September 24, 2015
Few judgments have sparked more criticism than N. v. the United Kingdom. The high Article 3 threshold set in the case of a seriously ill woman expelled to Uganda where she died shortly after her return has been criticized both inside and outside the Court. Following what some considered a missed opportunity in S.J. v. Belgium last March, the Grand Chamber now has a renewed chance to revisit the N. approach in Paposhvili v. Belgium. In a third-party intervention in the case, the Human Rights Center at Ghent University invited the Grand Chamber to reconsider the unduly restrictive approach adopted in N. In this post, I highlight the main points we made in our intervention as well as some of the parties’ Article 3 oral arguments during last week’s hearing.
Mr. Paposhvili suffers from several illnesses, including hepatitis C and leukemia. He is a Georgian national who has lived in Belgium with his wife and children for around seventeen years. The Belgian government has regularized the status of all his family members. However, the applicant’s requests for residence permits (some of them on medical grounds) were rejected because of his criminal record (conviction of theft and involvement in a criminal organization). Mr. Paposhvili claims that his expulsion to Georgia would violate both Articles 3 and 8 given the real risk of ill treatment he would face as a result of lack of adequate health care in Georgia and separation from his family.
Our Third-Party Intervention
In our third-party intervention, we respectfully invited the Court to:
Revisit the bases for applying the “very exceptional circumstances” test in its Article 3 case law concerning the expulsion of the seriously ill
Develop an alternative test compatible with the absolute nature of the Article 3 prohibition
Take into account the adequacy of treatment and applicants’ real access to such treatment in the receiving state when developing such a test
Require procedural duties from domestic decision makers, in particular, obtaining assurances that adequate medical care would be effectively offered to applicants upon return
Parties’ Oral Arguments
Part of the hearing centered on the facts of the case, including the applicant’s current health, the treatment he is getting in Belgium and his financial situation. The Belgian government claimed that many factual uncertainties remained. The applicant contested this claim by giving details about his financial and family situation, especially in Georgia. When it came to the legal aspects of the case, the applicant asked the Court to redefine the Article 3 minimum level of severity in this line of case law. The government, predictably, argued that N. should be upheld. Here are some parts of the oral submissions.
Counsels for the Applicant
The counsels for the applicant emphasized that Mr. Paposhvili already suffered from leukemia and Hepatitis C in 2008, when he lodged his most recent request for residence on medical grounds. They claimed however that the government had not considered his medical circumstances when examining his request. Since then, they added, Mr. Paposhvili’s health has deteriorated, especially since 2014. His leukemia, for example, has evolved from stage B to stage C. He now prepares for a bone marrow transplant. Stopping the treatment at this point in time would cause him to die. The applicant is not able to travel and, even assuming that he is, he will not receive the necessary treatment in Georgia enabling him to survive. He will be separated from his family and will lack resources, as he is unable to work. The counsels for the applicant asked the Court to establish a more realistic threshold of severity under Article 3, one that goes beyond the right to die with dignity. Access to health care in the country of origin, they argued, should not be seen in theoretical terms. Rather, it should be effectively secured. The onus of proof when establishing whether health care is available rests with the expelling state, they concluded.
The Belgian Government
For the Belgian government, it was unclear how the applicant’s medical care has been funded. The argument was that, though part of his medication is paid by the welfare center, the treatment for leukemia is part of a scientific study and funded in this context. The government argued that they have been unable to determine clearly what impact the removal would have on the applicant. According to the government, this was because the applicant did not submit precise information on the exact stage of his different illnesses. Nor did he submit the agreement he has signed in order to receive his latest treatment for leukemia. The government complained that the applicant gave only very little information on his personal situation. As a result, the government claimed, they could not know the extent of support the applicant would enjoy in Georgia or determine his life expectancy in Belgium and in Georgia. The government argued for looking at the person’s state of health at the time of her/his removal: if that state is critical and only then can the difference in the level of care between the expelling and the receiving countries lead to a risk of inhuman treatment.
Questions to the Parties
The only questions came from Judge Spano. One was for the applicant and concerned effective access to the treatment required by his medical condition. What was it that the counsels for the applicant considered to be the nature of the Article 3 violation? Does the applicant mean that if he is expelled to Georgia and would not receive the same treatment as he is now receiving – the drug that he is receiving and the possibility of a stem cell transplant – would violate Article 3? The counsel for the applicant answered that the expelling state has the responsibility to ensure that there will be a guarantee of continuity of the treatment at issue and continuity of necessary treatment.
Judge Spano’s second question was primarily to the government. He asked whether the treatment that the applicant is now receiving is available to the general Belgian population, and if not, what it is in the treatment that the applicant is receiving that makes it different from or above what the general Belgian population would be receiving. The government first of all remarked that Belgium could guarantee that the applicant’s medical care would continue with the assistance of the Georgian government. They pointed out that the drug the applicant is receiving is an exceptional treatment; up until recently, this used to be an expensive drug for the majority of Belgian citizens. The government stated that, if doctors decide that the transplant is to take place, then it will take place in Belgium and the applicant will be not be dragged away from his hospital bed.
Like in many other cases, predicting the outcome in Paposhvili is a tricky venture. One can however try to identify some elements that might make it to the Court’s Article 3 legal reasoning. One of them is that of real access to adequate care in applicants’ country of origin. Judge Spano’s question hints a concern with this issue. Part of the applicant’s oral submissions – especially those in response to the Belgian government’s criticisms – centered on his financial incapacity to afford treatment and lack of family support in Georgia. In our third-party intervention, we invited the Court to thoroughly consider elements such as applicants’ financial capacity and family support if it is to assess access to care realistically rather than theoretically.
Two concepts might be worth keeping an eye on: vulnerability and human dignity. None of them is actually foreign to the Court’s case law, especially in Article 3 cases. The counsels for the applicant argued that Belgium had not taken into account the vulnerability of Mr. Paposhvili and his children. In the government’s view, however, the concept of a vulnerable person requiring special protection does not provide a satisfactory answer. The government recognized that vulnerability allows one to identify the victim of the Convention when the risk of a violation stems from a general context: it is belonging to a group that allows one to determine the vulnerability and therefore a specific risk. However, the government added that, in case of a serious disease, the person does not belong to a systematically exposed group but faces a risk that the entire population is exposed to. In our third-party intervention, we argued that the individual vulnerabilities flowing from applicants’ medical condition are important considerations in assessing whether applicants would be able to effectively access care (e.g. applicants’ vulnerable health status may not allow them to work and therefore to afford treatment).
As for human dignity, the counsels for the applicant asked the Court to recognize that vulnerable and sick people live with dignity and not simply die with dignity. Moreover, an important question raised by the Belgian government was: how does one provide an objective definition of life expectancy compatible with human dignity? In our third-party intervention, we recalled that the Court has used a flexible-but-compatible-with-human-dignity reasoning when assessing the adequacy of health treatment in prison.
So will N. v. the Kingdom survive in the Grand Chamber? It is hard to tell from the hearing itself. Yet the criticism increasingly voiced in separate opinions and the referrals to the Grand Chamber (first S.J., now Paposhvili and there is another pending request in M.T. v. Sweden) suggest that the Court might not be far from a test that does better justice to the absolute nature of the Article 3 prohibition.
 The case ended in a friendly settlement, to the disappointment of a dissenting judge (Judge Pinto de Albuquerque).