Case Watch: A Victory for Refugee Protection in Europe

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of  notable court decisions and cases that relate to their work to advance human rights law around the world.

This is the story of M.S.S.

M.S.S. worked as an interpreter for international troops in Kabul. Then, in 2008, when he found himself the target of a Taliban assassination attempt, he fled the country. From Afghanistan, he traveled through Iran and Turkey and arrived, finally, in Greece, where he was arrested for illegal entry. He was released a week later and ordered to leave the country.

Rather than seeking status in Greece, M.S.S. continued on to Belgium, where he applied for asylum. He said that he had chosen Belgium “after meeting some Belgian NATO soldiers, who had seemed very friendly.”

Instead, when M.S.S. got to Belgium, he encountered full force one of the great myths surrounding European refugee protection.

When the Belgian authorities learned that M.S.S. had come through Greece, they decided, rather than deal with his asylum request themselves, that they would send him back there.

Belgium was entitled to do so because European Union law provides that the EU country an asylum seeker first enters is responsible for dealing with any asylum request. This system was initially put in place to ensure a better and fairer distribution of asylum seekers among EU members and to prevent certain countries from being overburdened.

The policy is based on the understanding that across the EU resources for asylum seekers are essentially equivalent. That understanding, unfortunately, is wrong. And in practice, the system has given richer EU countries a mechanism for pawning off their asylum seekers on usually poorer countries and abandoning them to often disgraceful circumstances.

The shortcomings of the Greek system, in particular, are no secret. Greece has a backlog of about 44,000 asylum cases, no functioning system for legal aid, and asylum seekers commonly endure inhuman detention conditions.

Given that, M.S.S. asked Belgium to consider his asylum claim and admit him as a refugee. Belgium refused and sent back him to Greece.

In Athens, M.S.S. was immediately apprehended at the airport. He was held in an overcrowded prison, locked up in a cramped space with 20 other detainees, and given access to toilets only at the discretion of the guards. He was not allowed out into the open air, given very little to eat, and slept either on a dirty mattress or on the bare floor.

After three days he was released, without any housing, social or medical care or any other support or means of subsistence. He was told that to pursue his asylum request he would have to report to the police and provide them with an address. But with nowhere to live, he slept in a park in central Athens alongside other Afghan asylum seekers.

With the help of a Belgian lawyer—who stayed in contact after his client was shuttled back to Greece—M.S.S. filed complaints before the European Court of Human Rights against both Belgium and Greece. The complaint against Greece concerned his treatment both in detention and following his release, as well as the risk of being deported to Afghanistan without having his asylum claim properly considered. The complaint against Belgium argued that by sending him to Greece, the Belgian authorities had subjected him to inhuman and degrading treatment. He claimed that the procedure Belgium followed did not provide him proper protection against the treatment he subsequently received in Greece.

The case became a flashpoint for the EU, with a range of member states intervening before the ECHR in support of Belgium and Greece—all trying to maintain the myth that human rights and refugee protection is the same across the union. They sought to maintain the fiction in the face of the steady stream of reports from a range of human rights organizations— the UNHCR, Amnesty, Human Rights Watch, Medecins Sans Frontières, the Council of Europe’s own Human Rights Commissioner—about appalling conditions and profoundly unfair asylum procedures in many EU countries.

Last week the myth was finally, formally, debunked. The ECHR issued a landmark judgment in favor of M.S.S., significantly strengthening protection of refugees in Europe.

The ECHR found that the conditions to which M.S.S. was subjected—his initial detention and his subsequent lack of subsistence, medical care and housing support—constituted inhuman and degrading treatment. It underlined that asylum seekers are a particularly underprivileged and vulnerable population group in need of special protection.

The Grand Chamber of the ECHR—its most authoritative body composed of 17 European judges—ruled that a state always has the responsibility to verify the conditions, treatment and legal safeguards to which an asylum seeker will be subjected if he is transferred, even when that transfer is from one EU member state to another. It can no longer be automatically assumed that human rights protections will be upheld in another EU member state just because it is in the union.

The court held that Belgium was also responsible for the mistreatment to which M.S.S. was subjected to in Greece, and for not having provided him with an effective means of contesting his transfer. And moving forward, governments and national courts will both have to give serious consideration to the reports and reasoned opinions of specialized human rights and refugee protection organizations.

In the short term, the judgment will stop all transfers to Greece from other EU members, while Greece sorts out its conditions and procedures for processing asylum claims. Greece will need help doing that and the EU must recognize its responsibility in that process. With similar cases pending about transfers of asylum seekers to Italy and Malta, one can hope this is the beginning of a more honest and humane regime.

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Nice piece. I was puzzled by some of the reasoning of the court. More precise paragraph 286 in which they write "Its main concern is whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled". The term refoulement comes from article 33 of the convention relating to the status of refugees. And as such has no direct relationship to the ECHR, in a strict sense article 3 only deals with torture and inhuman and degrading treatment. The 1951 convention allows refoulement in certain situations see paragraph 2 of article 33 of the 1951 convention. Article 3 has always been absolute. This has been lastly confirmed and an issue in the saadi judgement (correct me if I am wrong). With the above reasoning it appears as though the court has opened the door to non arbitrary expulsion under article 3..... Do you agree? Or was it just a slip of the pens.

Thanks for pointing this out Neal. I guess the answer here could be that the Court makes this particular observation in the context of assessing whether an effective remedy exists in Greece against deportation of M.S.S. to Afghanistan (art 13 taken with art 3/2 ECHR).
As such, it is not part of the assessment it normally makes under art 3 ECHR itself which, as you rightly said, is absolute in its protection against deportation to a country where a real risk of torture exists. This absolute art 3 ECHR protection was indeed reconfirmed in Saadi v Italy and goes further than the protection under art 33 of the 1951 Geneva Refugee Convention.

I agree that the Court’s formulation saying it merely protects against ‘arbitrary’ refoulement is odd, but I think – or hope! – that this does not necessarily mean that the Court would agree to non-arbitrary refoulement if that violates art 3 ECHR. It seems that the Court simply delineates the different kind of assessment it makes when looking at the quality of the asylum procedure, which should not arbitrary, and the substantive analysis it makes about the risks of deportation.


i doubt the uniformity of the Eu member states dealing with asylum seekers, ie:the quality of conditions given to applicants, if Greece is in violations of article 3 of the ECHR, which deals with torture,inhuman and degrading Ugtreatment. what efforts has the Grand Chamber of the ECHR and EU commission to ensure all Eu member states upgrade to good and favourable conditions in handling Refugees.

Thanks for your great information, the contents are quiet interesting.I will be waiting for your next post.
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