EGMR

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Zitieren als:
EGMR, Entscheidung vom 27.05.2008 - 26565/05, N. gg. Großbritannien - asyl.net: M13624
https://www.asyl.net/rsdb/M13624
Leitsatz:

Die Abschiebung eines Ausländers, der an einer schweren psychischen oder physischen Krankheit (hier: Aids) leidet, stellt nur in Ausnahmefällen eine Verletzung von Art. 3 EMRK dar; allein die Verschlechterung der Lebenssituation und der Lebenserwartung stellt keine Verletzung von Art. 3 EMRK dar.

Schlagwörter: Uganda, Abschiebungshindernis, zielstaatsbezogene Abschiebungshindernisse, Europäische Menschenrechtskonvention, menschenrechtswidrige Behandlung, Krankheit, psychische Erkrankung, HIV/Aids, medizinische Versorgung
Normen: EMRK Art. 3
Auszüge:

Die Abschiebung eines Ausländers, der an einer schweren psychischen oder physischen Krankheit (hier: Aids) leidet, stellt nur in Ausnahmefällen eine Verletzung von Art. 3 EMRK dar; allein die Verschlechterung der Lebenssituation und der Lebenserwartung stellt keine Verletzung von Art. 3 EMRK dar.

(Leitsatz der Redaktion)

42. In summary, the Court observes that since D. v. the United Kingdom it has consistently applied the following principles.

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 the 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 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. In the D. case the very exceptional circumstances were that 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.

43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D. v. the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.

44. Although many of the rights it contains have implications of a social or economic nature, the Convention is essentially directed at the protection of civil and political rights (Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 26). Furthermore, inherent in the whole of the Convention is 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 (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, § 89). Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the Contracting State and the country of origin may vary considerably. While it is necessary, given the fundamental importance of Article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Article 3 does 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.

45. Finally, the Court observes that, although the present application, in common with most of those referred to above, is concerned with the expulsion of a person with an HIV and AIDS-related condition, the same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant's country of origin or which may be available only at substantial cost.

4. Application of the above principles to the present case

46. The Court observes at the outset that, although the applicant applied for, and was refused, asylum in the United Kingdom, she does 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 is based solely on her serious medical condition and the lack of sufficient treatment available for it in her home country.

48. According to information collated by the World Health Organisation (see paragraph 19 above), antiretroviral medication is available in Uganda, although through lack of resources it is received by only half of those in need. The applicant claims 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 comes. It appears that she has family members in Uganda, although she claims that they would not be willing or able to care for her if she were seriously ill.

49. The United Kingdom authorities have provided the applicant with medical and social assistance at public expense during the nine-year period it has taken for her asylum application and claims under Articles 3 and 8 of the Convention to be determined by the domestic courts and this Court. However, this does not in itself entail a duty on the part of the respondent State to continue so to provide for her.

50. The Court accepts that the quality of the applicant's life, and her life expectancy, would be affected if she were returned to Uganda. The applicant is not, however, at the present time 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, must involve a certain degree of speculation, particularly in view of the constantly evolving situation as regards the treatment of HIV and AIDS worldwide.

Joint dissenting opinion of Judges Tulkens, Bonello and Spielmann

1. We do not agree with the Court's finding that there would be no violation o Article 3 of the Convention in the event of the applicant's removal to Uganda.

3. A thorough analysis of the domestic courts' decisions leads us to the conclusion that there are substantial grounds for believing that the applicant faces a real risk of prohibited treatment in her home country. Moreover, this case is indeed one of exceptional gravity meeting the "very exceptional circumstances" test as laid down in D. v. the United Kingdom (D. v. the United Kingdom, judgment of 2 May 1997, Reports of Judgments and Decisions 1997-III).

4. But before turning to the facts of the case, we would like to make four remarks as to the general principles of the Court's case-law which, in our view, have been wrongly appraised by the majority. We would then like to propose our alternative dissenting view.

5. Firstly, we would stress that we cannot share the view expressed by the majority that the Court should maintain its high threshold "given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of adequate resources to deal with it in the receiving country" (paragraph 43).

6. Secondly, and most regrettably, in paragraph 44 the Court adds worrying policy considerations based on an incomplete statement that the Convention is essentially directed at the protection of civil and political rights, thus ignoring the social dimension of the integrated approach adopted by the Court, specifically in Airey v. Ireland (Airey v. Ireland, judgment of 9 October 1979, Series A no. 32. See most notably, Sidabras and Dziautas v. Lithuania, nos. 55480/00 and 59330/00, ECHR 2004-VIII) and in more recent case-law For an analysis of this judgment and as to the "permeability" of human rights norms see, Virginia Mantouvalou, (2005) 30 European Law Review, 573-585. For an analysis of the moral justification for protection of socio-economic rights, see J. Waldron, "Liberal Rights: Two Sides of the Coin", in Waldron, Liberal Rights – Collected Papers 1981-1991 (Cambridge: Cambridge University Press), 1993, p. 1 at 4-17, quoted by Mantouvalou, op. cit.): ...

7. Thirdly, we also strongly disagree with the highly controversial statement made by the majority in paragraph 44 of the judgment in the context of the non-derogable right of Article 3, that "...inherent in the whole of the Convention is 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."

8. Fourthly, and in contrast with what the majority say, we would like to add that in this case the claim has not been articulated that Article 3 does "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" (paragraph 44).

However, the view expressed by the majority that such a finding "would place too great a burden on the Contracting States" (paragraph 44 in fine), reflects the real concern that they had in mind: if the applicant were allowed to remain in the United Kingdom to benefit from the care that her survival requires, then the resources of the State would be overstretched. Such a consideration runs counter to the absolute nature of Article 3 of the Convention and the very nature of the rights guaranteed by the Convention that would be completely negated if their enjoyment were to be restricted on the basis of policy considerations such as budgetary constraints. So does the implicit acceptance by the majority of the allegation that finding a breach of Article 3 in the present case would open up the floodgates to medical immigration and make Europe vulnerable to becoming the "sick-bay" of the world. A glance at the Court's Rule 39 statistics concerning the United Kingdom shows that, when one compares the total number of requests received (and those refused and accepted) as against the number of HIV cases, the so-called "floodgate" argument is totally misconceived (June to December 2005).