Date of judgement: 13 December 2016
Court: European Court of Human Rights
Citation(s): Paposhvili v. Belgium – 41738/10 (Judgment (Merits and Just Satisfaction) : Court (Grand Chamber)) [2016] ECHR 1113 (13 December 2016)
Short summary
The Grand Chamber of the European Court of Human Rights (ECtHR) memorably reshaped its Art. 3 case law on the expulsion of seriously ill migrants in leaving behind the restrictive application of the high Art. 3 threshold set in N v. the United Kingdom Appl. No. 26565/05, Council of Europe: European Court of Human Rights, 27 May 2008, and pushed for a more rigorous assessment of the risk of ill-treatment.
Summary by: Claudia Broadhead
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Categorisations
Private v State, International Law, Refugee Law, Civil Rights Law, Migration and Health, Right to Family, Issues in Litigation, Evidence Admissibility
Weight of decision
The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 2 and 3 of the European Convention on Human Rights (ECHR).
Key facts
The applicant, a Georgian national facing removal from Belgium due to criminal activity, suffered from leukaemia and recurrent tuberculosis which had caused lung disease. The applicant claimed that, if removed to Georgia, he would be unable to access adequate medical treatment and was therefore at risk of ill-treatment in violation of his rights under Art. 3 ECHR (prohibition of torture or inhuman or degrading treatment or punishment), and accelerated death in breach of his right to life under Art. 2 ECHR. The applicant also 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.
Previous instances
The Fifth Section Chamber judgment of April 2014 held that the applicant’s removal would not encroach upon his Art. 3 or Art. 8 (right to private and family life) 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 Grand Chamber of the ECtHR.
The ECtHR found that there would have been a violation of Art. 3 and 8 ECHR if the Applicant had been removed to Georgia without the Belgian authorities having assessed the risk that he faced from removal in light of the information concerning the state of his health and the existence (or lack thereof) of appropriate treatment in Georgia.
Summary of holding
The ECtHR held that the severity of ill-treatment under Art. 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 could be held responsible.
The ECtHR highlighted that since its decision in N v. the United Kingdom, an extremely high threshold (exceptional circumstances) had been set when applying Art. 3 to seriously ill persons. Indeed, only those close to death appear to be covered by the provision. In this case, the ECtHR determined that Art. 3 is triggered 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” (para. 183). The ECtHR recognised here that the application of Art. 3 only to persons close to death had deprived those whose condition was less critical, but who were still seriously ill, from “the benefit of that provision” (para. 181).
In ensuring that Art. 3 is respected, the ECtHR went on to highlight that appropriate procedures need to be put in place to allow 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.
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. So, states must assess the impact of removal upon the individual by comparing their health prior to removal and how it would evolve after transfer.
Factors to be considered in this assessment include whether the care is generally available in the receiving State, whether it 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.
Potential takeaways for future climate migration litigation
- Threshold for breach of Art.3 ECHR. The ECtHR established in N v. United Kingdom that removing a non-national suffering from a serious illness to “a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case” (para. 42). The case set a very high threshold to finding breaches of Art. 3 where the issue was attributable to the State’s lack of resources to deal with a naturally occurring phenomenon.
- By contrast, in the case at hand, the ECtHR left behind the restrictive application and pushed for a more rigorous assessment of the risk of ill-treatment.
- Practice access to treatment. The judgement does not simply discuss whether adequate treatment is generally available in the receiving State but, crucially, whether the treatment would be accessible to the person concerned, addressing practical as opposed to theoretical access to sufficient care.