Hasani v. Sweden: A Narrow View of Risk with Broad Consequences

by Gunay Ismayilova

Introduction

On 6 March 2025, the European Court of Human Rights (hereinafter, the Court) delivered its judgment in Hasani v. Sweden, addressing the State’s positive obligations under Article 2 of the European Convention on Human Rights to protect individuals when the risk to a person derives from self-harm. Although the Court ultimately found no substantive violation of Article 2, reasoning that the State could not have foreseen the risk of the individual’s suicide, this approach of the Court failed to fully engage with the factual context and the victim’s heightened and ongoing vulnerability by narrowly interpreting the ‘real and immediate risk’ test with reference only to the final days of the victim’s life, overlooking the persistent and foreseeable nature of the threat and the State’s response to this situation. This approach downplays the State’s duty to respond to ongoing risks arising from cumulative and well-documented vulnerabilities. This judgment arguably re-victimises individuals—not through State failure alone, but also through the Court’s unwillingness to apply its developing vulnerability-sensitive approach, thereby deviating from its own calls for a ‘responsive’ State.

Case facts

A.H., an unaccompanied minor from Afghanistan, arrived in Sweden in 2015 and applied for asylum. He suffered from retinitis pigmentosa, a degenerative eye disease, and had a documented history of mental illness, including persistent suicidal ideation. Between December 2016 and his death in September 2017, A.H.’s mental health deteriorated significantly following the decision to remove him from his family home upon turning 18. He suffered from anxiety, depression, insomnia, and anger issues, and repeatedly expressed suicidal thoughts. In February 2017, he reportedly attempted suicide by running in front of a truck. While in institutional care between March and June 2017, he continued to express suicidal ideation, including a documented attempt to throw himself over a balcony in July and threats to jump in front of a train or car. On two occasions during asylum interviews in April and June 2017, A.H. explicitly stated that he would commit suicide rather than return to Afghanistan, insisting he had already chosen death. Despite these clear signs of acute mental distress and repeated suicide attempts, the Swedish Migration Agency ordered his deportation. A.H. died by suicide on 20 September 2017, the day after receiving formal notification of the deportation decision.

Summary of the judgment

The Court acknowledged flaws in how A.H.’s asylum claim was assessed and ultimately rejected. However, it held that these procedural issues were not significant enough to engage the State’s positive obligations under Article 2. The Court reaffirmed that the threat of self-harm does not automatically prevent the State from implementing deportation orders, nor does it in itself trigger Article 2 responsibility. In its reasoning the Court applied its usual test: whether the authorities knew or ought to have known of a real and immediate risk to the individual’s life and, if so, whether they took all reasonable steps to prevent that risk from materialising.

While the Court recognised A.H.’s vulnerability—stemming from his age, asylum status, physical impairment, and mental health issues—it concluded that there were no indications of suicidal tendencies during his final interaction with the Migration Agency. Based on this, the Court found no real and immediate risk of suicide in the days preceding his death and therefore held that the State had not breached Article 2. In their Dissenting Opinion, Judges Jelić, Krenc, and Kučs strongly criticised this reasoning. They noted that the majority failed to adequately consider the totality of A.H.’s vulnerabilities when assessing whether the Swedish authorities fulfilled their positive obligations.

Comment/analysis

The key question in this case is whether Sweden fulfilled its positive obligations to prevent suicide, considering the real and immediate risk that was—or should have been—known to the authorities. By narrowly interpreting the ‘real and immediate risk’ test with reference only to the final days of the victim’s life, the Court overlooked the persistent and foreseeable nature of the threat. This approach diminishes the State’s duty to address ongoing risks arising from well-documented vulnerabilities, such as long-standing mental illness, asylum-related trauma, and repeated signs of suicidal intent.

In determining the risk to life, the Court generally applies a two step analsysis derived from its Osman/Keenan test. First it examines whether the State had taken appropriate preventive operational measures to protect the victim from themselves. This evaluation stems from the State’s positive obligation under Article 2 of the Convention, which is triggered when authorities knew or ought to have known that a person was at real and immediate risk of suicide. Upon establishing this threshold, the Court then considers whether the authorities did all that could reasonably have been expected to prevent the risk from materializing. This requires a holistic assessment of whether the risk was indeed real and immediate under the particular circumstances of the case.

The Court is typically very cautious in suicide cases and generally applies stricter scrutiny in cases involving suicide during detention, military service, or psychiatric care—contexts where the victim is fully under State control. A notable example is Renolde v. France, in which the evidence showed that the authorities had known—since the initial suicide attempt—that the detainee was suffering from acute psychotic disorders capable of leading to self-harm. Having established that the State was aware of the detainee’s suicidal tendencies, the Court proceeded to assess whether the authorities had fulfilled their positive obligations under Article 2. Given the detainee’s particular circumstances, the authorities were expected to implement measures tailored specifically to assess his fitness for continued detention. Accordingly, the Court’s focus was on whether adequate preventive steps—particularly regarding medical care and monitoring—had been taken to avert the risk of suicide.

Conversely, when the victim’s suicide occurs outside of State control, the Court adopts a more deferential approach, recognising the unpredictability of human behavior and the possible lack of knowledge about the victim’s vulnerability or suicidal intent. In Mikayil Mammadov v. Azerbaijan, it was undisputed that the victim had committed suicide by dousing herself with fuel and setting herself on fire in protest during an eviction operation, while surrounded by police officers. The key issue was whether the State had exercised sufficient control over the situation to trigger its positive obligations, and whether the circumstances had given rise to a duty on the part of State agents to protect the woman’s life. Despite the tragic outcome, the Court found that the authorities could not be considered to have intentionally endangered the victim’s life or provoked her suicide. Nor could they reasonably have foreseen that she would resort to such an extreme act, as it was not a predictable response to an eviction from illegally occupied property.

Nevertheless, in such cases, as the Court stated in Hasani, the victims should not be considered completely outside their supervision and/or control. That indeed requires the Court to approach the cases in light of all circumstances, both in respect to the victim and the State. Effective protection under Article 2 of the Convention in this regard requires the State to adopt positive preventive and protective measures to safeguard individuals from self-harm. These measures must be not only reasonable and adequate, but also responsive to evolving circumstances and tailored to the specific risks to life or to mental and physical integrity. In such borderline cases, the Court should adopt a more sensitive and context-aware approach to its jurisprudence on suicide risk, focusing on the broader circumstances, such as the heightened vulnerability of the victim, and the authorities’ substantive engagement with these risks factors.

Heightened Vulnerability of the Victim

Regarding the specifics of this case, the Court interpretation of the ‘reality and immediacy’ of the threat was mostly focusing only on the final days before the victim’s death. However, such a restrictive reading—especially in light of his prolonged mental illness, asylum status, and repeated pleas for help—is insufficient to capture the nature of suicidality, which is often chronic, fluctuating, and context-dependent.

The State’s awareness should have been grounded in A.H.’s multiple vulnerabilities—not only as an asylum seeker entitled to special protection due to his migration journey and likely prior trauma, but also due to his long-standing and well-documented mental and physical health conditions, which were known to the authorities. Nevertheless, the Court treated these factors separately from the evaluation of the real and immediate risk. Although A.H.’s asylum status and mental health were acknowledged, the Court did not sufficiently consider how these vulnerabilities interacted and warranted more robust protective measures. This was a crucial oversight.

This omission stands in stark contrast to Mikayil Mammadov v. Azerbaijan, a case often cited by the Court in Hasani, where the suicide occurred suddenly during an eviction with no prior mental health concerns that could be known to the State—thus seen as unforeseeable. In Hasani, by contrast, A.H. had repeatedly expressed suicidal intent, attempted to jump from a balcony, and remained under the supervision of State institutions. These circumstances that were very well known to the State presented a clear evidentiary basis for anticipating further harm. Nevertheless, no sustained intervention or comprehensive mental health assessment was undertaken.

Hence, the concept of ‘reality and immediacy’ should be interpreted more broadly in time and context, especially when a person’s vulnerability is continuous and well-documented. This wider approach better reflects the lived experiences of individuals with persistent mental health challenges and aligns with domestic interpretations of Article 2. For instance, UK case-law interprets ‘immediacy’ as a ‘present and continuing’ risk. A similar approach was taken in other cases, related to the State protection of people potentially under life threat. In Mahmut Kaya v. Turkey, where the victim, a doctor known for treating PKK members, was killed after disappearing, the Court held that the State should have recognised the persistent threat to his life, even though he was one among potentially thousands in the same life-threatening situation. The Court stressed that the risk need not be confined to a narrow timeframe. While the facts differ, both cases concern a sustained risk known to the authorities. Yet in Hasani, the Court failed to treat this ongoing danger as immediate, unlike in Mahmut Kaya, where a contextual reading led to the recognition of a real and immediate threat. A.H. did not just fall into a broad category of vulnerable persons; moreover, he belonged to multiple recognised high-risk groups: an asylum seeker with ongoing mental and physical health issues. The failure to adequately factor this in reflects a troublingly narrow approach by the Court.

The State’s failure to assess risk

The concept of ‘real and immediate risk’ not only helps determine State responsibility but also enables the State to act—to fulfil its positive obligations and protect life, even in the context of suicide. The fault of the State is a crucial element in evaluating breaches of positive obligations under the Convention. The Court consistently applies the standard of ‘knew or ought to have known’, reflecting either actual or constructive knowledge on the part of the State. This standard is key to establishing a breach of the duty to take operational measures to protect a person at risk.

In this case, the ongoing and evolving vulnerability of A.H. should have triggered timely and coordinated interventions. The authorities ignored internal warnings, failed to conduct proper mental health evaluations, and placed A.H. in accommodation unsuited to his needs. These failures contributed directly to the outcome. Yet the Court focused narrowly on the absence of visible suicidal behaviour in the final days, thereby disregarding a wider pattern of risk and systemic neglect. In doing so, it failed to engage with the State’s positive obligation to recognise foreseeable threats and to take reasonable measures to prevent them.

The interaction of A.H.’s vulnerabilities—chronic mental illness, trauma from displacement, and institutional failure—should have strengthened, not diminished, the immediacy of the perceived risk. By failing to acknowledge this interaction, the Court missed the opportunity to hold Sweden accountable for not adequately assessing and responding to a known and continuing threat to A.H.’s life.

Conclusion

Hasani illustrates how the Court, rather than advancing or at least aligning with its own sensitive and context-aware jurisprudence on suicide risk, particularly in cases involving structural and cumulative vulnerability, chose to overlook the crucial specifics of the case. This was especially relevant and important in borderline cases, where individuals—though not entirely under State control—remain subject to its supervision and care. The immediacy of the threat must not be viewed in isolation but rather considering the victim’s complex and evolving life circumstances.  By underestimating the legal significance of ongoing vulnerability and adopting an overly narrow interpretation of ‘reality and immediacy’ of risk as in the present case, the Court risks creating a precedent that enables States to evade responsibility where the threat is chronic rather than acute. A more context-sensitive approach, which takes into account how vulnerability and risk interact and develop over time, is essential to preserve the protective purpose of Article 2 and to ensure that its effectiveness in practice.