Information Note on the Court’s case-law 257

December 2021

Savran v. Denmark [GC] - 57467/15

Judgment 7.12.2021 [GC]

Article 3

Expulsion

Expulsion of foreign national with schizophrenia to his country of origin, without health risks reaching the high threshold for application of Article 3: no violation

Article 8

Article 8-1

Respect for private life

Permanent exclusion order on long-term settled migrant with schizophrenia, despite progress after years of compulsory care, on account of violent offences: violation

Facts – The applicant, a Turkish national diagnosed with paranoid schizophrenia, entered Denmark in 1991 when he was six years old. In 2008 he was convicted of assault and exempt from punishment on account of his mental illness. He was sentenced to committal to forensic psychiatric care. In 2009 he was made subject to an expulsion order with a permanent ban on re-entry. In 2014 the City Court held that, regardless of the nature and gravity of the crime committed, the applicant’s health made it conclusively inappropriate to enforce the expulsion order. In 2015 that decision was reversed by the High Court and the applicant was subsequently refused leave to appeal and deported to Turkey.

In a judgment of 1 October 2019 (see Legal Summary ), a Chamber of the Court found, by four votes to three, that the applicant’s expulsion would constitute a violation of Article 3 should it be carried out without the Danish authorities having obtained individual and sufficient assurances that appropriate treatment would be available.

On 20 January 2020 the case was referred to the Grand Chamber at the Government’s request.

Law

Article 3

(a) Considerations on the criteria laid down in the Paposhvili judgment – The Grand Chamber noted that, in its judgment in the case of Paposhvili v. Belgium [GC], the Court had reviewed the applicable principles in its case-law concerning the extradition, expulsion or deportation of individuals. There had been no further development in the relevant case-law since that judgment. The Grand Chamber confirmed that the Paposhvili judgment had offered a comprehensive standard taking account of all the considerations that were relevant for the purposes of Article 3 and reaffirmed the standard and principles as established therein.

The Court reiterated that the evidence adduced had to be “capable of demonstrating that there are substantial grounds” for believing that as a “seriously ill person”, the applicant “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 decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy”. It was only after that threshold test had been met, and thus Article 3 was applicable, that the returning States’ obligations listed in the Paposhvili judgment became of relevance. The Court also emphasised the procedural nature of the Contracting States’ obligations under Article 3 in cases involving the expulsion of seriously ill aliens: the Court does not itself examine the applications for international protection or verify how States control the entry, residence and expulsion of aliens.

Regarding the relevance of the Paposhvili threshold test in the context of the removal of mentally ill aliens, the standard was sufficiently flexible to be applied in all situations involving the removal of a seriously ill person which would constitute treatment proscribed by Article 3, irrespective of the nature of the illness. Indeed, it was not limited to any specific category of illness, let alone physical ones, but might extend to any category, including mental illnesses, provided that the situation of the ill person concerned was covered by the Paposhvili criteria taken as a whole. In particular, in its relevant part, the threshold test, rather than mentioning any particular disease, broadly referred to the “irreversibility” of the “decline in [a person’s] state of health”, a wider concept that was capable of encompassing a multitude of factors, including the direct effects of an illness as well as its more remote consequences. Moreover, it would be wrong to dissociate the various fragments of the test from each other, given that a “decline in health” was linked to “intense suffering”. It was on the basis of all those elements taken together and viewed as a whole that the assessment of a particular case should be made.

(b) Application of the relevant principles in the present case – In its judgment the Chamber had not assessed the circumstances of the present case from the standpoint of the threshold test established in the Paposhvili judgment. As noted, it was only after that test was met that any other questions, such as the availability and accessibility of appropriate treatment, became relevant.

While, admittedly, schizophrenia was a serious mental illness, that condition could not in itself be regarded as sufficient to bring the applicant’s complaint within the scope of Article 3.

While the Court found it unnecessary to decide in the abstract whether a person suffering from a severe form of schizophrenia might be subjected to “intense suffering” within the meaning of the Paposhvili threshold test, it had not been demonstrated in the present case that the applicant’s removal to Turkey had exposed him to a serious, rapid and irreversible decline in his state of health resulting in intense suffering, let alone to a significant reduction in life expectancy. According to some of the relevant medical statements, a relapse was likely to result in “aggressive behaviour” and “a significantly higher risk of offences against the person of others” as a result of the worsening of psychotic symptoms. Whilst those would have been very serious and detrimental effects, they could not be described as “resulting in intense suffering” for the applicant himself. It did not appear that any risk had ever existed of the applicant harming himself. As regards any risk to the applicant’s physical health owing to immune defects that might be caused by his medication, that appeared to have been neither real nor immediate in the applicant’s case. In any event, the relevant evidence had not indicated that such immune deficiencies, should they occur, would be “irreversible” and would result in the “intense suffering” or “significant reduction in life expectancy” necessary to satisfy the Paposhvili test.

The Court was not convinced that in the present case, the applicant had shown substantial grounds for believing that, in the absence of appropriate treatment in Turkey or the lack of access to such treatment, he would be exposed to a risk of bearing the consequences set out in the Paposhvili judgment. The foregoing was sufficient to enable the Court to conclude that the circumstances of the present case had not reached the threshold set by Article 3 to bring the applicant’s complaint within its scope. That threshold should remain high for this type of case. Against that background, there was no call to address the question of the returning State’s obligations under Article 3 in the circumstances of the present case.

Conclusion : no violation (sixteen votes to one).

Article 8

(a) The scope of the case – The Court examined the complaint under Article 8 only in so far as it related to the authorities’ refusal to revoke the expulsion order, and the implementation of that order, entailing as a consequence a permanent re-entry ban. Its task was therefore not to assess, from the standpoint of Article 8, the original order and the criminal proceedings in the context of which it had been issued, but rather to review whether the revocation proceedings had complied with the relevant criteria established by the Court’s case-law.

(b) Whether there was an interference with the applicant’s right to respect for his private and family life – The Court accepted that the applicant had been a “settled migrant” and therefore Article 8 under its “private life” aspect was engaged. Whilst the Court saw no reason to doubt that the applicant’s relationship with his mother and siblings had involved normal ties of affection, it considered that it would be appropriate to focus its review on the “private life” rather than “family life” aspect under Article 8. Indeed, from his early years the applicant had not been living full time with his family. Moreover, his mental illness, albeit serious, had not incapacitated him to the extent that he had been compelled to rely on his family’s care and support in his daily life. The refusal to revoke the applicant’s expulsion order in the revocation proceedings and his expulsion to Turkey had constituted an interference with his right to respect for his private life.

(c) Whether the interference was justified – The impugned interference had been “in accordance with the law” and had pursued the legitimate aim of preventing disorder and crime. The Court therefore had to determine whether it had been “necessary in a democratic society”.

The Court saw no reason to question that very thorough consideration had been given to the medical aspects of the applicant’s case at the domestic level.

As regards the nature and seriousness of the criminal offence committed by the applicant, the fact that his criminal culpability had been officially recognised at the relevant time as being excluded on account of mental illness at the point in time when the criminal act had been perpetrated might have the effect of limiting the weight that could be attached to that criterion in the overall balancing of interests required under Article 8 § 2 and, consequently, the extent to which the respondent State could legitimately rely on the applicant’s criminal acts as the basis for his expulsion and permanent ban on re-entry. However, in the 2015 revocation proceedings, no account had been taken of that fact.

Furthermore, a significant period had elapsed between the date on which the expulsion order had become final (in 2009) and the date of the final decision in the revocation proceedings (in 2015). During that period, the applicant had undergone medical treatment for his mental disorder. Despite that, the High Court had not considered the positive changes in the applicant’s personal circumstances with a view to assessing the risk of his reoffending against the background of his mental state at the time of the commission of the offence and the apparent beneficial effects of his treatment. Indeed, he had made progress during those years, which had led to his being discharged from forensic psychiatric care.

Nor had the High Court had due regard to the strength of the applicant’s ties to Denmark as compared to those to Turkey. He had been a settled migrant living in Denmark since the age of six, had received most of his education there and his close family members all lived there. He had also been attached to the Danish labour market for about five years.

Further, under the domestic law, the administrative and judicial authorities had had no possibility of making an individual assessment of the duration of the applicant’s exclusion from Danish territory, which had been both irreducible and permanent. Therefore, and notwithstanding the respondent State’s margin of appreciation, the Court considered that, in the particular circumstances of the present case, the domestic authorities had failed to take into account and to properly balance the interests at stake.

Conclusion: violation (eleven votes to six).

Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.

(See also Maslov v. Austria [GC], 1638/03, 23 June 2008, Legal Summary , and Paposhvili v. Belgium [GC], 41738/10, 13 December 2016, Legal Summary )

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

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