Information Note on the Court’s case-law 202

December 2016

Paposhvili v. Belgium [GC] - 41738/10

Judgment 13.12.2016 [GC]

Article 3

Expulsion

Proposed deportation of person suffering from serious illness to his country of origin in face of doubts as to the availability of appropriate medical treatment there: expulsion would have constituted a violation

Article 8

Expulsion

Proposed deportation of person suffering from serious illness to his country of origin in face of doubts as to the availability of appropriate medical treatment there: expulsion would have constituted a violation

Facts – The applicant, a Georgian national, arrived in Belgium via Italy in November 1998, accompanied by his wife and the latter’s six-year-old child. The couple subsequently had two children. The applicant received several prison sentences for robbery. He suffered from tuberculosis, hepatitis C and chronic lymphocytic leukaemia (CLL). An asylum request by the applicant and his wife was refused in June 1999. The applicant then submitted a number of requests for regularisation of his residence status, but these were rejected by the Aliens Office. The applicant and his wif e were subsequently issued with several orders to leave the country, including one in July 2010.

On 23 July 2010, relying on Articles 2, 3 and 8 of the Convention, the applicant applied to the European Court for an interim measure under Rule 39 of the Rules of Court , arguing that if he were removed to Georgia he would no longer have access to the health care he required and that in view of his very short life expectancy he would die even sooner, far away from his family. On 28 July 2010 the Court granted his request.

The order to leave Belgian territory was extended until 28 February 2011. On 18 February 2012 the Aliens Office issued an order to leave the country “with immediate effect” pu rsuant to the ministerial deportation order of 16 August 2007.

A medical certificate issued in September 2012 stated that failure to treat the applicant for his hepatitis and his lung disease could lead to organ damage and significant disability and that f ailure to treat his leukaemia (CLL) could result in death. A return to Georgia would expose the patient to inhuman and degrading treatment. The applicant was requested to report to the Aliens Office’s medical service on 24 September 2012 for a medical chec k-up and to enable the Belgian authorities to “reply to the Court’s questions”. Referring to the Court’s judgment in N. v. the United Kingdom ([GC], 26565/05, 27 May 2008, Information Note 108 ), the Aliens Office found in its report that the applicant’s medical records did not warrant the conclusion that the threshold of gravity required by Article 3 of the Convention had been reached. The applicant’s life was not directly threatened and no ong oing medical supervision was necessary in order to ensure his survival. Furthermore, his disease could not be considered to be in the terminal stages at that time.

On 29 July 2010 the applicant’s wife and her three children were granted indefinite leave to remain. The applicant died in June 2016.

Law – Preliminary issue : Following the applicant’s death his relatives had expressed the wish to pursue the proceedings. T he Court noted that there were important issues at stake in the present case, notably concerning the interpretation of the case-law in relation to the expulsion of seriously ill aliens. The impact of this case therefore went beyond the particular situation of the applicant. Accordingly, special circumstances relating to respect for human rights as defined in the Convention and the Protocols thereto required the Court to continue the examination of the application in accordance with Article 37 § 1 in fine of the Convention.

Article 3: In the case of N. v. the United Kingdom the Court had stated that, in addition to situations of the kind addressed in D. v. the United Kingdom ( 30240/96 , 2 May 1997) in wh ich death was imminent, there might be other very exceptional cases where the humanitarian considerations weighing against removal were equally compelling. An examination of the case-law subsequent to N. v. the United Kingdom had not revealed any such exam ples. The application of Article 3 of the Convention only in cases where the person facing expulsion was close to death had deprived aliens who were seriously ill, but whose condition was less critical, of the benefit of that provision.

The Grand Chamber f ound in the present case that the “other very exceptional cases” which might raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds had been shown for believin g that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible dec line in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. These situations corresponded to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of alie ns suffering from serious illness.

It was for the applicants to adduce evidence capable of demonstrating that there were substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of be ing subjected to treatment contrary to Article 3.

Where such evidence was adduced it was for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it. The risk alleged had to be subjected to close scr utiny in the course of which the authorities in the returning State had to consider the foreseeable consequences of removal for the individual concerned in the receiving State, in the light of the general situation there and the individual’s personal circu mstances.

The impact of removal on the person concerned had to be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving State.

It was necessary to verify on a case-by-case basis whether th e care generally available in the receiving State was sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3.

The authorities were also required to co nsider the extent to which the individual in question would actually have access to that care and those facilities in the receiving State.

Where, after the relevant information had been examined, serious doubts persisted regarding the impact of removal on the persons concerned, it was for the returning State to obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment would be available and accessible to the persons concerned so that they did not find themselves in a situation contrary to Article 3.

The applicant had been suffering from a very serious illness and his condition had been life‑threatening. However, his condition had become stable as a result of the treatment he had been recei ving in Belgium, aimed at enabling him to undergo a donor transplant. If the treatment being administered to the applicant had had to be discontinued his life expectancy, based on the average, would have been less than six months.

Neither the treatment the applicant had been receiving in Belgium nor the donor transplant had been available in Georgia. As to the other forms of leukaemia treatment available in that country, there was no guarantee that the applicant would have had access to them, on account of the shortcomings in the Georgian social insurance system.

The opinions issued by the Aliens Office’s medical adviser regarding the applicant’s state of health, based on the medical certificates he had provided, had not been examined either by the Aliens Of fice or by the Aliens Appeals Board from the perspective of Article 3 of the Convention in the course of the proceedings concerning regularisation on medical grounds.

Likewise, the applicant’s medical situation had not been examined in the context of the p roceedings concerning his removal.

The fact that an assessment of this kind could have been carried out immediately before the removal measure was to be enforced did not address these concerns in itself, in the absence of any indication of the extent of su ch an assessment and its effect on the binding nature of the order to leave the country.

In conclusion, in the absence of any assessment by the domestic authorities of the risk facing the applicant in the light of the information concerning his state of he alth and the existence of appropriate treatment in Georgia, the information available to those authorities had been insufficient for them to conclude that the applicant, if returned to Georgia, would not have run a real and concrete risk of treatment contr ary to Article 3 of the Convention.

Conclusion : The applicant’s expulsion would have entailed a violation (unanimously).

Article 8: It was not disputed that family life had existed between the applicant, his wife and the children born in Belgium. The case was therefore examined from the perspective of “family life” and the complaint was considered from the standpoint of the Belgian authorities’ positive obligations.

Having observed that the Belgian authorities had not examined the applicant’s medical data a nd the impact of his removal on his state of health in any of the proceedings brought before them, the Grand Chamber had concluded that there would have been a violation of Article 3 of the Convention if the applicant had been removed to Georgia without su ch an assessment being carried out.

A fortiori , the Belgian authorities had likewise not examined, under Article 8, the degree to which the applicant had been dependent on his family as a result of the deterioration of his state of health. In the context o f the proceedings for regularisation on medical grounds the Aliens Appeals Board, indeed, had dismissed the applicant’s complaint under Article 8 on the ground that the decision refusing him leave to remain had not been accompanied by a removal measure.

If the Belgian authorities had ultimately concluded that Article 3 of the Convention as interpreted above did not act as a bar to the applicant’s removal to Georgia, they would have been required, in order to comply with Article 8, to examine in addition whe ther, in the light of the applicant’s specific situation at the time of removal, the family could reasonably have been expected to follow him to Georgia or, if not, whether observance of the applicant’s right to respect for his family life required that he be granted leave to remain in Belgium for the time he had left to live.

Conclusion : The applicant’s expulsion would have entailed a violation (unanimously).

Article 41: Claim for pecuniary damage dismissed; findings of a violation sufficient in respect of non‑pecuniary damage.

(See also Saadi v. Italy [GC], 37201/06, 28 February 2008, Information Note 105 )

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

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