M.S.S v Belgium & Greece- Case Note

Background

M.S.S v Belgium & Greece (application no. 30696/09) concerned the expulsion of an asylum seeker (M.S.S.) to Greece by the Belgian authorities in application of the EU Dublin II Regulations.

M.S.S. entered the EU through Greece ending up in Belgium, where he claimed asylum. Belgium submitted a request for Greece to take charge of his claim pursuant to the regulations.

Whilst the request was pending, UNHCR wrote to the Belgian Immigration Minister about deficiencies in Greek procedures and conditions of reception, recommending the suspension of all transfers to Greece. Nevertheless believing it had no reason to suspect the Greek authorities would not honor its obligations, Belgium transferred M.S.S. to Greece.

On arriving in Greece he was detained in a small space with 20 other detainees. Toilet access was restricted. He was not allowed out into the open air. He was given little to eat and slept on dirty mattresses on the floor.

Following his release, he lived in the street with no means of subsistence. Having subsequently attempted to leave Greece with false ID, M.S.S was arrested and again placed in the detention facility, where he alleged he was beaten by police. After release, he lived on the streets again, but occasionally received some charity.

Before the Grand Chamber M.S.S alleged both Greece and Belgium has breached his human rights, namely Article 3 and 13. Other EU states, including the UK intervened.

Article 3: detention conditions

The Grand Chamber acknowledged that States forming the external borders of the EU had to shoulder the burden of an increased numbers of migrants, but that situation could not absolve them of obligations under Article 3.

The Court noted that various reports by international bodies and NGO’s confirmed that the systematic placement of asylum seekers in detention without informing them of the reasons was a widespread practice of the Greek authorities. International organizations also collected consistent testimony of brutality by the Greek authorities, and about the unsanitary conditions and overcrowding in the detention centre next to Athens international airport.

In light of the above the Court stated:

232. … [ it did] not regard the duration of the two periods of detention imposed on the applicant – four days in June 2009 and a week in August 2009 – as being insignificant. In the present case the Court must take into account that the applicant, being an asylum seeker, was particularly vulnerable because of everything he had been through during his migration and the traumatic experiences he was likely to have endured previously.

233. … in the light of the available information on the conditions at the holding centre near Athens airport, the Court considers that the conditions of detention experienced by the applicant were unacceptable. It considers that, taken together, the feeling of arbitrariness and the feeling of inferiority and anxiety often associated with it, as well as the profound effect such conditions of detention indubitably have on a person’s dignity, constitute degrading treatment contrary to Article 3 of the Convention. In addition, the applicant’s distress was accentuated by the vulnerability inherent in his situation as an asylum seeker.

Article 3: living conditions

Whilst Article 3 did not generally oblige Member States to secure for refugees a certain standard of living, the Court held in the light of the evidence that the situation in which M.S.S lived was particularly serious, and specifically that:

263. … in view of the obligations incumbent on the Greek authorities under the European Reception Directive  (see paragraph 84 above), the Court considers that the Greek authorities have not had due regard to the applicant’s vulnerability as an asylum seeker and must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs. The Court considers that the applicant has been the victim of humiliating treatment showing a lack of respect for his dignity and that this situation has, without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. It considers that such living conditions, combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving, have attained the level of severity required to fall within the scope of Article 3 of the Convention

On top of the Court’s damming findings it ordered Greece to pay 1,000 Euros to M.S.S and Belgium to pay a whopping EUR 24,900 in damages. All EU countries should now suspend removals to Greece pursuant to the Dublin II regulations.

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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