ECtHR / Application no. 41738/10 / Judgment Paposhvili v. Belgium

Key facts of the case:

  1. The applicant was born in 1958. He lived in Brussels and died there on 7 June 2016.
  2. He arrived in Belgium via Italy on 25 November 1998, accompanied by his wife and a six-year-old child. The applicant claimed to be the father of the child, an assertion which the Government contested. The couple subsequently had a child together in August 1999 and another in July 2006.

    A. Criminal proceedings
     

  3. On 29 December 1998 the applicant was arrested and taken into custody on charges of theft. On 14 April 1999 he received a sentence of seven months’ imprisonment, which was suspended except for the period of pre‑trial detention.
  4. In 1999 and 2000 the applicant and his wife were arrested on several occasions in connection with theft offences.
  5. On 28 April 2000 the applicant’s wife was sentenced to four months’ imprisonment for theft.
  6. On 18 December 2001 the applicant was convicted of a number of offences including robbery with violence and threats, and received a sentence of fourteen months’ imprisonment, which was suspended except for the period of pre-trial detention.
  7. On 9 November 2005 the applicant was sentenced by the Ghent Court of Appeal to three years’ imprisonment for involvement in a criminal organisation with a view to securing pecuniary advantage using intimidation, deception or corruption.
  8. Having already spent time in pre-trial detention, he was subsequently detained in Forest Prison and then in Merksplas Prison, where he continued to serve his sentence.

    B. Asylum proceedings
     

  9. On 26 November 1998, the day after their arrival, the applicant and his wife lodged an asylum application.
  10. As the applicant’s wife stated that she had travelled through Germany, a request to take back the applicant and his family was sent to the German authorities under the Dublin Convention of 15 June 1990 determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (“the Dublin Convention”).
  11. After the German authorities had refused the request, it transpired that the applicant and his family were in possession of a Schengen visa issued by the Italian authorities. A request to take charge of them was therefore sent to the Italian authorities and was accepted on 4 June 1999.
  12. On 22 September 1999 the applicant lodged a further asylum application, using a false identity. It was immediately rejected after his fingerprints had been checked.
  13. On 23 October 2000 the Aliens Office informed the applicant’s lawyer that the proceedings concerning the asylum application of 26 November 1998 had been concluded on 11 June 1999 with the refusal of the application.

Results (sanctions) and key consequences of the case:

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

  1. Holds that there would have been a violation of Article 3 of the Convention if the applicant had been removed to Georgia without the Belgian authorities having assessed, in accordance with that provision, the risk faced by him in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia;
  2. Holds that it is not necessary to examine the complaint under Article 2 of the Convention;
  3. Holds that there would have been a violation of Article 8 of the Convention if the applicant had been removed to Georgia without the Belgian authorities having assessed, in accordance with that provision, the impact of removal on the applicant’s right to respect for his family life in view of his state of health;
  4. Holds that the Court’s findings at points 1 and 3 above constitute in themselves sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicant;
  5. Holds,
    (a) that the respondent State is to pay the applicant’s family, within three months, EUR 5,000 (five thousand euros), plus any tax that may be chargeable to them, in respect of costs and expenses;
    (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
  6. Dismisses the remainder of the applicant’s claim for just satisfaction.
Paragraphs referring to EU Charter: 
  1. In the case of Abdida (paragraphs 33 and 38-63), the CJEU held that while leave to reside on medical grounds did not come within the scope of the Qualification Directive, decisions refusing such leave were covered by Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (the “Return Directive”). As a return decision, a decision refusing leave to reside on medical grounds was subject to observance of the safeguards provided for by the Return Directive and by the Charter of Fundamental Rights of the EU. Article 19 § 2 of the Charter stated that no one could be removed to a State where there was a serious risk that he or she would be subjected to torture or other inhuman or degrading treatment or punishment. Bearing in mind that under Article 52 § 3 of the Charter, the rights enshrined therein had, as a minimum, the same meaning and scope as the equivalent rights guaranteed by the Convention, the CJEU inferred from the case-law established in N. v. the United Kingdom that the decision to remove an alien suffering from a serious physical or mental illness to a country where the facilities for the treatment of the illness were inferior to those available in the returning State might raise an issue under Article 3 of the Convention in very exceptional cases, where the humanitarian grounds against removal were compelling. Those very exceptional cases were characterised, in the CJEU’s view, by the seriousness and the irreparable nature of the harm that might be caused by the removal of a third-country national to a country in which there was a serious risk that he or she would be subjected to inhuman or degrading treatment. The CJEU further held that remedies in respect of a decision refusing leave to reside on medical grounds must have suspensive effect, in accordance with the Strasbourg Court’s case-law. This implied that provision had to be made for the applicant’s basic needs to be met pending a ruling on his or her appeal in accordance with the Return Directive.