ECtHR / Application no. 30696/09 / Judgement M.S.S. v Belgium and Greece

Key facts of the case:
  1. The case originated in an application (no. 30696/09) against the Kingdom of Belgium and the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Afghan national, Mr M.S.S. (“the applicant”), on 11 June 2009. The President of the Chamber to which the case had been assigned acceded to the applicant’s request 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 practising in Brussels. The Belgian Government were represented by their Agent, Mr M. Tysebaert and their co-Agent, Mrs I. Niedlispacher. The Greek Government were represented by Mrs M. Germani, Legal Assistant at the State Legal Council.
  3. The applicant alleged in particular that his expulsion by the Belgian authorities had violated Articles 2 and 3 of the Convention and that he had been subjected in Greece to treatment prohibited by Article 3; he also complained of the lack of a remedy under Article 13 of the Convention that would 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 that Section communicated the application to the respondent Governments. On 16 March 2010 the Chamber, composed of the following judges: Ireneu Cabral Barreto, President, Françoise Tulkens, Vladimiro Zagrebelsky, Danutė Jočienė, Dragoljub Popović, András Sajó, Nona Tsotsoria, Judges, and also Sally Dollé, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
  5. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules.
  6. In conformity with Article 29 § 1 of the Convention, it was decided that the Grand Chamber would examine the admissibility and the merits together.
  7. The applicant and the Governments each filed written observations on the merits (Rule 59 § 1). Each of the parties replied to the other’s observations at the hearing (Rule 44 § 5). Written observations were also received from the Netherlands and United Kingdom Governments and from the Centre for Advice on Individual Rights in Europe (“the Aire Centre”) and Amnesty International, whom the acting President of the Chamber had authorised to intervene (Article 36 § 2 of the Convention and Rule 44 § 2). Observations were also received from the Council of Europe Commissioner for Human Rights (“the Commissioner”), the Office of the United Nations High Commissioner for Refugees (“the UNHCR”) and the Greek Helsinki Monitor (“GHM”), whom the President of the Court had authorised to intervene. The Netherlands and United Kingdom Governments, the Commissioner and the UNHCR were also authorised to take 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).

Results (sanctions) and key consequences or implications of the case:

The court:
  1. Joins to the merits, by sixteen votes to one, the preliminary objections raised by the Greek Government and rejects them;
  2. Declares admissible, unanimously, the complaint under Article 3 of the Convention concerning the conditions of the applicant’s detention in Greece;
  3. Holds, unanimously, that there has been a violation by Greece of Article 3 of the Convention because of the applicant’s conditions of detention;
  4. Declares admissible, by a majority, the complaint under Article 3 of the Convention concerning the applicant’s living conditions in Greece;
  5. Holds, by sixteen votes to one, that there has been a violation by Greece of Article 3 of the Convention because of the applicant’s living conditions in Greece;
  6. Declares admissible, unanimously, the complaint against Greece under Article 13 taken in conjunction with Article 3 of the Convention;
  7. Holds, unanimously, that there has been a violation by Greece of Article 13 taken in conjunction with Article 3 of the Convention because of the deficiencies in the asylum procedure followed in the applicant’s case and the risk of his expulsion to Afghanistan without any serious examination of the merits of his asylum application and without any access to an effective remedy;
  8. Holds, unanimously, that there is no need to examine the applicant’s complaints under Article 13 taken in conjunction with Article 2 of the Convention;
  9. Joins to the merits, unanimously, the preliminary objection raised by the Belgian Government, rejects it and declares admissible, unanimously, the complaints lodged against Belgium;
  10. Holds, by sixteen votes to one, that there has been a violation by Belgium of Article 3 of the Convention because, by sending him back to Greece, the Belgian authorities exposed the applicant to risks linked to the deficiencies in the asylum procedure in that State;
  11. Holds, unanimously, that there is no need to examine the applicant’s complaints under Article 2 of the Convention;
  12. Holds, by fifteen votes to two, that there has been a violation by Belgium of Article 3 of the Convention because, by sending him back to Greece, the Belgian authorities exposed the applicant to detention and living conditions in that State that were in breach of that Article;
  13. Holds, unanimously, that there has been a violation by Belgium of Article 13 taken in conjunction with Article 3 of the Convention;
  14. Holds, unanimously, that there is no need to examine the applicant’s complaints under Article 13 taken in conjunction with Article 2 of the Convention;
  15. Holds, unanimously,
(a)  that the Greek State is to pay the applicant, within three months, the following amounts,
(i)  EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;
(ii)  EUR 4,725 (four thousand seven hundred and twenty-five euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant;
 
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
  1. 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 hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;
(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 fifty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant;
(c)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
  1. Rejects, unanimously, the remainder of the claim for just satisfaction.