April 22, 2020
Lourdes Peroni, Lecturer in Human Rights, Sheffield Hallam University, UK
I am thrilled to be part of this Blog Symposium to celebrate the 10th anniversary of the Strasbourg Observers with some reflections on the memorable Grand Chamber judgment in Paposhvili v. Belgium. In December 2016, amidst a growing number of dissenting voices pushing for change within the Court, Paposhvili came to soften the restrictive application of the high Article 3 threshold that had prevailed in cases concerning the expulsion of seriously ill migrants. The pre-Paposhvili approach meant that, in practice, Article 3 protection was offered to this group of applicants only in very exceptional cases, namely in cases in which applicants were close to death at the time of expulsion.
Without abandoning the high threshold of Article 3 in cases concerning the expulsion of seriously ill non-nationals, the Paposhvili Grand Chamber opened the door to include as exceptional cases more than just those of imminent death. These other exceptional cases would involve a real risk for an applicant “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” (§ 183). The Grand Chamber further clarified that these situations “correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness” (§ 183).
The Article 3 case law in this area has been in and out the Grand Chamber with a frequency not many, including myself, could have predicted. Paposhvili (2016) was delivered eight years after N. v. the United Kingdom (2008) and now already a third case is pending before the Grand Chamber: Savran v. Denmark (for a fuller analysis of Savran, see Mark Klaassen’s contribution on this Blog). Savran is probably an example of the difficulties that applying the Paposhvili Article 3 threshold can raise. How to keep this threshold high while opening it up to “other very exceptional cases” than those of migrants who are close to death?
The applicant in Savran, a Turkish national suffering from paranoid schizophrenia, alleged that, if expelled to Turkey, he would not receive appropriate treatment and would suffer a relapse of his illness as a result. By four votes to three, the Court held that there would be a violation of Article 3 if the Danish authorities expelled the applicant without having obtained assurances from Turkey that proper treatment would be available and accessible to him. To the majority, it remained unclear whether the applicant would receive proper treatment in Turkey, particularly the follow-up essential for his psychological outpatient therapy and for the prevention of a degeneration of his immune system (§§ 64 & 65).
The dissenters argued that, in practice, the majority had pushed “wide open” a door that Paposhvili had opened only “slightly” (§ 9). In their opinion, there was no basis in the medical reports to conclude that Savran met the required high threshold (§ 12). One of their conclusions was that, even assuming that the applicant would not get the same degree of follow-up in Turkey, that would not in itself be conclusive (§ 18). The dissenters accepted that the Paposhvili criterion applies to both physical and mental illnesses (§ 7). Yet they worried about the “significant implications” that the Savran majority’s reasoning would have for Member States in cases concerning the expulsion of migrants suffering from mental illness (§ 21). In an additional dissenting opinion, Judge Mourou-Vikström further argued that it cannot be inferred from Paposhvili that the criteria “apply equally and in a strictly identical manner to physical and mental illnesses.”
The Grand Chamber is yet to deliver its judgment in Savran. In addressing the dissenters’ questions on Paposhvili’s application to cases of non-nationals suffering mentally, the Grand Chamber may give a clearer sense of the width of the Paposhvili opening to “other very exceptional cases.” Will this opening in practice continue to excessively restrict Article 3 protection of seriously ill migrants? How widely is the door opening and will this cover circumstances such as the ones in Savran?
Despite the application difficulties that Paposhvili may have already raised in its short period of existence, the judgment remains memorable for its effort to do fuller justice to the spirit of Article 3. The year Paposhvili came out, I praised the Grand Chamber for demanding states to rigorously assess the risk of ill-treatment, as required by the absolute nature of Article 3 (Saadi v. Italy § 128). Thanks to Paposhvili, returning states must now verify that available care is “sufficient and appropriate in practice for the treatment of the applicant’s illness” (§ 189) and “the extent to which the individual in question will actually have access to this care” (§ 190). The “cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care” are also factors that states need to consider (Paposhvili) § 190).
One can notice the influence of Paposhvili on Savran. Regardless of whether the Grand Chamber will agree or not with the Chamber’s reasoning in Savran, the reasoning of the four judges is a commendable effort to ensure that domestic authorities take the risk assessment seriously. It is the kind of reasoning that has the potential to increase the chances that applicants’ access to sufficient and appropriate care in receiving states will be real rather than theoretical. It should not be forgotten that real rather than theoretical access was actually one of Paposhvili’s central concerns.
Lastly, Paposhvili is a case close to the Human Rights Centre (HRC) of Ghent University (the home of the Strasbourg Observers) as we had had the honour to submit a third-party intervention in Paposhvili. We were pleased to see the Grand Chamber seize the opportunity to move an important body of case law closer to the Court’s principles on the absolute nature of the Article 3 prohibition. I think back with excitement of this and other third-party interventions that the HRC submitted to the Strasbourg Court in landmark cases such as Paposhvili. These interventions and the Strasbourg Observers Blog have been among the strongest and liveliest collective expressions of the ECHR expertise established within the HRC. The third-party interventions have pushed for significant developments in key areas of the Court’s case law. The Strasbourg Observers Blog, in turn, has offered a leading online space to discuss the most important developments in ECHR case law. The Blog has impressively expanded over the past ten years with contributions from a wide community of ECHR scholars and practitioners who have made possible today’s 10th anniversary celebration.
Salud, Strasbourg Observers! To many more years of online contribution to ECHR scholarship and practice!
I would be surprised if the Savran case was decided in favour of the applicant at the GC level. But even if it is, I would be surprised if national courts followed it readily…
For example, the UK Supreme Court is due to hand down a judgment at some point this year on the Paposhvili test and whether it imposes a weighty obligation upon states than the case law which came before it… https://www.supremecourt.uk/cases/uksc-2018-0048.html. Amazingly, and out of line with pretty much every analysis of Paposhvili, the Court of Appeal held in the case that Paposhvili actually did not deviate (too much) from the previous N v UK / D v UK standard, and that UK judges should be careful not to overstate the changes made… I don’t think I know of a single case where parties invoking Paposhvili have been successful…
I think the Supreme Court is likely to take a more liberal view of the case law than the Court of Appeal did (although the claimant’s case is relatively weak on the facts…) but still – it shows that even the moderate ‘step forwards’ in Paposhvili is being treated very very cautiously by at least one state… I do not think a further expansion along the lines of Savran would go down well (and given how the UKSC has shown a renewed enthusiasm for rejecting Strasbourg cases as of late, I would not imagine they would be followed).
So let’s see…
There is No Justice in any Court for innocent people as far as I see. They are simply “too busy” and finds a reason to deem valid applications “without merits”.