CYIL 2012

Harald Christian Scheu CYIL 3 ȍ2012Ȏ Although the Court considered the information from the UNHCR as trustworthy and disturbing, it concluded that the return of the complainant from the UK to Greece was not in conflict with the ECHR. The ECtHR based its decision on the assumption that Greece at that time did not return refugees to countries such as Iran, Afghanistan, Somalia and Sudan. The Court added that the Dublin system could not be considered on its own, but only in the context of other related EU legislation on asylum. The complaint was therefore declared inadmissible. In connection with the complaint of an Afghan refugee against Belgium and Greece the ECtHR had the chance to reconsider human rights problems related to the application of the Dublin system and to review its previous case law. 32 In 2008, the complainant via Iran and Turkey entered Greece, where he was arrested and ordered to leave the country. He did not apply for asylum in Greece, but went to Belgium, where he filed an asylum application in February 2009. Although the complainant did not submit personal documents to the Belgian authorities, they found by means of “Eurodac” that the complainant had already been arrested and registered in Greece. At first glance, therefore, this was a model case for the application of the Dublin Regulation. In its communication with Greece, Belgium relied on Article 10, paragraph 1 of the Dublin Regulation, according to which Greece was responsible to examine the asylum application of the complainant. After having exhausted legal remedies in Belgium unsuccessfully, the complainant, in June 2009, was returned to Greece. Even before his return to Greece, the complainant turned to the European Court of Human Rights. He argued, among other things, that his chances of a proper asylum procedure in Greece were slim, that the conditions in the Greek detention facilities were disastrous and appalling and that he was at risk of being deported back to Afghanistan. On 22 June 2009 the ECtHR refused to indicate an interim measure against Belgium, within the meaning of Rule 39 of the Rules of the Court, 33 however, it stressed in its decision that such decision was based upon the confidence that Greece would fulfill its obligations under the Dublin Regulation and the relevant EU Council directives concerning minimum standards in asylum procedures and the reception of asylum seekers. The ECtHR also urged the Greek government to send information on the progress of the complainant’s asylum procedures. When the Greek government did not respond to this request within the prescribed period, the ECtHR finally on 2 July 2009 adopted measures under Article 39 and ordered Greece not to deport the complainant before the end of the proceedings before the ECtHR. The subject of the proceedings before the ECtHR itself was a possible breach of Articles 2, 3 and 13 of the ECHR, both by Greece and by Belgium. In 32 M. S. S. v. Belgium and Greece, application no. 30696/09 (European Court of Human Rights, 21 January 2011). 33 See Rule 39 of the Rules of the Court: „The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.“

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