Dublin II Regulation, readmission and human rights protection – M.S.S. vs Belgium and Greece

Katarzyna Sosnowska

January 2011 European Court of Human Rights form a judgment in the case which is known as M.S.S. vs Belgium and Greece. The applicant was from Afghanistan and had worked for the international forces. He was detained in Greece for a week (also his fingerprints were taken) and after being released he travelled to Belgium where he wanted to seek for asylum. Belgian authorities noticed that he had been already registered in Greece. Under Article 3 of Dublin II Regulation “Member States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State(…)”[1]. According to this rule, on 15 June 2009 the applicant was transferred back to Greece. Here, as was mentioned in the judgment he “had immediately been placed in detention in a building next to the airport, where he was locked up in a small space with 20 other detainees, had access to the toilets only at the discretion of the guards, was not allowed out into the open air, was given very little to eat and had to sleep on a dirty mattress or on the bare floor[2]. After, he was not even informed that the accommodation for him had been found. M.S.S. made a few attempts to leave Greece again and at the end Greek authorities tried to deport him to Turkey.

According to the Court ruling, both Greece and Belgium breached provisions of the Articles 3 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms. What is relevant, Court stated that there were a significant deficiencies in the Greek authorities’ examination of the M.S.S.’s asylum request.  The risk he faces of being returned (directly or indirectly) to his country of origin without any serious examination of his asylum application and without having access to an effective remedy[3]. The Belgian Government criticised the applicant for not having correctly used the procedure for applying for a stay. That was also undertaken by the Court which pointed out that the cases of applying for asylum or refugee status should be examined individually, with due diligence, case-by-case. Belgium has failed to do that and by that action exposed the applicant on the harmful conditions, knowing that Greece was not fulfilling its obligations under the Geneva Convention.

The M.S.S. case shows that the situation should be examined carefully. It also confirms the constant need to monitor the situation in Member States as well as third countries. As it is expressed in Dublin II Regulation primary responsibility to provide protection remains with the state where the claim is lodged. It does not absolve the other countries involved in the cases from action even if it is not its responsibility under the criteria laid down in the Regulation. The “principle of mutual trust”[4] can no longer be perceived for granted. To make a sufficient basis for internal transfer between EU Member States the implementation of elementary standards of refugees protection should be examined and verified carefully.

[1] Art.3 of Council Regulation No 343/2003 (EC), OJ L 50/1, 25.2.2003.

[2] ECtHR (GC), M.S.S. vs. Belgium and Greece, no. 30696/09, 21 January 2011, para. 34., available at: hudoc.echr.coe.int

[3] Ibidem, para. 321.

[4]  V. Moreno Lax, Dismantling the Dublin System: M.S.S. v Belgium and Greece, available at: http://www.ssrn.com, accessed: April 26, 2013.