CONCURRING OPINION OF JUDGE LEMMENS

(Translation)

1. I voted like my colleagues in the Grand Chamber in favour of the (retroactive) finding of a procedural and conditional violation of both Article 3 and Article 8 of the Convention. As I was a member of the Chamber and voted then for finding no violation of those two Articles, I would like to explain briefly why I changed my mind.

2. During the Chamber ’ s examination of the case I took the view that we should follow the strict interpretation of Article 3 of the Convention applied by the Court since the Grand Chamber judgment in N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008). On the basis of the strict interpretation of the threshold of severity, I concluded with the majority of the Chamber that the applicant ’ s removal would not entail a violation of Article 3 (see paragraph 126 of the Chamber judgment of 17 April 2014). Likewise, with regard to the refusal of the applicant ’ s request for regularisation of his residence status, I agreed with the majority of the Chamber that the State had not failed to comply with its positive obligations under Article 8 of the Convention (see paragraph 155 of the Chamber judgment).

3. With the referral of the present case to the Grand Chamber the question arose whether strict application of the criterion established in N. v. the United Kingdom , without taking into consideration circumstances other than the fact that the person concerned was “close to death” (see paragraph 181 of the present judgment), did not create a gap in the protection against inhuman treatment. I have no difficulty finding, like my colleagues in the Grand Chamber, that such a gap exists, and in clarifying our case-law in order to fill that gap while at the same time maintaining a high threshold for the application of Article 3 of the Convention (see, in particular, paragraph 183 of the present judgment).

I also subscribe fully to the different manner in which the Grand Chamber approaches the applicant ’ s complaint. Whereas the Chamber examined whether the applicant ’ s removal would be compatible with the prohibition of inhuman and degrading treatment, the Grand Chamber stresses the primary responsibility of the national authorities when it comes to examining the arguments advanced by aliens under Article 3 of the Convention (see, in particular, paragraph 184 of the present judgment, which highlights the fact that the machinery of application to the Court is subsidiary to national systems safeguarding human rights).

From this fresh perspective I agree with my colleagues that the domestic authorities did not have sufficient information in the present case for them to conclude that, if the applicant were returned to Georgia, he would not face a real and concrete risk of treatment contrary to Article 3, regard being had to the criterion established in N. v. the United Kingdom as clarified in the present judgment.

4. As to the complaint under Article 8 of the Convention, the Grand Chamber also takes a different approach from the Chamber. Whereas the Chamber examined the refusal to regularise the applicant ’ s residence status from the standpoint of proportionality, the Grand Chamber, here too, focuses on the procedural obligations of the respondent State (see, in particular, paragraph 224 of the present judgment, which again emphasises that the machinery of application to the Court is subsidiary to national systems safeguarding human rights).

On the basis of this new approach I cannot but agree with my Grand Chamber colleagues that the domestic authorities ’ assessment as to whether the refusal of a residence permit was compatible with Article 8 of the Convention was not based on all the relevant information in the present case.

5. I would like to take this opportunity to draw attention to the fact that the present judgment is not unrelated to developments occurring within Belgium.

At the time of the Chamber judgment some formations of the Aliens Appeals Board had already shown reluctance to apply strictly the criterion established in N. v. the United Kingdom (see paragraph 102 of the present judgment). Since then, the Conseil d ’ État has endorsed their approach (see paragraphs 103-05 of the present judgment) and the Aliens Appeals Board has consolidated this line of case-law in a number of judgments given by the full Board. Admittedly, this case-law relates to the interpretation of a rule of domestic law (section 9 ter of the Aliens Act, concerning the possibility of granting a residence permit on medical grounds), but it is also relevant to the interpretation of Article 3 of the Convention. It emerges from the judgments of the full Aliens Appeals Board that an obstacle to the removal of an alien who is ill may arise not only where there is an imminent threat to his or her life or physical integrity (a situation in which removal would be contrary to Article 3 of the Convention according to the Court ’ s case-law since N. v. the United Kingdom ), but also where there is a risk of inhuman or degrading treatment if no appropriate treatment exists in the receiving country (see paragraphs 106-07 of the present judgment).

To my mind, by emphasising that, in addition to the risk to life (a real and present danger to life or physical integrity), there is also a risk of inhuman or degrading treatment, the Aliens Appeals Board was able to draw the Court ’ s attention to the issue raised by its case-law. The present judgment may be seen as the Court ’ s response to the concerns expressed by the Aliens Appeals Board.