Blog Symposium ‘Strasbourg Observers turns ten” (4) Wedging the Door? The Paposhvili Opening Three Years Later

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.

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A new chapter on the deportation of ill persons and Article 3 ECHR: the European Court of Human Rights judgment in Savran v. Denmark

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. Continue reading