per detainee, unimpeded access to toilet facilities and the provision of products and equipment for personal hygiene. The CPT also found the staffing arrangements in the detention facilities to be totally inadequate and directed that proper health-care services be provided to detainees.

(iii) A report of Amnesty International of 27 February 2008, entitled Greece: No Place for an Asylum-Seeker , which described the poor conditions in which immigration detainees were held in that country and the lack of legal guarantees with regard to the examination of their asylum claims, particularly the conduct of interviews in the absence of an interpreter or lawyer. While noting that Greece did not return persons to Afghanistan, the report criticised Greece for failing to process their applications in a prompt, fair way, leaving them without legal status and therefore without legal rights.

(iv) A report of 9 April 2008 of the Norwegian Organisation for Asylum Seekers, the Norwegian Helsinki Committee and the Greek Helsinki Monitor recording, inter alia , the keeping of asylum-seekers in Greece in police custody; the very limited resources in the country for handling asylum applications; the lack of legal assistance for asylum-seekers; the very small number of residence permits granted; the inadequate number of reception centre places; and the small number of police officers assigned to interview more than 20,000 asylum-seekers arriving in Greece in the course of a year and the short and superficial nature of the asylum interviews.

(v) The position paper of the UNHCR of 15 April 2008, advising member States of the European Union to refrain from returning asylum-seekers from Greece under the Dublin Regulation until further notice. The position paper criticised the reception procedures for “Dublin” returnees at Athens International Airport and at the central Police Asylum Department responsible for registering asylum applications. The paper characterised the percentage of asylum-seekers 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-seekers and the lack of criteria for the provision of a daily financial allowance.

4. In its decision in K.R.S. v. the United Kingdom the Court noted its ruling in T.I. v. the United Kingdom ((dec.), no. 43844/98, ECHR 2000-III), to the effect that removal of an individual to an intermediary country which was also a Contracting State did not affect the responsibility of the returning State to ensure that the person concerned was not, as a result of the decision to expel, exposed to treatment contrary to Article 3 of the Convention. In this regard, the Court noted the concerns expressed by the UNHCR and shared by the various non-governmental organisations and attached weight to the fact that, in recommending that parties to the Dublin Regulation should refrain from returning asylum-seekers to Greece, the UNHCR believed that the prevalent situation in Greece called into question whether “Dublin” returnees would have access to an effective remedy as foreseen by Article 13 of the Convention.

5. Despite these concerns, the Court concluded that the removal of the applicant to Greece would not violate Article 3 of the Convention. In so finding, the Court placed reliance on a number of factors.

(i) On the evidence before the Court, which included the findings of the English Court of Appeal in the case of R. (Nasseri) v. the Secretary of State for the Home Department [2008] EWCA Civ 464, Greece did not remove individuals to Afghanistan, Iran, Iraq, Somalia or Sudan and there was accordingly no risk that the applicant would be removed to Iran on his arrival in Greece.

(ii) The Dublin Regulation was one of a number of measures agreed in the field of asylum policy at European Union level and had to be considered alongside European Union member States’ additional obligations under the two Council Directives to adhere to minimum standards in asylum procedures and to provide minimum standards for the reception of asylum-seekers. The presumption had to be that Greece would abide by its obligations under those directives. In this connection, note had to be taken of the new legislative framework for asylum applications introduced in Greece and referred to in the letter provided to the Court by the Greek Government.

(iii) There was nothing to suggest that those returned to Greece under the Dublin Regulation ran the risk of onward removal to a third country where they would face ill-treatment contrary to Article 3 without being afforded a real opportunity, on the territory of Greece, of applying to the Court for a Rule 39 measure to prevent such removal. Assurances had been obtained from the Greek Dublin Unit that asylum applicants in Greece had a right of appeal against any expulsion decision and to seek interim measures from the Court under Rule 39. There was nothing in the materials before the Court which would suggest that “Dublin” returnees had been or might be prevented from applying for interim measures on account of the timing of their onward removal or for any other reason.

(iv) Greece, as a Contracting State, had undertaken to abide by its Convention obligations and to secure to everyone within its jurisdiction the rights and freedoms defined therein, including those guaranteed by Article 3: in concrete terms, Greece was required to make the right of any returnee to lodge an application with the Court under Article 34 of the Convention both practical and effective. In the absence of any proof to the contrary, it had to be presumed that Greece would comply with that obligation in respect of returnees, including the applicant.

(v) While the objective information before the Court on conditions of detention in Greece was of serious concern, not least given Greece’s obligations under Council Directive 2003/9/EC and Article 3 of the Convention, should any claim arise from these conditions, it could and should be pursued first with the Greek domestic authorities and thereafter in an application to the Court.

In consequence of the Court’s decision in K.R.S. v. the United Kingdom , the interim measures under Rule 39 which had been applied by the Court pending the decision in that case were lifted.

6. Whether or not, with the benefit of hindsight, the K.R.S. v. the United Kingdom case should be regarded as correctly decided by the Court, member States concerned with the removal of persons to Greece under the Dublin Regulation were, in my view, legitimately entitled to follow and apply the decision in the absence of any clear evidence of a change in the situation in Greece which had been the subject of examination by the Court or in the absence of special circumstances affecting the position of the particular applicant. It is apparent that the K.R.S. v. the United Kingdom case was applied by national authorities as a recent and authoritative decision on the compatibility with the Convention of returns to Greece, more particularly by the House of Lords in the case of Nasseri (cited above), in which judgment was delivered on 6 May 2009. The decision was also expressly relied on by the Aliens Office in Belgium in rejecting the present applicant’s request for asylum.

7. The majority of the Grand Chamber take the view that, as a result of developments before and since the K.R.S. v. the United Kingdom case, the presumption that the Greek authorities would respect their international obligations in asylum matters should have been treated as rebutted by the Belgian authorities in June 2009. It is noted in the judgment that numerous reports and materials have been added to the information which was available to the Court when it adopted its K.R.S. v. the United Kingdom decision, which agree as to the practical difficulties involved in the application of the Dublin system in Greece, the deficiencies of the asylum procedure in that country and the practice of direct or indirect refoulement on an individual or collective basis. These reports, it is said, have been published at regular intervals since 2006 “and with greater frequency in 2008 and 2009, and ... most of them had already been published when the expulsion order against the applicant was issued” (paragraph 348 of the judgment). In this regard, “critical importance” is attached in the judgment to the letter of 2 April 2009 addressed to the Belgian Minister for Migration and Asylum Policy which contained “an unequivocal plea for the suspension of transfers to Greece” (paragraph 349 of the judgment). Reliance is also placed on the fact that, since December 2008, the European asylum system has itself entered a “reform phase” aimed at strengthening the protection of asylum-seekers and implementing a temporary suspension of transfers under the Dublin Regulation to avoid asylum-seekers being sent back to member States unable to offer them a sufficient level of protection of their fundamental rights.

8. I am unpersuaded that any of the developments relied on in the judgment should have led the Belgian authorities in June 2009 to treat the decision as no longer authoritative or to conclude that the return of the applicant would violate Article 3. As to the reports and other materials dating back to the years 2006, 2007 and 2008, while the material may be regarded as adding to the detail or weight of the information which had already been taken into account by the Court, it did not in my view change the substantive content of that information or otherwise affect the Court’s reasoning in the K.R.S. v. the United Kingdom decision. Moreover, I have difficulty in seeing how it can be held against the Belgian authorities that they failed to take account of material which was already in the public domain at the time of the K.R.S. v. the United Kingdom decision itself.

9. I have similar difficulty in seeing how, in June 2009, the presumption of Greek compliance which the Court had found to exist in December 2008 could be rebutted by the numerous reports and other information which became available in the second half of 2009 and in 2010. The graphic detail in those reports and in the powerful submissions to the Court by the Council of Europe Commissioner for Human Rights and the UNHCR as to the living conditions for asylum-seekers in Greece, the grave deficiencies in the system of processing asylum applications in that country and the risk of onward return to Afghanistan unquestionably provide a solid basis today on which to treat the presumption of compliance as rebutted. But this material post-dates the decision of the Belgian authorities to return the applicant and cannot in my view be prayed in aid as casting doubt on the validity of the K.R.S. v. the United Kingdom decision at that time.

10. The same I consider applies to the majority’s reliance on the proposal to modify the Dublin system by providing for a mechanism to suspend transfers, which proposal had not been adopted by the European Commission or Council or implemented at the time of the applicant’s return to Greece. The proposal has still not been adopted at the present day.

11. The letter of the UNHCR of April 2009 is clearly a document of some importance, coming as it did from an authority whose independence and objectivity are beyond doubt. The letter noted that, although the Court in K.R.S. v. the United Kingdom had decided that the transfer of asylum-seekers to Greece did not present a risk of refoulement under Article 3, the Court had not given judgment on compliance by Greece with its obligations under international law on refugees. The letter went on to express the belief of the UNHCR that it was still not the case that the reception of asylum-seekers in Greece complied with human rights standards or that asylum-seekers had access to fair consideration of their asylum applications or that refugees were effectively able to exercise their rights under the Geneva Convention. The UNHCR concluded the letter by maintaining its assessment of the Greek asylum system and the recommendation which had been formulated in its position paper in April 2008, which had been expressly taken into account by the Court in its K.R.S. v. the United Kingdom decision.

Significant as the letter may be, it provides to my mind too fragile a foundation for the conclusion that the Belgian authorities could no longer rely on the K.R.S. v. the United Kingdom decision or that the return of the applicant to Greece would violate his rights under Article 3 of the Convention.

12. The diplomatic assurances given by Greece to the Belgian authorities are found in the judgment not to amount to a sufficient guarantee since the agreement of Greece to take responsibility for receiving the applicant under the Dublin Regulation was sent after the order to leave Belgium had been issued and since the agreement document was worded in stereotyped terms and contained no guarantee concerning the applicant in person.

It is true that the assurances of the kind sought by the United Kingdom authorities in the decision in K.R.S. v. the United Kingdom after interim measures had been applied and after specific questions had been put by the Court to the respondent Government, were not sought by the Belgian authorities in the present case. However, the assurances given in K.R.S. v. the United Kingdom were similarly of a general nature and were not addressed to the individual circumstances of the applicant in the case. Moreover, there was no reason to believe in June 2009 that the general practice and procedures in Greece, which had been referred to in the assurances and summarised in the K.R.S. v. the United Kingdom decision, had changed or were no longer applicable. In particular, there was not at that time any evidence that persons were being directly or indirectly returned by Greece to Afghanistan in disregard of the statements relied on by the Court in K.R.S. v. the United Kingdom . Such evidence did not become available until August 2009, when reports first emerged of persons having been forcibly returned from Greece to Afghanistan on a recent flight, leading the Court to reapply Rule 39 in the case of the return of Afghan asylum-seekers to Greece.

13. It is indeed the Court’s practice prior to August 2009 with regard to interim measures in the case of returns to Greece to which I attach particular importance in the present case. The majority of the Grand Chamber are dismissive of the respondent Government’s argument that the Court itself had not considered it necessary to suspend the applicant’s transfer to Greece by applying Rule 39. It is pointed out that interim measures do not prejudge the examination of an application under Article 34 of the Convention and that, at the stage when interim measures are applied for, the Court is required to take an urgent decision, often without the material with which to analyse the claim in depth.

14. I can accept that a State is not absolved from its responsibility under the Convention in returning an individual to a country where substantial grounds exist for believing that he faces a real risk of ill-treatment in breach of Article 3 by the mere fact that a Rule 39 application has not been granted by the Court. The role of the Court on any such application is not only different from that of national immigration authorities responsible for deciding on the return of the person concerned but is one which is frequently carried out under pressure of time and on the basis of inadequate information.

Nevertheless, the refusal of the Rule 39 application in the present case is not, I consider, without importance. I note, in particular, that it is acknowledged in the judgment (paragraph 355) that, at the time of refusing the application, the Court was “fully aware of the situation in Greece”, as evidenced by its request to the Greek Government in its letter of 12 June 2009 to follow the applicant’s case closely and to keep it informed. I also note that in that letter it was explained that it had been decided not to apply Rule 39 against Belgium, “considering that the applicant’s complaint was more properly made against Greece” and that the decision had been “based on the express understanding that Greece, as a Contracting State, would abide by its obligations under Articles 3, 13 and 34 of the Convention”.

However, of even greater significance in my view than the Court’s refusal to apply Rule 39 in the present case, is the general practice followed by the Court at the material time in the light of its K.R.S. v. the United Kingdom decision. Not only did 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 been applied prior to that decision, but, in the period until August 2009, it consistently declined the grant of interim measures to restrain the return of Afghan asylum-seekers to Greece in the absence of special circumstances affecting the individual applicant. In the period between 1 June and 12 August 2009 alone, interim measures were refused by the Court in 68 cases 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 Belgium and other member States should have known better at that time or that they were not justified in placing the same reliance on the Court’s decision in K.R.S. v. the United Kingdom as the Court itself.

15. For these reasons, I am unable to agree with the majority of the Grand Chamber that, by returning the applicant to Greece in June 2009, Belgium was in violation of Article 3 of the Convention, either on the ground of his exposure to the risk of refoulement arising from deficiencies in the asylum procedures in Greece, or on the ground of the conditions of detention or the living conditions of asylum-seekers in that country.

16. Notwithstanding this view, the present case has thrown up a series of deficiencies in Belgium’s own system of remedies in respect of expulsion orders which are arguably claimed to violate an applicant’s rights under Articles 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 this finding alone would justify an award of just satisfaction against Belgium, it would not in my view justify an award of the full sum claimed by the applicant, hence my vote against the award which is made against Belgium in the judgment.

[1] . UNHCR, Asylum Levels and Trends in Industrialized Countries , 2009.

[2] . UNHCR, Observations on Greece as a Country of Asylum , 2009.

1 . UNHCR, 2008 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons , 2008.

[4] . UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan , July 2009, which replaced those of December 2007.

[5] . It seems that in international humanitarian law, “particularly vulnerable group” refers to priority treatment of certain categories of refugees.

[6] . Third-party interveners claimed that asylum-seekers are deprived of the right to provide for their needs (paragraph 246 of the judgment). If this were corroborated and shown to be attributable to the State (e.g. if the practical difficulties of employment that were mentioned originated from restrictive regulation or official practice), I would find the State responsible under Article 3 for the misery of the asylum-seekers. This point was, however, not fully substantiated.

[7] . Laban, C.J., Dutch Study of Iraqi Asylum Seekers: Impact of a Long Asylum Procedure on Health and Health Related Dimensions among Iraqi Asylum Seekers in the Netherlands; An Epidemiological Study , doctoral dissertation, 2010, p. 151, see: http://dspace.ubvu.vu.nl/bitstream/1871/15947/2/part.pdf (comparing Iraqi asylum-seekers whose asylum procedure has taken at least two years with Iraqi asylum-seekers who had just arrived in the Netherlands, with additional literature).

[8] . Once again, it is hard to accept that the typical asylum-seeker or refugee has the same profile as the applicant, who had money and speaks English.

[9] . The Court’s case-law required there to be a link between the general situation complained of and the applicant’s individual situation (see Thampibillai v. the Netherlands , no. 61350/00, 17 February 2004, and Y. v. Russia , no. 20113/07, 4 December 2008). Where there is a mandatory procedure the general situation will apply inevitably to the applicant, therefore the nexus is established, and Greece is responsible; likewise Belgium, as it was aware of this fact. But it was not inevitable that M.S.S. would be kept for three days at a detention centre, as this does not follow from Greek law and there is no evidence of a standard practice in this regard; Belgium cannot be held responsible for the degrading detention.

[10] . Certainly, Belgium could not foresee that the applicant would make efforts to bypass the Greek (and European Union) system as he simply wished to leave Greece. I do not find convincing the argument that the applicant wanted to leave Greece because of his state of need (paragraph 239 of the judgment). He left Greece six weeks after he applied for asylum. However, this personal choice, which showed disregard for the asylum procedure, does not absolve Belgium of its responsibilities which existed at the moment of the applicant’s transfer to Greece. The inhuman 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).

[11] . The Court held this letter of the UNHCR of 2 April 2009 to be of critical importance (paragraph 349 of the judgment) when it came to the determination of Belgium’s responsibility. Further, given the assurances of the Greek Government (paragraph 354) and the lack of conclusive proof of refoulement , there was nothing Belgium should have known in this regard; and Belgium has no responsibility in this respect.