ECtHR - M.T. v. Sweden, Application no. 1412/12, 26 February 2015

Facts:

The applicant, an ethnic Uyghur from Kyrgyzstan, arrived in Sweden in 2009 and applied for asylum and a residence permit. He allegedly had been arrested by the Kyrgyz police in the autumn of 2009 because of his business ties with an ethnic Uyghur working in China, who had been arrested on suspicion of supporting the Uyghur disturbances in the country. He had been released after being beaten by the police, his passport was confiscated and a travel ban was imposed on him. He was twice summoned to appear in court and at this point he left Kyrgyzstan. The applicant suffers from chronic kidney failure and therefore is in need of regular dialysis. He alleges that Kyrgyz authorities had refused to provide him with medical treatment following arrest but also that dialyses machines in Kyrgyzstan are inadequate to meet the population’s need.

His asylum application was dismissed by the Migration Board and the Migration Court, following his appeal. 

Decision & reasoning:

Citing Vilvarajah and Others v. the United Kingdom, the Court reiterated that Contracting States have the right to control the entry, residence and expulsion of aliens, save in the case that an expulsion may give rise to an issue under Article 3 and therefore raise the responsibility of the State not to expose the alien to degrading and inhuman treatment. However, the Court highlighted that this was exceptional, notably where the humanitarian grounds against the removal were compelling [47]. The Court indisputably accepted that the applicant was suffering from chronic kidney failure, for which he was receiving blood dialysis in Sweden three times per week. However, it noted that according to information by the Kyrgyz authorities, blood dialysis was available in Kyrgyzstan in public hospitals as well as private centres [50]. Applying to the facts of the present case, the Court held that on account of his name being placed on the waiting list for five years it was unlikely that he would be refused treatment in Kyrgyzstan upon return [54]. What is more, the Court found no reason to question Swedish authorities’ assurances that the execution of the expulsion would take account of his medical conditions and needs, while making the necessary preparations in order to ensure that his treatment would not be interrupted upon return [56]. It further considered that the applicant had failed to substantiate that he would be refused care on the grounds of his ethnicity, especially since he had already received treatment twice in his home country. The Court consequently found that the implementation of the expulsion would not amount to a violation of Article 3.

Outcome:

No violation of article 3

Subsequent proceedings:

A request for referral to the Grand Chamber was rejected by the Grand Chamber panel on 30 January 2017.

Observations/comments:

The judgement is accompanied by a dissenting opinion of Judge De Gaetano who conversely found that the expulsion would expose him to a real risk of suffering treatment which reaches the minimum threshold to engage Article 3. Citing Pretty v. the United Kingdom, the Judge reiterated that "[t]he suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3". In his opinion, in the present case the applicant had convincingly shown that the chances of him receiving the required haemodialysis immediately upon his return were very limited. Moreover, with regards to the assurances provided by Sweden, Judge De Gaetano referred explicitly to the requisite individual guarantees required by Tarakhel v. Switzerland and criticised the Court for not including this requirement in its operative judgement, especially where the proposed receiving state is not party to the Convention.

Other sources:

24.kg news agency, 9 April 2013

24.kg news agency, 7 August 2014

Central Asia Online, 29 December 2012