M.G. AND E.T. v. SWITZERLAND

THE LAW — A. The complaints under Articles 3 and 8

24. The applicants’ complaint under Article 8 of the Convention appears to be closely linked to that under Article 3. The Court will therefore examine the complaint concerning the applicants’ reception conditions in Malta solely from the standpoint of Article 3 of the Convention (see Tarakhel v. Switzerland [GC], no. 29217/12, § 55, ECHR 2014 (extracts)).

25. The Government invited the Court to strike the case out of the list, under Article 37 § 1 (c) of the Convention, on the grounds that the applicants were no longer at risk of being expelled to Malta.

26. Article 37 § 1 (c) of the Convention 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...

(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.”

27. The Court considers that, in view of the SEM’s decision to reopen the applicants’ asylum proceedings, which would entail a full examination on the merits of their asylum claim, the applicants no longer face a risk of expulsion to Malta. It thus follows that the threat of a substantive violation of Article 3 in respect of an expulsion to Malta no longer exists. That is not contested by the applicants.

28. In order to decide whether the application should be struck out of the list in application of Article 37 § 1 (c), the Court must consider whether the circumstances lead it to conclude that “for any other reason ... it is no longer justified to continue the examination of [it]”. It is clear from this provision that the Court enjoys a wide discretion in identifying grounds capable of being relied on in striking out an application on this basis, it being understood, however, that such grounds must reside in the particular circumstances of each case (see Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 37, ECHR 2006‑XIV).

29. In this regard, the Court notes that it has found many times that it was no longer justified to continue the examination of an application when a Government undertook not to expel an applicant pending a fresh decision by the domestic authorities on his or her particular circumstances (see, for instance, Sharifi v. Switzerland (dec.), no. 69486/11, 4 December 2012).

30. It follows that it is no longer justified to continue the examination of this part of the application within the meaning of Article 37 § 1 (c) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of this part of the case.

31. In view of the above, it is appropriate to strike this part of the case out of the list and to discontinue the application of Rule 39.

B. The complaint under Article 13 read in conjunction with Article 3

32. The applicants insisted that their complaint under Article 13 taken in conjunction with Article 3 could not be struck out since the remedy available to them had failed to satisfy the conditions set out in the Court’s case-law. First of all, the Federal Administrative Court had examined the applicants’ circumstances in summary proceedings. Secondly, under Article 107 (a) (1) of the 1998 Asylum Act their appeal had not automatically had suspensive effect. They could apply for a decision with suspensive effect, which they had done, but it had not been granted to them. Thirdly, the applicants pointed out that not only had their legal aid application been denied but that they had also had to pay CHF 600 in court fees, which had created a potentially insurmountable obstacle to their right to an effective remedy.

33. The Government invited the Court to strike out this complaint with reference to the Court’s conclusion in the case of Nasseri v. the United Kingdom (dec.) (no. 24239/09, 13 October 2015). In that decision, after considering the case resolved as the applicant had no longer risked being expelled from the United Kingdom, the Court concluded that although the applicant had focused his complaints on Article 13 and on the procedural requirements of Article 3, in essence those complaints had been inextricably connected to his proposed expulsion. Having been granted asylum in the United Kingdom, the applicant in that case no longer faced expulsion to Greece or any other country, with the consequence that the alleged threat of a violation had been removed. The Court thus struck the case out of its list pursuant to Article 37 § 1 (b) of the Convention.

34. The Court reiterates that the notion of “effective remedy” within the meaning of Article 13 taken in conjunction with Article 3 requires, firstly, “independent and rigorous scrutiny” of any complaint made by a person in such a situation, where “there exist substantial grounds for fearing a real risk of treatment contrary to Article 3” and, secondly, “the possibility of suspending the implementation of the measure impugned” (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 198, ECHR 2012). For the purposes of its examination of Article 13 of the Convention, the Court will proceed on the assumption that the applicants had an arguable claim under Article 3.

35. The Court observes at the outset that the applicants’ case has been subjected to close scrutiny by the domestic authorities. They were interviewed and given the opportunity to present arguments as to why they should not be returned to Malta. The domestic authorities carefully examined their claims and gave detailed reasons for their decisions. The fact that the proceedings took the form of a summary procedure or did not lead to a favourable outcome does not automatically render the remedy ineffective (see, mutatis mutandis, M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 289, ECHR 2011; and De Souza Ribeiro v. France [GC], no. 22689/07, § 79, ECHR 2012). The Court can thus accept that there has been an independent and rigorous scrutiny of the applicants’ claim.

36. As regards the second requirement of Article 13 – namely that any effective remedy in an expulsion context must have an automatic suspensive effect – it is true that, in the context of a simplified procedure used in Dublin return cases, the applicants’ appeal to the Federal Administrative Court did not have an automatic suspensive effect. Instead, the applicants applied for a decision with suspensive effect, but that application was dismissed by the Federal Administrative Court, which adopted its judgment in their case less than a month after the appeal had been lodged. What must be decided in the present case is whether the foregoing considerations prevent the Court from striking out the applicants’ Article 13 complaint in view of the fact that they no longer risk being returned to Malta.

37. In that connection, the Court notes that in certain cases it has considered that applicants who could no longer claim to be victims of Article 3 because the risk of their expulsion no longer existed, could still claim victim status as regards their Article 13 complaint (see, for example, M.A. v. Cyprus, no. 41872/10, § 120, ECHR 2013 (extracts); I.M. v. France, no. 9152/09, § 100, 2 February 2012; and Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 56, ECHR 2007‑II). For instance, in M.A. v. Cyprus (cited above) the Court noted that at the time the applicant was to be sent back to Syria, his asylum application was being re-examined by the authorities and that his deportation had been halted only because of the indication of Rule 39 by the Court. In addition, the decision granting the applicant refugee status had been taken more than ten months after he had lodged his complaints before the Court. In I.M. v. France (cited above) a Rule 39 indication issued by the Court also seemed to have been the only reason that the applicant had not been deported to Sudan.

38. However, the circumstances of the present case differ significantly – and thus must be distinguished – from the above-mentioned cases (see, in that sense, Mir Isfahani v. the Netherlands (dec.) no. 31252/03, 31 January 2008). First of all, there was no indication that the authorities tried to deport the applicants to Malta while their appeal before the Federal Administrative Court was still pending. In fact, under Article 42 of the Asylum Act, any person who applies for asylum in Switzerland may stay in the country until the conclusion of his or her asylum procedure. It would thus appear that the applicants were not at a real risk of expulsion to Malta before their appeal had been finally decided by the Federal Administrative Court.

39. The above conclusion is further supported by the fact that the applicant filed a request to stay their return to Malta under Rule 39 only after the Federal Administrative Court had dismissed their appeal. What is more, the Court observes that the Federal Administrative Court decided the applicants’ appeal without undue delay.

40. Lastly, in similar previous cases, the Court has consistently held that the asylum system in Switzerland is in conformity with the requirements of Article 13 (see, as recent examples, Tarakhel, cited above, §§ 123-132; and A.M. v. Switzerland (dec.), no. 37466/13, §§ 27-30, 3 November 2015).

41. For the above reasons, and bearing in mind the Court’s wide discretion in identifying grounds capable of being relied upon in striking out an application on the basis of Article 37 § 1 (c) (see above § 28), the Court is satisfied that the applicants’ Article 13 complaint can equally be struck out of the list of cases and that respect for human rights, as defined in the Convention and its Protocols, does not require it to continue the examination of the application under Article 37 § 1 in fine (see, a contrario, I.M. v. France, cited above, § 102).