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Tag: Europe

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Bundesverfassungsgericht, Order 1 BvR 2656/18, 1 BvR 96/20, 1 BvR 78/20, 1 BvR 288/20, 1 BvR 96/20, 1 BvR 78/20

Date of judgement: 24 March 2021

Court: Federal Constitutional Court of Germany 

Citation(s): BVerfG, Order of the First Senate of 24 March 2021 – 1 BvR 2656/18 -, paras. 1-270

Short summary 

In its decision, the Federal Constitutional Court classified the German Climate Protection Act in its current form as violative of fundamental rights because it disproportionately shifts the burden of greenhouse gas reduction to future generations, thereby recognising for the first time the existence and violation of the intertemporal dimension of their civil rights. 

Summary by: Robert Los

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The order bears immense weight in Germany as the judgement indirectly grants a right to future generations with regard to protection or relief from CO2 emissions and other climate changes. 

Key facts

The Federal Climate Change Act (Klimaschutzgesetz – KSG) was drafted in response to the need for greater climate action efforts. Its purpose is to afford protection against the effects of global climate change (§ 1 S.1), and as stated under § 1 S.3, the basis of the KSG is the obligation under the Paris Agreement as well as the commitment made by the Federal Republic of Germany to pursue the long-term goal of greenhouse gas neutrality by 2050. 

Greenhouse gas emissions must be gradually reduced by the target year 2030 by at least 55%, relative to 1990 levels (§ 3(1)). In conjunction with Annex 2, § 4(1) sets out the annual permissible emission levels for various sectors in line with the reduction quota for the target year 2030. Provisions applicable beyond 2030 are not contained in the KSG. Rather, § 4(6) provides that in the year 2025, the Federal Government must – by way of ordinances – set annually decreasing emission levels for periods following 2030.

In support of their constitutional claims, the complainants − some of whom live in Bangladesh and Nepal − relied primarily on constitutional duties of protection arising from Art. 2(2) of the German Constitution Grundgesetz (GG), and Art. 14(1) GG, as well as the a fundamental right to a future in accordance with human dignity, and the fundamental right to an ecological minimum standard of living (ökologisches Existenzminimum), which they derived from Art. 2(1) GG in conjunction with Art. 20a GG and from Art. 2(1) GG in conjunction with Art. 1(1) GG. 

With regard to future burdens arising from the obligations to reduce emissions in the periods following 2030 – described by the complainants as an “emergency stop” – they relied on fundamental freedoms more generally.

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Paposhvili v. Belgium, [2016] ECHR 1113 (13 December 2016)

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

Link to original judgement 

Click here to open the case in PDF format

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.
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Chagos Islanders v. the United Kingdom 

Date: 11 December 2012 

Court: European Court of Human Rights 

Citation(s): Chagos Islanders v. the United Kingdom, ECHR, Application no. 35622/04 (11 December 2012) 

Short summary  

Former inhabitants of the Chagos Islands and their descendants brought an action to contest the U.K.’s bar on resettling the islands. The European Court of Human Rights affirmed previous judgments from U.K. courts barring the plaintiffs’ petitions for resettlement, in part due to the risks of climate change to the Islands. 

Summary by: Luke Hancox 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The European Court of Human Rights is the sole body positioned to adjudge claims lodged under the European Convention on Human Rights. Its rulings are generally, though not universally, recognized as valid and enforceable by European parties to the Convention.  

Key facts 

Between the mid-1960s and mid-1970s, the United Kingdom enacted legislation to expel or bar the return of the inhabitants of the Chagos Islands. This was done to facilitate the construction of a United States military base on the island of Diego Garcia. This action was brought by those former inhabitants and their descendants (1,786 people). The applicants brought their action under Articles 6 & 8 of the European Convention of Human Rights (ECHR). 

The litigation of this case involves multiple cases in domestic U.K. courts over the past 50 years regarding the events surrounding the colonization and eventual expulsion of inhabitants of the Chagos Islands. 

On 8 November 1965, the British Indian Ocean Territory (BIOT) Order in Council (SI 1965/120) established a new colony, including the Chagos Islands and other islands formerly part of the Colony of Mauritius and of the Seychelles. When agreeing to give the U.S. military access to the islands, the

U.K. treated the islands as having no permanent population in order to avoid obligations under the United Nations Charter. They claimed the population was overwhelmingly migrant workers who no longer had jobs because the plantation operated on the islands had been acquired by the U.K. government to transfer to the U.S. 

As a result of the above acquisition, the islands’ inhabitants were evacuated. The BIOT Commissioner passed an ordinance in 1971, making it unlawful and a criminal offense for anyone to enter or remain in the territory without a permit. The evacuation caused immeasurable damage to these communities by uprooting their lives and forcing resettlement elsewhere. The U.K. government paid 650,000 pounds sterling (GBP) to Mauritius to aid the resettlement effort.  

A 1975 case brought in the High Court of London led the U.K. government to settle all claims with the islanders. The settlement resulted in monthly payments of 2,976 GBP a month to 1,344 Chagossians between 1982 and 1984. In 2000, a case challenging the 1971 Order was brought in London. The court held that the islanders had no permanent right to the land or its use but that the Order was nevertheless invalid as outside the scope of authority of the BIOT Commissioner. This led to the bar on entry to the islands by the former inhabitants being lifted. However, none of these inhabitants went to live on the islands afterward. The U.K. government also began a study to determine the viability of resettlement of the islands after this case. 

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AL v. Austria, Appl. No. 7788/11, Council of Europe: European Court of Human Rights, 10 May 2012

Date of judgement: 10 May 2012

Court: European Court of Human Rights

Citation(s): A.L. v. Austria, Appl. No. 7788/11, Council of Europe: European Court of Human Rights, 10 May 2012

Short summary 

The European Court of Human Rights (ECtHR) reiterated the obligation of Contracting States to protect individuals from deportation which would place them at risk of treatment contrary to Art. 3 of the European Convention on Human Rights (prohibition of torture or to inhuman or degrading treatment or punishment), noting that Contracting States retained the right to control the entry and expulsion of aliens and that there was no obligation to grant political asylum. The ECtHR stressed that to have an indication as to whether an expulsion would violate Art. 3, from now on, an assessment of the situation in the country would have to be carried out, as the historical situation would offer little more than some help towards understanding the present conditions.

Summary by: Yusuf Lahham

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 3 of the European Convention on Human Rights (ECHR). 

Key facts

A Togolese national (“the applicant”) brought a case against the Republic of Austria seeking to overturn the decisions of the Federal Asylum Office and the Asylum Court in denying him asylum claim and ordering his return to Togo. As a member of the prominent opposition political party, Union des Forces de Changement (UFC), the applicant alleged that upon his return, he would face a risk of being subjected to treatment contrary to Art. 3. 

In addition to this, he claimed that he had been threatened by soldiers in Togo during protests organised in a camp for flood victims due the unequal distribution of relief. The applicant further claimed that another Togolese national (“M.A”) had been granted asylum, relying on very similar evidence to that which had been put forward in his application. He argued that on the basis of M.A’s application result, he too should be granted asylum.

Previous instances 

On 6 July 2009, the applicant’s request for asylum and subsidiary protection was denied by the Federal Asylum Office on the basis that his submission of fear and persecution was not credible and appeared to be a fabrication around what had really happened. The Office noted that parliamentary elections had taken place in 2007, with the UFC winning 27 seats, and that although Togo could not be considered a representative democracy, opposition parties were generally free to act. The Office went on to conclude that whilst the applicant had been truthful regarding his account of the flood and the tensions between soldiers within the flood victim camp, the alleged threats and the applicant’s subsequent fear was contradictory to the applicant’s statements. 

In light of the above, the Office rejected the application for asylum and subsidiary protection on the grounds that the persecution awaiting the applicant in Togo was nothing more than speculation on his part, and that there would be no risk of persecution as recognised under Art. 1(A)(2) of the 1951 United Nations Convention Relating to the Status of Refugees. 

On 29th April 2010, the Asylum Court held a hearing to address the applicant’s appeal, which was based upon the following grounds: that he was unaware of the possibility of submitting more than three pieces of evidence, he had issues understanding the interpreter and as such had not given a full account of police violence towards him at the camp, that members of the UFC were still subject to persecution notwithstanding the 2007 parliamentary elections, and that M.A, another organiser of the demonstrations had been granted asylum. The Court held that the applicant’s statements were contradictory and not due to any translation errors. It was also found that the evidence put forward appeared to be fabricated and that no actual violence towards his person had occurred at the camp. The court ordered his expulsion to Togo, and dismissed his claim. 

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N v. United Kingdom, Application No. 26565/05

Date of judgement: 27 May 2008

Court: European Court of Human Rights

Citation(s): N v. The United Kingdom, Appl. No. 26565/05, Council of Europe: European Court of Human Rights, 27 May 2008

Short summary 

The European Court of Human Rights (ECtHR) formerly established a very high threshold for the protection of asylum seekers with severe health conditions under Art. 3 of the European Convention on Human RIghts in the case of an Ugandan woman suffering from HIV. 

Summary by: Claudia Broadhead

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 3 right to prevent of inhumane or degrading treatment or punishment under the European Convention on Human Rights (ECHR). See the Paposhvili decision for further elaboration upon this notion. 

Key facts

The applicant was an Ugandan woman who entered the UK in 1998 under a false identity. Within days, she applied for asylum, claiming that she had been raped by the National Resistance Movement in Uganda because she was associated with the Lord’s Resistance Army. She was diagnosed as being HIV positive and developed Kaposi’s sarcoma, an AIDS defining illness. Medication was only available in Uganda at considerable expense and not easily accessible from her hometown. The applicant claimed that her removal to Uganda would violate her Art. 3 ECHR right (prohibition of torture or inhuman or degrading treatment or punishment).

The Secretary of State refused the asylum claim on 28 March 2001 on grounds of credibility, and also because it was not accepted that the Ugandan authorities were interested in the applicant. The applicant’s Art. 3 claim was also rejected, with the Secretary of State noting that treatment of AIDS in Uganda was comparable to any other African country, and all the major anti-viral drugs were available in Uganda at highly subsidized prices. 

Summary of holding

The ECtHR first stated that AIDS drugs available under the National Health Service (NHS) in the U.K. could also be obtained locally in Uganda, and most were also available at a reduced price through UN-funded projects. The applicant’s return would not, therefore, be to a complete absence of medical treatment, and so would not subject her to acute physical and mental suffering. 

The ECtHR found that the decision to remove someone who is suffering from a serious mental or physical 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 Art. 3, but only in a very exceptional case where the humanitarian grounds against the removal are compelling (para. 42). 

In particular, the court found that for ill-treatment to fall within the scope of Art. 3, it must attain a minimum level of severity that is relative and dependent on all the circumstances of the case, including the duration of treatment, its physical and mental effects and, in some cases, the sex, age, and state of health of the victim.

Further, the ECtHR stated that although advances in medical science – together with social and economic differences between countries – entail that the level of treatment available in the contracting state and the country of origin may vary considerably, Art. 3 does not place an obligation upon the contracting state to alleviate such disparities through the provision of free and unlimited health care to all people without a right to stay within its jurisdiction. 

If humanitarian conditions are solely or predominantly attributable to poverty or to the state’s lack of resources to deal with a naturally occurring phenomenon (in this case HIV illness), the higher threshold of exceptional circumstances is applied and therefore deportation is more likely. 

Potential takeaways for future climate migration litigation

  • Thresholds. In the absence of cases specifically related to climate migration, non-refoulement cases with a medical basis for argument are generally a realistic indicator of thresholds, the interpretation of the articles, and requirements under which protection can be expected from courts. 
  • This case set an absurdly high threshold, and thus should be seen as an unfavourable case for climate migration. For further development (and reduction) of the principles in the case, see the case of Paposhvili v. Belgium. 
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