SAVRAN v. DENMARK (Application no. 57467/15)

Facts:

Mr. Arif Savran, the applicant, was born in 1985 and now resides in Turkey. In 1991 he entered into Denmark, when he was six years old, with his mother and four siblings to join his father; his father died in 2000. The applicant was convicted of robbery by a judgement of the City Court of Copenhagen (Københavns Byret) on 9 January 2001 and sentenced to imprisonment for one year and three months, nine months of which were suspended, and placed on probation for two years. On 29 May 2006, the applicant as a part of the group of several persons, attacked man inflicting a serious traumatic brain injury that caused his death. On 9 October 2007, the High Court of Eastern Denmark (Østre Landsret) convicted the applicant of assault with highly aggravating circumstances under Article 246 and 245(1) of the Penal Code (straffeloven) and sentenced him to seven years’ imprisonment and expulsion from Denmark with a permanent ban on re-entry.

By a judgement of 17 October 2008 the High Court sentenced him to committal to the secure unit of a residential institution for the severely mentally impaired for an indefinite period. The court also ordered the applicant’s expulsion from Denmark with a permanent ban on his re-entry.

On January 2012 R.B, the applicant’s guardian ad litem, requested that the prosecution review his sentence and on 1 December 2013 the prosecution brought the applicant’s case before the City Court requesting that the sanction be changed from a sentence of forensic psychiatric care to treatment in a psychiatric department. The prosecution also petitioned the court to decide whether the order to expel the applicant was subject to upheld. The prosecution argued that the expulsion order should be upheld. The City Court in 14 October amended the sentence from a sentence of forensic psychiatric care to treatment in a psychiatric department. As regard the expulsion order, the City Court found that the applicant’s health made it conclusively inappropriate to enforce the expulsion order.

The prosecution appealed to the High Court against the decision in relation to the revocation of the expulsion order. On 13 January 2015, the High Court reversed the City Court’s decision and refused to revoke the expulsion order.

Mr. Arif Savran brought the case before the Court, on 16 November 2015, claiming that his removal to Turkey constitutes a breach of Article 3 of the Convention, because he didn’t have a real possibility of receiving the appropriate and necessary psychiatric treatment, including follow-up and supervision, in connection with his paranoid schizophrenia, in Turkey. He also argued that the implementation of the expulsion order breaches Article 8 of the Convention. On 1 October 2019 a Chamber of the Fourth Section held that the applicant’s expulsion to Turkey would violate Article 3 of the Convention and that it was not necessary to examine his complaint under Article 8 of the Convention. In response, the Danish Government, on 12 December 2019, requested that the case be referred to the Grand Chamber and the panel of the Grand Chamber accepted the request and the hearing took place on 24 June 2020.

Decision & reasoning:

The Court decided that: (1) there has been no violation of Article 3 of the Convention as a result of the applicant’s removal to Turkey; (2) there has been a violation of Article 8 of the Convention; and (3) Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

1.       No violation of Article 3 of the Convention

The court stated that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society by prohibits torture and inhuman or degrading treatment or punishment and its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question. However, Article 3 would be activated only if a treatment would attain a minimum level of severity. The Court also asserted that the state control, in relation to removal, is limited by the Article 3 of the Convention where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country.

The Court reiterated the threshold test established in the Paposhivili v. Belgium in relation to the expulsion of seriously ill aliens and stated that the threshold should remain high. More specifically, the court stated that the evidence must be “capable of demonstrating that there are substantial grounds” for believing that as a “seriously ill person”, the applicant “would face a real risk… resulting intense suffering or to a significant reduction in life expectancy”.  While schizophrenia is a serious mental illness, but the Court found that the applicant’s removal to Turkey did not exposed him to serious, rapid and irreversible decline in his state of health resulting in intense suffering, let alone to a significant reduction in life expectancy. Although according to some of the relevant medial statements, a relapse was likely to result in “aggressive behaviour” and “a significantly higher risk of offences against the person of others”, they couldn’t be described as “resulting in intense suffering” for the applicant himself.

Furthermore, the Court found that there is also no risk of the applicant harming himself.  The Court also considered that any risk to the applicant’s physical health owing to immune defects that might be caused by Leponex have been neither real nor immediate. The applicant has not shown substantial grounds for believing that he would be exposed to a risk of bearing the consequences set out in paragraph 183 of the judgement in Paposhvili. There has accordingly been no violation of Article 3 of the Convention as a result of the applicant’s removal to Turkey.

2.       Violation of Article 8 of the Convention

The Court examined the complaint under Article 8 related to the authorities’ refusal to revoke the expulsion order, and the implementation of that order, entailing as a consequence a permanent re-entry ban.

The Court examined the applicant’s “private life” and “family life” in the light of case-law of the Court. The Court accepted that the applicant was a “settled migrant” and therefore Article 8 under its “private life” aspect is engaged. However, it is clear that from his early years the applicant was not living full time with his family because he was removed from home and placed in foster care at various times over the years and he lived in socio-educational institutions. Therefore, the applicant was not living full time with his family. The Court also asserted that the applicant’s mere mental illness cannot be regarded as a sufficient evidence of his dependence on his family members per se.

In relation to the expulsion being “necessary in a democratic society”, relying on different case-laws the Court stated that there should be justifiable reasons to expel a “settled migrant” who has lawfully spent all or the major part of his or her childhood and youth in the host country. Considering the applicant’s mental condition, the Court stated that applicant is more vulnerable than an average “settled migrant” and that this issue be taken into account as a balancing factor.

The Court also considered the criminal offences by the applicants as basis for his expulsion. Referring to Maslov v. Austria The Court asserted that while those offences were serious, but when committing those offences, the applicant was suffering from mental disorder that resulted in his aggressive behaviour. As such, the Court stated that the applicant’s mental condition exempted him from any punishment and was placed for treatment in psychiatric department. Also, the Court considered that the applicant showed progress during the psychiatric treatment and that he had stronger ties in Denmark than in Turkey. As a result, the Court found that there was a violation of Article 8 of the Convention.

3.       Just satisfaction for the non-pecuniary damage sustained by the applicant

Following the violation of Article 8 of the Convention and pursuant to Article 41 of the Convention, the Court held that Denmark should pay EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses.

Outcome:

Application denied in relation to Article 3.