Type: Judgment

Authority: European Authorities: European Court of human rights

Date: 05/27/2008

Subject: The Court held, by 14 votes to three, that, if N. were to be sent back to Uganda from the United Kingdom, there would be no violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Court of Human Rights. The case concerned N's allegation that her return to Uganda would cause her suffering and lead to her early death, because of her illness. The application was lodged with the European Court of Human Rights on 22 July 2005. On 22 May 2007 the Chamber relinquished jurisdiction in favour of the Grand Chamber, under Article 302 of the Convention. A hearing took place in public in the Human Rights Building, Strasbourg, on 26 September 2007. The applicant claimed that to return her to Uganda would cause her suffering and lead to her early death, which amounted to inhuman and degrading treatment. She relied on Article 3 and 8 (right to respect for private and family life). Article 3 The Court resumed its case-law concerning expulsion cases where the applicant claimed to be at risk of suffering a violation of Article 3 on the grounds of ill-health, noting that it had not found such a violation since its judgment in D v. the United Kingdom (application no. 30240/96) on 21 April 1997, where “very exceptional circumstances” and “compelling humanitarian considerations” were at stake. In the D. case the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support. The Court recalled that aliens who were subject to expulsion could not in principle claim any entitlement to remain in the territory of one of the Sates which had ratified the European Convention on Human Rights (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 the applicant’s circumstances, including her or his life expectancy, would be significantly reduced if s/he were to be removed from the Contracting State was not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who was suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness were inferior to those available in the Contracting State might raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal were compelling, such as in the case D. Although many of the rights it contained had implications of a social or economic nature, the Convention was essentially directed at the protection of civil and political rights. Furthermore, inherent in the whole of the Convention was a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. Advances in medical science, together with social and economic differences between countries, meant that the level of treatment available in the Contracting State and the country of origin might vary considerably. Article 3 did not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States. Finally, the Court observed that, although the applicant’s case concerned the expulsion of a person with an HIV and AIDS-related condition, the same principles had to apply to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which might cause suffering, pain and reduced life expectancy and require specialised medical treatment which might not be so readily available in the applicant’s country of origin or which might be available only at substantial cost. Although the applicant applied for, and was refused, asylum in the United Kingdom, she did not complain before the Court that her removal to Uganda would put her at risk of deliberate, politically motivated, ill-treatment. Her claim under Article 3 was based solely on her serious medical condition and the lack of sufficient treatment available for it in her home country. In 1998 the applicant was diagnosed as having two AIDS defining illnesses and a high level of immunosuppression. As a result of the medical treatment she had received in the United Kingdom her condition was now stable. She was fit to travel and would remain fit as long as she continued to receive the basic treatment she needed. The evidence before the national courts indicated, however, that if the applicant were to be deprived of her current medication her condition would rapidly deteriorate and she would suffer ill-heath, discomfort, pain and death within a few years. According to information collated by the World Health Organisation, antiretroviral medication was available in Uganda, although, through lack of resources, it was received by only half of those in need. The applicant claimed that she would be unable to afford the treatment and that it would not be available to her in the rural area from which she came. It appeared that she had family members in Uganda, although she claimed that they would not be willing or able to care for her if she were seriously ill. The United Kingdom authorities had provided the applicant with medical and social assistance at public expense during the nine-year period it had taken for her asylum application and claims under Articles 3 and 8 of the Convention to be determined by the domestic courts and the European Court. However, that did not in itself entail a duty on the part of the United Kingdom to continue to provide for her. The Court accepted that the quality of the applicant’s life, and her life expectancy, would be affected if she were returned to Uganda. Currently, however, the applicant was not critically ill. The rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, involved a certain degree of speculation, particularly in view of the constantly evolving situation as regards the treatment of HIV and AIDS worldwide. Concluding that the applicant’s case did not disclose “very exceptional circumstances”, the Court found that the implementation of the decision to remove her to Uganda would not give rise to a violation of Article 3. Article 8 The Court held, by 14 votes to three, that it was not necessary to examine the applicant’s complaint under Article 8. Judges Tulkens, Bonello and Speilmann expressed a joint dissenting opinion, which is annexed to the judgment.

Parties: N. c/ Regno Unito

Classification: Dignity - Art. 4 Inhuman punishments - Degrading punishments - Inhuman treatments - Degrading treatments