Conditions of reception
THE LAW 32. In her observations before the Grand Chamber the applicants ’ representative informed the Court that she had maintained contact with the applicants almost until the end of the proceedings before the Chamber but had not had any further contact with them since then. At the hearing on 25 May 2016 she confirmed that, despite several attempts on her part, she had been unable to renew contact with the applicants and that she did not know their current address. She submitted that the Court should nonetheless continue its examination of the application and argued that she had been authorised to represent the applicants throughout the entire proceedings. The representative pointed out that it was always difficult to maintain contact with persons in a precarious situation such as that of the applicants and that the referral of the case to the Grand Chamber at the Government ’ s initiative could not justifiably have the effect of depriving the applicants of the benefit of the judgment of the Chamber, which had ruled in their favour. 33. The Government did not expressly comment on the question of continuing the examination of the case by the Court. They observed, however, that on account of the loss of contact with their lawyer the applicants had not been in a position to submit observations on the new evidence produced before the Grand Chamber which showed, in the Government ’ s view, that the applicants had not gone to the Bovigny reception centre (see paragraph 27 above). 34. Having regard to these circumstances, the Court considers it necessary first to examine the need to continue the examination of the application according to the criteria set forth in Article 37 of the Convention. This provision reads as follows: “1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (a) the applicant does not intend to pursue his application; or (b) the matter has been resolved; or (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires. 2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.” 35. The Court reiterates that an applicant ’ s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court) but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential both in order to learn more about the applicant ’ s particular situation and to confirm the applicant ’ s continuing interest in pursuing the examination of his or her application (see Sharifi and Others v. Italy and Greece, no. 16643/09, § 124, 21 October 2014, and, mutatis mutandis, Ali v. Switzerland, 5 August 1998, § 32, Reports of Judgments and Decisions 1998 ‑ V). 36. In the present case the Court observes that the applicants did not maintain contact with their lawyer and failed to keep her informed of their place of residence or to provide her with another means of contacting them. Accordingly, it considers that it can conclude on that basis that the applicants have lost interest in the proceedings and no longer intend to pursue the application, within the meaning of Article 37 § 1 (a) of the Convention (see Ibrahim Hayd v. the Netherlands (dec.), no. 30880/10, § 10, 29 November 2011; Kadzoev v. Bulgaria (dec.), no. 56437/07, § 7, 1 October 2013; M.H. and Others v. Cyprus (dec.), no. 41744/10, § 14, 14 January 2014; and M.Is. v. Cyprus (dec.), no. 41805/10, § 20, 10 February 2015). 37. Whilst it is true that the applicants ’ representative has power to represent them throughout the entire proceedings before the Court, that power does not by itself justify pursuing the examination of the case ( see Ali, cited above, § 32, and Ramzy v. the Netherlands (striking out), no. 25424/05, § 64, 20 July 2010 ). It would appear in the present case that the last time the applicants and their lawyer were in contact was on a date prior to the judgment given by the Chamber on 7 July 2015 and that the applicants are unaware of that judgment and of the referral of the case to the Grand Chamber. In the circumstances the Court considers that the applicants ’ representative cannot now meaningfully pursue the proceedings before it, in the absence of instructions from her clients, particularly regarding the factual questions raised by the new documents produced by the Government (see Ali, § 32; Ramzy, § 64; and M.H. and Others, § 14, all cited above). 38. Regarding the submission by the applicants ’ representative that this situation has arisen as a result of their precarious living conditions in Serbia, the Court observes that the applicants returned to their country of their own volition and that their departure from Belgium does not appear to have resulted in the loss of contact with their lawyer. She affirms that she maintained contact with them throughout the proceedings before the Chamber. In the present case the loss of contact was not therefore a consequence of any act of the respondent Government (see, conversely, Diallo v. the Czech Republic, no. 20493/07, §§ 44-47, 23 June 2011). Nor is there anything to suggest that the precarious conditions in which the applicants lived in Serbia were 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 (see Sharifi and Others, cited above, §§ 131-32, and M.H. and Others, cited above, § 14 ). 39. The Court also takes note of the concern expressed by the applicants ’ representative that in the event that the case were struck out of the list by the Grand Chamber the applicants would lose the benefit of the judgment delivered by the Chamber. It does indeed appear from the relevant provisions of the Convention that where a request for referral has been accepted by the panel of the Grand Chamber the judgment of the Chamber does not become final (Article 44 § 2 of the Convention, a contrario ) and thus produces no legal effect. The judgment of the Chamber will be set aside in order to be replaced by the new judgment of the Grand Chamber delivered pursuant to Article 43 § 3 (see K. and T. v. Finland [GC], no. 25702/94, § 140, ECHR 2001 ‑ VII) with which the parties are obliged to comply in accordance with Article 46 § 1. Such a situation, which, in the instant case, would be prejudicial to the applicants is, however, the consequence of their lack of contact with their lawyer and not of the Government ’ s use of the possibility, provided for in Article 43 § 1 of the Convention, of requesting that the case be referred to the Grand Chamber. The Court would observe, moreover, that if the circumstances justify such a course the applicants can request that the application be restored to the list of cases under Article 37 § 2 of the Convention. 40. Having regard to the foregoing and in accordance with Article 37 § 1 (a) of the Convention, the Court has to conclude that the applicants do not intend to pursue their application. It also considers that no particular circumstance relating to respect for the rights guaranteed by the Convention or its Protocols requires it to continue the examination of the application pursuant to Article 37 § 1 in fine. 41. Accordingly, the case should be struck out of the list.
The Grand Chamber held that the application should be struck out of the Court’s list of cases pursuant to Article 37 (striking out applications) of the Convention. It found in particular that the applicants, who had returned to Serbia of their own volition, had not maintained contact with their lawyer. They had failed to keep her informed of their place of residence or to provide her with any other means of contacting them. There was however nothing 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. The Grand Chamber therefore considered that it could be concluded that the applicants had lost interest in the proceedings and no longer intended to pursue the application.