Yoh-Ekale Mwanje v. Belgium

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 147

December 2011

Yoh-Ekale Mwanje v. Belgium - 10486/10

Judgment 20.12.2011 [Section II]

Article 3

Expulsion

Threatened deportation of alien at advanced stage of HIV infection to country of origin without certainty that appropriate medical treatment was available: deportation would not constitute a violation

Degrading treatment

Inhuman treatment

Delay in determining appropriate treatment for detainee at advanced stage of HIV infection: violation

Article 5

Article 5-1-f

Expulsion

Absence of link between detention of alien at advanced stage of HIV infection and the aim pursued by her deportation: violation

Article 13

Effective remedy

Failure to carry out careful and rigorous examination of situation of alien at advanced stage of HIV infection when assessing risk of ill-treatment in country of origin: violation

Facts – The applicant, a Cameroonian national, left Cameroon in 2002. In 2006 she began a relationship with a Dutch national living in Belgium. All their applications for permission to marry were refused. In September 2009 the Aliens Office issued a first order requiring the applicant to leave the country, on the grounds that she did not have valid papers for residence in Belgium and was in possession of a false passport. The applicant was placed in a closed centre for illegal immigrants pending the issuing of travel papers by the authorities in Cameroon with a view to her deportation. She informed her lawyer that she had been HIV-positive since 2003 and that the infection was already at an advanced stage. On 16 October 2009 she was released and ordered to leave the country by 21 October 2009. On 17 December the Aliens Office served her with a second order to leave the country and an order for her removal, accompanied by a decision to detain her in a designated place. The applicant was placed the same day in a closed centre with a view to her expulsion. On 23 December the Aliens Appeals Board rejected a request lodged by the applicant’s lawyer under the extremely urgent procedure for a stay of execution of the order to leave the country. Several applications for the applicant’s release lodged by her counsel were rejected and all the appeals were unsuccessful. On 16 February 2010 the Aliens Office decided to extend the applicant’s detention until 15 April 2010. On 22 February, having been informed that the applicant was due to be deported the following day, her lawyer requested the European Court to apply Rule 39 of the Rules of Court with a view to having her deportation to Cameroon suspended. The Court granted the request the same day. The applicant was released on 9 April 2010.

Law – Article 3

(a) In the event of deportation to Cameroon – The applicant had been diagnosed as HIV-positive in 2003. She had received treatment which she had subsequently discontinued. Having developed resistance to the medication, she now required a combination of two new types of medication, with which she had been treated since March 2010. The medication in question was apparently available in Cameroon, but was distributed to only 1.89% of the patients who needed it. Depriving the applicant of this new treatment would result in a deterioration of her health and place her survival in doubt in the short or medium term. Nevertheless, the Court had already held that such circumstances were not sufficient to amount to a violation of Article 3 (see N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008, Information Note no. 108). There had to be more compelling humanitarian considerations at stake (see D. v. the United Kingdom, no. 30240/96, 2 May 1997), relating chiefly to the health of the person concerned before the enforcement of the deportation order. In the instant case, it was apparent from a medical certificate issued in June 2010 that the applicant’s condition had stabilised under the effects of the new treatment. She was therefore not in a “critical state” and was fit to travel. Hence, there were no compelling humanitarian considerations at stake in the present case.

Conclusion: Deportation would not constitute a violation (unanimously).

(b) The applicant’s detention – The applicant, who was HIV-positive, had a serious and incurable disease. Her health had worsened and the infection had progressed while she was in detention. A number of medical certificates sent to the Aliens Office stating that the applicant’s survival was in doubt demonstrated that the Belgian authorities had indeed been informed during the applicant’s first period of detention that she was HIV-positive. However, she had not undergone an examination at the request of the Aliens Office until 9 February 2010, when she was examined by hospital specialists, who had reportedly been shocked by the Belgian authorities’ lack of diligence. Furthermore, the treatment prescribed to the applicant on 26 February 2010 had not been administered until 1 March 2010. Accordingly, the authorities had clearly not acted with the requisite diligence in failing to take at an earlier stage all the measures that could reasonably have been expected of them to protect the applicant’s health and prevent a worsening of her condition. That situation had impaired the applicant’s dignity and, combined with the distress caused by the prospect of being deported, had subjected her to particularly acute hardship causing suffering beyond that inevitably associated with detention and with her condition. It had therefore amounted to inhuman and degrading treatment.

Conclusion: violation (unanimously).

Article 13 in conjunction with Article 3: Although the Court had held that the applicant’s deportation to Cameroon would not amount to a violation of Article 3, that complaint had not been declared inadmissible and had been examined on the merits. The applicant had, prima facie, had an arguable claim and Article 13 was applicable in the instant case.

The applicant complained that the Aliens Office had conducted the procedure for her deportation without knowing what kind of treatment she needed and, hence, without having assessed what medical treatment was actually possible in Cameroon and whether she would face a risk of treatment contrary to Article 3. This complaint raised in substance the question whether the applicant had had an effective remedy before the Belgian authorities enabling her to complain of the alleged risk of inhuman and degrading treatment in the event of her deportation to Cameroon. It therefore fell to be examined under Article 13 taken in conjunction with Article 3. The only consideration given to the possible risk had been in the context of the proceedings concerning the applicant’s request for leave to remain on medical grounds in accordance with the Aliens Act. The latter provided for the Aliens Office to consult a medical officer in order to determine whether the state of health of the person making the request was such as to entail a risk under Article 3 if no appropriate treatment were available in his or her country of origin. In the instant case the opinion issued by the medical officer on 12 January 2010 refusing the applicant’s request for regularisation of her situation on medical grounds had listed various items of information and general considerations concerning the availability of the medication in Cameroon and the medical infrastructure for administering it. In the absence of a specific medical examination, the medical officer had not known what kind of treatment the applicant required. Hence, the information available to the medical service of the Aliens Office in making its decision had been limited. An examination to determine the appropriate treatment had not been carried out at the request of the Belgian authorities until 9 February 2010 and the Aliens Office had not been informed of the results until 26 February 2010. The Aliens Appeal Board, in examining an application to have the decision of the Aliens Office set aside, had subsequently held, on 19 April 2010, that the grounds for the Aliens Office’s decision had been correct in view of the information that had been available to it. Accordingly, the Belgian authorities had quite simply dispensed with a careful and thorough examination of the applicant’s individual situation before concluding that no risk would arise under Article 3 if she were deported to Cameroon and continuing with the deportation procedure ordered on 17 December 2009. The applicant had therefore not had an effective remedy.

Conclusion: violation (unanimously).

Article 5 § 1 (f): As the applicant had been subject to a deportation order when she was taken into detention, the case fell within the scope of the second limb of Article 5 § 1 (f).

Both the applicant’s placement in detention on 17 December 2009 and the extension of her detention on 16 February 2010 had been ordered under the Aliens Act, according to which aliens who had been refused leave to remain in Belgium could be placed in detention for the time strictly necessary to enforce the deportation order, subject to a maximum two-month time-limit. The person’s detention could be extended provided that action had been undertaken to ensure his or her deportation and was being pursued with diligence, and that there was a still a realistic prospect that he or she would be deported within a reasonable time. The order extending the applicant’s detention had set 23 February 2010 as the date of her removal to Cameroon, but this had been prevented by the interim measure indicated by the Court on 22 February 2010. Ruling on the applicant’s release, the domestic courts had confirmed that her continuing detention was in accordance with the law and had held that the need to comply with the interim measure indicated by the Court did not mean that the authorities could not deport the applicant within the statutory time-limit while still taking account of the Court’s final decision. Although the Court agreed with this assessment in so far as the interim measure did not have an impact on the lawfulness of the detention as such, the latter could not be based on the likelihood of the Court’s delivering its ruling within the time-limit laid down by the Belgian legislation. While acknowledging that the statutory time-limit had not been exceeded, the Court observed that the authorities had known the applicant’s exact identity, and that she had been living at a fixed address known to the authorities, had consistently appeared for her appointments with the Aliens Office and had taken several steps to try to regularise her situation. Against this background, the authorities had not considered a less drastic measure such as granting the applicant temporary leave to remain, in order to safeguard the public interest in her detention and at the same time avoid keeping her in detention for a further seven weeks although she was HIV-positive and her health had deteriorated in detention. In the circumstances, the Court did not perceive any link between the applicant’s detention and the Government’s aim of securing her removal from the country.

Conclusion: violation (unanimously).

Article 41: EUR 14,000 in respect of non-pecuniary damage.

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