Moving away from N v UK – Interesting tracks in a dissenting opinion (Tatar v Switzerland)

By Eva Brems

The Court’s case law on the expulsion of very ill persons to their country of origin bothers many. The standard  of ‘very exceptional circumstances’ set in N v United Kingdom (2008) is so high that no applicant to date has passed it. The only individual who has won a case of this type is the applicant in D v United Kingdom in 1997, who was in the final stages of a terminal illness and had no prospect of medical care or family support on expulsion to his home country. As was noted by a recent blogger, many people, both inside the Court and among academic commentators, are of the opinion that this standard should be adjusted.  One may take this point of view for ethical and humanitarian reasons, as it does not seem right for a human rights court to become complicit in sending people toward a (near) certain death in unacceptable circumstances.  Yet others may share the same opinion on purely legal grounds, as this line of Article 3 case law is difficult to reconcile with the absolute nature of that provision.

In recent years, we have seen a number of judges in Chamber judgments reluctantly voting with the majority to apply the N v United Kingdom standard set by the Grand Chamber, but expressing in concurring opinions their wish for a new Grand Chamber to set a different standard (see judges Tulkens, Jočienĕ, Popović, Karakaş, Raimondo and Pinto de Albuquerque in Yoh-Ekale Mwanje v Belgium, and judges Lemmens and Nussberger in the Chamber judgment of SJ v Belgium). A few have gone further and dissented from the majority. Judge Power-Forde in her dissent in the Chamber judgment in SJ proposed a ‘more human’ interpretation of the criterion of exceptional circumstances.  Judge Pinto de Albuquerque moved from concurring to dissenting in the Grand Chamber’s judgment striking out SJ v Belgium after settlement. In his powerful dissent, he expresses severe criticism of N v UK and calls on the Court to change course. Following suit one month later, Judge Lemmens also moves from concurring to dissenting in Tatar v Switzerland. He needs to be applauded[1] not only for that act of courage, that makes him rise to fill the shoes of his predecessor Judge Tulkens, but also for making two very useful suggestions that may enable the Court to move forward in this line of case law in a manner that is both humane and realistic.

Tatar v Switzerland was brought by a Turkish national who had lived in Switzerland as a refugee for 26 years. In 2001, he was convicted to a prison sentence for killing his wife. As he was diagnosed with a severe mental illness, his imprisonment was postponed to allow him to benefit from treatment in a closed psychiatric facility. In 2010 he was paroled on condition of remaining in an (open) psychiatric facility for three more years. While he was there, he suffered several relapses which led to temporary stays in a closed psychiatric hospital. The following paragraph is particularly relevant as a description of the applicant’s condition (para. 16):

‘Despite the psychiatric treatment the applicant had received, expert reports indicated that he was, and would remain, unable to live on his own. He would have to continue to take psychotropic drugs on a regular basis and undergo therapy, failing which he would suffer relapses into hallucinations and psychotic delusions during which he might harm himself or other persons. Expulsion would lead to a deterioration of his condition; even more so if he were expelled to Turkey, where he felt persecuted. He was unable to distinguish his paranoid ideas from reality’.

Yet in June 2010, the Migration Office ordered the applicant to leave Switzerland within three months. The Federal Supreme Court refused the applicant’s appeal in August 2012.

The majority of the Chamber (judges Karakaş, Vučinić, Keller, Kūris, Spano and Kjølbro) found no violation of articles 2 or 3 ECHR. Although it accepted that the suffering associated with a relapse of the applicant’s illness could in principle fall under the scope of Article 3, the Court found that there was not a sufficient real risk of violation of that provision, and that ‘the humanitarian grounds against his removal are not compelling’. The Court observed that ‘medical treatment for his condition would in principle be available to the applicant in Turkey’, specifying that ‘while such treatment might not exist in the applicant’s former hometown, Nurhak, it could in principle be provided within a distance of around 150 km and in other parts of Turkey’. The Court also stated that ‘the domestic authorities’ readiness to assist the applicant and take other measures to ensure that the removal can be executed without jeopardizing his life upon return is particularly relevant to the Court’s overall assessment’. This refers to

‘the Government’s submission that upon executing the expulsion the immigration authority will ensure that the applicant fulfils the medical condition to travel and that appropriate measures are taken with regard to the applicant’s particular needs, in particular, that the competent Turkish authorities will be informed of the specifics of the applicant’s health and be provided with a list of his required medical treatment. The Court further sees no reason to doubt the Government’s assertion that they would make every effort to see to it that the applicant would not have to pause his treatment if expelled and that he would have access to the medical care he needs upon return to Turkey’ (para. 49).

Here we are at the heart of the problems that characterize this line of case law. In the words of Judge Lemmens, ‘this is a very theoretical assessment of the situation’.  He rightly states that

‘there is no indication… that the Turkish authorities – or anyone else- will take the applicant into their care… There is no guarantee that the applicant will receive treatment compatible with Article 3, not even through a statement of intent by the Turkish authorities or the putting in place of practical arrangements with them’ (para. 4).

Instead of the criterion of ‘very exceptional circumstances’, Judge Lemmens proposes to use the criterion of vulnerability, which has been repeatedly, and arguably increasingly, used in the Court’s case law (see Alexandra Timmer and Lourdes Peroni). Lemmens reasons that because the applicant is suffering from severe schizophrenia and unable to live on his own, he must be considered extremely vulnerable. As such, and with reference to the cases of Orsus, MSS and Tarakhel, he belongs to a category of persons requiring ‘special protection’. On this ground, Lemmens states, referring to Tarakhel, that the Swiss authorities should ‘obtain some sort of assurances from the Turkish authorities that, on arrival in Turkey the applicant will receive the special protection required by his condition’.

Personally, I consider this path of ‘assurances’ as an elegant procedural way out of the current morally repugnant stance of the Court in this type of cases. Access to appropriate medical care upon return should not be a theoretical option, but a real and guaranteed one, and the burden of proving that such a real option exists – or of arranging, through diplomatic means, the availability of such an option – should lie on the expelling state. This solution is a realistic one, because it does not as such stand in the way of expulsion, and hence does not oblige states to take on the burden of medical care for this category of individuals. Yet it would end the practice of the Court covering up for states that send vulnerable people to horrible suffering and death.

Moreover, the need for assurances upon expulsion where a real risk of violation of article 3 exists has long been accepted when the risk concerns torture or inhuman treatment by state agents, for example vis-à-vis (suspected) terrorists (see Othman v UK). If the procedural solution of diplomatic assurances can be applied to the politically and ethically difficult category of terrorists, it is not clear what might stand in the way of it being applied to all expulsion/extradition cases in which a real risk of inhuman suffering can be averted in this manner. This solution would thus have the additional advantage of restoring consistency to the Court’s article 3 case law.

I am not aware of whether the applicant will attempt to bring the case before the Grand Chamber. Yet another case of this type, delivered one year ago (Paposhvili v Belgium) has recently been referred to the Grand Chamber. Although this judgment was delivered without any separate opinion on the issue of violation of arts 2 and 3 (Lemmens, Nussberger, and Power- Forde all joined the majority), the Grand Chamber judgment will provide an opportunity for the Court to reconsider the standards it applies in this type of cases. It is suggested here that a procedural approach, centered on assurances, may provide a solution. Since this solution would allow judges to do away with their bad conscience without placing a financial burden on the states parties, there is no reason not to be hopeful that it might inspire a majority of the Court.

[1] Judge Lemmens was the supervisor of my PhD thesis at KULeuven in the 1990s. We have a good contact. Those who think that this is the reason I wish to applaud him today are invited to reconsider. If you have been a PhD student yourself, you may understand that I actually enjoy disagreeing with Paul much more than agreeing with him. 🙂