ECtHR - A.C. and Others v. Spain, Application No. 6528/11

Article 13 of the Convention: The Court was not required to determine whether there might be a violation of Articles 2 and 3 of the Convention in the event of the applicants’ deportation. It was first and foremost for the Spanish authorities themselves, which were responsible for asylum matters, to examine the applicants’ applications and the documents produced by them and to assess the risks they would face in Morocco. The Court’s fundamental concern was whether effective safeguards were in place to protect the applicants from arbitrary removal, whether direct or indirect, to their country of origin, given that their appeals on the merits were still pending before the domestic courts.

The application of Rule 39 of the Rules of Court had been the only means of suspending the procedure for the applicants’ removal. After their applications for a stay of execution had been rejected by the Audiencia Nacional, there had been no further obstacle to their removal. Admittedly, the effectiveness of a remedy within the meaning of Article 13 of the Convention did not depend on the certainty of a favourable outcome for the applicant. However, without the Court’s intervention, the applicants would have been returned to Morocco without the merits of their case having been examined as thoroughly and rapidly as possible, since their applications for judicial review did not as such have automatic suspensive effect capable of staying the execution of the orders for their deportation.

 Furthermore, the applicants had arrived in Spain between January 2011 and August 2012, and since then they had been in a provisional situation of legal uncertainty and material insecurity pending final decisions on their applications. Where a remedy did not have suspensive effect or an application for a stay of execution was rejected, it was essential that in expulsion cases involving Articles 2 and 3 of the Convention in which the Court had applied Rule 39, the courts should act with special diligence and determine the merits rapidly. Otherwise, the remedies would cease to be effective. In conclusion, the applicants had not had a remedy satisfying the requirements of Article 13 in respect of their complaints under Articles 2 and 3 of the Convention.

The Court found a violation of Article 13 of the Convention

Article 46 of the Convention: Regard being had to the special circumstances of the case, to the fact that the violation of Article 13 of the Convention resulted from the non-suspensive effect of judicial proceedings concerning the applicants’ applications for international protection, and to the fact that those applications were still pending even though the first group of applicants had applied for asylum on arriving in Spain in January 2011, the respondent State was to ensure that, from a legal and material perspective, the applicants remained within Spanish territory while their cases were being examined, pending a final decision by the domestic authorities on their applications for international protection.

Rule 39 of the Rules of Court: Spain was to refrain from deporting the applicants until such time as the present judgment became final or the Court gave a further decision in the case.