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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 26 February 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 9


M.T. v. Sweden - The applicant argued that adequate medical care was not available to him in Kyrgyzstan and that he would die within a few weeks in the event of his forced return there - No violation of Article 3 (prohibition of inhuman or degrading treatment) in the event of M.T.’s expulsion to Kyrgyzstan - Interim measure (Rule 39 of the Rules of Court) – not to expel M.T. to Kyrgyzstan – still in force until judgment becomes final or until further order.
The applicant, M.T., is an ethnic Uyghur and a Kyrgyz national. He was born in 1985 and is currently in Sweden. His case concerned the availability and access to adequate medical treatment for kidney failure if he were to be expelled to Kyrgyzstan. M.T arrived in Sweden in 2009 and applied for asylum and a residence permit. His asylum claim stemmed from his ties with his business partner, an ethnic Uyghur from China, who had been arrested on suspicion of supporting the Uyghur disturbances in China. M.T had been arrested by the Kyrgyz police in the autumn of 2009 and, although released, was twice summoned to appear in court. At this point he left Kyrgyzstan. M.T suffers from chronic kidney failure and requires regular dialysis. He claims that he had been refused medical treatment in Bishkek (Kyrgyzstan) following his arrest and that there are insufficient dialyses machines in Kyrgyzstan to meet the population’s need. His request for asylum was rejected by the Migration Board and, upon appeal, by the Migration Court. In November 2011 the Migration Court of Appeal refused him leave to appeal. In particular, the Migration authorities considered that M.T.’s submissions were not credible and that he had failed to substantiate that, if removed, he would either be at risk of persecution or of not receiving adequate treatment within a reasonable time. In January 2012 M.T.’s removal was suspended on the basis of an interim measure granted by the European Court of Human Rights under Rule 39 of its Rules of Court, which indicated to the Swedish Government that he should not be expelled whilst the Court is considering his case.

THE COURT'S ASSESMENT - GENERAL PRINCIPLES
45.  The Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, inter alia, Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 102 Series A no. 215, p. 34). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 of the Convention implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008).
46.  Moreover, the suffering which flows from naturally-occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002‑III).
47.  However, aliens who are subject to expulsion cannot, in principle, claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that an applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to a breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling (see N. v. the United Kingdom [GC], no. 26565/05, § 42, 27 May 2008).
48.  Furthermore, it is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see NA. v. the United Kingdom, no. 25904/07, § 111, 17 July 2008).

THE APPLICANT'S CASE 

49. The Court notes at the outset that the applicant exclusively complains that his expulsion would entail a violation of Article 3 due to his ill-health. Thus, he has not maintained before the Court his claims relating to persecution in his home country, as presented before the Swedish authorities. Since the Court can see no reason to examine them of its own motion, it will only consider the applicant’s complaint as presented to the Court in his application.
50.  As concerns the applicant’s health, the Court notes that it is undisputed, and supported by medical certificates, that he suffers from chronic glomerulonephritis and chronic kidney failure for which he receives blood dialysis in Sweden three times per week. Without this regular treatment, his health would rapidly deteriorate and he would die within a few weeks.
51.  It is further clear that blood dialysis treatment is available in Kyrgyzstan. According to information obtained by the Swedish Government from the Kyrgyz authorities in September 2012 (see above paragraph 39), the country had 55 dialysis machines of which 38 were located at three public hospitals in Bishkek, the applicant’s home town. It further appears from a recent article from a Kyrgyz news agency (see above paragraph 29), that there are now 65 dialysis machines in the country although not all seem to be working properly. The article further notes that dialysis treatment is available in private centres at a cost. From this, the Court can conclude that free dialysis is available at public hospitals in Kyrgyzstan and that there are also private centres where patients can receive dialysis, albeit at a certain cost. Consequently, the Court finds it established that the applicant would be able to receive dialysis treatment in his home country.
52.  However, the applicant has argued that there is a waiting time of two to three years for dialysis at the public hospitals and that thus, in reality, he would not have access to treatment necessary for his survival within the very short time of a few weeks. To support his claim, he has submitted a letter from his father to the Kyrgyz authorities in which they are asked to provide the applicant with dialysis treatment, as well as the reply from the authorities, dated February 2014, in which they state that they cannot provide the requested treatment due to the long waiting time and lack of dialysis equipment (see above paragraphs 22-23).
53.  While the Court accepts that there is a waiting list for dialysis treatment due to the limited number of machines in proportion to the number of patients in need, it is not clear whether this waiting list consists only of persons in urgent need of dialysis or also of persons who will need dialysis in the future. It would rather appear to be the latter, since the Court observes that the applicant claimed before the migration authorities that he had been put on the waiting list in April 2009, at a time when he was not yet in need of dialysis, but that he had been removed in September 2009 after his arrest. Moreover, according to a certificate by the Kyrgyz Ministry of Health, dated 9 July 2012, and submitted by the applicant to the Migration Board, he had been on the national waiting list for blood dialysis since 27 October 2009, which was also confirmed by a certificate, dated 23 December 2011, from the hospital where the applicant had been treated (see above paragraph 20). In the Court’s view, this indicates that persons may be put on the waiting list before they are in actual need of dialysis (as was the applicant’s situation in April and October 2009) and thus that it should still be possible to be granted priority on the list and be given treatment if there is an urgent need for immediate dialysis due to the progression of the illness. The fact that the applicant claims that he was not given dialysis while in Kyrgyzstan appears natural to the Court in view of the medical certificate by the Swedish physician stating that he would not have been given dialysis in Sweden either, as the illness was not sufficiently advanced (see above paragraph 34).
54.  Furthermore, having regard to the certificates mentioned above, the Court cannot but conclude that the applicant is on the national waiting list for dialysis treatment and that he has now been on the list for roughly five years, much longer than the two to three years’ waiting time indicated by him. In this respect, the Court observes that the letter from the applicant’s father to the Kyrgyz Ministry of Health, dated February 2014 (see above paragraph 22), does not mention the waiting list at all but only states that the applicant is being treated in Sweden and the family would like him to come back and be treated in Kyrgyzstan. Likewise, the reply from the Ministry (see above paragraph 23) does not mention the waiting list, or the applicant’s placement on it, but is rather a request to the Swedish authorities to continue treating the applicant, than a reply to the applicant’s father. Thus, this last exchange of letters does not alter the Court’s conclusion that the applicant is on the national waiting list and has been for the last five years. It follows from this that the Court is not convinced by the applicant’s submission that he would be refused treatment in Kyrgyzstan upon return, since he has been on the waiting list for almost twice the waiting time indicated by him.
55.  Moreover, and as noted above, the Court observes that there are also private centres in Kyrgyzstan where it is possible to receive blood dialysis treatment. Although this would come at a certain cost, the applicant has not argued that this option would not be open to him. In this respect, the Court notes that the applicant has his parents and siblings in Kyrgyzstan, with whom he remains in contact and who are actively assisting him, as is shown by the letter the applicant’s father wrote to the authorities. It should thus be possible for the applicant to use this option as well, at least as a temporary measure if he had to wait for access to the free public dialysis treatment or, possibly, until he could have a kidney transplant as such procedures have been carried out in Kyrgyzstan since 2012 and consequently would also be an option for the applicant.
56.  The Court further takes note of the Government’s submission that no enforcement of the expulsion order will occur unless the authority responsible for the enforcement of the expulsion deems that the medical condition of the applicant so permits and that, in executing the expulsion, the authority will also ensure that appropriate measures are taken with regard to the applicant’s particular needs. Moreover, it attaches significant weight to the Government’s statement that the Migration Board will encourage and assist the applicant in making the necessary preparations in order to ensure that his dialysis treatment is not interrupted and he has access to the medical care he needs upon return to his home country. The Court further sees no reason to doubt the Government’s assertion that the Migration Board would make every effort to see to it that the applicant would not have to pause his dialysis if expelled and that he would have access to the medical care he needs upon return to Kyrgyzstan. While the Court would stress that it is the applicant’s responsibility to cooperate with the authorities and primarily for him to take the necessary steps to ensure the continuation of his treatment in his home country, it considers that in the very special circumstances of the present case, where the applicant would die within a few weeks if the dialysis treatment were interrupted, the domestic authorities’ readiness to assist the applicant and take other measures to ensure that the removal can be executed without jeopardising his life upon return is particularly relevant to the Court’s overall assessment.
57.  Lastly, the Court considers that the applicant has failed to substantiate that he would be refused care on the basis of his ethnicity or otherwise, noting in particular that he has already received treatment twice in his home country, the second time after his alleged arrest.
58.  Having regard to all of the above, as well as to the high threshold set by Article 3 particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find, in the special circumstances of the present case, that there is a sufficiently real risk that the applicant’s expulsion to Kyrgyzstan would be contrary to Article 3 of the Convention. The present case does not disclose the very exceptional circumstances of D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997‑III). Contrary to that case, where the applicant was in the final stages of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts, in the present case, blood dialysis is available in Kyrgyzstan, the applicant’s family are there and he can rely on their assistance to facilitate making arrangements for treatment and he can also count on help from the Swedish authorities for such arrangements if necessary.
59.  Consequently, the Court finds that the implementation of the expulsion order of the applicant to Kyrgyzstan would not violate Article 3 of the Convention." 

DISSENTING OPINION OF JUDGE DE GAETANO
"1.  I cannot share the opinion expressed by the majority in the operative part of the judgment to the effect that the applicant’s expulsion to Kyrgyzstan in the circumstances of the present case would not give rise to a violation of Article 3 of the Convention. In my view it would give rise to such a violation.2.  The basic facts are not disputed. The applicant has been in Sweden for just over five years. Irrespective of the original reason for his arrival in that country, and regardless of his state of health at that time, the applicant today suffers from chronic kidney failure which necessitates haemodialysis three times per week. If this treatment were interrupted, he would die within a couple of weeks, at the very most three. This has been acknowledged by both the domestic courts (see paragraphs 10 and 14) and the Court (paragraph 50).3.  The critical issue in this case is whether the applicant’s removal to Kyrgyzstan would expose him to a real risk of suffering treatment which reaches the minimum threshold to engage Article 3. As was stated in Pretty v. the United Kingdom, no. 2346/02, 29 April 2002, at § 52:“The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible...”Considering the absolute nature of Article 3, there is no logical reason why the prohibition of removal or expulsion should not equally apply “where the harm stems from a naturally occurring illness and a lack of adequate resources to deal with it in the receiving country, if the minimum level of severity, in the given circumstances, is attained. Where a rigorous examination reveals substantial grounds for believing that expulsion will expose the person to a real risk of suffering inhuman or degrading treatment, removal would engage the removing State’s responsibility under Article 3 of the Convention.” (see § 5 of the joint dissenting opinion of Judges Tulkens, Bonello and Spielmann in N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008); see also in this respect the partly concurring joint opinion of Judges Tulkens, Jočienė, Popović, Karakaş, Raimondi and Pinto de Albuquerque in Yoh-Ekale Mwanje v. Belgium, no. 10486/10, 20 December 2011). The same reasoning is implicit in the judgment of the Fourth Section of the Court in the case of Aswat v. the United Kingdom, no. 17299/12, 16 April 2013 (see in particular §§ 49 to 52) – although the case concerned the extradition of a suspected terrorist to the United States of America, the applicant’s enduring mental disorder (paranoid schizophrenia) coupled with the uncertainty as to the conditions of detention and the medical services that would be made available to him in the requesting State, led to a unanimous finding of a violation of Article 3.4.  In the instant case the applicant has, in my view, convincingly shown that he stands very little chance of receiving the required haemodialysis immediately upon his return to Kyrgyzstan. Of course haemodialysis is carried out in that country (and probably even the less effective peritoneal dialysis, but there seems to be no information on that); the applicant had also received some form of treatment there before he had left for Sweden. The question, however, is whether the applicant can now have access to haemodialysis immediately upon his arrival there. The Court, in coming to its conclusion, has regrettably glossed over with hypotheses and conjectures the hard evidence provided by the letter of 17 February 2014 from the Kyrgyz Ministry of Health in reply to the applicant’s father request (see paragraph 54), and also ignored the certificate of 29 December 2011 issued by the Chief Physician at the Kidney Medical Clinic of Karolinska University Hospital (paragraph 18) to the effect that it “would be completely unreasonable to expel [the applicant] without ensuring that dialysis would be available to him upon return to his home country” (paragraph 18). Instead the Court relies mainly on general (and unsubstantiated) assumptions (paragraphs 53 and 54) that the applicant has “moved up” the list of those waiting for haemodialysis since he was first placed on it. The Court also argues, or seems to argue, that since there are also “private centres” in Kyrgyzstan which offer haemodialysis and the applicant has family in his country of origin (even though the applicant has clearly stated that his family there would not be able to provide any help – paragraph 36 – a statement which the respondent Government have not really challenged) the “Pretty threshold” has not been reached.5.  The clearest indication that that threshold has been reached in the instant case is, in my view, provided by the Court’s own emphasis in paragraph 56 on the “assurances”, provided by the respondent Government in their submissions, as to the manner of execution of the expulsion order, and in particular on the assurance that “the Migration Board would make every effort to see to it that the applicant would not have to pause his dialysis if expelled and that he would have access to the medical care he needs upon return to Kyrgyzstan” (emphasis added). What does the expression “every effort” imply in a situation like the one at hand? Does it mean that if the Migration Board does its very best (even with the full cooperation of the applicant) but is ultimately unsuccessful in securing uninterrupted haemodialysis, the expulsion can go ahead without there being any breach of Article 3? In Tarakhel v. Switzerland [GC], no. 29217/12, 4 November 2014, the Court found that there would be a violation of Article 3 if the applicants were removed to another State party to the Convention without the Swiss authorities having first obtained certain guarantees from that other State. I fail to see why such a condition was not inserted into the operative part of the judgment in the instant case, particularly when the country to which the present applicant is to be removed is not a party to the Convention (there is nothing in the case file to suggest that if diplomatic or other assurances were sought from the authorities of Kyrgyzstan and obtained, these would be worthless – see, by converse implication, §§ 147 and 148 of Saadi v. Italy, [GC] no. 37201/06, 28 February 2008). Conditions have been inserted without difficulty in other judgments against Sweden, such as W.H. v. Sweden, no. 49341/10, 27 March 2014[1], and A.A.M. v. Sweden no. 68519/10, 3 April 2014, although the conditional finding in both cases was one of no violation, and the factual context was different from the one at hand."
Lawyer’s rights were not breached by his conviction for defamatory statements against an expert called by the prosecution in criminal proceedingsFuchs v. Germany - application inadmissible - The case concerned the complaint by a lawyer – relying in particular on Article 10 (freedom of expression) of the European Convention on Human Rights – of criminal and disciplinary sanctions imposed on him for, among other things, defamatory statements against an expert for the prosecution, which the lawyer had made while representing a client. The Court held that the German courts had given relevant and sufficient reasons for their decisions. In particular, the defence of his client's interests had not allowed the lawyer to imply that the expert would falsify evidence. The lawyer’s statements had not contained any objective criticism of the expert's work in his client's case, but the statements had been aimed at generally deprecating his work and declaring his findings to be unusable. The Court found that sworn-in experts had to be able to perform their duties in conditions free of undue perturbation if they were to be successful in performing their tasks.
"34.  The applicant submitted that his criminal information to the police authorities had been correct. The fact that he had omitted certain facts could not entail criminal liability. In his capacity as a lawyer, he had not been obliged to disclose all facts known to him, in particular, if those facts where known to him only in connection with another client’s brief and fell under his obligation to confidentiality.
35.  In respect of his conviction for defamation, the applicant submitted that he must be allowed, in his capacity as defence counsel, to criticise the expert’s methods and to express doubts as to the accuracy of the expert opinion.
36.  The Court considers that the applicant’s convictions interfered with his right to freedom of expression. It observes that the convictions were based on the relevant provisions of the Criminal Code and of the Federal Code for the Legal Profession and were thus “prescribed by law” within the meaning of paragraph 2 of Article 10.
37.  The Court further considers that the applicant’s conviction for misleading the authorities served the aim of protecting the public prosecution’s function in preventing disorder or crime and that the conviction for defamation pursued the legitimate aim of protecting the reputation and rights of the sworn-in expert H.
38.  It remains to be examined whether the interferences in question were “necessary in a democratic society. The test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient. In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court. The Court’s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Stoll v. Switzerland [GC], no. 69698/01, § 101, ECHR 2007‑V).
39.  A specific feature of the present case is that the applicant is a professional lawyer and that the actions leading to his convictions related to this professional activity. In Nikula v. Finland, (no. 31611/96, §§ 45-50, ECHR 2002‑II, also see Steur v. the Netherlands, no. 39657/98, § 36, ECHR 2003‑XI) the Court has summarised the specific principles applicable to the legal profession as follows:
“45.  The Court reiterates that the special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. Such a position explains the usual restrictions on the conduct of members of the Bar. Moreover, the courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence. Regard being had to the key role of lawyers in this field, it is legitimate to expect them to contribute to the proper administration of justice, and thus to maintain public confidence therein (see Schöpfer v. Switzerland, judgment of 20 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1052-53, §§ 29-30, with further references).”
40.  Turning to the facts of the present case, the Court observes that the domestic courts based the applicant’s criminal and disciplinary convictions for misleading the authorities on the consideration that the applicant had knowingly submitted incomplete and thus misleading information on the search of office space, thus causing public prosecution to instigate futile investigations. The Court observes that the State parties to the Convention are entitled to sanction the deliberate submission of misleading information to public prosecution, in order to safeguard public prosecution’s function in preventing disorder or crime. The Court considers that the applicant has not convincingly explained that it would have amounted to a breach of professional confidentiality towards his client if he had presented the complete facts known to him, including the fact that a court had issued a search warrant. There is, furthermore, no indication that the fines imposed on the applicant were disproportionate to the aim pursued. In the light of this, the Court accepts that the interference with the applicant’s right to freedom of expression was justified under paragraph 2 of Article 10 as being necessary in a democratic society for the prevention of disorder or crime.
41.  With regard to the applicant’s conviction of defamation to the detriment of the sworn-in expert H., the Court notes that the domestic courts considered that the applicant’s submissions as a defence counsel contained the allegations that the expert H. had created new data in order to obtain the result desired by public prosecution and that he had a personal interest in falsifying evidence. The Court further notes that the Munich Regional Court, in its judgment given on 22 March 2007, carefully examined whether the statements could be justified as a legitimate defence of his client’s interests, thereby referring to the Court’s case-law on the role of the defence counsel in criminal proceedings. The Regional Court conceded that the methods applied by the expert necessitated further examination, but considered that this did not allow the applicant generally to imply that the expert would falsify evidence. Furthermore, the Disciplinary Court of Appeal, in its judgment given on 20 April 2010, considered that the offensive statement did not contain any objective criticism of the expert’s work in the particular case, but was aimed at globally depreciating his actions and at generally declaring his expert findings unusable. Under these circumstances, the Court accepts the domestic courts conclusions that the statements which formed the subject matter of the criminal and disciplinary proceedings were not justified by the legitimate pursuit of the applicant’s client’s interests.
42.  The Court further observes that the criminal court took into account that the statements were not made publicly, but in written form within the context of specific criminal proceedings. The Court also observes that sworn-in experts must be able to perform their duties in conditions free of undue perturbation if they are to be successful in performing their tasks. It may therefore be necessary to protect them from offensive and abusive verbal attacks when on duty (compare, mutatis mutandis, Nikula, cited above, § 48). It finally considers that the fines imposed on the applicant do not appear to be disproportionate to the aim pursued.
43.  In the light of the above considerations, the Court considers that there is no appearance of a violation of Article 10 of the Convention in the instant case. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

Texts are based on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments.

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