ECHR Decree of 13 December 2016 in the case of Paposhvili v. Belgium (aplication No. 41738/10).
In 2010, the applicant was assisted in preparing the aplication. Subsequently, the aplication was and communicated to Belgium.
In the case, the complaint on the alleged expulsion of a person suffering from a serious illness to the country of his origin in the presence of doubts about the availability of medical care was successfully considered. The case involved violation of the requirements of articles 3 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant, a Georgian national, arrived in Belgium via Italy in November 1998, accompanied by his wife and a six-year-old child. Later they had two children. The applicant was repeatedly sentenced to imprisonment for robbery. He suffered from tuberculosis, hepatitis C and chronic lymphocytic leukemia (CLL). The application for asylum of the applicant and his wife was rejected in June 1999. In the literature it is called an office or an office for foreigners. The applicant filed a number of motions to legalize his residence status, but they were rejected by the Aliens Authority. In respect of the applicant and his wife, several orders were subsequently issued for expulsion from the country, including in July 2010.
On 23 July 2010, with reference to Articles 2, 3 and 8 of the Convention, the applicant applied to the Court with a request for provisional measures in accordance with Rule 39 of the Rules of Court, arguing that, if relocated to Georgia, he would no longer have access to medical the services he needed, and that, given his very small expected life expectancy, he could die even earlier away from his family. On 28 July 2010, the European Court granted his application.
The validity of the order to leave the territory of Belgium was extended until February 28, 2011. The relevant foreign affairs body issued an order on 18 February 2012 to leave the country "immediately in force" following the ministry's order for expulsion of 16 August 2007.
A medical certificate issued in September 2012 indicated that evasion of the applicant's treatment of hepatitis and lung disease could result in organ damage and significant disability, and avoidance of leukemia (CLL) treatment could lead to the death of the applicant. Returning to Georgia would subject the patient to inhuman and degrading treatment. The applicant was requested to apply to the medical service of the Aliens Authority on 24 September 2012 for a medical examination and to allow the Belgian authorities to "answer the questions of the European Court of Justice". With reference to the judgment of the Grand Chamber of the European Court of 27 May 2008 in the case N. v. The United Kingdom, complaint No. 26565/05, "Information Bulletin on the case-law of the European Court of Human Rights" No. 108), the Aliens Authority noted in its report that the medical documents did not support the conclusion that the threshold of severity required by Article 3 of the Convention had been reached. The applicant's life was not under direct threat, and there was no need for constant medical supervision to ensure his survival. In addition, at this time his illness could not be considered as being in the last stage.
On 29 July 2010, the applicant's wife and her three children were granted residence permits for an indefinite period. The applicant died in June 2016.
ISSUES OF LAW
Preliminary question. After the applicant's death, his relatives expressed their desire to continue the proceedings. The Court notes that in the present case, important issues have been raised, especially concerning the interpretation of case-law on the expulsion of severely ill foreigners.
Thus, the significance of this case went beyond the specific situation of the applicant. Accordingly, special circumstances affecting the observance of human rights defined in the Convention and its Protocols required the European Court to continue its examination of the complaint in accordance with Article 37 § 1 of the Convention, in fine.
Concerning compliance with Article 3 of the Convention. In the case of N. v. The United Kingdom, the Court stated that, in addition to the situations referred to in the judgment of D. v. The United Kingdom (of 2 May 1997, complaint No. 30240/96 ), in which the death of the applicants is imminent, there are other very exceptional cases where humanitarian considerations that outweigh the expulsion are also binding. Consideration of the case-law following the case "N. v. United Kingdom" did not reveal such examples. The application of Article 3 of the Convention only in cases where the person facing expulsion is at death has deprived severely ill foreigners in less critical condition of the advantages of this provision.
The Grand Chamber of the European Court found in the present case that "the other very exceptional cases" that could give rise to the issue under Article 3 of the Convention should be understood as referring to situations involving the movement of a seriously ill person in which there were substantial grounds for believing that he , although not under the immediate threat of death, could be threatened by a lack of appropriate treatment in the host country or inadequate access to such treatment, a serious , Rapid and irreversible deterioration of the health condition is drawing intense suffering or significant reduction of life expectancy. These situations corresponded to the high threshold for the application of Article 3 of the Convention in cases concerning the movement of foreigners suffering from a serious illness.
The applicants were required to provide evidence that there were substantial grounds for believing that, if the impugned measure had been implemented, they would have faced a real threat of treatment contrary to Article 3 of the Convention. If evidence is submitted, the authorities of the returning State in the context of domestic procedures should eliminate all doubts that arise. The assumed risk must be carefully monitored, during which the authorities of the returning State are obliged to consider the predictable consequences of the transfer of the person to the receiving State, taking into account the general situation and the personal circumstances of the individual.
The impact of the expulsion of a given person should be assessed by comparing his state of health prior to expulsion and how it will change after moving to the receiving state.
In each particular case, it is necessary to ascertain whether the care normally available in the receiving State is sufficient and appropriate in the treatment of the applicant's illness in order to prevent the possibility of being subjected to treatment contrary to Article 3 of the Convention.
The authorities also had to consider the limits in which this person really had access to proper care and opportunities in the host state.
If, after reviewing the relevant information, serious doubts remained about the impact of expulsion on these persons, the returning State should have received individual and sufficient assurances from the host State as a prerequisite for expulsion, that appropriate treatment would be available and possible for those individuals not to be in situation contrary to Article 3 of the Convention.
The applicant suffered from a very serious illness, and his condition was life-threatening. However, his condition became stable as a result of treatment received in Belgium and aimed at allowing him to undergo a donor transplant. If the treatment provided to the applicant were terminated, his life expectancy based on the average would be less than six months.
Neither the treatment that the applicant received in Belgium nor the donor transplant were available in Georgia. With regard to other forms of leukemia treatment available in the latter country, there was no guarantee that the applicant would have access to them, due to shortcomings in the Georgian social insurance system.
The findings of the medical adviser of the Aliens Authority regarding the applicant's health status, based on the medical certificates provided to him, were not examined by the Aliens or Appeals Office for Aliens in the light of Article 3 of the Convention in the proceedings concerning the applicant's legalization on medical grounds.
Similarly, the applicant's medical condition was not examined in the context of the proceedings concerning his expulsion. The fact that this assessment could be carried out just before the expulsion measure did not remove these concerns in the absence of an indication of the limits of such an assessment and its impact on the mandatory nature of the expulsion order from the country.
Consequently, in the absence of an assessment by the domestic authorities of the risks faced by the applicant and the availability of appropriate treatment in Georgia, the information available to these authorities was insufficient to conclude that the applicant, if returned to Georgia, would not be exposed to a real and specific risk of treatment contrary to article 3 of the Convention.
The expulsion of the applicant would constitute a violation of Article 3 of the Convention (unanimously).
Concerning compliance with Article 8 of the Convention. It was not disputed that the applicant, his wife and children born in Belgium had a family life. Thus, the case was considered from the point of view of "family life" because of the positive obligations of the Belgian authorities.
Considering that the Belgian authorities did not consider the applicant's medical data and the effect of expulsion on his state of health in any proceedings, the Grand Chamber of the European Court concluded that there would be a violation of Article 3 of the Convention if the applicant was sent to Georgia without such an assessment .
Furthermore, the Belgian authorities did not properly consider, in accordance with article 8 of the Convention, the applicant's dependency on his family as a result of his deteriorating health status. In the context of the legalization proceedings on medical grounds, the Aliens Appeals Office indeed rejected the applicant's complaint under Article 8 of the Convention on the grounds that the decision to refuse stay was not accompanied by the adoption of measures for expulsion.
If the Belgian authorities eventually concluded that Article 3 of the Convention in the above interpretation was not an obstacle to the expulsion of the applicant to Georgia, the Belgian authorities should have further examined whether Article 8 of the Convention could be expected if it could reasonably be expected from the family, taking into account the particular situation of the applicant at the time of expulsion that she would follow him to Georgia, or, if not, whether the applicant's right to respect for his family life was required so that he was allowed to stay in Belgium for the rest of his life.
The expulsion of the applicant would constitute a violation of Article 8 of the Convention (unanimously).
In the application of Article 41 of the Convention. The claim for compensation for pecuniary damage was rejected, establishing the fact of a violation of the Convention is sufficient fair compensation for non-pecuniary damage. See also the decision of the European Grand Chamber in the case of Saadi v. Italy of 28 February 2008, complaint No. 37201/06.