Strasbourg Observers

Thank you, Justice Tulkens: A comment on the dissent in N v UK

August 14, 2012

According to HUDOC, Judge Tulkens sat on the panel of 1843 ECtHR judgments, amongst which 217 Grand Chamber judgments. The same source lists as her oldest judgment the article 6 case of Van Pelt v. France on 23 May 2000. As HUDOC – however wonderful – has its imperfections, we cannot know  for certain whether this was actually her first judgment. Yet it would be suitable if it were so, as this judgment already has a (partly) dissenting opinion by Françoise Tulkens, written jointly with Sir Nicolas Bratza. Contrary to the majority, they thought that a violation of the reasonable term requirement should have been found.  So for those who were wondering: yes, she has been this formidable judge from the very beginning: never just following the flow of the majority opinion (whether the majority in the Court or that in society), always checking the case at hand against the fundamentals of what human rights protection is supposed to be about: justice, equality, freedom.  That is why many of us – who consider it our jobs to critically scrutinize the Court’s work for sloppiness on those same fundamentals – so often find ourselves agreeing with her separate opinions.

For this blogging tribute, I chose to discuss a case in which the fundamentals of human rights protection are a lot more prominent than in the above-mentioned reasonable term judgment. It is the Grand Chamber case of N v UK of 27 May 2008, in which the 9 page-long reasoning of the majority is followed by a 12 page dissent, co-authored by Judges Tulkens, Bonello and Spielmann.

The case is about the forced return of an HIV positive Ugandan woman to her home country. The applicant claimed that her case was similar to D v UK of 2 May 1997, in which the Court found a violation of article 3 ECHR. The majority of the Grand Chamber however distinguished N from D, stating that the ‘exceptional circumstances’ the Court found in D, were not present in N’s case, because she was not yet terminally ill, because she had family members in Uganda, and because according to WHO data, antiretroviral medication is available in Uganda. This Grand Chamber judgment came not totally unexpectedly, as after D, all comparable cases – except one, that was settled- were distinguished, and no more violations had been found on account of the return of very ill persons to countries with poor healthcare facilities. Yet the majority judgment is no less shocking for being expected.

This type of case reveals an uncomfortable truth about the limits of the human rights commitment of European states. Like other rich states with long democratic traditions, they like to insist on the universality of human rights vis-à-vis less democratic (and often poorer) other states. Yet in transnational situations, their formal commitment to universal human rights is upheld only thanks to barely credible legal wriggling.  The territorial scope of the ECHR is one example, comfortably allowing European troops to violate human rights abroad, as long as they don’t occupy the territory (cf. Bankovic). Similarly, in N, European states get clearance for directly sending individuals toward a certain miserable death following extended suffering, by a legal reasoning that allows them to wash their hands in innocence.

The dissenters brilliantly pierce through this legal fiction. They could have limited their separate opinion to explaining their disagreement on the interpretation of the facts, i.e. why N does indeed concern an exceptional situation that is fully comparable to D. The dissenters make this argument forcefully. It runs on two legs. The first states that the distinction as to the advancement of the disease (D was terminal, N could live ‘for decades’ with appropriate treatment) was not sufficient to conclude to the absence of an article 3 violation in N.  They explain that the situation in D includes in fact two separate violations: the deportation of an ‘applicant on his or her death bed’ AND the deportation  to a place where medical and palliative care as well as psychological support are lacking. The second leg blows away the mist the majority had been creating as to the fate that would befall the applicant upon deportation.  The majority had indeed stated, that ‘the rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, must involve a certain degree of speculation’, conceding only  vaguely ‘that the quality of the applicant’s life, and her life expectancy, would be affected if she were returned to Uganda’.  The ostrich-like quality of this statement is even more striking when compared to the British House of Lords, which at least denied the applicant’s claim with open eyes. The Law Lords’ statements, which the dissenters quote extensively, make it abundantly clear that the same woman who would lead a normal life for decades if she were allowed to stay in the UK, would face an ‘appalling’ prognosis if returned to the UK, suffering’ ill-health, discomfort, pain and death within a year or two’.  The applicant, who  had experienced five or six of her siblings dying from AIDS, knew which fate would befall her. Even if the inadequately resourced hospital in her home town would suddenly have the necessary staff and equipment to treat her, she would not be able to afford such treatment, being too weak to work.  It is hard to see how that could not be severe or ‘exceptional’ enough to bring article 3 ECHR into play.

This part of the dissenting opinion is strong enough to stand on its own, yet the part preceding it is even stronger. In that part, the dissenters unpack several subtle manipulations in the majority’s statement of ‘general principles’.  The inclusion of this analysis is particularly important with a view to countering several ways in which N as a precedent might signify a decrease of human rights protection.

First, the dissenters put the finger on the majority’s dangerous move away from the ‘Pretty threshold’,  which states that suffering from illness may be covered by article 3 ‘where it is, or risks being, exacerbated by treatment … for which the authorities can be held responsible’.  In contrast, the Grand Chamber in N (in para. 43) had emphasized the fact that ‘the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of adequate resources to deal with it in the receiving country’. This difference in wording is crucial, as it concerns the legal translation of the underlying moral issue: is or isn’t the UK responsible  for the applicant’s appalling fate? The Pretty threshold, which was withheld in D, explains quite lucidly why and to what extent the UK can be held responsible, while the majority reasoning in N obscures the UK’s agency in the matter.

Next, the dissenters point out the regrettable move away from the integrated approach that recognizes the social rights dimensions of some civil and political rights. This comes about through an incomplete quotation from Airey v Ireland. The majority (in para. 44) quotes Airey as stating that ‘the Convention is essentially directed at the protection of civil and political rights’, deliberately omitting the rest of the paragraph from Airey, which contains the famous quote about the lack of a watertight division between the two spheres of rights.

The third problematic issue can be found in the next sentence of the Grand Chamber judgment, where it states that ‘inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’. As the dissenters point out, this brings back balancing in article 3, which was explicitly rejected by the Court in Saadi, adopted three months earlier, as a threat to the absolute character of article 3 ECHR.

This is linked to the fourth issue, still in the same paragraph of the judgment, where the majority does indeed balance the applicant’s suffering against the financial burden for the State of health care provision for people in a comparable situation. While the majority is to be commended for its transparency in these sentences, revealing the real reasons behind their finding of non-violation, it has to be emphasized with the dissenters that such reasoning runs counter to the absolute nature of article 3. Balancing human lives against financial considerations  is moreover a particularly despicable type of bargaining. In addition, the dissenters, Rule 39 statistics in hand, show that ‘the allegation that finding a breach of Article 3 in the present case would open up the floodgates to medical immigration and make Europe vulnerable to becoming the ‘sick-bay’ of the world’ is ‘totally misconceived’. They are thus implicitly accusing the majority of allowing themselves to be manipulated by populist scaremongering.

In this dissent, I love the combination of legal brilliance – both in the detail and in the big picture-  with high doses of compassion and  plain courage. The US Supreme Court calls its judges ‘justices’. This can be confusing for a non-native speaker of English. Yet I like to think of Françoise Tulkens like that: ‘Justice Tulkens’. It says what she did, and for what we are endebted to her: authentic justice.

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  • Elaine Webster says:

    I agree that this was a brilliant and necessary dissent. Sooner or later another similar case will be found admissible and will be addressed by the Grand Chamber. In a post written by Paul Harvey on the UK Human Rights Blog earlier this year, the preponderance of migration-related applications to the Strasbourg Court was highlighted, and this only against the United Kingdom. So it must surely just be a matter of time. The dissent in N has fuelled a widespread view, it is probably fair to say, that the current approach isn’t satisfactory. As you note, a core problem in cases concerning expulsion of the seriously-ill is that they bring to the fore the “uncomfortable truth” of the limits of commitment, not just of European States but of the regional system of human rights protection. I’ve been reading Lydia Morris’ book, Asylum, Welfare and the Cosmopolitan Ideal, which draws upon on a case-study of destitution of asylum seekers and UK asylum policy. She talks about cosmopolitan ideals and policies of exclusion; universal rights, citizenship, migration and bounded states. The same questions are there in cases such as N v. UK. It is slightly ironic that the Court was so intent on protecting Mr D in 1997, and yet this judgment is now being used as a benchmark limiting the protection afforded to the seriously-ill by Article 3. The Court will surely be compelled to revisit its approach and I would love to hear Judge Tulkens’, or as you say Justice Tulkens’, views on where the Grand Chamber will go with this issue in future.

  • Thank you for this comment. In relation to it, I would like to draw attention to para. 282 from Sufi and Elmi v. the United Kingdom (2011), where the Court refers to N. v. The UK and again makes the distinction between harm emanating from the intentional acts or omissions of public authorities or non-State bodies and harm flowing from from ‘naturally occurring phenomenon’. I find para.282 for very unfortunate.

    ‘If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or to the State’s lack of resources to deal with a naturally occurring phenomenon, such as a drought, the test in N. v. the United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct and indirect actions of the parties to the conflict. ‘

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