ECtHR - Paposhvili v. Belgium, Application no. 41738/10,13 December 2016
| Country of applicant: | Georgia |
| Court name: | Grand Chamber |
| Date of decision: | 13-12-2016 |
| Citation: | Application no. 41738/10 |
Keywords:
| Keywords |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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Health (right to)
Description
Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness. Member States shall also ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses. |
Headnote:
Article 3 ECHR is triggered in cases involving the removal of a seriously ill individual where the absence of appropriate treatment in the receiving country or the lack of access to such treatment, exposes the individual 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.
Access to sufficient and appropriate medical care must be available in reality, not merely in theory and the impact of removal on an applicant must be assessed by considering how an applicant’s condition would evolve after transfer to the receiving State.
Facts:
The applicant, a Georgian national facing removal due to criminal activity in Belgium, suffered from leukaemia and recurrent tuberculosis which had caused lung disease. He claimed that he would be unable to access adequate medical treatment in Georgia and was therefore at risk of ill-treatment in violation of Article 3 and accelerated death in breach of Article 2 if he were expelled. In addition the applicant argued that his removal to Georgia in conjunction with a ten-year ban on re-entering Belgium would result in separation with his family, who had leave to remain in Belgium.
The Fifth Section Chamber judgment of April 2014 held that Mr Paposhvili’s removal would not encroach upon his Article 3 and 8 rights under the ECHR. The case was later referred to the Grand Chamber and the applicant died pending these proceedings. The applicant’s family continued proceedings before the Chamber.
Decision & reasoning:
As a preliminary point the Grand Chamber decided to examine his complaint in accordance with Article 37(1) due to its wider impact on cases involving aliens who are seriously ill and facing removal.
Presenting its well-versed findings on Article 3 the Court holds that the severity of ill-treatment under Article 3 must attain a minimum level and that the suffering flowing from a natural occurring illness may be or risks being “exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.” Notwithstanding this the Court goes onto note that its scrutiny cannot be prevented even where the source of the risk of treatment in the receiving country does not engage the responsibility of the public authorities of that country.
The Court highlights that since its case law in N. v. the United Kingdom, an extremely high threshold (exceptional circumstances) has been set when applying Article 3 to seriously ill persons, indeed only those close to death appear to be covered by the provision (as per D. v. United Kingdom). That said, the Court notes that “other very exceptional cases” within the meaning of N. v. UK needs to be clarified.
The Court determines that Article 3 is triggered in these cases where “the absence of appropriate treatment in the receiving country or the lack of access to such treatment, exposes the individual 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”. In ensuring that Article 3 is respected the Court goes onto highlight that appropriate procedures need to be put in place which allows the individual to adduce evidence of the potential risk upon return to the country of origin and for the State to examine the foreseeable consequences of return with regard to both the general situation and the individual’s circumstances. Thus the applicant is not obliged to present clear proof that they would be exposed to proscribed treatment.
In addition the authorities should assess whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness. Thus States must assess the impact of removal on the individual by comparing his health prior to removal and how it would evolve after transfer. A factor in this assessment will be whether the care is generally available in the receiving State is sufficient and appropriate in practice for the applicant’s treatment and whether the individual will actually have access to this care and these facilities in the receiving State. This includes considerations relating to costs, existence of social networks and distances to access the relevant treatment. The Court finds that where serious doubts persist concerning removal the State must obtain Tarakhel-like guarantees that the individual will actually receive appropriate treatment. Therefore, the Court found that the Belgian Aliens Office had not examined the applicant’s medical conditions in light of Article 3 in the context of his regularisation of status nor his proposed removal and as a result violated Article 3 of the Convention. The Court subsequently finds that there is no need to examine the complaint under Article 2.
With regards to Article 8 the Chamber emphasises the positive obligations on Belgium, especially in light of the facts of the case. Much like the lack of assessment on Article 3 the authorities did not examine the degree of the applicant’s dependence on his family or the impact of removal on his family life. The Court thus found Article 8 to be additionally breached.
Outcome:
The Grand Chamber finds that there would have been a violation of Articles 3 and 8 of the Convention if the applicant had been removed to Georgia without the Belgian authorities having assessed the risk faced by him/ impact of his removal in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia.
The Chamber additionally finds that there is no need to examine the complaint under Article 2.
Observations/comments:
Judge Lemmens provided a concurring opinion in this case. He underlined that N. v. UK had left a gap in protecting seriously ill people who were not close to death. Judge Lemmens further points out that domestic case law in Belgium had tended away from the strict interpretation provided in N. v. UK and had rules in several cases that a residence permit on medical grounds for persons where there is a risk of inhuman or degrading treatment should be provided if no appropriate treatment exists in the receiving country. The judgment by the Grand Chamber therefore consolidates the position in Belgium by confirming their approach.