Information Note on the Court’s case-law 201

November 2016

V.M. and Others v. Belgium [GC] - 60125/11

Judgment 17.11.2016 [GC]

Article 37

Article 37-1

Striking out applications

Applicants’ failure to keep in touch with their lawyer: struck out

Facts – The applicants, a married couple of Roma origin and their five children, were Serbian nationals who sought asylum in Belgium, which provided them with accommodation in various reception centres. They were then refused leave to remain and were served with an order to leave Belgian territory for France, which was the country responsible for examining their asylum application. The time-limit for enforcement of the order s to leave Belgium was subsequently extended for four months owing to the first applicant’s pregnancy and imminent confinement.

The applicants complained before the European Court that during the period following their eviction from the reception centre on the expiry of the extended time-limit for enforcement of the orders to leave the country, on 26 September 2011, until their departure for Serbia, on 25 October 2011, they had not been provided with reception facilities enabling them to meet their basic ne eds.

In a judgment of 7 July 2015 (see Information note 187 ), a Chamber of the Court concluded, inter alia , that there had been a violation of Article 3 of the Convention on account of the family’s living conditions combined with the lack of any prospect of an improvement in their situation, and a violation of Article 13 on account of the lack of an effective remedy in respect of their asylum application.

On 14 December 2015 the case was referred to the Grand Chamber at the request of the Government.

Law – Article 37: The applicants had failed to maintain contact with their lawyer or to keep her informed of their place of residence or provide her with any other means of contacting them. It could there fore be concluded, in accordance with Article 37 § 1 (a) of the Convention, that they had lost interest in the proceedings and no longer intended to pursue their application.

The last time the applicants and their lawyer had been in contact had been on a date prior to the Chamber judgment of 7 July 2015 and the applicants were unaware of that judgment and of the referral of the case to the Grand Chamber. Their representative co uld not now meaningfully pursue the proceedings before the Court, in the absence of instructions from her clients, particularly regarding the factual questions raised by the new documents produced by the Government.

The applicants’ voluntary return to Serb ia and their departure from Belgium did not appear to have resulted in the loss of contact with their lawyer, who had maintained contact with them throughout the proceedings before the Chamber. The loss of contact had not therefore been a consequence of an y act of the respondent Government. Nor was there anything to suggest that the precarious conditions in which the applicants had lived in Serbia had been such as to prevent them from maintaining some form of contact with their lawyer, if necessary through a third party, for such a long period.

Where a request for referral had been accepted by the panel of the Grand Chamber the judgment of the Chamber did not become final and thus produced no legal effect. The judgment of the Chamber would be set aside in order to be replaced by the new judgment of the Grand Chamber, with which the States Parties would be obliged to comply. That situation, which in the present case was prejudicial to the applicants, had, however, been the consequence of their lack of contact with their lawyer and not of the Govern ment’s use of the possibility of requesting that the case be referred to the Grand Chamber. Moreover, where justified by the circumstances, the applicants could request that the application be restored to the list of cases.

In the light of the foregoing, t he applicants no longer intended to pursue their application. Furthermore, no particular circumstance relating to respect for the rights guaranteed by the Convention or its Protocols required the Court to continue the examination of the application.

Conclu sion : struck out (twelve votes to five).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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