Paposhvili v. Belgium (referral)

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 184

April 2015

Paposhvili v. Belgium (referral) - 41738/10

Judgment 17.4.2014 [Section V]

Article 2

Expulsion

Proposed deportation of person suffering from serious illness to his country of origin in face of doubts as to the availability of appropriate medical treatment there: case referred to the Grand Chamber

Article 3

Expulsion

Article 8

Expulsion

The applicant, a Georgian national, arrived in Belgium via Italy in November 1998, accompanied by his wife and the latter’s six-year-old child. The couple subsequently had two children. The applicant was convicted of a number of offences, including robbery. He suffered from tuberculosis, hepatitis C and chronic lymphocytic leukaemia (CLL). An asylum request by the applicant and his wife was refused in June 1999. The applicant then submitted several applications for regularisation of his administrative status but these were rejected by the Aliens Office. The applicant and his wife were issued with several orders to leave the country, including one in July 2010.

On 23 July 2010, relying on Articles 2, 3 and 8 of the Convention, and arguing that, if deported to Georgia, he would no longer have access to the health treatment he required and that, in view of his very short life expectancy, he would die even more quickly and far from his family, the applicant applied to the European Court for an interim measure under Rule 39 of its Rules of Court suspending his removal. On 28 July 2010 the Court granted his request.

The order for him to leave Belgian territory was extended until 28 February 2011. On 18 February 2012 the Aliens Office issued an order to leave the country “immediately” pursuant to the ministerial deportation order of 16 August 2007.

A medical certificate issued in September 2012 stated that failure to treat the applicant for the hepatitis and pulmonary infection could result in damage to his organs and significant disability and that failure to treat his leukaemia (CLL) could result in death. Any return to Georgia would condemn him to inhuman and degrading treatment. The applicant was summoned to attend the Aliens Office medical service on 24 September 2012 for a medical examination and to enable the Belgian authorities “to reply to the Court’s questions”. Referring to the Court’s judgment in N. v. the United Kingdom ([GC], 26565/05, 27 May 2008, Information Note 108), the Aliens Office found in its report that the medical records did not warrant the conclusion that the threshold of gravity required for Article 3 of the Convention to be engaged had been reached. The applicant’s life was not directly threatened. Permanent medical supervision would not be necessary in order to guarantee his survival. In addition, the stage of infection could not be considered terminal at that time.

On 29 July 2009 his wife and her three children were granted indefinite leave to remain.

By a judgment of 17 April 2014 a Chamber of the Court concluded unanimously that there would be no violation of Article 2 (right to life) or of Article 3 (prohibition of torture) of the Convention in the event of the applicant’s deportation to Georgia. The conditions from which the applicant suffered had all stabilised and were under control, there was therefore no imminent threat to his life and he was fit to travel. The Chamber of the Court further found no violation of the applicant’s right to private and family life (Article 8 of the Convention) since, having regard, in particular, to the nature and seriousness of the offences committed by him, and the fact that the link with his country of origin had not been broken, the Belgian authorities, by refusing him leave to remain, had not attached disproportionate weight to the public interest in relation to the applicant’s rights.

On 20 April 2015 the case was referred to the Grand Chamber at the applicant’s request.

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