CEDH · CASELAW;CLIN;ENG — 1 octobre 2019

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Denmark - 57467/15 Judgment 1.10.2019 [Section IV] Article 3 Expulsion Proposed deportation of person suffering from serious mental illness without assurances from his State of origin as to the availability of supervision to accompany intensive outpatient therapy: expulsion would constitute a violation [This case was referred to the Grand Chamber on 27 January 2020] Facts – The applicant, a Turkish national diagnosed with paranoid schizophrenia, entered Denmark in 1991 when he was six years old. In 2007 he was convicted of assault under highly aggravating circumstances, which had caused the death of a man. He was sentenced to committal to a secure unit of a residential institution for the severely mentally impaired for an indefinite period and was made subject to an expulsion order. In 2014 the City Court held that, regardless of the nature and gravity of the crime committed, the applicant’s health made it conclusively inappropriate to enforce the expulsion order. In 2015 that decision was reversed by the High Court and the applicant was subsequently refused leave to appeal. Law – Article 3: The High Court had concluded that the applicant would have access to the medical treatment he required upon his return to Turkey. It had noted that the psychiatric treatment would be available at public hospitals and from private healthcare providers who had concluded an agreement with the Turkish Ministry of Health. According to information the High Court had obtained, the applicant would be eligible to apply for free or subsidised treatment and Kurdish-speaking staff would be available to assist him. The High Court had found that the fact that the applicant was aware of his disease and the importance of adhering to his medical treatment and taking the drugs prescribed would not make his removal conclusively inappropriate. The Court observed, however, that according to the applicant’s psychiatrist, the applicant’s awareness of his illness would not suffice to avoid a relapse; it was essential that he also had regular supervision. In the light of the statements made by two consultant psychiatrists during the proceedings which insisted on the necessity of a follow-up and control in connection with intensive outpatient therapy, it was noteworthy that the High Court, in contrast to the City Court, had not developed on that issue. The existence of a social and family network was also one of the important elements to take into account when assessing whether in practice an individual had access to medical treatment. The applicant had maintained that he had no family or other social network in Turkey. Although recognising that there was no medical information pointing to the importance of a family network as part of the applicant’s treatment, the Court could not ignore that the applicant was suffering from a serious and long-term mental illness, namely paranoid schizophrenia, and permanently needed medical and psychiatric treatment. To return him to Turkey, where he had no family or other social network, would unavoidably cause him additional hardship, and make it even more crucial that he be provided with the necessary follow-up and control in connection with intensive outpatient therapy. The Court reiterated in that respect, inter alia , that according to the psychiatric reports, the applicant had been prescribed a complex course of treatment, which had to be followed carefully. Antipsychotic medication had to be administered on a daily basis, which was deemed to constitute a risk of pharmaceutical failure and which consequently could lead to a worsening of the applicant’s psychotic symptoms and thus a greater risk of aggressive behaviour. Therefore, a follow-up and control scheme was essential for the applicant’s psychological outpatient therapy and for the prevention of any degeneration of his immune system, a potential side effect of his medication. For that reason he would, at least, need assistance in the form of a regular and personal contact person. The Danish authorities ought to have assured themselves that, upon his return to Turkey, such assistance would have been available to the applicant. Accordingly, although the threshold for the application of Article 3 was high in cases concerning the removal of aliens suffering from serious illness, the Court shared the concern expressed by the City Court that it was unclear whether the applicant had a real possibility of receiving the relevant psychiatric treatment, including the necessary follow-up and control in connection with intensive outpatient therapy, if returned to Turkey. That uncertainty raised serious doubts as to the impact of removal on the applicant. When such serious doubts persisted, the returning State had to either dispel such doubts or obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment would be available and accessible to the persons concerned so that they did not find themselves in a situation contrary to Article 3. Conclusion : expulsion without the Danish authorities having obtained individual and sufficient assurances would constitute a violation (four votes to three). (See also Paposhvili v. Belgium [GC], 41738/10, 13 December 2016, Information Note 202 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes