By Dr. Mark Klaassen, Institute of Immigration Law, Leiden University
On 1 October 2019, in the Savran judgment the European Court of Human Rights (hereinafter: ‘the Court’) has applied the Paposhvili-test in cases involving the expulsion of migrants who fear to be the victim of a violation of Article 3 ECHR because a medical treatment is not available in the country of origin. See, for an analysis of the Paposhvili ruling, the blog post of Lourdes Peroni on this blog. The case involves the deportation of a Turkish man with a severe psychiatric condition from Denmark to Turkey. In this contribution, I will first briefly sketch the development of the case law of the Court in Article 3 ECHR cases involving medical treatment. After that, I will outline the facts of the present case and the ruling of the Court. In my analysis of the ruling I will question the feasibility of the Court’s position that the host state is required to obtain assurances from the country of origin that medical treatment is available for a particular patient. I will argue that in case serious doubts persist as to whether the required medical treatment is available and accessible, the returning state should simply refrain from deportation. My final argument is that the Court should have addressed the issue of the right to respect for private and family life under Article 8 ECHR, as I believe it would be helpful to receive more guidance in deportation cases of convicts who committed their crimes in a situation that they cannot (fully) be held accountable because of a psychiatric condition.
The jurisprudence so far
In testing whether expulsion would lead to a violation of Article 3 ECHR because of a lack of medical treatment in the receiving country, the Court uses a strict test in which only in exceptional circumstances a violation is found. In D. v United Kingdom, the applicant was a terminally ill man that faced expulsion to St. Kitts. The Court concluded that the expulsion of the applicant would hasten his death and that in these exceptional circumstances his expulsion would be in violation of Article 3. In N. v. United Kingdom, the Court held that migrants cannot claim any entitlement to residence “in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State.” The Court holds that even a significant reduction in life expectancy is in itself not sufficient to find a violation of Article 3. Only in exceptional cases, Article 3 ECHR prevents the expulsion of a migrant who fears inhuman treatment in the receiving state because of medical issues. Not excluding the possibility that there might be situations in which expulsions would be in violation of Article 3 ECHR, the Court held that it does not oblige the contracting states to alleviate disparities between health care systems around the world as this “would place too great a burden on the Contracting States.”
The Court nuanced this strict approach in Paposhvili v. Belgium. The Court held that very exceptional medical cases in which Article 3 ECHR bars expulsion are cases
“[…] in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, 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.”
On the burden of proof, the Court held that it is for the applicant to adduce evidence capable of demonstrating that the expulsion would lead to a violation of Article 3 ECHR (para. 186). If the applicant has provided such evidence, it is for the host state “to dispel any doubts” that the expulsion would lead to a violation of Article 3. In this context, the host state must consider the foreseeable consequences of the expulsion for the individual in the light of the general situation in the country of origin and the individual’s personal circumstances (para. 187). If there are still serious doubts regarding the impact of the removal on the applicant, the returning state must obtain individual and sufficient assurances from the receiving state (para. 191). In Paposhvili, the applicant died during the proceedings before the Grand Chamber. In those proceedings, the respondent state reasoned that it might have been possible to continue treatment in Georgia by sending medication by post and with assistance of local doctors. On this point, the Court held that the government did not provide any specific information regarding the practical feasibility of such a solution (para. 204).
The present case: Savran v. Denmark
In Savran v. Denmark, the Court exactly addresses the practical feasibility that the applicant would receive appropriate treatment in the receiving state.
The case concerns a Turkish national who moved to Denmark when he was six years old in 1991. In 2007, the applicant was convicted for assault under highly aggravating circumstances to seven years imprisonment and expulsion from Denmark. In appeal, the Danish Supreme Court upheld the removal order and committed the applicant to forensic psychiatric care. A psychiatrist has testified in the proceedings on the revocation of the applicant’s residence permit in Denmark. He stated that the applicant requires regular follow-up in order to make sure he adheres to his treatment and prevent that the applicant develops an immune defect for his prescribed medicines. The Danish High Court held that appropriate medical care is available to the applicant in the region in Turkey where he would be living upon his return. The High Court furthermore holds that the applicant is aware of the importance to adhere to his medical treatment and that the nature and gravity of his crimes warrants his expulsion (para. 30).
The Court disagrees. In sketching the applicable test, the Court states that there is “a high threshold for the application of Article 3 in cases involving the removal of migrants suffering from serious illness” (para. 45). The host state must verify on a case-by-case basis whether the care generally available in the receiving state is sufficient and appropriate to prevent a violation of Article 3 (para. 46). The host state must also consider the extent to which the individual will actually have access to this care and these facilities. Factors to be taken into account in this regard are:
- the cost of medication and treatment
- the existence of a social and family network
- the distance to be travelled in order to have access to the required care (para. 47).
The Court then repeats the requirement from Paposhvili that, in case serious doubts persist regarding the impact of the removal on the persons concerned, the returning state “must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 […]” (para. 48). In this regard, the Court points at its ruling in Tarakhel v. Switzerland, which concerned guarantees by the receiving state that an asylum-seeking family would be placed in a reception facility that is suitable for minor children. I will further analyse this below.
Applying these principles to the case, the Court observes that in the domestic proceedings, the criteria from Paposhvili were assessed. In the domestic proceedings, it was held that it was possible for the applicant to receive appropriate care in the form of intensive care in a psychiatric hospital matching the applicant’s needs. The applicant would move to a village located 100 km away from the city in which he could obtain medical treatment. The Court observes that the Danish High Court’s assessment that the distance between the applicant’s home village and the treatment facility would in itself not be an obstacle to obtain actual care is in accordance with the previous case law of the Court. However, the Court holds “[…] that it is unclear whether the applicant has a real possibility of receiving relevant psychiatric treatment […]”. This, according to the Court, raises doubts on the impact of the removal on the applicant. In case of doubt, the returning state has the obligation to obtain sufficient assurances from the receiving state that appropriate treatment will be available and accessible to the person concerned. This procedural requirement – which follows from Paposhvili, but was not used in that case as the applicant had died before the ruling of the Court – is applied by the smallest possible majority of the Chamber in order to find a violation of Article 3.
Two separate dissenting opinions
The dissenting judges point at another element in Paposhvili. The dissenting judges argue that the majority should have assessed whether the applicant would be “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” (Paposhvili, para. 183, Dissenting Opinion para. 11). The dissenting judges believe that the majority did not explicitly address whether this would be the case, because the applicant – in their eyes – does not meet this threshold (Dissenting Opinion, para. 12). The majority attached heavy weight to the fact that the applicant needs a regular contact person and close follow-up. The dissenting judges argue that “even assuming that the applicant would not be provided with a contact person and the same extent of follow-up and control, that would not in itself be decisive as the decisive question is whether the care available in the receiving State is ‘sufficient and appropriate’” (dissenting opinion, para. 18). In an additional dissenting opinion, judge Mourou-Vikstrom went even further; she categorically excludes mental illness as an obstacle to removal under Article 3.
In my view, there is nothing new under the sun in term of the procedure to test compliance with Article 3. In Savran, the Court has applied the test it developed in Paposhivili. I however doubt whether ‘individual and sufficient assurances’ are instrumental in medical Article 3 ECHR cases.
The requirement of obtaining assurances from the receiving state is not a novelty. In Othman, the Court has developed a set of criteria to determine the reliability of diplomatic assurances that a returnee is not treated inhumanly in the receiving state. A different type of assurances was required by the Court in Tarakhel, concerning the transfer of an asylum seeker family pursuant to the EU Dublin Regulation. See, for further analysis, the blog post of Nesa Zimmerman on this blog. The Court held that the situation in the receiving state were not so deplorable that all transfers constitute refoulement. However, if there is a possibility that a significant number of asylum seekers may be left without suitable accommodation, the returning state must obtain assurances from the receiving state that the asylum seekers will receive appropriate accommodation (Tarakhel, paras. 115 & 120). ‘Diplomatic guarantees’ and ‘Tarakhel-assurances’ are inherently problematic as they are required to be obtained from receiving states with a questionable record in the compliance with (human rights) obligations. This worry also applies to ‘individual and sufficient assurances’ in medical cases. I wonder how the reliability of the assurances can be tested and what role the state of health care provision in the receiving state can and should play a role in the assessment of this issue.
On top of that, I wonder whether it is feasible that returning states can obtain individual and sufficient assurances that appropriate treatment will be available and accessible in the receiving state. This requires the receiving state to be willing to make an assessment of the availability and accessibility of medical treatment to a returnee. The Court itself acknowledges that it is not possible to derive a right to receive specific treatment in the receiving state which is not available to the rest of the population (Savran, para. 46). In cases where serious doubts persist on the issue whether the required medical care is available and accessible, I would suggest that in the light of the absolute character of Article 3 ECHR, the returning state should refrain from deportation.
A point that was not addressed by the Court is whether the deportation of the applicant would violate his right to respect for private life under Article 8 ECHR. The Court declares the Article 8 complaint admissible with respect to the request for a revocation of the expulsion order, but deems it not necessary to examine this because of its findings on Article 3 ECHR. This case would have been an opportunity for the Court to provide the much-needed clarity on how to deal with deportation decisions based on a criminal conviction where the perpetrator is mentally ill. In Khan, the Grand Chamber did not rule on the compatibility of the deportation of a mentally ill person because the deportation order was time-barred. I agree with the dissenting opinion of judge Zupančič in the Chamber judgment in Khan, in which he eloquently pointed at that the applicant’s criminal liability in that case was limited because of a psychiatric condition and that this should play a role in the balancing of interests under Article 8 ECHR. In the Court’s guiding principles outlined in Boultif, it is stated that the nature and seriousness of the offence should be considered in determining whether an interference in the right to respect for private and family life is justified. It seems to me that the question on criminal accountability is a relevant factor in determining the nature of the offence. It is a pity that the Court did not provide further guidance for such cases in the present ruling. If the prophecy of judge Mourou-Vikström will come true and the case will be referred to the Grand Chamber, the examination of this issue would be very relevant.