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*Law of Aliens

Published on August 25th, 2018 | by Georgia Kleanthi


SUMMARY: European Court of Human Rights Nos 30696/09 of of January 21st 2011 M.S.S. v. Belgium and Greece.

Keywords: Burden of proof, Effective access to procedures,Effective remedy (right to), Detention, Inhuman or degrading treatment or punishment

Court:European Court of Human Rights

Claimants: M.S.S. v. Belgium and Greece.

Legal Framework:

Article 1 (Obligation to respect Human Rights)

”The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”

-Article 3 (Prohibition of torture, Degrading treatment)

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

-Article 13 (Right to an effective remedy )

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

-Dublin II Regulation

A European Union (EU) law that determines the EU Member State responsible to examine an application for asylum seekers seeking international protection under the Geneva Convention and the EU Qualification Directive. Usually, the responsible Member State will be the state through which the asylum seeker first entered the EU.

-Article 18 (Right to asylum)

The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.”

Case Facts:

The applicant was a Afghan citizen seeking asylum, who fled Kabul in 2008, and entered the European Union through Greece and then travelled to Belgium where he applied for asylum. According to the Dublin II rules, Greece was the responsible State for the examination of his asylum application. Therefore the Belgian authorities transferred him there after caprturing him in June 2009 where he faced detention in degrading conditions before living on the streets without any material support.


The applicant alleged that the conditions of his detention in Greece were inhuman and degrading and as a result there was a violation of Article 3 of the Convention. He also refute that it was ineffective to challenge his living conditions against the Greek Government (violation of Article 13). MSS also stated that there have been a violation of Article 2 and 3 from the Belgian Government when they returned him to Greece without considering the conditions of his detention and the risk of him being returned to Afghanistan.

The Greek Government submitted that because of the short duration of his detention there could not be a degreding treatment and noted that to find in favour of the applicant would be contrary to the provisions of the Convention. The Government also noted that ruling in favor of MSS would open the doors to countless similar applications from homeless persons and place an undue positive obligation on the States in terms of a welfare policy.

Regarding the claims against the Belgian Government The Court held that the authorities ought to have considered that the applicant had no guarantee that the Greek authorities would seriously examine his asylum application and that thry had the means of preventing his transfer to Greece.


The Court by a majority ruled that there had been a violation of Article 3both due to the applicant’s detention conditions and because of his living conditions in Greece, a violation ofArticle 13taken together withArticle 3by Greece because of the deficiencies in the asylum procedure followed in the applicant’s case.

The Court also found a violation of Article 3by Belgium both because having exposed the applicant to risks (in sending him back under the Greece under the Dublin Regulation) and because of having exposed him to detention and living conditions in Greece that were in breach of Article 3. A violation of Article 13 taken together with Article 3by Belgium because of the lack of effective remedy against the applicant’s expulsion order.

For the full text of the decision here

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