Last Updated on April 23, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Striking out (Article 37)[302]
The issue before the Grand Chamber in Khan v. Germany[303] was whether an application should be struck out since the applicant faced no risk of expulsion in the foreseeable future.
In 1991 the applicant (a Pakistani national) arrived in Germany with her husband. The couple had a son in 1995. The applicant received a permanent residence permit in 2001. In 2005 she was convicted of manslaughter. Given her mental incapacity, she was ordered to stay in a psychiatric hospital. In 2011 the domestic courts confirmed an expulsion order against her (inter alia, on the grounds that she constituted a danger to the public, had not integrated, had limited contact with her son and could receive medical treatment in Pakistan). Later that year, she was released from hospital as she was considered no longer to be a risk. No attempt to expel the applicant was made.
Before the Grand Chamber the Government submitted certain assurances (which the Court found to be binding): a new order would be required before any future expulsion; all domestic remedies would be available against it; a medical examination would precede any expulsion; and the applicant had been granted “tolerated residence”. The Grand Chamber struck out the application under Article 37 § 1 (c) of the Convention.
(i) The Grand Chamber distinguished two situations which lead to the striking out of expulsion cases.
– When a residence permit has been granted and there is no risk of expulsion, the Court considers the case to have been resolved within the meaning of Article 37 § 1 (b).
– When a residence permit has not been granted but the circumstances are such that there is no risk of expulsion for a considerable time and any new expulsion order could be challenged, the Court considers it is no longer justified to continue to examine the case within the meaning of Article 37 § 1 (c). The present case fell within this second group.
(ii) As to whether, nevertheless, there were “any special circumstances regarding respect for human rights” warranting the Court’s examination of the case, the Grand Chamber distinguished the present case from that in its recent judgment in F.G. v. Sweden[304], cited above. That case concerned “major issues under Articles 2 and 3 ”whereas the present case did not go beyond the applicant’s specific situation.
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The Jeronovičs v. Latvia[305] judgment concerned the respondent State’s continuing obligation to investigate even following a decision striking out the complaint on the basis of a unilateral declaration.
By a decision of 10 February 2009, the Court struck out several of the applicant’s complaints following the Government’s unilateral declaration acknowledging, inter alia, a violation of Articles 3 and 13 of the Convention having regard to the applicant’s ill-treatment by the police, the ineffectiveness of the ensuing investigation and the lack of an effective remedy. The decision did not state that the Government were obliged to continue to investigate the circumstances surrounding the applicant’s ill-treatment (contrast with the position in Žarković and Others v. Croatia[306]).
Given the terms of the unilateral declaration, the applicant requested the Latvian authorities to reopen the criminal proceedings concerning his allegations of ill-treatment by the police. The prosecuting authorities refused to do so. The applicant introduced a new application complaining under Articles 3 and 13 of this refusal. The Grand Chamber found a procedural violation of Article 3, with no separate issue arising under Article 13 of the Convention.
This case is noteworthy because the Grand Chamber found that the obligation to investigate alleged ill-treatment by State agents subsisted, even after a striking-out decision on the basis of a unilateral declaration, the applicant’s complaints regarding the ill-treatment and related investigation.
Although the Court acknowledged that it might be called upon to supervise the implementation of an undertaking in a unilateral declaration and to examine whether there were any “exceptional circumstances” justifying the restoration of an application to the list of cases (Rule 41 § 5 of the Rules of Court), in the present case it considered that there were no such exceptional circumstances because the text of the prior decision provided a sufficient basis to establish a continuing obligation on the part of the Government to investigate.
The source of this obligation was the Court’s statement in the striking-out decision according to which the “decision is without prejudice to the possibility for the applicant to exercise any other available remedies in order to obtain redress”. The case-law in respect of ill-treatment by State agents required an applicant to avail himself of remedies to obtain redress but also imposed a corresponding obligation on the authorities to provide that remedy in the form of an investigation of ill-treatment. Compensation alone could not therefore fulfil the procedural obligation (see Gäfgen v. Germany[307]) and the Court could not, consequently, accept the Government’s argument that compensation, for which the unilateral declaration provided, sufficed. Since the authorities had refused to reopen the criminal proceedings, there had been a violation of Article 3 of the Convention under its procedural limb.
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The judgment in V.M. and Others v. Belgium[308] concerned the striking out of an application pending before the Grand Chamber because the applicants’ representative had no contact with them.
The applicants were a Roma family (parents and five children) of Serbian nationality. The oldest child was severely disabled. They sought asylum in Belgium. Pending their appeal against their removal to France (pursuant to the Dublin II Regulation), they had accommodation. On the expiry of the time-limit in the order to leave Belgium, they had to leave that accommodation. The family spent several days sleeping outside. When again offered accommodation, it would appear that they failed to turn up. They spent two weeks living in a railway station in Brussels before accepting a voluntary-return programme to Serbia. Two months later their eldest child died of a lung infection. Further to their application to the Court (for which they were legally represented), the Chamber found a violation of Article 3 as regards their living conditions in Belgium, no violation of Article 2 as regards the death of their child, and a violation of Article 13 (in conjunction with Articles 2 and 3) as regards their appeal against the removal order.
A Panel of the Grand Chamber subsequently accepted the Government’s request to refer the case to the Grand Chamber. In her written and oral submissions to the Grand Chamber, the applicants’ lawyer confirmed that she had had no contact with the applicant family since before the delivery of the Chamber judgment. For this reason, the Grand Chamber struck out the application pursuant to Article 37 § 1 (a) of the Convention (on the grounds that the applicants did “not intend to pursue an application”).
Three points are worth noting in this striking-out judgment.
(i) The judgment confirms that a form of authority is insufficient of itself to justify the continuation of an application: contact between the applicant and the representative had to be maintained throughout the proceedings. Since there had been no contact since before the Chamber judgment, the representative could not meaningfully continue the present application before the Grand Chamber.
(ii) The judgment also confirms that, further to Article 44 § 2 of the Convention, the referral and later striking-out of the application mean that the Chamber judgment will never become final. Although the applicants were therefore deprived of the benefit of the Chamber judgment, the Grand Chamber considered that that was a situation created by their failure to maintain contact with their representative.
(iii) Finally, the Grand Chamber judgment found that “respect for the rights guaranteed by the Convention” did not require the continued examination of the case (see M.S.S. v. Belgium and Greece[309], and Tarakhel[310], both cited above; compare and contrast F.G. v. Sweden[311]; and Khan[312], both cited above).
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302. See also, under Article 2 and Article 3, F.G. v. Sweden [GC], no. 43611/11, ECHR 2016, and, under Article 3, Paposhvili v. Belgium [GC], no. 41738/10, 13 December 2016.
303. Khan v. Germany [GC], no. 38030/12, 21 September 2016.
304. F.G. v. Sweden [GC], no. 43611/11, ECHR 2016, cited under Article 2 (Expulsion) above.
305. Jeronovičs v. Latvia [GC], no. 44898/10, ECHR 2016.
306. Žarković and Others v. Croatia (dec.), no. 75187/12, 9 June 2015.
307. Gäfgen v. Germany [GC], no. 22978/05, §§ 116 and 119, ECHR 2010.
308. V.M. and Others v. Belgium [GC], no. 60125/11, 17 November 2016.
309. M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011.
310. Tarakhel v. Switzerland [GC], no. 29217/12, ECHR 2014 (extracts).
311. F.G. v. Sweden [GC], no. 43611/11, §§ 81-82, ECHR 2016.
312. Khan v. Germany [GC], no. 38030/12, 21 September 2016.
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