A.Q. AND OTHERS v. GREECE

FIFTH SECTION

DECISION

Application no. 59758/16
A.Q. and Others
against Greece
(see list appended)

The European Court of Human Rights (Fifth Section), sitting on 28 March 2024 as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 Lado Chanturia,
 Mattias Guyomar, judges,
and Sophie Piquet, Acting Deputy Section Registrar,

Having regard to:

the application against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on 17 October 2016;

the decision to give notice of the complaints under Article 3 concerning the alleged lack of medical care provided to the first and the second applicant and inhuman treatment of third applicant, under Article 8 concerning the alleged lack of informed consent of the first and the second applicant, as well as under Article 13 in connection with the above complaints to the Greek Government (“the Government”) represented by their Agent’s delegate, Mr K .Georgiadis, and to declare inadmissible the remainder of the application;

the decision to give priority to the application under Rule 41 of the Rules of Court;

the decision to grant the applicants anonymity and the case-file confidentiality under Rules 33 and 47 of the Rules of Court ex officio;

the parties’ observations;

the Government’s position regarding examination of the application by a Committee;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The applicants in the present case are three adult Syrian nationals, who fled their country and arrived from Türkiye to the Greek island of Chios in September 2016 (see the appended table). At the time of their arrival to Greece the first applicant suffered from a terminal medical condition, the second applicant from a persistent grave and chronic medical condition with associated long-term complications, and the third applicant was their companion and caretaker on their journey from Syria.

2.  The application concerns primarily the medical treatment provided in Greece to the first two applicants.

PROCEDURE

3.  On 26 October 2016 and 17 November 2016 the Court refused the first and the second applicants’ requests of interim measures under Rule 39 of the Rules of Court in connection with their complaints under Article 3 of the Convention.

4.  In the observations of 14 September 2017 the applicants’ representative informed the Court that the first applicant died on 20 June 2017 and that his mother and the third applicant expressed their wish to pursue the application on his behalf. Further on 8 November 2017 she informed the Court that only the first applicant’s mother Ms F. was his legal heir, but the “destiny” of all three applicants was tied upon leaving Syria for Türkiye and Greece. On 22 December 2017 she submitted to the Court copies of Ms F’s identification document and the family records proving parental ties. In the subsequent six years the Court had received no authority form, any other document, submission or a message produced by the first applicant’s mother expressing her wish to pursue the application. However, on 31 October 2023 and following the Court’s request, the representative submitted to the Court a handwritten note from the first applicant’s mother, proof of WhatsApp exchanges and other evidence demonstrating the mother’s wish to pursue the proceedings. The Court is satisfied that she has a sufficient interest in the continued examination of the application and has expressed unequivocal wish to pursue it. Therefore, in the present case, the Court recognises her capacity to act in his stead (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §§ 72-73, 17 October 2019).

5.  As regards the complaints against Germany under Article 3 by the second and the third applicant, the Court notes that no application form had been submitted by them in this regard and that they were first raised in the observations in reply to the Greek Government’s observations. Having regard to the above and Rule 47 of the Rules of Court, the Court considers that there are no grounds to examine these new complaints.

THE COURT’S ASSESSMENT

6.  Turning to the present case the Court notes that there is no evidence in the present case that any of the applicants initiated any domestic proceedings in Greece in relation to their complaints. Since the Greek Government in the present case had not raised the non-exhaustion plea, the Court does not have to rule on the matter under Article 35 § 1 of the Convention, but will be mindful of this aspect of the case where relevant.

7.  The first and the second applicants’ complaint under Article 3 of the Convention essentially concerns the alleged failure of the Greek authorities to provide them with requisite medical assistance. The Court highlights at the outset that both applicants arrived to Greece in September 2016 in grave medical state and after unsuccessful rounds of treatment in Türkiye. The first applicant was in the last stages of a terminal medical condition with associated complications (metastasised spinal chrondrosarcoma aggravated by full-sensory kinetic paraplegia) and the second applicant suffered from a persistent grave and chronic medical condition with associated long-term complications (diabetes mellitus aggravated by the resulting peripheral neuropathy and retinopathy, cataract, as well as pulmonary infection and a lesion). In a few days following their arrival to Greece they were examined in the General Hospital in Chios.

8.  For the first applicant, the doctors in Chios confirmed that he suffered from chondrosarcoma at the terminal stage and recommended transfer to specialised hospital in Athens with a view of possible thoracic surgery. On 11 October 2016 the applicant was transferred to cancer-specialised Hospital Agios Savvas in Athens. Following thorough clinical laboratory tests and medical consultations with neurosurgeon, oncologist, thoracic surgeon and radiotherapist, the applicant’s tumour was considered inoperable, chemoresistant and radioresistant and the surgery medically futile and extremely dangerous to the applicant’s life. Subsequent biopsy of a large mass in his chest dated 2 November 2016 revealed an invasive mesenchymal tumor for which he started receiving palliative chemotherapy sessions on 17 November 2016. Given the irreversible and untreatable medical condition the applicant was placed in a single occupancy hospital room and provided with supportive and palliative treatment until his death on 20 June 2017.

9.  Accordingly, within less than a month after the first applicant’s arrival to Greece he was transferred to specialised care facility where he received treatment based on the results of extensive examinations and specialist consultations and tailored to his medical condition. His treatment in the last months of his life had been predominantly supportive and palliative, but this choice of strategy was clearly based on professional medical opinions and predetermined by the terminal stage of his cancer. Nothing in the case materials demonstrates that the applicant had not received any reasonably expected treatment or that any treatment he received was unsuitable to his condition.

10.  For the second applicant, the doctors on Chios confirmed that he suffered from diabetes and the resulting chronic diabetic retinopathy and referred him for treatment to a ophthalmologic hospital in Athens. Having developed pulmonary symptoms and after five-day antibiotic treatment he was admitted to hospital on 7 October 2016, diagnosed with lower lobar pneumonia and administered intravenous antibiotics. After a CT scan and a consultation with a thoracic surgeon the applicant was urgently transferred on 11 October 2016 to a hospital in Athens since a tumour was found in his lung.

11.  On the same day and immediately after arrival to Sotiria Hospital in Athens the applicant was operated and the tumour was removed. He stayed in the hospital until he was fit to be discharged on 19 October 2016. Following doctors’ recommendations he made one follow-up visit to Sotiria Hospital on 1 November 2016 and then another one on unspecified date several days later.

12.  In December 2016 the applicant left Greece for Germany where he resides at this moment.

13.  Accordingly, during the three and a half months between the second applicant’s arrival to Greece and his departure for Germany he consulted medical professionals on multiple occasions, he was examined, diagnosed and administered treatment requisite for his condition, and once a condition requiring urgent intervention had been discovered he was immediately transferred to an appropriate facility and operated. While indeed, as the applicant argues, he had not been operated in connection with diabetic retinopathy, this condition had not required an urgent intervention and in the short time of the applicant’s stay in Greece the authorities focused on life-threatening and urgent medical conditions rather than chronic ones.

14.  In view of the above and having regard to the available material, nothing indicates that the Greek authorities breached their Article 3 obligations to provide the first and the second applicants – as members of a particularly underprivileged and vulnerable population group in need of special protection – with appropriate medical care (mutatis mutandis M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 249-253, ECHR 2011 in the context of reception conditions of asylum-seekers and Blokhin v. Russia [GC], no. 47152/06, §§ 135-140, 23 March 2016 in the context of medical care of detained persons).

15.  As regards the first and the second applicants’ complaints under Article 8 of the Convention concerning the alleged lack of consent to the medical interventions in Greece due to absence of continuous interpretation into Arabic, the Court notes that they did not allege that at any point they refused or wished to refuse any treatment, that any procedure has been carried out against their will or that they have been administered any unnecessary treatment or a medical intervention aggravating their condition (see a contrario Y.P. v. Russia, no. 43399/13, § 53, 20 September 2022; Glass v. the United Kingdom, no. 61827/00, § 78, ECHR 2004-II). It must be further noted that there is no evidence that either the applicants, their lawyers or volunteers assisting them had at any point lodged any complaints in this regard or initiated any proceedings on the domestic level. The case material clearly shows that at various points during medical visits and hospital stays the applicants were assisted by Arabic-speaking volunteer interpreters and NGO staff members, an attorney speaking both Greek and Arabic, and professional interpreters into Arabic. While indeed no 24-hour on demand interpretation had been available to them, they should have had sufficient understanding of their state of health and the course of treatment and they have had a possibility to seek further details, voice concerns or refuse treatment relying on the above persons assisting them.

16.  Having regard to the above considerations, the Court concludes that the alleged lack of informed consent to the medical interventions in Greece cannot be prima facie convincingly established for either of the applicants.

17.  As regards the third applicant’s complaint under Article 3 of the Convention that the alleged failure to provide adequate medical care to the first two applicants caused him, as their caretaker, physical and psychological exhaustion that amounted to inhuman and degrading treatment, it is admittedly plausible that the third applicant had experienced exhaustion and fatigue as a caretaker of gravely sick relatives. However, the Court notes that nothing in the parties’ submissions demonstrate that either positive obligations of the Greek authorities had been engaged or that the third applicant’s situation attained a requisite threshold of severity under Article 3 of the Convention.

18.  Lastly, in respect of the complaints under Article 13 of the Convention the Court notes that it does not appear to raise a separate issue.

19.  The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, the applicants’ complaints under Articles 3, 8 and 13 of the Convention either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

20.  It follows that the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 April 2024.

 Sophie Piquet Stéphanie Mourou-Vikström
 Acting Deputy Registrar President

Appendix

List of applicants: