ECtHR - Yoh-Ekale Mwanje v. Belgium, Application No. 10486/10, 20 December 2011

The Court noted that the treatment the applicant required was only accessible to a small percentage of the population in Cameroon, and without these drugs her health would deteriorate. However, this situation was insufficient to constitute a violation of Article 3, as Contracting States were not obliged to alleviate gaps in medical treatment by providing free and unlimited healthcare to foreigners who did not have the right to remain (N v UK). This case did not involve such compelling humanitarian considerations as existed in the case of D v UK. The medical certificates issued showed that her current condition was not critical and she was fit to travel. As such deportation of the applicant to Cameroon would not violate Article 3 or Article 2.

The Court observed that the applicant had a serious and incurable disease, which the Belgian authorities were aware of, and which had worsened while she was detained. There was a delay in the applicant being examined by hospital specialists and in administering appropriate treatment. The Court considered that the authorities had not acted with due diligence in taking all measures reasonably expected of them to protect the applicant’s health and prevent its deterioration whilst she was detained. This exposed her to suffering over and above that expected for someone detained, with HIV,  facing deportation, which constituted inhuman and degrading treatment.

With regard to Article 13, the applicant’s request for leave to remain on medical grounds had been refused in reliance on an opinion issued by a medical officer and information on the availability of medication in Cameroon. However this was based on limited information as the medical officer had not conducted an individual assessment of the applicant and was therefore not in a position to know what specific treatment she needed, and whether this was available. The Court found that the Belgian authorities had dispensed with a careful and thorough examination of the applicant’s individual situation before concluding that no risk would arise under Article 3 if she were deported to Cameroon and continuing with the deportation procedure and as such the applicant was deprived of an effective remedy.

Turning to the applicant’s detention, domestic law provided for the detention of aliens refused leave to remain in Belgium for the time strictly necessary to enforce a deportation order, with a two month maximum time limit. This could be extended provided action was being taken with due diligence to secure deportation, which was still realistic within a reasonable time. Her scheduled removal was due on 23 February 2010 but this was prevented due to the Court’s interim measures. Although further detention following this did not exceed the 2 month maximum, it was apparent that no final decision would be made within this period, and therefore that deportation would not take place within a reasonable period. Further, given the applicant’s personal circumstances and cooperation with the authorities, a less drastic alternative to detention should have been considered. This could have still protected the public interest while avoiding the further detention of the applicant for 7 weeks during which her health deteriorated. Article 5(1)f) was violated as there was no link between her detention and the purported aim of securing her removal from Belgium.