Article 3 in expulsion of mentally ill individuals: risk of harm to others insufficient to engage protection
20 December 2021
The Grand Chamber of the European Court of Human Rights (“ECtHR”) has held that the risks to the applicant’s psychiatric health posed by his expulsion to Turkey did not reach the threshold for the application of Article 3.
The decision demonstrates the extremely high evidential threshold which applicants bringing such complaints will have to meet in order to establish that there are “substantial grounds” for believing that there is a real risk of a violation of Article 3, i.e., to pass the first stage of the Article 3 analysis articulated in the ECtHR’s case law.
Arif Savran, a Kurdish-speaking Turkish national, had entered Denmark lawfully aged six with his father in 1991. His mother and four siblings also lived in Denmark. He suffered from paranoid schizophrenia. He was convicted of assault with highly aggravating circumstances in 2008 and was sentenced to committal to forensic psychiatric care. His expulsion from Denmark with a permanent re-entry ban was subsequently ordered, and in 2015, he was deported to Turkey.
In 2019, the Chamber of the ECtHR found that his expulsion would constitute a violation of Article 3 in circumstances where the Danish authorities had not obtained individual and sufficient assurances that appropriate psychiatric treatment would be available in Turkey. The Chamber reasoned that the evidence established that in addition to medication, the applicant required follow up and regular contact with a person providing supervision. Returning the applicant to Turkey, where he had no family or any other social network would unavoidably cause him additional hardship and it was unclear whether he had a real possibility of receiving the relevant psychiatric treatment including follow up and supervision in Turkey ([GC] §§ 86 – 88).
The Grand Chamber Decision
The Grand Chamber disagreed and held that there was no violation of Article 3 as it had not been shown that the applicant would suffer a “serious, rapid, and irreversible decline in his state of health resulting in intense suffering, let alone a significant reduction in life expectancy” by virtue of his removal (§ 143). Notably, whilst according to some of the relevant medical statements, a relapse was likely to result in “aggressive behaviour” and a “significantly higher risk of offences against the person of others” as a result of the worsening of psychotic symptoms, this could not be described as resulting in intense suffering for the applicant himself (§ 143).
The Grand Chamber noted that the Chamber had not assessed the case from the standpoint of the threshold test articulated in the case of Paposhvili v. Belgium ([GC], § 183, no. 41738/10, 13 December 2016, “Paposhvili”) (§ 140).
The Threshold Test in Paposhvili
In Paposhvili, the applicant had advanced chronic lymphocytic leukaemia for which he was being treated with the medication Ibrutinib. The evidence was that without this drug he was likely to die within six months and that neither the medication nor a transplant would be available in Georgia (his country of origin). The Grand Chamber held, with reference to the cases of D. v. the United Kingdom 30240/96, 2 May 1997; and N. v. the United Kingdom [GC], 26565/05, 27 May 2008, that Article 3 may apply if (i) the circumstances were such that the person’s state of health was so critical that removal would lead to their imminent death; or (ii) possibly in other “very exceptional circumstances” where the humanitarian considerations weighing against removal were equally compelling. The Grand Chamber held that this second category:
should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering or to a significant reduction in life expectancy (§ 183, emphasis added).
In Paposhvili, the Grand Chamber found that expulsion would be a violation of Article 3 as there was an absence of any assessment by the domestic authorities of the risk facing the applicant in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia (Paposhvili, § 205).
Application to Savran
The Grand Chamber in Savran held that Paposhvili provided a “comprehensive standard” taking due account of all considerations relevant for the purposes of Article 3 (§ 133). It noted that in Paposhvili, the Grand Chamber had referred to case-law relating to applicants suffering from both physical and mental illnesses, and further, the judgment referred to “a seriously ill person”, without specifying the type of illness (§ 137). The test was therefore said to apply irrespective of the nature of the illness.
Affirming the sequence of analysis set out in Paposhvili, the Grand Chamber held that it was for applicants to adduce evidence capable of demonstrating that there are substantial grounds for believing that they would be exposed to a real risk of being subjected to treatment contrary to Article 3 (§ 130). It is only after this threshold has been met, and thus Article 3 is applicable, that the returning state’s obligation to dispel any doubts which have been raised, and if necessary, seek assurances, comes in to play.
In Savran’s case, the Grand Chamber noted that “whilst admittedly, schizophrenia is a serious mental illness, the court does not consider that that condition can in itself be regarded as sufficient to bring the applicant’s complaint within the scope of Article 3” (§ 141). Further, there was no evidence of any risk that had ever existed to the applicant of harming himself (§ 144) and it was noted that whilst one of the experts did mention “serious consequences” for the applicant “himself”, those consequences, as explained further, concerned a high risk of harm to others (§ 144). That could not satisfy the Paposhvili threshold test.
The Grand Chamber reiterated that “as already indicated, the threshold should remain high for this type of case” (§ 147).
In its factual summary, the Grand Chamber noted medical opinions prepared in 2013 – 2014 by psychiatrists. One of these considered that the applicant was aware of his disease and clearly acknowledged his need for therapy, but further noted that his prospect of recovery was bad if he were to be discharged without follow-up and supervision. That opinion also expressed the view that if certain elements of his treatment were not available in Turkey, which they would likely not be, the applicant was likely to relapse. If he relapsed, this could have “serious consequences for himself and his environment” (§ 42, 44). According to the applicant, in Turkey he received medical care from a doctor, not a psychiatrist, who checked his medication but offered no follow up regarding his mental or somatic condition (§ 71).
The Grand Chamber’s conclusion is perhaps a surprising one given the evidence regarding the applicant’s treatment needs and the likelihood of deterioration were he to be unable to access them. The key element lacking appears to be a conclusive psychiatric opinion of a risk of serious harm to the applicant himself rising to the level articulated in the threshold test. However, as a matter of principle, it is questionable whether that threshold is set at the right level in the context of Article 3 claims concerning psychiatric health.
These concerns are captured in the partly dissenting opinion of Judge Serghides, who notes that:
the applicant had a high risk of harming others on the basis of the actual facts. For me, the distinction between harming other people and harming oneself is artificial and superficial. The core of the matter should be the seriousness of an illness which, among other symptoms, may lead to dangerous or catastrophic effects irrespective of who is the victim of these effects (§ 28).
Judge Serghides also considered that according to the test applied by the Grand Chamber,
the component of ‘decline’ must have three qualifications which must apply cumulatively: ‘serious’, ‘rapid’, and ‘irreversible’… the mandatory requirement of these qualifications imposes an extraordinarily high – even impossible to achieve – threshold, higher than the high threshold Article 3 requires in any case of non-refoulement on grounds other than medical ones… [the last two qualifications] are overly restrictive and are not compatible with the absolute character of the right under Article 3. (§ 21).
The decision in Savran will undoubtedly have implications for many pending and future applications before the ECtHR. It is clear that the test applied will be stringent and require extremely compelling medical evidence on the applicant’s behalf.
Charlotte Gilmartin is a barrister at 1 Crown Office Row.