February 10, 2011
Any attempt to comment exhaustively on the recent landmark ruling of the Grand Chamber in M.S.S. v Belgium and Greece in one page would be bound to fail. It is an extraordinarily rich judgment. In this post, I therefore limit my comments to one single aspect I find particularly intriguing: the concept of group vulnerability. The Court has referred to several groups as “vulnerable” in its case law. One example is the Roma minority who, “as a result of their history” – the Court has held – “has become a specific type of disadvantaged and vulnerable minority” in need of special protection (Oršuš). Another example concerns persons with mental disabilities. They have been regarded by the Court as a “particularly vulnerable group in society, who has suffered considerable discrimination in the past” (Alajos Kiss).
In M.S.S., the Court speaks, once again, of the applicant as a member of a vulnerable group. The case deals with the expulsion of an Afghan asylum seeker to Greece by Belgium in application of the EU Dublin Regulation. Asylum seekers, the Court holds, are a “particularly underprivileged and vulnerable population group in need of special protection.” What makes this group vulnerable in the eyes of the Court? What are its implications for this particular case? Should asylum seekers as such be deemed vulnerable? Judge Sajó thinks not. In his separate opinion in M.S.S, he contends that asylum seekers cannot be unconditionally considered a particularly vulnerable group in the sense the Court has used this term, that is, as a group “historically subject to prejudice with lasting consequences, resulting in their social exclusion.” But, should all groups fit into the idea of vulnerability that has apparently prevailed in the Court’s case law so far? In what follows, I address Judge Sajó’s criticism. But first, I briefly attempt to understand how the Court weighs up the vulnerable position of the applicant as an asylum seeker in its Article 3 analysis concerning both his detention and living conditions in Greece.
Detention Conditions in Greece: Violation of Article 3
The government attempted to downplay the applicant’s appalling detention conditions arguing that the duration was anyway brief. For the Court, the duration of the periods of detention was not insignificant. Plus, it observed, the fact that “the applicant, [as] an asylum seeker, was particularly vulnerable” needed to be taken into account. As Judge Sajó observes, the Court seems to be saying that the detention’s effects in this case were comparable to those of longer stays given the applicant’s vulnerability.
The Court attaches further consequences to the applicant’s vulnerable position as an asylum seeker when examining the feelings he must have experienced while detained in unacceptable conditions. The Court holds in this respect that his “distress was accentuated by the vulnerability inherent in his situation as an asylum seeker.” What I find particularly interesting about this part, is that the Court points to two factors which may deem this group vulnerable: previous experiences and trauma. The Court says: “the applicant, being an asylum seeker, was particularly vulnerable because of everything he had been through and the traumatic experiences he was likely to have endured previously.”
Living Conditions in Greece: Violation of Article 3
At first sight, the Court seems to understand in this part that the need to have due regard to the applicant’s vulnerability as an asylum seeker flows from Greece’s obligations under international and EU law to provide special protection to asylum seekers. At issue was whether the extreme poverty in which the applicant had lived in Greece amounted to degrading treatment. The Court makes it clear that Article 3 cannot be interpreted as obliging states to provide everyone with a home. Nor does this provision entail any general obligation to give refugees financial assistance to enable them to maintain certain standard of living. For the Court, however, M.S.S. could not be considered in these terms given that “the obligation to provide accommodation and decent material conditions to impoverished asylum seekers has now entered into positive law and the Greek authorities are bound to comply with their own legislation which transposes Community law” (para. 250).
Then, the Court proceeds to attach “considerable importance to the applicant’s status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection.” Here, it refers mutatis mutandis to Oršuš and further notes “the existence of a broad consensus at the international and European level concerning this need for special protection, as evidenced by the Geneva Convention, the remit and the activities of the UNHCR and the standards set out in the European Union Reception Directive” (para. 251).
It thus seems that, as Judge Rozakis observes in his concurring opinion, what weighed heavily in the Court’s finding of a violation was the existence of international obligations on the part of Greece to guarantee asylum seekers certain material conditions, including accommodation, food and clothing (see, EU Reception Directive 2003/9). This may be confirmed by the Court’s conclusion that “…in view of the obligations incumbent on Greek authorities under the European Reception Directive […] the Greek authorities have not had due regard to the applicant’s vulnerability as an asylum seeker and must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs” (para. 263).
When is a Group Vulnerable?
Unlike Judge Sajó, I do not see why all groups can be vulnerable in only one way. Why should the concept of “vulnerable group” have a specific meaning? True, past disadvantage and prejudice are often at the root of many groups’ vulnerability. Still, I am not sure it is a good idea to cling to one static or fixed idea of vulnerability – certainly not because the Court has happened to term it so far in a particular way when dealing with other groups. The reasons why certain groups demand special protection may vary in number and nature. The Court’s approach in M.S.S. thus seems spot on. Vulnerability may be the result of a series of past and present (disadvantageous) circumstances in which the state could bear different degrees of responsibility. Disadvantage may in turn have multiple faces. Be it of material or dignitarian character, different types may overlap and reinforce each other. Thus, just like we should not regard vulnerability as something inherent to members of a certain group, we should not condition the idea of vulnerability to certain factors that may fit some groups but not others. Furthermore, the fact that the applicant is a member of a certain vulnerable group can play out in a variety of ways in the Court’s reasoning.
Ultimately, whatever the reasons at the root of groups’ vulnerabilities, what matters is the impact of certain actions (or inaction) on the part of the state on the members of such vulnerable groups. Most of the time, the impact is likely to be severe. This was certainly the case of the applicant in M.S.S. Asylum seekers are undoubtedly a vulnerable group in Greece, as numerous international reports show. I think the Court does a good job in attaching different consequences to this throughout its Article 3 anlysis. The main reason, though, why I am sympathetic to the line of reasoning put forward by the majority in this case is because it opens up the idea of vulnerability to other circumstances and other groups. To me, it would have just not seemed sensible to stick to one fixed idea of vulnerability and offer special protection only to those groups that fit into it.