Information Note on the Court’s case-law 36
November 2001
Karagöz v. France (dec.) - 47531/99
Decision 15.11.2001 [Section I]
Article 3
Expulsion
Deportation to Turkey, where the applicant, undergoing continuous medical treatment, claims his life will be at risk due to the absence of the necessary medicines: inadmissible
The applicant is a Turkish national who arrived in France at the age of seventeen and married a Turkish woman with whom he had four children. He worked in France from 1973 to 1986, when he was dismissed. He was subsequently convicted of drug-trafficking offences, sentenced to ten years’ imprisonment and made subject to an order permanently excluding him from French territory. He applied for a discharge of the order but his application was dismissed twice, in 1995 and 1998. The prison doctor certified that he had a thyroidal problem requiring an operation and subsequent life-long treatment and regular biological follow-up. The applicant also suffers from a gastric ulcer requiring long-term treatment. Referring to his health problems, the applicant lodged a third application for a discharge of the order. Following the operation, the relevant medical authorities indicated that the treatment was relatively simple but should not be interrupted if the patient’s life were not to be endangered, and that it could be continued without any major risk in his country of origin. In April 1999 a decision was taken to deport the applicant to Turkey. Following the application by the Court of Rule 39 of its Rules of Court, the applicant was assigned to compulsory residence by the French authorities. The Administrative Court dismissed his appeals against the decision deporting him to Turkey on the ground that, since his operation, he had undergone the prescribed tests and check-ups and that the necessary medical treatment was a simple course of treatment which could be continued in his country of origin. In May 1999 his third application for a discharge of the exclusion order was rejected because he had not produced any evidence to establish that he could not obtain the necessary medical treatment in Turkey.
Inadmissible under Articles 2 and 3, and 3 and 13 taken together: the applicant had undergone a serious operation and the day before the date scheduled for his deportation the prison doctor had considered that since his condition was not yet stable he would require regular supervision and a further check-up within three months if his life were not to be endangered. Those were the factors which had resulted in the application of Rule 39 of the Rules of Court. With regard to a real and genuine risk of ill-treatment, the assessment of whether there was a real risk of treatment contrary to Article 3 of the Convention in cases of serious illness was made, inter alia, by checking whether the person concerned could obtain the medication necessitated by his state of health and examining whether their state of health required treatment of such a special nature that it placed the individual in a different situation from that of other nationals of the country of destination suffering from similar disorders. In the case in question the applicant had shown neither that he was unable to obtain the medication he required in Turkey, nor that his current state of health prevented him from travelling back to that country. The French Government had given assurances that he would have access to treatment notwithstanding the lack of insurance cover in Turkey and that the drugs necessary for his treatment were in circulation and accessible, and had guaranteed that if he were to encounter difficulties on his arrival in his country of origin he would have a stock of medicine to last him a reasonable time. There was thus no longer any known and serious reason for believing that the decision to deport the applicant to Turkey, if enforced, would violate Articles 2 and 3; the applicant had, moreover, had numerous remedies under the domestic law: manifestly ill-founded.
Inadmissible under Article 8 (private and family life): The Government’s objection on grounds of non-exhaustion of domestic remedies was upheld because the applicant had not appealed to the Court of Cassation against the judgments rejecting his three applications for a discharge of the order excluding him from French territory and, in particular, the most recent judgment: non-exhaustion.
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