EHRM, 19-01-2011, nr. 30696/09

Council Regulation No. 343/2003 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 (‘the Dublin Regulation’) applies to the Member States of the European Union and to Norway, Iceland and Switzerland.

The Regulation replaces the provisions of the Dublin Convention for determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, signed on 15 June 1990.

An additional regulation, Regulation no. 1560/2003 of 2 September 2003, lays down rules for the application of the Dublin Regulation.

The first recital of the Dublin Regulation states that it is part of a common policy on asylum aimed at progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.

The second recital affirms that the Regulation is based on the presumption that the member States respect the principle of non-refoulement enshrined in the Geneva Convention and are considered as safe countries.

Under the Regulation, the Member States must determine, based on a hierarchy of objective criteria (Articles 5 to 14), which Member State bears responsibility for examining an asylum application lodged on their territory. The aim is to avoid multiple applications and to guarantee that each asylum seeker's case is dealt with by a single Member State.

Where it is established that an asylum seeker has irregularly crossed the border into a Member State having come from a third country, the Member State thus entered is responsible for examining the application for asylum (Article 10 § 1). This responsibility ceases twelve months after the date on which the irregular border crossing took place.

Where the criteria in the regulation indicate that another Member State is responsible, that State is requested to take charge of the asylum seeker and examine the application for asylum. The requested State must answer the request within two months from the date of receipt of that request. Failure to reply within two months is stipulated to mean that the request to take charge of the person has been accepted (Articles 17 and 18 §§ 1 and 7).

Where the requested Member State accepts that it should take charge of an applicant, the Member State in which the application for asylum was lodged must notify the applicant of the decision to transfer him or her, stating the reasons. The transfer must be carried out at the latest within six months of acceptance of the request to take charge. Where the transfer does not take place within that time-limit, responsibility for processing the application lies with the Member State in which the application for asylum was lodged (Article 19).

By way of derogation from the general rule, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in the Regulation (Article 3 § 2). This is called the ‘sovereignty’ clause. In such cases the State concerned becomes the Member State responsible and assumes the obligations associated with that responsibility.

Furthermore, any Member State, even where it is not responsible under the criteria set out in the Regulation, may bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations (Article 15 § 1). This is known as the ‘humanitarian’ clause. In this case that Member State will, at the request of another Member State, examine the application for asylum of the person concerned. The persons concerned must consent.

Another Council Regulation, no. 2725/2000 of 11 December 2000, provides for the establishment of the Eurodac system for the comparison of fingerprints (‘the Eurodac Regulation’). It requires the States to register asylum seekers' fingerprints. The data is transmitted to Eurodac's central unit, run by the European Commission, which stores it in its central database and compares it with the data already stored there.

On 6 June 2007 the European Commission transmitted a report to the European Parliament and the Council on the evaluation of the Dublin system (COM(2007)299 final). On 3 December 2008 it made public its proposal for a recasting of the Dublin Regulation (COM(2008) 820 final/2). The purpose of the reform is to improve the efficiency of the system and ensure that all the needs of persons seeking international protection are covered by the procedure for determining responsibility.

The proposal aims to set in place a mechanism for suspending transfers under the Dublin system, so that, on the one hand, member States whose asylum systems are already under particularly heavy pressure are not placed under even more pressure by such transfers and, on the other hand, asylum seekers are not transferred to Member States which cannot offer them a sufficient level of protection, particularly in terms of reception conditions and access to the asylum procedure (Article 31 of the proposal). The State concerned must apply to the European Commission for a decision. The transfers may be suspended for up to six months. The Commission may extend the suspension for a further six months at its own initiative or at the request of the State concerned.

The proposal, examined under the codecision procedure, was adopted by the European Parliament at first reading on 7 May 2009 and submitted to the Commission and the Council.

At the Informal Justice and Home Affairs Council meeting in Brussels on 15 and 16 July 2010, the Belgian Presidency of the Council of the European Union placed on the agenda an exchange of views on the means of arriving at a single asylum procedure and a uniform standard of international protection by 2012. Discussion focused in particular on what priority the Council should give to negotiations on the recasting of the Dublin Regulation and on whether the ministers would back the inclusion of the temporary suspension clause.

The Court of Justice of the European Communities (CJEC), which became the Court of Justice of the European Union (CJEU) upon the entry into force of the Treaty of Lisbon, has delivered one judgment concerning the Dublin Regulation. In the Petrosian case (C-19/08, judgment of 29 January 2009) it was asked to clarify the interpretation of Article 20 §§ 1 and 2 concerning the taking of responsibility for an asylum application and the calculation of the deadline for making the transfer when the legislation of the requesting Member State provided for appeals to have suspensive effect. The CJEU found that time started to run from the time of the decision on the merits of the request.

The CJEU has recently received a request from the Court of Appeal (United Kingdom) for a preliminary ruling on the interpretation to be given to the sovereignty clause in the Dublin Regulation (case of N.S., C-411/10).

Three other European texts supplement the Dublin Regulation.

Directive 2003/9 of 27 January 2003, laying down minimum standards for the reception of asylum seekers in the Member States (‘the Reception Directive’), entered into force on the day of its publication in the Official Journal (OJ L 31 of 6.2.2003). It requires the States to guarantee asylum seekers:

In 2007 the European Commission asked the CJEC (now the CJEU) to examine whether Greece was fulfilling its obligations concerning the reception of refugees. In a judgment of 19 April 2007 (case C-72/06), the CJEC found that Greece had failed to fulfil its obligations under the Reception Directive. The Greek authorities subsequently transposed the Reception Directive.

On 3 November 2009 the European Commission sent a letter to Greece announcing that it was bringing new proceedings against it.

Directive 2005/85 of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status in the Member States (the ‘Procedures Directive’), which entered into force on the day of its publication in the Official Journal (OJ L 326/13 of 13.12.2005), guarantees the following rights:

The European Commission initiated proceedings against Greece in February 2006 for failure to honour its obligations, because of the procedural deficiencies in the Greek asylum system, and brought the case before the CJEC (now the CJEU). Following the transposition of the Procedures Directive into Greek law in July 2008, the case was struck out of the list.

On 24 June 2010 the European Commission brought proceedings against Belgium in the CJEU on the grounds that the Belgian authorities had not fully transposed the Procedures Directive — in particular, the minimum obligations concerning the holding of personal interviews.

In its proposal for recasting the Procedures Directive, presented on 21 October 2009 (COM(2009) 554 final), the Commission contemplated strengthening the obligation to inform the applicant. It also provided for a full and ex nunc review of first-instance decisions by a court or tribunal and specified that the notion of effective remedy required a review of both facts and points of law. It further introduced provisions to give appeals automatic suspensive effect. The proposed amendments were intended to improve consistency with the evolving case-law regarding such principles as the right to defence, equality of arms, and the right to effective judicial protection.

Directive 2004/83 of 29 April 2004 concerns minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (‘the Qualification Directive’). It entered into force 20 days after it was published in the Official Journal (OJ L 304 of 30.09.2004).

This Directive contains a set of criteria for granting refugee or subsidiary protection status and laying down the rights attached to each status. It introduces a harmonised system of temporary protection for persons not covered by the Geneva Convention but who nevertheless need international protection, such as victims of widespread violence or civil war.

The CJEC (now the CJEU) has delivered two judgments concerning the Qualification Directive: the Elgafaji (C-465/07) judgment of 17 February 2009 and the Salahadin Abdulla and Others judgment of 2 March 2010 (joined cases C-175, 176, 178 and 179/08).

All nationals of third countries or stateless persons have the right to apply for asylum. The authorities responsible for receiving and examining the applications make sure that all adults are able to exercise their right to lodge an application provided that they present themselves before the authorities in person (Article 4 § 1 of PD no. 90/2008).

The authorities immediately inform asylum seekers of their rights and obligations by giving them a brochure, in a language they understand, describing the procedure for examining asylum applications and the asylum seeker's rights and obligations. If the asylum seeker does not understand the language used in the form, or is illiterate, he is informed orally, with the assistance of an interpreter (Article 1 § 6 of PD 61/1999 and Article 8§ 1a) of PD no. 90/2008).

An information brochure has been drafted in collaboration with the UNHCR and exists in six languages (Arabic, English, French, Greek, Persian and Turkish).

When asylum seekers arrive at Athens international airport, the obligation to provide this information lies with the security services present in the airport. Interpretation is provided by interpreters from Attica police headquarters, non-governmental organisations or airport staff.

Asylum seekers must cooperate with the competent authorities (Article 9 § 1 of PD no. 90/2008). In particular, they must inform them of any change of address (Article 6 § 1 of PD no. 220/2007).

If they have not already done so at the airport, asylum seekers must then report, on a Saturday, to the Aliens Directorate at Attica police headquarters, to submit their applications for asylum. Since PD no. 81/2009 (Article 1) entered into force, the lodging of asylum applications has been decentralised to the fifty-two police headquarters in different parts of the country.

Asylum seekers who have applied for asylum at the airport must report within three days to Attica police headquarters to register their place of residence.

They are then invited to the police headquarters for an individual interview, during which they may be represented. The interview is held with the assistance of an interpreter and the person concerned is asked to confirm all the information contained in the application and to give details of their identity, by what route they arrived in Greece and the reasons why they fled their country of origin (Article 10 § 1 of PD no. 90/2008).

Until 2009, after the interview the police officer in charge of the interview transmitted the asylum application to one of the three refugee advisory committees within the Ministry of Public Order (now the Ministry of Civil Protection) for an opinion. These committees were made up of police officers and municipal representatives and in some cases the UNHCR was an observer. The committee to which the application was referred transmitted an opinion, in the form of an internal report, to the Attica police headquarters, which gave its decision.

PD no. 81/2009 provides for the decentralisation of the examination of asylum applications at first instance and the setting up of refugee advisory committees in all fifty-two police headquarters round the country (Article 3). The examination procedure itself has not changed, but it now takes place in all fifty-two police headquarters in the different regions.

The decisions are taken on an individual basis, after careful, objective and impartial examination. The authorities gather and assess precise, detailed information from reliable sources, such as that supplied by the UNHCR on the general situation in the country of origin (Article 6 § 2 of PD no. 90/2008). As at every stage of the procedure, applicants are provided with an interpreter at the State's expense (Article 8 § 1b) of PD 90/2008).

They have the right to consult a legal or other counsel at their own expense (Article 11 § 1 of PD no. 90/2008).

The decision is served on the applicant or his or her lawyer or legal representative (Article 8 § 1d) of PD no. 90/2008). On this subject, point 10 in the brochure reads as follows:

If the address is unknown, the decision is sent to the municipality where the head office of the service where the asylum application was lodged is located, where it will be displayed on a municipal notice board and communicated to the UNHCR (Article 7 § 2 of PD no. 90/2008).

The information is communicated in a language which the asylum seeker may reasonably be supposed to understand if he or she is not represented and has no legal assistance (Article 8 § 1e) of PD 90/2008).

Until 2009, the refugee advisory committees examined asylum applications at second instance when these had been rejected (Article 25 of PD no. 90/2008). The UNHCR sat on these committees (Article 26 of PD no. 90/2008). Thereafter it was possible to apply to the Supreme Administrative Court to quash the decision. Article 5 of PD no. 81/2009 did away with the second-instance role of the refugee advisory committees. Since 2009 appeals against the first-instance decision have lain directly to the Supreme Administrative Court. In July 2009 the UNHCR decided that it would no longer take part in the procedure.

Unless the applicant has already been given the relevant information in writing, a decision to reject an application must mention the possibility of lodging an appeal, the time-limit for doing so and the consequences of letting the deadline pass (Articles 7 § 3 and 8§ 1e) of PD 90/2008).

Appeals to the Supreme Administrative Court do not suspend the execution of an expulsion order issued following a decision to reject an application for asylum. However, aliens have the right to appeal against a deportation order within five days of receiving notification thereof. The decision is then given within three working days from the day on which the appeal was lodged. This type of appeal does suspend the enforcement of the expulsion decision. Where detention is ordered at the same time as expulsion, the appeal suspends the expulsion but not the detention (section 77 of Law no. 3386/2005).

Asylum seekers are entitled to legal aid for appeals to the Supreme Administrative Court provided that the appeals are not manifestly inadmissible or ill-founded (Article 11 § 2 of PD no. 90/2008).

Law no. 3386/2005, as amended by Law no. 3772/2009 (section 76(1) c), authorises the administrative expulsion of an alien in particular when his or her presence in Greece is a threat to public order or national security. Aliens are considered to represent such a threat if there are criminal proceedings pending against them for an offence punishable by more than three months' imprisonment. Illegally leaving the country using a false passport or other travel document is a criminal offence under sections 83(1) and 87(7) of Law no. 3386/2005.

However, asylum applicants and refugees are excluded from the scope of this Law (sections 1 c) and 79 d)). Asylum seekers may remain in the country until the administrative procedure for examining their application has been completed, and cannot be removed by any means (Article 1 § 1 of PD no. 61/1999 and Article 5 § 1 of PD no. 90/2008).

In exceptional cases, particularly for humanitarian reasons, the Minister of Public Order (now the Minister of Civil Protection) may authorise the temporary residence of an alien whose application for refugee status has been rejected, until it becomes possible for him or her to leave the country (section 25(6) of Law no. 1975/1991). Where such authorisation is given for humanitarian reasons the criteria taken into account are the objective impossibility of removal or return to the country of origin for reasons of force majeure, such as serious health reasons, an international boycott of the country of origin, civil conflicts with mass human rights violations, or the risk of treatment contrary to Article 3 of the Convention being inflicted in the country of origin (Article 8 § 2 of PD no. 61/1999). In this last case the Supreme Administrative Court considers that taking into consideration the risks in respect of Article 3 of the Convention is not an option but an obligation for the administrative authorities (see, for example, judgments nos. 4055/2008 and 434/2009).

Subsidiary protection may also be granted in conformity with PD no. 96/2008, which transposes Directive 2004/83/EC on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.

Following the parliamentary elections held in Greece in October 2009, the new Government set up an expert committee to give an opinion on the reform of the asylum system in Greece. Composed of experts from the Ministries of Civil Protection, the Interior and Health, and from the UNHCR, the Greek Council for refugees and the Ombudsman's office, as well as academics, the committee was asked to propose amendments to the current law and practice and make suggestions concerning the composition and modus operandi of a new civil authority to deal with applications for asylum, composed not of police officers, like today, but of public servants. It is also envisaged to restore the appellate role of the refugee advisory committees.

The proposals of the expert committee were submitted to the Greek Government on 22 December 2009 and a draft bill is being prepared. According to Greek Prime Minister George Papandreou, speaking at a press conference on 20 January 2010 with the participation of the United Nations High Commissioner for Refugees, Antonio Guterres, the aim pursued is to reform the legislative framework ‘to bring it into line with the 1951 Convention on refugees and with European law’.

The Court reiterates that the confinement of aliens, accompanied by suitable safeguards for the persons concerned, is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations, in particular under the 1951 Geneva Convention relating to the Status of Refugees and the European Convention on Human Rights. States' legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum seekers of the protection afforded by these conventions (see Amuur v. France, 25 June 1996, § 43, Reports of Judgments and Decisions 1996-III).

Where the Court is called upon to examine the conformity of the manner and method of the execution of the measure with the provisions of the Convention, it must look at the particular situations of the persons concerned (see Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, § 100, ECHR 2008-… (extracts)).

The States must have particular regard to Article 3 of the Convention, which enshrines one of the most fundamental values of democratic societies and prohibits in absolute terms torture and inhuman or degrading treatment or punishment irrespective of the circumstances and of the victim's conduct (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).

The Court has held on numerous occasions that to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see, for example, Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI).

The Court considers treatment to be ‘inhuman’ when it was ‘premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering’.

Treatment is considered to be ‘degrading’ when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance (ibid., § 92, and Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III). It may suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others (see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26). Lastly, although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III).

Article 3 of the Convention requires the State to ensure that detention conditions are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the detainees to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see, for example, Kudła, cited above, § 94).

The Court has held that confining an asylum seeker to a prefabricated cabin for two months without allowing him outdoors or to make a telephone call, and with no clean sheets and insufficient hygiene products, amounted to degrading treatment within the meaning of Article 3 of the Convention (see S.D. v. Greece, no. 53541/07, §§ 49 to 54, 11 June 2009). Similarly, a period of detention of six days, in a confined space, with no possibility of taking a walk, no leisure area, sleeping on dirty mattresses and with no free access to a toilet is unacceptable with respect to Article 3 (ibid., § 51). The detention of an asylum seeker for three months on police premises pending the application of an administrative measure, with no access to any recreational activities and without proper meals has also been considered as degrading treatment (see Tabesh v. Greece, no. 8256/07, §§ 38 to 44, 26 November 2009). Lastly, the Court has found that the detention of an applicant, who was also an asylum seeker, for three months in an overcrowded place in appalling conditions of hygiene and cleanliness, with no leisure or catering facilities, where the dilapidated state of repair of the sanitary facilities rendered them virtually unusable and where the detainees slept in extremely filthy and crowded conditions amounted to degrading treatment prohibited by Article 3 (see A.A. v. Greece, no. 12186/08, §§ 57 to 65, 22 July 2010).

The Court notes first of all that the States which form the external borders of the European Union are currently experiencing considerable difficulties in coping with the increasing influx of migrants and asylum seekers. The situation is exacerbated by the transfers of asylum seekers by other Member States in application of the Dublin Regulation (see paragraphs 65–82 above). The Court does not underestimate the burden and pressure this situation places on the States concerned, which are all the greater in the present context of economic crisis. It is particularly aware of the difficulties involved in the reception of migrants and asylum seekers on their arrival at major international airports and of the disproportionate number of asylum seekers when compared to the capacities of some of these States. However, having regard to the absolute character of Article 3, that cannot absolve a State of its obligations under that provision.

That being so, the Court does not accept the argument of the Greek Government that it should take these difficult circumstances into account when examining the applicant's complaints under Article 3.

The Court deems it necessary to take into account the circumstances of the applicant's placement in detention and the fact that in spite of what the Greek Government suggest, the applicant did not, on the face of it, have the profile of an ‘illegal immigrant’. On the contrary, following the agreement on 4 June 2009 to take charge of the applicant, the Greek authorities were aware of the applicant's identity and of the fact that he was a potential asylum seeker. In spite of that, he was immediately placed in detention, without any explanation being given.

The Court notes that according to various reports by international bodies and non-governmental organisations (see paragraph 160 above), the systematic placement of asylum seekers in detention without informing them of the reasons for their detention is a widespread practice of the Greek authorities.

The Court also takes into consideration the applicant's allegations that he was subjected to brutality and insults by the police during his second period of detention. It observes that these allegations are not supported by any documentation such as a medical certificate and that it is not possible to establish with certainty exactly what happened to the applicant. However, the Court is once again obliged to note that the applicant's allegations are consistent with numerous accounts collected from witnesses by international organisations (see paragraph 160 above). It notes, in particular, that following its visit to the holding centre next to Athens international airport in 2007, the European Committee for the Prevention of Torture reported cases of ill-treatment at the hands of police officers (see paragraph 163 above).

The Court notes that the parties disagree about the sectors in which the applicant was held. The Government submit that he was held in two different sectors and that the difference between the facilities in the two sectors should be taken into account. The applicant, on the other hand, claims that he was held in exactly the same conditions during both periods of detention. The Court notes that the assignment of detainees to one sector or another does not follow any strict pattern in practice but may vary depending on the number of detainees in each sector (see paragraph 165 above). It is possible, therefore, that the applicant was detained twice in the same sector. The Court concludes that there is no need for it to take into account the distinction made by the Government on this point.

It is important to note that the applicant's allegations concerning living conditions in the holding centre are supported by similar findings by the CPT (see paragraph 163 above), the UNHCR (see paragraph 213 above), Amnesty International and Médecins sans Frontières — Greece (paragraphs 165 and 166 above) and are not explicitly disputed by the Government.

The Court notes that, according to the findings made by organisations that visited the holding centre next to the airport, the sector for asylum seekers was rarely unlocked and the detainees had no access to the water fountain outside and were obliged to drink water from the toilets. In the sector for arrested persons, there were 145 detainees in a 110 sq. m space. In a number of cells there was only one bed for fourteen to seventeen people. There were not enough mattresses and a number of detainees were sleeping on the bare floor. There was insufficient room for all the detainees to lie down and sleep at the same time. Because of the overcrowding, there was a lack of sufficient ventilation and the cells were unbearably hot. Detainees' access to the toilets was severely restricted and they complained that the police would not let them out into the corridors. The police admitted that the detainees had to urinate in plastic bottles which they emptied when they were allowed to use the toilets. It was observed in all sectors that there was no soap or toilet paper, that sanitary and other facilities were dirty, that the sanitary facilities had no doors and the detainees were deprived of outdoor exercise.

The Court reiterates that it has already considered that such conditions, which are found in other detention centres in Greece, amounted to degrading treatment within the meaning of Article 3 of the Convention (see paragraph 222 above). In reaching that conclusion, it took into account the fact that the applicants were asylum seekers.

The Court sees no reason to depart from that conclusion on the basis of the Greek Government's argument that the periods when the applicant was kept in detention were brief. It does not regard the duration of the two periods of detention imposed on the applicant — four days in June 2009 and a week in August 2009 — as being insignificant. In the present case the Court must take into account that the applicant, being an asylum seeker, was particularly vulnerable because of everything he had been through during his migration and the traumatic experiences he was likely to have endured previously.

On the contrary, in the light of the available information on the conditions at the holding centre near Athens airport, the Court considers that the conditions of detention experienced by the applicant were unacceptable. It considers that, taken together, the feeling of arbitrariness and the feeling of inferiority and anxiety often associated with it, as well as the profound effect such conditions of detention indubitably have on a person's dignity, constitute degrading treatment contrary to Article 3 of the Convention. In addition, the applicant's distress was accentuated by the vulnerability inherent in his situation as an asylum seeker.

There has therefore been a violation of Article 3 of the Convention.

In cases concerning the expulsion of asylum seekers the Court has explained that it does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention. 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 (see, among other authorities, T.I. v. the United Kingdom (dec. no. 43844/98, ECHR 2000-III), and Müslim, cited above, §§ 72 to 76).

By virtue of Article 1 (which provides: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’), the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Articles 13 and 35 § 1 of the Convention (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI).

As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an ‘arguable complaint’ under the Convention and to grant appropriate relief. The scope of the Contracting States' obligations under Article 13 varies depending on the nature of the applicant's complaint; however, the remedy required by Article 13 must be ‘effective’ in practice as well as in law (see Kudla cited above, § 157).

The ‘effectiveness’ of a ‘remedy’ within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the ‘authority’ referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 53, ECHR 2007-V § 53).

In order to be effective, the remedy required by Article 13 must be available in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Çakıcı v. Turkey [GC], no. 23657/94, § 112, ECHR 1999-IV).

Article 13 requires the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see Jabari v. Turkey, no. 40035/98, § 48, ECHR 2000-VIII).

Particular attention should be paid to the speediness of the remedial action itself, it not being excluded that the adequate nature of the remedy can be undermined by its excessive duration (see Doran v. Ireland, no. 50389/99, § 57, ECHR 2003-X).

Lastly, in view of the importance which the Court attaches to Article 3 of the Convention and the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises, the effectiveness of a remedy within the meaning of Article 13 imperatively requires close scrutiny by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005-III), independent and rigorous scrutiny of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (see Jabari, cited above, § 50), as well as a particularly prompt response (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004-IV (extracts)); it also requires that the person concerned should have access to a remedy with automatic suspensive effect (see Čonka v. Belgium, no. 51564/99, §§ 81–83, ECHR 2002-I, and Gebremedhin [Gaberamadhien], cited above, § 66).

In order to determine whether Article 13 applies to the present case, the Court must ascertain whether the applicant can arguably assert that his removal to Afghanistan would infringe Article 2 or Article 3 of the Convention.

It notes that, when lodging his application the applicant produced, in support of his fears concerning Afghanistan, copies of certificates showing that he had worked as an interpreter (see paragraph 31 above). It also has access to general information about the current situation in Afghanistan and to the Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan published by the UNHCR and regularly updated (see paragraphs 197–202 above).

For the Court, this information is prima facie evidence that the situation in Afghanistan has posed and continues to pose a widespread problem of insecurity and that the applicant belongs to a category of persons particularly exposed to reprisals at the hands of the anti-government forces because of the work he did as an interpreter for the international air forces. It further notes that the gravity of the situation in Afghanistan and the risks that exist there are not disputed by the parties. On the contrary, the Greek Government have stated that their current policy is not to send asylum seekers back to that country by force precisely because of the high-risk situation there.

The Court concludes from this that the applicant has an arguable claim under Article 2 or Article 3 of the Convention.

This does not mean that in the present case the Court must rule on whether there would be a violation of those provisions if the applicant were returned. It is in the first place for the Greek authorities, who have responsibility for asylum matters, themselves to examine the applicant's request and the documents produced by him and assess the risks to which he would be exposed in Afghanistan. The Court's primary concern is whether effective guarantees exist in the present case to protect the applicant against arbitrary removal directly or indirectly back to his country of origin.

The Court notes that Greek legislation, based on Community law standards in terms of asylum procedure, contains a number of guarantees designed to protect asylum seekers from removal back to the countries from which they have fled without any examination of the merits of their fears (see paragraphs 99–121 above). It notes the Government's assurances that the applicant's application for asylum will be examined in conformity with the law.

The Court observes, however, that for a number of years the UNHCR and the Council of Europe Commissioner for Human Rights as well as many international non-governmental organisations have revealed repeatedly and consistently that Greece's legislation is not being applied in practice and that the asylum procedure is marked by such major structural deficiencies that asylum seekers have very little chance of having their applications and their complaints under the Convention seriously examined by the Greek authorities, and that in the absence of an effective remedy, at the end of the day they are not protected against arbitrary removal back to their countries of origin (see paragraphs 160 and 173–195 above).

The Court notes, firstly, the shortcomings in access to the asylum procedure and in the examination of applications for asylum (see paragraphs 173–188 above): insufficient information for asylum seekers about the procedures to be followed, difficult access to the Attica police headquarters, no reliable system of communication between the authorities and the asylum seekers, shortage of interpreters and lack of training of the staff responsible for conducting the individual interviews, lack of legal aid effectively depriving the asylum seekers of legal counsel, and excessively lengthy delays in receiving a decision. These shortcomings affect asylum seekers arriving in Greece for the first time as well as those sent back there in application of the Dublin Regulation.

The Court is also concerned about the findings of the different surveys carried out by the UNHCR, which show that almost all first-instance decisions are negative and drafted in a stereotyped manner without any details of the reasons for the decisions being given (see paragraph 184 above). In addition, the watchdog role played by the refugee advisory committees at second instance has been removed and the UNHCR no longer plays a part in the asylum procedure (see paragraphs 114 and 189 above).

The Government maintained that whatever deficiencies there might be in the asylum procedure, they had not affected the applicant's particular situation.

The Court notes in this connection that the applicant claims not to have received any information about the procedures to be followed. Without wishing to question the Government's good faith concerning the principle of an information brochure being made available at the airport, the Court attaches more weight to the applicant's version because it is corroborated by a very large number of accounts collected from other witnesses by the Commissioner, the UNHCR and various non-governmental organisations. In the Court's opinion, the lack of access to information concerning the procedures to be followed is clearly a major obstacle in accessing those procedures.

The Government also criticised the applicant for not setting the procedure in motion by going to the Attica police headquarters within the time-limit prescribed in the notification.

On this point the Court notes firstly that the three-day time-limit the applicant was given was a very short one considering how difficult it is to gain access to the police headquarters concerned.

Also, it must be said that the applicant was far from the only one to have misinterpreted the notice and that many asylum seekers do not go to the police headquarters because they have no address to declare.

Moreover, even if the applicant did receive the information brochure, the Court shares his view that the text is very ambiguous as to the purpose of the convocation (see paragraph 112 above), and that nowhere is it stated that asylum seekers can inform the Attica police headquarters that they have no address in Greece, so that information can be sent to them through another channel.

In such conditions the Court considers that the Government can scarcely rely on the applicant's failure to comply with this formality and that they should have proposed a reliable means of communicating with the applicant so that he could follow the procedure effectively.

Next, the Court notes that the parties agree that the applicant's asylum request has not yet been examined by the Greek authorities.

According to the Government, this situation is due at present to the fact that the applicant did not keep the appointment on 2 July 2010 to be interviewed by the refugee advisory committee. The Government have not explained the impact of that missed appointment on the progress of the domestic proceedings. Be that as it may, the applicant informed the Court, through his counsel, that the convocation had been given to him in Greek when he renewed his pink card, and that the interpreter had made no mention of any date for an interview. Although not in a position to verify the truth of the matter, the Court again attaches more weight to the applicant's version, which reflects the serious lack of information and communication affecting asylum seekers.

In such conditions the Court does not share the Government's view that the applicant, by his own actions, failed to give the domestic authorities an opportunity to examine the merits of his complaints and that he has not been affected by the deficiencies in the asylum procedure.

The Court concludes that to date the Greek authorities have not taken any steps to communicate with the applicant or reached any decision in his case, offering him no real and adequate opportunity to defend his application for asylum. What is more, the Court takes note of the extremely low rate of asylum or subsidiary protection granted by the Greek authorities compared with other European Union member States (see paragraphs 125–126 above). The importance to be attached to statistics varies, of course, according to the circumstances, but in the Court's view they tend here to strengthen the applicant's argument concerning his loss of faith in the asylum procedure.

The Court is not convinced by the Greek Government's explanations concerning the policy of returns to Afghanistan organised on a voluntary basis. It cannot ignore the fact that forced returns by Greece to high-risk countries have regularly been denounced by the third-party interveners and several of the reports consulted by the Court (see paragraphs 160, 192 and 282).

Of at least equal concern to the Court are the risks of refoulement the applicant faces in practice before any decision is taken on the merits of his case. The applicant did escape expulsion in August 2009, by application of PD no. 90/2008 (see paragraphs 43–48 and 120 above). However, he claimed that he had barely escaped a second attempt by the police to deport him to Turkey. The fact that in both cases the applicant had been trying to leave Greece cannot be held against him when examining the conduct of the Greek authorities with regard to the Convention and when the applicant was attempting to find a solution to a situation the Court considers contrary to Article 3 (see paragraphs 263 and 264 above).

The Court must next examine whether, as the Government alleged, an application to the Supreme Administrative Court for judicial review of a possible rejection of the applicant's request for asylum may be considered as a safety net protecting him against arbitrary refoulement.

The Court begins by observing that, as the Government have alleged, although such an application for judicial review of a decision rejecting an asylum application has no automatic suspensive effect, lodging an appeal against an expulsion order issued following the rejection of an application for asylum does automatically suspend enforcement of the order.

However, the Court reiterates that the accessibility of a remedy in practice is decisive when assessing its effectiveness. The Court has already noted that the Greek authorities have taken no steps to ensure communication between the competent authorities and the applicant. That fact, combined with the malfunctions in the notification procedure in respect of ‘persons of no known address’ reported by the Council of Europe Commissioner for Human Rights and the UNHCR (see paragraph 187 above), makes it very uncertain whether the applicant will be able to learn the outcome of his asylum application in time to react within the prescribed time-limit.

In addition, although the applicant clearly lacks the wherewithal to pay a lawyer, he has received no information concerning access to organisations which offer legal advice and guidance. Added to that is the shortage of lawyers on the list drawn up for the legal aid system (see paragraphs 191 and 281 above), which renders the system ineffective in practice. Contrary to the Government's submissions, the Court considers that this situation may also be an obstacle hindering access to the remedy and falls within the scope of Article 13, particularly where asylum seekers are concerned.

Lastly, the Court cannot consider, as the Government have suggested, that the length of the proceedings before the Supreme Administrative Court is irrelevant for the purposes of Article 13. The Court has already stressed the importance of swift action in cases concerning ill-treatment by State agents (see paragraph 293 above). In addition it considers that such swift action is all the more necessary where, as in the present case, the person concerned has lodged a complaint under Article 3 in the event of his deportation, has no procedural guarantee that the merits of his complaint will be given serious consideration at first instance, statistically has virtually no chance of being offered any form of protection and lives in a state of precariousness that the Court has found to be contrary to Article 3. It accordingly considers that the information supplied by the Council of Europe Commissioner for Human Rights concerning the length of proceedings (see paragraph 190 above), which the Government have not contradicted, is evidence that an appeal to the Supreme Administrative Court does not offset the lack of guarantees surrounding the examination of asylum applications on the merits.

In the light of the above, the preliminary objections raised by the Greek Government (see paragraph 283 above) cannot be accepted and the Court finds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3 because of the deficiencies in the Greek authorities' examination of the applicant's asylum request and the risk he faces of being returned directly or indirectly to his country of origin without any serious examination of the merits of his asylum application and without having access to an effective remedy.

In view of that finding and of the circumstances of the case, the Court considers that there is no need for it to examine the applicant's complaints lodged under Article 13 taken in conjunction with Article 2.

In these two cases the Court had the opportunity to examine the effects of the Dublin Convention, then the Dublin Regulation with regard to the Convention.

The case of T.I. (dec., cited above) concerned a Sri Lankan national who had unsuccessfully sought asylum in Germany and had then submitted a similar application in the United Kingdom. In application of the Dublin Convention, the United Kingdom had ordered his transfer to Germany

In its decision the Court considered that indirect removal to an intermediary country, which was also a Contracting Party, left the responsibility of the transferring State intact, and that State was required, in accordance with the well-established case-law, not to deport a person where substantial grounds had been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country.

Furthermore, the Court reiterated that where States cooperated in an area where there might be implications as to the protection of fundamental rights, it would be incompatible with the purpose and object of the Convention if they were absolved of all responsibility vis-à-vis the Convention in the area concerned (see, among other authorities, Waite and Kennedy v. Germany [GC], no. 26083/94, § 67, ECHR 1999-I).

When they apply the Dublin Regulation, therefore, the States must make sure that the intermediary country's asylum procedure affords sufficient guarantees to avoid an asylum seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces from the standpoint of Article 3 of the Convention.

Although in the T. I. case the Court rejected the argument that the fact that Germany was a party to the Convention absolved the United Kingdom from verifying the fate that awaited an asylum seeker it was about to transfer to that country, the fact that the asylum procedure in Germany apparently complied with the Convention, and in particular Article 3, enabled the Court to reject the allegation that the applicant's removal to Germany would make him run a real and serious risk of treatment contrary to that Article. The Court considered that there was no reason in that particular case to believe that Germany would have failed to honour its obligations under Article 3 of the Convention and protect the applicant from removal to Sri Lanka if he submitted credible arguments demonstrating that he risked ill-treatment in that country.

That approach was confirmed and developed in the K.R.S. decision (cited above). The case concerned the transfer by the United Kingdom authorities, in application of the Dublin Regulation, of an Iranian asylum seeker to Greece, through which country he had passed before arriving in the United Kingdom in 2006. Relying on Article 3 of the Convention, the applicant complained of the deficiencies in the asylum procedure in Greece and the risk of being sent back to Iran without the merits of his asylum application being examined, as well as the reception reserved for asylum seekers in Greece.

After having confirmed the applicability of the T.I. case-law to the Dublin Regulation (see also on this point Stapleton v. Ireland (dec.), no. 56588/07, § 30, ECHR 2010-…), the Court considered that in the absence of proof to the contrary it must assume that Greece complied with the obligations imposed on it by the Community directives laying down minimum standards for asylum procedures and the reception of asylum seekers, which had been transposed into Greek law, and that it would comply with Article 3 of the Convention.

In the Court's opinion, in view of the information available at the time to the United Kingdom Government and the Court, it was possible to assume that Greece was complying with its obligations and not sending anybody back to Iran, the applicant's country of origin.

Nor was there any reason to believe that persons sent back to Greece under the Dublin Regulation, including those whose applications for asylum had been rejected by a final decision of the Greek authorities, had been or could be prevented from applying to the Court for an interim measure under Rule 39 of the Rules of Court.

The Court has already stated its opinion that the applicant could arguably claim that his removal to Afghanistan would violate Article 2 or Article 3 of the Convention (see paragraphs 296–297 above).

The Court must therefore now consider whether the Belgian authorities should have regarded as rebutted the presumption that the Greek authorities would respect their international obligations in asylum matters, in spite of the K.R.S. case-law, which the Government claimed the administrative and judicial authorities had wanted to follow in the instant case.

The Court disagrees with the Belgian Government's argument that, because he failed to voice them at his interview, the Aliens Office had not been aware of the applicant's fears in the event of his transfer back to Greece at the time when it issued the order for him to leave the country.

The Court observes first of all that numerous reports and materials have been added to the information available to it when it adopted its K.R.S. decision in 2008. These reports and materials, based on field surveys, all agree as to the practical difficulties involved in the application of the Dublin system in Greece, the deficiencies of the asylum procedure and the practice of direct or indirect refoulement on an individual or a collective basis.

The authors of these documents are the UNHCR and the Council of Europe Commissioner for Human Rights, international non-governmental organisations like Amnesty International, Human Rights Watch, Pro-Asyl and the European Council on Refugees and Exiles, and non-governmental organisations present in Greece such as Greek Helsinki Monitor and the Greek National Commission for Human Rights (see paragraph 160 above). The Court observes that such documents have been published at regular intervals since 2006 and with greater frequency in 2008 and 2009, and that most of them had already been published when the expulsion order against the applicant was issued.

The Court also attaches critical importance to the letter sent by the UNHCR in April 2009 to the Belgian Minister in charge of immigration. The letter, which states that a copy was also being sent to the Aliens Office, contained an unequivocal plea for the suspension of transfers to Greece (see paragraphs 194 and 195 above).

Added to this is the fact that since December 2008 the European asylum system itself has entered a reform phase and that, in the light of the lessons learnt from the application of the texts adopted during the first phase, the European Commission has made proposals aimed at substantially strengthening the protection of the fundamental rights of asylum seekers and implementing a temporary suspension of transfers under the Dublin Regulation to avoid asylum seekers being sent back to Member States unable to offer them a sufficient level of protection of their fundamental rights (see paragraphs 77–79 above).

Furthermore, the Court notes that the procedure followed by the Aliens Office in application of the Dublin Regulation left no possibility for the applicant to state the reasons militating against his transfer to Greece. The form the Aliens Office filled in contains no section for such comments (see paragraph 130 above).

In these conditions the Court considers that the general situation was known to the Belgian authorities and that the applicant should not be expected to bear the entire burden of proof. On the contrary, it considers it established that in spite of the few examples of application of the sovereignty clause produced by the Government, which, incidentally, do not concern Greece, the Aliens Office systematically applied the Dublin Regulation to transfer people to Greece without so much as considering the possibility of making an exception.

The Belgian Government argued that in any event they had sought sufficient assurances from the Greek authorities that the applicant faced no risk of treatment contrary to the Convention in Greece. In that connection, the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention (see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, § 147, ECHR 2008-…).

The Court is also of the opinion that the diplomatic assurances given by Greece to the Belgian authorities did not amount to a sufficient guarantee. It notes first of all that the agreement to take responsibility in application of the Dublin Regulation was sent by the Greek authorities after the order to leave the country had been issued, and that the expulsion order had therefore been issued solely on the basis of a tacit agreement by the Greek authorities. Secondly, it notes that the agreement document is worded in stereotyped terms (see paragraph 24 above) and contains no guarantee concerning the applicant in person. No more did the information document the Belgian Government mentioned, provided by the Greek authorities, contain any individual guarantee; it merely referred to the applicable legislation, with no relevant information about the situation in practice.

The Court next rejects the Government's argument that the Court itself had not considered it necessary to indicate an interim measure under Rule 39 to suspend the applicant's transfer. It reiterates that in cases such as this, where the applicant's expulsion is imminent at the time when the matter is brought to the Court's attention, it must take an urgent decision. The measure indicated will be a protective measure which on no account prejudges the examination of the application under Article 34 of the Convention. At this stage, when an interim measure is indicated, it is not for the Court to analyse the case in depth — and indeed it will often not have all the information it needs to do so (see, mutatis mutandis, Paladi v. Moldova [GC], no. 39806/05, § 89, ECHR 2009-…). In the instant case, moreover, the letters sent by the Court clearly show that, fully aware of the situation in Greece, it asked the Greek Government to follow the applicant's case closely and to keep it informed (see paragraphs 32 and 39, above).

The respondent Government, supported by the third-party intervening Governments, lastly submitted that asylum seekers should lodge applications with the Court only against Greece, after having exhausted the domestic remedies in that country, if necessary requesting interim measures.

While considering that this is in principle the most normal course of action under the Convention system, the Court deems that its analysis of the obstacles facing asylum seekers in Greece clearly shows that applications lodged there at this point in time are illusory. The Court notes that the applicant is represented before it by the lawyer who defended him in Belgium. Considering the number of asylum applications pending in Greece, no conclusions can be drawn from the fact that some asylum seekers have brought cases before the Court against Greece. In this connection it also takes into account the very small number of Rule 39 requests for interim measures against Greece lodged by asylum seekers in that country, compared with the number lodged by asylum seekers in the other States.

In the light of the foregoing, the Court considers that at the time of the applicant's expulsion the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities. They also had the means of refusing to transfer him.

The Government argued that the applicant had not sufficiently individualised, before the Belgian authorities, the risk of having no access to the asylum procedure and being sent back by the Greek authorities. The Court considers, however, that it was in fact up to the Belgian authorities, faced with the situation described above, not merely to assume that the applicant would be treated in conformity with the Convention standards but, on the contrary, to first verify how the Greek authorities applied their legislation on asylum in practice. Had they done this, they would have seen that the risks the applicant faced were real and individual enough to fall within the scope of Article 3. The fact that a large number of asylum seekers in Greece find themselves in the same situation as the applicant does not make the risk concerned any less individual where it is sufficiently real and probable (see, mutatis mutandis, Saadi, cited above, § 132).

Having regard to the above considerations, the Court finds that the applicant's transfer by Belgium to Greece gave rise to a violation of Article 3 of the Convention.

Having regard to that conclusion and to the circumstances of the case, the Court finds that there is no need to examine the applicant's complaints under Article 2.

The applicant claimed 1,000 euros (EUR) in compensation for the non-pecuniary damage sustained during the two periods of detention.

The Greek Government considered this claim ill-founded.

The Court has found that the applicant's conditions of detention violated of Article 3 of the Convention. It considers that the applicant must have experienced certain distress which cannot be compensated for by the Court's findings of violations alone. Having regard to the nature of the violations found in the instant case, the Court considers it equitable to uphold the applicant's claim and awards him EUR 1,000 in respect of non-pecuniary damage.

The applicant claimed EUR 31,825 in compensation for the non-pecuniary damage caused on the one hand by his detention in an open centre then in a closed centre in Belgium before his transfer to Greece (EUR 6,925) and on the other hand by the decision of the Belgian authorities to transfer him to Greece (EUR 24,900).

The Belgian Government argued that if the Court were to find Belgium liable the applicant could take legal action in the Belgian courts to obtain compensation for any non-pecuniary damage caused by his detention. In any event the Government considered the claim ill-founded, the applicant having failed to demonstrate any fault on the part of the State or to establish any causal link between the alleged fault and the non-pecuniary damage allegedly sustained.

The Court reiterates that it can award sums in respect of the just satisfaction provided for in Article 41 where the loss or damage claimed have been caused by the violation found, while the State is not required to pay sums in respect of damage for which it is not responsible (see Saadi, cited above, § 186). In the present case the Court has not found a violation of the Convention because of the applicant's detention in Belgium prior to his transfer to Greece. It accordingly rejects this part of the claim.

Concerning the alleged damage because of the transfer to Greece, the Court has found that the transfer gave rise to a violation of Article 3 of the Convention both because it exposed the applicant to treatment prohibited by that provision, in detention and during his stay in Greece, and because it exposed the applicant to the risks inherent in the deficiencies in the asylum procedure in Greece. It reiterates that the fact that the applicant could claim compensation in the Belgian courts does not oblige the Court to reject the claim as being ill-founded (see De Wilde, Ooms and Versyp v. Belgium (Article 50), 10 March 1972, § 16, Series A no. 14).

The Court considers that the applicant must have experienced certain distress for which the Court's findings of violations alone cannot constitute just satisfaction. Having regard to the nature of the violations found in the instant case, the Court considers it equitable to uphold the applicant's claim and awards him EUR 24,900 in respect of non-pecuniary damage.

The applicant claimed the reimbursement of the cost of his defence before the Court against the Greek Government. According to the list of fees and expenses submitted by the applicant's lawyer, the costs and expenses as at 15 March 2010 totalled EUR 3,450 based on an hourly fee of EUR 75. The lawyer indicated that he had agreed with the applicant that the latter would pay him by instalments based on the above-mentioned hourly fee if he won the case before the Court.

The Greek Government found this claim excessive and unsubstantiated.

The Court considers it established that the applicant effectively incurred the costs he claimed in so far as, being a client, he entered into a legal obligation to pay his legal representative on an agreed basis (see, mutatis mutandis, Sanoma Uitgevers B.V. v. the Netherlands, no. 38224/03, § 110, 31 March 2009). Considering also that the costs and expenses concerned were necessary and reasonable as to quantum, the Court awards the applicant EUR 3,450.

The applicant claimed the reimbursement of his costs and expenses before the Belgian courts and before the Court. The applicant's lawyer submitted a list of fees and expenses according to which the costs and expenses as at 15 March 2010 totalled EUR 7,680 based on an hourly fee of EUR 75, EUR 1,605 were claimed for the proceedings before the Belgian courts and EUR 6,075 for the proceedings before the Court against Belgium.

The Belgian Government invited the Court to reject the claim. They submitted that the applicant was entitled to free legal aid and to assistance with legal costs. It had therefore been unnecessary for him to incur any costs. His lawyer could obtain compensation for any costs incurred before the Belgian courts and before the Court in conformity with the provisions of the Judicial Code concerning legal aid. The Code provided for a system of reimbursement in the form of ‘points’ corresponding to the services provided by the lawyer. In 2010 one point corresponded to EUR 26.91. The figure had been EUR 23.25 in 2009. Had these provisions been complied with the lawyer should already have been authorised to receive payment for the costs incurred in 2009. The Government also pointed out that under Article 1022 of the Judicial Code concerning reimbursement of legal costs, the party which lost the case was required to pay all or part of the legal costs of the other party. In cases where the proceedings could not be evaluated in monetary terms, the sum payable was determined by the courts. Where legal aid was granted and the costs awarded in the proceedings were higher, the Treasury could recover the sum paid in legal aid.

The applicant's lawyer confirmed that he had been appointed by the Belgian State as a legal aid lawyer, but only to defend the applicant before the first-instance court. For this he was entitled to ‘ten points’. He said that he had not yet received any payment for legal aid. For the other proceedings he had agreed with the applicant that the applicant would pay him by instalments based on the above-mentioned hourly fee if he won the case before the Court. That commitment had been honoured in part. According to the applicant, there was no danger of the Belgian authorities paying him too much compensation because the procedural costs awarded were deducted from the legal aid payable. It followed that if the former exceeded the latter his lawyer would ask the legal aid office to stop the legal aid and that if the costs and expenses awarded by the Court were higher than the amount awarded in legal aid, his lawyer would receive nothing in terms of legal aid.

According to the Court's established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, among many other authorities, Sanoma Uitgevers B.V. v. the Netherlands, cited above, 109).

The Court first considers the costs and expenses relating to the proceedings before the domestic courts. It notes that the applicant has submitted no breakdown of the sum claimed in respect of the different proceedings brought. This prevents it from determining precisely what amounts correspond to the violations found in the instant case and to what extent they have been or could be covered by the legal aid. Because of this lack of clarity (see, mutatis mutandis, Musiał v. Poland [GC], no. 24557/94, § 61, ECHR 1999-II), the Court rejects these claims.

Turning its attention to the costs and expenses incurred in the proceedings before it against Belgium, the Court reiterates that it does not consider itself bound by domestic scales and practices, even if it may take inspiration from them (see Venema v. the Netherlands, no. 35731/97, § 116, ECHR 2002-X). In any event, for the same reasons as in respect of Greece (see paragraph 414 above), it awards the applicant EUR 6,075.

The applicant lastly claimed the reimbursement of the costs and fees incurred in connection with the hearing before the Court. According to the list of fees and expenses submitted by the applicant's lawyer, they amounted to EUR 2,550 for the pleadings and their preparation (at an hourly rate of EUR 75). Without submitting any receipts, he also claimed the reimbursement of EUR 296.74 EUR for his lawyer's travel to and accommodation in Strasbourg.

According to its established case-law, the Court rejects the part of the claim which is not substantiated by the requisite receipts.

For the remainder, considering it established that the costs and expenses claimed were necessarily incurred and were reasonable as to quantum, it awards the applicant EUR 2,550. Having regard to the responsibility for the different violations of the Convention found by the Court, Belgium and Greece will each pay half of that sum.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.