February 01, 2022
On the 7th of December 2021, the Grand Chamber issued its long awaited judgement in the Savran-case, concerning the expulsion of a Turkish national with paranoid schizophrenia from Denmark. Contrary to the Chamber, the Grand Chamber found no violation of Article 3 ECHR, as the health risks did not reach the high threshold for the application of that article. It found, however, a violation of Article 8. This blogpost will give the facts of the case and discuss the judgement. I argue that the Court rightfully applies a threshold for the application of Article 3, but question whether it is not set too high for mentally ill persons, as this could bring States to judge almost by default that the threshold has not been reached.
At six years old, the applicant, a Turkish national, entered Denmark with his mother and siblings to join his father. In 2006, he committed a highly aggravated assault in group, which had led to the victim’s death. He was convicted for this crime, but was exempt from punishment because he was diagnosed with paranoid schizophrenia, a mental disorder. Therefore, he was sentenced to treatment in a psychiatric department. He was also ordered to leave the country with a permanent entry ban. However, the City Court ruled in 2014 that it was inappropriate to enforce the deportation order given his mental state. The High Court was of the opinion that proper treatment was available in Turkey and overturned this decision in 2015. After the applicant was refused to appeal, he was deported to Turkey.
The applicant argued that because of his mental health, his removal to Turkey violated Article 3 (prohibition of inhuman and degrading treatment). Furthermore, he complained that the refusal to revoke the expulsion order, and the implementation of it which entailed a permanent re-entry ban, constituted a violation of Article 8 (right to respect for private and family life).
The Chamber ruled on the 1st October 2019 (by 4 votes to 3) that Article 3 would be violated if the applicant were to be removed to Turkey without the Danish authorities’ having obtained assurances about the daily provision his medication and the possibility for the applicant to receive relevant psychiatric treatment and outpatient therapy. Besides, a regular contact person was essential for the necessary supervision of his treatment in order to prevent a relapse and the development of an immune disorder, which could be caused by his medication. The Chamber thus did not refer to the actual deportation which had taken place in 2015. The Chamber found that there was no need to examine the applicant’s complaint under Article 8 ECHR, since it had already found a violation of Article 3 ECHR.
Contrary to the decision of the Chamber, the Grand Chamber (by 16 votes to one) ruled that Article 3 was not violated.
The Court reaffirmed that the prohibition of torture and inhuman or degrading treatment or punishment does not relate to all instances of ill-treatment. To fall within the scope of the article, a minimum level of severity of the treatment is necessary (§122).
The Grand Chamber noted that the Chamber had not made use of the threshold test as established in the Grand Chamber case Paposhvili v. Belgium to assess whether the expulsion of the seriously ill alien could fall within the scope of Article 3 ECHR.
According to this test, in order for Article 3 to be applicable, there must exist evidence ‘“capable of demonstrating that there are substantial grounds” for believing that as a “seriously ill person”, the applicant “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”’ (§134, see §183 Paposhvili).
The Court made it clear that, contrary to what judge Mourou-Vikström had suggested in her additional dissenting opinion to the Chamber judgement, this threshold test can (and should) be applied in the same way for mentally ill people as for ill people with other medical conditions (§139).
Furthermore, it stressed that only after this threshold test is met, and thus Article 3 is applicable, the returning State’s obligations listed in paragraphs 187-191 of the Paposhvili judgment concerning the examination of whether the necessary care is available and accessible, come into play (§125).
The Court, however, ruled that the circumstances of the case did not reach the threshold set by Article 3 ECHR to bring the applicant’s complaint within its scope and thus the Court did not need to address the obligations of the returning state (§147). According to the Court, even if a relapse was likely to result in “aggressive behaviour” and “a significantly higher risk of offences against the person of others”, this cannot be considered as ‘resulting in intense suffering’ for the applicant himself, as no convincing evidence existed that there was a risk for the applicant of harming himself (§ 144). Furthermore, the Court considered the risk that the applicant would get an immune deficiency caused by his medication neither real nor immediate. Moreover, such immune deficiency would not be ‘irreversible’, nor result in ‘intense suffering’ or ‘significant reduction in life expectancy’ (§145).
Judge Serghides criticised in his partly dissenting opinion the restrictive interpretation and application of Article 3 ECHR as a result of the test adopted in Paposhvili and applied in Savran, which will be briefly discussed below.
The Court found Article 8 to be engaged under its private life aspect, as mental health must be regarded as a crucial part of private life (§172 see Bensaid v. the United Kingdom, §47), and as the applicant was a ‘settled migrant’ subject to an expulsion decision (§175). Regrettably, the Court did not take the family life aspect into account (for an analysis, see the concurring opinion of Judge Jelíc). Without much ado, the Court ruled that the expulsion constituted an interference with his right to respect for his private life, which had been lawful and which had a legitimate aim (§§179-180).
Regarding the necessity, the Court looked into the weighing of interests conducted by the authorities. It reiterated that serious reasons are required to justify expulsion of a settled migrant (§186). The Court firstly observed that the applicant was more vulnerable than an average ‘settled migrant’ facing expulsion, given his mental condition (§191) and reiterated that medical aspects should be taken into account, which the authorities had done with great care (§184 and §§191-192).
Regarding the crime committed by the applicant, the Court stressed that it had a violent nature, but that the applicant had been suffering from paranoid schizophrenia which can cause aggressive behaviour. For this reason, the applicant’s criminal culpability was excluded and he was exempt from punishment. According to the Court, this situation limits the extent to which the State can rely on the applicant’s criminal acts as the basis for his expulsion and limits weight that can be attached to the first Maslov criterion,[1] namely ‘the nature and seriousness of the offence’ (§§193-196, see Maslov v. Austria, §71).
Furthermore, the High Court had only made limited attempt to consider whether the applicant’s personal circumstances had changed between the committal of the offence and the final decision in the revocation proceedings. The Court, however, considered the progress regarding his aggressive behaviour as an important factor, as it has led to his discharge from forensic psychiatric care. Besides, only little consideration was given to the length of the applicant’s stay in and his ties to his host country Denmark, in contrast to his ties with Turkey, as he did not speak Turkish, belonged to the Kurdish minority community and had no family and friends in Turkey (§§197-198).
Therefore, the Court ruled (by 11 votes to 6) that the domestic authorities had not taken the interests duly into account, nor had they properly balanced them. As a consequence, Article 8 had been violated (§§201-202).
Judges Kjølbro, Dedov, Lubarda Harutyunyab, Kucsko-Stadlmayer and Poláčková, were however of the opinion that article 8 ECHR was not violated and did not agree with amongst others the Court’s reasoning regarding the influence of the mental illness and his exemption from punishment on the assessment of the nature and seriousness of the offence.
The ruling of the Grand Chamber was not entirely unexpected. Judges Kjølbro, Motoc en Mourou-Vikström already pointed out in their dissenting opinion to the Chamber’s judgment that the Court had not applied the threshold test as introduced in Paposhvili, which defines the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom. This test should be met in the case of removal of seriously ill persons in order for Article 3 to be applicable. It is true that the Court had not explicitly evaluated (any threshold in order to assess) whether Article 3 was applicable. In contrast, one could argue that the Court in the first Savran judgement had implicitly applied the Paposhvili test, by referring to it in the general principles.
In any event, the Grand Chamber in Savran agreed with the dissenting judges and confirmed that the fulfilment of the Paposhvili threshold test is a conditio sine qua non before states need to assess whether the evidence that this threshold has been reached endures, by assessing the impact of the removal, the general availability and accessibility of care, and by obtaining assurances from the receiving State, should serious doubts persist regarding the impact of the removal on the applicant. After applying the threshold test explicitly, the Court considered that the applicant’s situation was not sufficiently severe to fall within the scope of Article 3. Whether or not Denmark had obtained assurances from Turkey regarding the availability and accessibility of care was therefore irrelevant.
In the case of expulsions of ill people, the threshold for the applicability of Article 3 must remain high according to the Court (§114). The question however rises whether the Court did not set the threshold too high, in particular regarding its application to mentally ill persons. Indeed, the Court considered that the Paposhvili threshold test was sufficiently flexible to be applied in all situations involving the removal of a seriously ill person, irrespective of the nature of the illness. It seems however extremely difficult for mental illnesses to meet the threshold, both given the criteria itself, and given the way the Court applied them in the Savran-case.
Judge Serghides argues that the qualifications of “rapid and irreversible” decline are “overly restrictive and are not compatible with the absolute character of the right under Article 3” (§16). Indeed, they seem to be very difficult to meet by mental illnesses, most importantly the irreversibility criterion, and one can question why they are specifically added. Furthermore, ‘rapid’ is a rather vague and relative criterion open to interpretation.
Nevertheless, according to Judge Sergides, and I agree, the Court should have concluded that the first three first criteria (being a serious, rapid and irreversible decline in health) were fulfilled. The Court however did not fully examine all of these criteria but merely stated that the decline of the applicant’s health would not result in intense suffering, which is the fourth criterion, nor would the life expectation be significantly be reduced, which is the alternative fourth criterion.
Judge Serghides argues that “intense suffering should not be an element or component of the right not to be subjected to inhuman treatment under Article 3” (§25), but that in any event, a relapse of his illness would entail in intense suffering. Indeed, in my opinion, by not admitting that symptoms of a schizophrenic episode lead to intense suffering, the Court gives an overly restrictive interpretation of that criterion.
According to the Courts reasoning, it seems that the alternative component to the ‘decline resulting in intense suffering’, namely the ‘significant reduction in life expectancy’ can only be fulfilled by a mentally ill person if there is a chance that he commits suicide or self-harm leading to death, or if the (wrong) intake of medication can shorten life expectancy due to physical deficiencies. However, the Court is of the opinion that no risk if self-harm or suicide exists, even though this can be triggered by a schizophrenic episode as underlined by Judge Serghides, and that the auto immune disorder cannot result in this reduction as the applicant should just stop taking that drug if deficiencies emerged.
As a result, the threshold test for seriously ill persons and the way the Court applies the test makes it very difficult for them to invoke Article 3 ECHR to prevent their expulsion. This judgement confirms the fears that the Paposhvili-criteria would only lead to a limited application of the high threshold.
Finally, with regard to Article 8, the Court ruled, as it had done before, that in the proportionality test, the national authorities must consider the period between the offence and the last expulsion or revocation proceedings, and stressed the importance of progress of the disease. Remarkably, the Court requires an assessment of the risk of reoffending and that to this end, states must take the result of forensic treatment into account.
Another novelty, is that the Court requires States to give sufficient weight to the fact that the applicant’s criminal liability was limited because of his mental illness – as Judge Zupančič had suggested in his dissenting opinion to the Chamber judgment in Khan v. Germany – when assessing the seriousness of the committed offences as required by the Boultif, Üner and Maslov criteria. One might argue that the vulnerability of the applicant has led the Court to interpret the first Maslov-criterion that way. It is clear that the state of the mental health of the offender should be taken into account when assessing the offence that has led to his expulsion.
One cannot be surprised that the Grand Chamber addressed the omission of the Chamber to assess whether the situation is severe enough for Article 3 to be applicable, as a threshold is not only required in deportation cases, but in every Article 3-case.
What is new, is that the Court accepts that mentally ill people may also find themselves in situations that reach the Paposhvili-threshold of Article 3, and thus can invoke it to prevent their expulsion. While one can praise the Court for this opinion, in practice the possibility of protection for mentally ill persons seems to be very limited, as this threshold can be extremely difficult for them to meet. It is to be feared that this will lead Sates to decide all too easily that in a specific case, Article 3 is not applicable, which should of course be avoided, as this might render it ineffective in practice.
On the other hand, one can welcome the Court’s observation that authorities need to consider duly the lack of criminal culpability on account of the mental illness during the proportionality test.
Lastly, one should not forget that the Chamber judgment in which the Court stressed the importance of medical treatment, outpatient therapy, follow-up and a contact person for supervision, remains valuable, as it can still be considered as the Court’s view on cases that do reach the threshold.
[1] In Maslov v. Austria, the Court established criteria which it considered relevant to assess whether an expulsion measure of young adults, who have not yet founded a family of their own, is necessary in a democratic society and proportionate to the legitimate aim pursued.
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