* This text was reproduced and reformatted from the text available at the European Court of Human Rights website (visited Apr. 15, 2011) http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=880339&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649%20and%20http://internationallawobserver.eu/2010/12/30/inter-american-court-of-human-rights-rules-on-irregul.

1 The Court is a Council of Europe body and not part of the European Union framework; nevertheless, all EU Member States belong to the Council of Europe.

2 M.S.S. v. Belgium & Greece, App. No. 30696/09 (Eur. Ct. H.R. 2011), available at http://www.unhcr.org/refworld/docid/4d39bc7f2.html.

3 Council Regulation 343/2003/EC of 18 February 2003 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in one of the Member States by a Third-Country National, 2003 O.J. (L 50/1), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:050:0001:0010:EN:PDF.

4 The Court has around 960 cases pending that relate to the Dublin Regulation, most of them concerning expulsions to Greece. The Court has ordered the temporary suspension of transfer orders in 531 cases.

5 The judgment deals with a number of significant issues; however, this note focuses on the aspect of the judgment that concerns the application of the Dublin II Regulation.

6 Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 (entered into force Apr. 22, 1954).

7 See M.S.S., App. No. 30696/09, 17-32.

8 Id. 34.

9 See id. 56 (detailing the UNHCR’s exposition of the principle).

10 Id. 160. 11 Id. 161-62.

12 Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, 2010 O.J. (C 83/1).

13 Charter of Fundamental Rights of the European Union, 2000 O.J. (C 364/1).

14 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953).

15 M.S.S., App. No. 30696/09, 70-75 (outlining the Dublin Procedure).

16 Report from the Commission to the European Parliament and the Council on the Evaluation of the Dublin System, COM(2007)299 final (2007), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0299:FIN:EN:PDF; Proposal for a Regulation of the European Parliament and of the Council Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in one of the Member States by a Third-Country National or a Stateless Person, COM(2008)820 final/2 (2008), available at http://eur-lex.europa.eu/LexUriServ/Lex-UriServ.do?uri=COM:2008:0820:FIN:EN:PDF; see also Eur. Council on Refugees & Exiles, Comments from the European Council on Refugees and Exiles on the European Commission Proposal to Recast the Dublin Regulation (2009), available at http://www.ecre.org/files/ECRE_Response_to_Recast_Dublin_Regulation_2009.pdf.

17 Approved with 398 votes in favor, fifty-six votes against, and sixty-five abstentions.

18 M.S.S., App. No. 30696/09, 223; see also id. at 91 (Rozakis, J., concurring).

19 Id. 324.

20 Id. 326.

21 Id. 330-31.

22 Id. 333.

23 Id. 341-43.

24 T.I. v. United Kingdom, App. No. 43844/98 (Eur. Ct. H.R. 2000).

25 K.R.S. v. United Kingdom, App. No. 32733/08 (Eur. Ct. H.R. 2008).

26 M.S.S., App. No. 30696/09, 347. But see id. at 113-17 (Bratza, J., partially dissenting).

27 Id. 349; see also id. 194-95.

28 See id. 339-40 (discussing the so-called ‘‘sovereignty clause’’ in Article 3 § 2 of the Dublin Regulation).

29 Id. 358-59

30 The UK, Belgium, Norway, Iceland, and Sweden had already halted such returns.

31 The Group of the EPP is the largest in the European Parliament.

32 Press Release, Simon Busuttil MEP & Georgios Papanikolaou MEP, Dublin Review (Asylum): Council Position on Suspension Mechanism Unacceptable (Oct. 11, 2010), available at http://www.eppgroup.eu/press/showpr.asp?PRContentID=16740&PRContentLG=en&PRControlDocTypeID=1&PRControlID=9837.

33 Statement of Cecilia Malmstro¨m, European Commissioner for Home Affairs, Following the Judgment of the ECHR on the Transfer of Asylum Seekers Under the EU Dublin Regulation, MEMO/11/35 (Jan. 21, 2011), available at http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/35&type=HTML.

1 It seems that in international humanitarian law ‘‘particularly vulnerable group’’ refers to priority treatment of certain categories of refugees.

2 Third party intervenors claimed that asylum seekers are deprived of the right to provide for their needs (paragraph 246). If this were corroborated and shown to be attributable to the State, e.g. if the practical difficulties of employment that were mentioned originated from restrictive regulation or official practice, I would find the State responsible under Article 3 for the misery of the asylum seekers. This point was, however, not fully substantiated.

3 Laban, C.J., Dutch Study of Iraqi Asylum Seekers: Impact of a long asylum procedure on health and health related dimensions among Iraqi asylum seekers in the Netherlands; An epidemiological study. Doctoral dissertation, 2010. p. 151 http://dspace.ubvu.vu.nl/bitstream/1871/15947/2/part.pdf Google Scholar. (comparing Iraqi asylum seekers whose asylum procedure has taken at least two years with Iraqi asylum seekers who had just arrived in the Netherlands, with additional literature).

4 Once again, it is hard to accept that the typical asylum seeker or refugee has the same profile as the applicant, who had money and speaks English.

5 The Court’s case-law required there to be a link between the general situation complained of and the applicant’s individual situation (Thampibillai v. the Netherlands, no. 61350/00, 17 February 2004, and Y. v. Russia, no. 20113/07, 4 December 2008). Where there is a mandatory procedure the general situation will apply inevitably to the applicant, therefore the nexus is established, and Greece is responsible; likewise Belgium, as it was aware of this fact. But it was not inevitable that M.S.S. would be kept for three days at a detention centre, as this does not follow from Greek law and there is no evidence of a standard practice in this regard; Belgium cannot be held responsible for the degrading detention.

6 Certainly, Belgium could not foresee that he would make efforts to bypass the Greek (and European Union) system as he simply wished to leave Greece. I do not find convincing the argument that the applicant wanted to leave Greece because of his state of need (paragraph 239). He left Greece six weeks after he applied for asylum. However, this personal choice which showed disregard for the asylum procedure does not absolve Belgium of its responsibilities which existed at the moment of the applicant’s transfer to Greece. The inhuman and degrading nature of the asylum procedure was a matter known to Belgium. This does not apply to the applicant’s detention in Greece (see below).

7 The Court held this letter of the UNHCR of 2 April 2009 to be of critical importance (paragraph 349) when it came to the determination of Belgium’s responsibility. Further, given the assurances of the Greek Government (paragraph 354) and the lack of conclusive proof of refoulement, there was nothing Belgium should have known in this regard; and Belgium has no responsibility in this respect.