DISS ENTING OPINION OF JUDGE RANZONI , JOINED BY JUDGES LÓPEZ GUERRA, SICILIANOS AND LEMMENS

(Translation)

1 . I can without hesitation agree with the judgment, up to and including the first sentence of paragraph 40, and with the majority ’ s conclusion in accordance with Article 37 § 1 (a) of the Convention that the applicants do not intend to pursue their application. However, in my view the Grand Chamber should have continued the examination of the application under Article 37 § 1 in fine because there are special circumstances in the present case relating to respect for human rights as defined in the Convention or the Protocols thereto which go beyond the particular situation of the applicants.

2 . In a judgment recently delivered by the Grand Chamber, F.G. v. Sweden ([GC], no. 43611/11, ECHR 2016), the Court held that the circumstances of the case justified striking it out of the list in accordance with Article 37 § 1 (c) on the grounds that the deportation order could no longer be enforced. However, it decided to continue the examination of the applica tion for the following reasons:

“81. It will be recalled that on 2 June 2014 the case was referred to the Grand Chamber in accordance with Article 43 of the Convention, which provides that cases can be referred if they raise “a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance”.

82. The Court notes that there are important issues involved in the present case, notably concerning the duties to be observed by the parties in asylum proceedings. Thus, the impact of the current case goes beyond the particular situation of the applicant, unlike most of the similar cases on expulsion decided by a Chamber.”

3 . Similar considerations applied here. The panel of the Grand Chamber agreed to refer the case to the Grand Chamber. In doing so it acknowledged in substance that the case raised serious questions affecting the interpretation or application of the Convention or the Protocols thereto, or serious issues of general importance.

4 . As in F.G. v. Sweden I think that important issues were at stake in the present case and that the Grand Chamber should have seized the opportunity to rule on certain principles.

5 . Firstly, the Grand Chamber should have taken advantage of the opportunity provided by the present case to define or adjust the concept of “vulnerability”. In its case-law the Court has had regard to the vulnerability of the applicants both in assessing whether the threshold of severity justifying the application of Article 3 had been attained, a greater degree of vulnerability justifying a lower threshold of tolerance, and in determining the scope of the positive obligations on the State, extreme vulnerability requiring a greater duty of protection (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 251, ECHR 2011, and Tarakhel v. Switzerland [GC], no. 29217/12, § 119, ECHR 2014 (extracts)).

6 . In M.S.S. the Court considered that asylum-seekers were a “particularly underprivileged and vulnerable” population group. However, the fact is that asylum-seekers may vary in their degree of vulnerability according to their means of subsistence, the type of treatment or persecution of which they have been or are liable to be victims, their age, their family situation or their state of health or their disability. As rightly pointed out by Judge Sajó in his dissenting opinion in M.S.S. v. Belgium and Greece , “although many asylum-seekers are vulnerable persons, they cannot be unconditionally considered as a particularly vulnerable group ... Asylum-seekers are far from being homogeneous, if such a group exists at all” .

7 . Even though the applicants in the present case were, in my view, undeniably vulnerable, the Court could have seized the opportunity to define that concept.

8 . Moreover, in its judgment the Chamber noted that the applicants had been “overwhelmed” by the situation and that the Belgian authorities should have “show[n] greater diligence in finding them accommodation” (see paragraph 151 of the Chamber judgment). The Government indicated, however, that the fact that the applicants were unfamiliar with the correct procedure had not been such as to cause them be overwhelmed by the situation.

9 . The national authorities do of course have the responsibility of organising the reception of asylum-seekers and examining their applications. However, in my view asylum-seekers must also satisfy certain obligations and undertake reasonable steps as long as those obligations are adapted to their actual situation. The present case raised questions of general importance concerning the various responsibilities relating to the conditions of reception of asylum-seekers which the Grand Chamber could have answered.

10 . I note, lastly, that the case raised important questions regarding the concepts of “effectiveness” of a remedy and “arguable complaint” in the context of expulsion of aliens, particularly in the event of transfers carried out under the Dublin Regulation. It would have been desirable for the Grand Chamber to express itself on those points with a view to clarifying, or even specifying the answers to be given to questions whose importance goes beyond the facts of the case, especially in the current context.

11 . In conclusion, I regret that the majority did not acknowledge that in the present case there were special circumstances regarding respect for human rights as defined in the Convention and the Protocols thereto within the meaning of Article 37 § 1 in fine which required that the application continue to be examined. The Grand Chamber should have seized the opportunity to develop the principles concerning the above-mentioned points or, at least, to clarify and adjust the Court ’ s case-law.

12 . For these reasons I have voted against striking the application out of the list.