Dragan and Others v. Germany (dec.)

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 68

October 2004

Dragan and Others v. Germany (dec.) - 33743/03

Decision 7.10.2004 [Section III]

Article 3

Expulsion

Decision to deport to another Contracting State a mother whose state of health is of concern and who has made credible threats to commit suicide: inadmissible

Article 8

Expulsion

Expulsion of stateless persons having given up their nationality and not having a residence permit: inadmissible

The applicants, a mother and her children, were living in Germany without a residence permit. They had renounced their original Romanian nationality with the Romanian authorities’ consent. As stateless persons, they could not at first be sent back to their country of origin. This obstacle was subsequently removed following an agreement between Germany and Romania by which Romania undertook to accept its former nationals who had renounced their citizenship. The German authorities ordered the applicants to leave German territory and announced their deportation. The applicants appealed unsuccessfully. They filed new applications for leave to remain, without success. The first applicant suffered from physical and psychological illness. In particular, she was diagnosed as suffering from hepatitis C and severe depression. The social services considered credible her threat to commit suicide if she were obliged to leave Germany. In September 2003 the relevant medical service stated that the first applicant was capable of supporting the journey in the event of deportation, so long as continuous medical assistance was provided to prevent any act of self-mutilation or suicide. However, they unreservedly advised against such a journey. The applicant’s children, who had been living in Germany for more than ten years, argued that their presence alongside their mother was essential, given her state of health and her suicide threats; they also asked to be able to complete their education in Germany. The authorities granted them extensions of leave to remain for that purpose, subject to certain conditions. In June 2004 the authorities instructed the applicants to leave Germany but, taking the first applicant’s suicide threats seriously, decided, as a precautionary measure, not to inform the applicants of the date of their deportation. It was also decided that the applicant would undergo a medical examination before her departure and that she would be provided with medical support until her arrival in Romania. In September 2004 the authorities stated that the deportation was not imminent, in view of the Strasbourg Court’s request, under Rule 39 of its Rules of Court, to suspend provisionally the applicants’ deportation to Romania. The applicants lodged appeals against the expulsion orders, without success.

Inadmissible under Article 3: (a) The first applicant’s alleged inability to support the transfer to Romania and the risk of suicide in the event of deportation: the fact that a person whose deportation had been ordered threatened to commit suicide did not require the Contracting State to abstain from enforcing the envisaged measure, provided that they took specific steps to prevent those threats being realised. In this present case, the suicide threats could not prevent the authorities from proceeding with the applicants’ deportation, and none of the evidence submitted to the Court indicated that those authorities would not take the necessary precautions which were incumbent on them under the Convention.

(b) Alleged impossibility of ensuring appropriate treatment for the first applicant’s health problems in Romania: Backed up by a letter from a doctor trusted by their embassy in Bucharest, the German Government argued that the applicant’s physical and psychological illnesses could be treated in Romania, and that the treatment for hepatitis which she received in Germany, using expensive medication, was not essential to control the disease. The Romanian Government – which submitted observations as a third-party intervener – confirmed that the applicants could receive appropriate care in Romania and that they would enjoy the same statutory welfare conditions as Romanian citizens, even if they sought to maintain their status as stateless persons, provided that they established their residence in Romania. Accordingly, the Court found that the applicants had not proved that their illnesses could not be treated in Romania. The fact that the situation with regard to the first applicant’s health care provision would be less favourable in Romania than in Germany was not decisive from the perspective of Article 3. Admittedly, the applicant’s health was a matter of concern. Having regard, however, to the high threshold set by Article 3, particularly where the case did not concern the Contracting State’s direct responsibility for the infliction of harm, in the absence of exceptional circumstances and in the light of the Court’s recent case-law on the deportation and expulsion of aliens to third countries, the Court did not find that there was a sufficiently real risk that the applicants’ removal to Romania - a Contracting State to the Convention - would be incompatible with Article 3: manifestly ill-founded.

Inadmissible under Article 8 (family life):The applicants had never obtained residence in Germany. Their applications for that purpose had all been unsuccessful. Consequently, the applicants were obliged to leave German territory in application of the Aliens Act. However, enforcement of the deportation orders proved impossible, since the applicants had renounced their Romanian nationality with the Romanian authorities’ consent, and the Romanian state refused for many years to accept former citizens. However, those obstacles to the applicants’ deportation did not lead to a decision by the German authorities’ to remove the obligation to leave the territory. Consequently, the applicants’ deportation did not constitute a lack of respect for their family life within the meaning of Article 8 § 1. The fact that the applicants refused to return to Romania and sought to remain in Germany could not be considered relevant in that respect: manifestly ill-founded.

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