Paposhvili v. Belgium (no. 41738/10, GC) [Articles 3 and 8], 13 December 2016

Tuesday, December 13, 2016

The Grand Chamber of the ECtHR gave its ruling in Paposhvili v. Belgium on the 13thDecember. The referral to the Grand Chamber came after the 5th Section of the Court found that the removal of a Georgian national suffering from chronic lymphocytic leukaemia and tuberculosis to his country of origin would not encroach upon his Article 3 and 8 rights under the ECHR.

The case before the Grand Chamber was pursued by the applicant’s family since the applicant had died of his illnesses in June 2016. Recalling that since N. v. United Kingdom in only very exceptional cases will Article 3 be breached in removal cases of seriously ill persons the Court finds that the definition of “very exceptional” needs to be clarified.The Court determines that Article 3 is triggered in these cases 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”. In ensuring that Article 3 is respected the Court goes onto highlight that appropriate procedures need to be put in place which allows 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. In addition 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. A factor in this assessment will be whether the individual will actually have access to this care and these facilities in the receiving State. The Court finds that where serious doubts persist concerning removal the State must obtain Tarakhel-like guarantees that the individual will actually receive appropriate treatment. Therefore, the Court found that the Belgian Aliens Office had not examined the applicant’s medical conditions in light of Article 3 in the context of his regularisation of status nor his proposed removal and as a result violated Article 3 of the Convention.
With regards to Article 8 the Chamber emphasises the positive obligations on Belgium, especially in light of the facts of the case. Much like the lack of assessment on Article 3 the authorities did not examine the degree of the applicant’s dependence on his family or the impact of removal on his family life. The Court thus found Article 8 to be additionally breached.

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Family unity (right to)
Inhuman or degrading treatment or punishment
Medical Reports/Medico-legal Reports
Vulnerable person