CASE OF PAPOSHVILI v. BELGIUM
Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Georgia);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Georgia);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Georgia)
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Mark Villiger;Paul Lemmens
6. The applicant was born in 1958 and lives in Brussels. 7. He arrived in Belgium via Italy on 25 November 1998, accompanied by his wife and the latter’s six-year-old child. The couple had a child together in August 1999 and another in July 2006. 8. On 29 December 1998 the applicant was arrested and taken into custody in connection with an offence of theft. On 14 April 1999 he was sentenced to seven months’ imprisonment, which was suspended except for the period of pre-trial detention. 9. In 1999 and 2000 the applicant and his wife were arrested on several occasions in connection with theft offences. 10. On 28 April 2000 the applicant’s wife was sentenced to four months’ imprisonment for theft. 11. On 18 December 2001 the applicant was convicted of a number of offences including robbery with violence and threats, and was sentenced to fourteen months’ imprisonment, which was suspended except for the period of pre-trial detention. 12. On 9 November 2005 the applicant was sentenced by the Ghent Court of Appeal to three years’ imprisonment for involvement in a criminal organisation with a view to securing pecuniary advantage using intimidation, deception and corruption. 13. Having already spent time in pre-trial detention, he was subsequently detained in Forest Prison and then in Merksplas Prison, where he continued to serve his sentence until August 2007. 14. On 26 November 1998, the day after their arrival, the applicant and his wife lodged an asylum application. 15. When interviewed in connection with her asylum claim, the applicant’s wife stated that she had travelled through Germany. 16. A request to take back the applicant and his family was sent to the German authorities under the Dublin Convention of 15 June 1990 determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (“the Dublin Convention”). 17. After the German authorities refused the request, it transpired that the applicant and his family were in possession of a Schengen visa issued by the Italian authorities. A request to take charge of them was therefore sent to the Italian authorities and was accepted on 4 June 1999. 18. On 22 September 1999 the applicant lodged a further asylum application, using a false identity. It was immediately rejected after his fingerprints were checked. 19. On 23 October 2000 the Aliens Office informed the applicant’s lawyer that the proceedings concerning the asylum application of 26 November 1998 had been concluded on 11 June 1999 with the refusal of the application. 20. On 20 March 2000 the applicant lodged a first request for regularisation for a period exceeding three months, on the basis of section 9(3) (current section 9bis) of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”). In support of his request, the applicant stated that he and his wife had a daughter born in 1999 and that his wife already had a daughter born in Georgia from a previous relationship. 21. On 30 March 2004 the Aliens Office declared the request devoid of purpose as the applicant had left the country and been intercepted in Germany. It found that the request was in any case unfounded in view of the fact that the applicant’s medical treatment for tuberculosis had ended (see paragraphs 59 and 60 below). The Aliens Office also referred to the applicant’s lack of integration in Belgium and the numerous breaches of public order he had committed. 22. On 28 April 2004 the applicant lodged a second request for regularisation of his residence status on the basis of section 9(3) of the Aliens Act. He cited as exceptional circumstances in support of his request the duration of his residence in Belgium and his integration into Belgian society, the risks that a return to Georgia would entail for his children’s schooling, the fact that he had been the victim of persecution and his state of health. 23. The Aliens Office rejected the regularisation request on 5 April 2007 on the ground that the evidence adduced did not amount to exceptional circumstances for the purposes of section 9(3) of the Act such as to warrant the lodging of the request in Belgium rather than with the competent diplomatic mission or consulate, as was the rule. The Aliens Office noted that the applicant had been allowed to remain in the country for the sole purpose of the asylum proceedings, which had been concluded by a final decision. It also cited as reasons the lack of any need for medical treatment, the applicant’s precarious and unlawful residence status, the absence of a risk of persecution in Georgia and the possibility for the children to continue their schooling in that country. 24. In a judgment of 29 February 2008 the Aliens Appeals Board rejected the application to set aside the Aliens Office’s decision. The Board noted that since the decision in question had not been accompanied as such by an expulsion order, it could not give rise to a risk of violation of Article 3 of the Convention. 25. On 10 September 2007, relying on Articles 3 and 8 of the Convention and alleging, in particular, that he would be unable to obtain treatment for his leukaemia (see paragraphs 62 and 63 below) if he were deported to Georgia, the applicant lodged a first request for regularisation on medical grounds on the basis of section 9ter of the Aliens Act. 26. On 26 September 2007 the Aliens Office refused the request on the ground that, under section 55/4 of the Act, the applicant was excluded from its scope of application on account of the serious crimes which had given rise in the meantime to a ministerial deportation order issued on 16 August 2007 (see paragraph 43 below). 27. On 17 December 2007 the applicant lodged a request under the ordinary procedure for a stay of execution of that decision together with an application to set aside. He alleged in particular that the Aliens Office had referred exclusively to the ministerial deportation order in finding that section 9ter of the Aliens Act was not applicable in his case, without investigating his state of health or the risk he ran of being subjected to treatment contrary to Article 3 of the Convention, and without weighing up the interests at stake as required by Article 8 of the Convention. 28. In a judgment of 20 August 2008 the Aliens Appeals Board dismissed the applicant’s claims in the following terms: “It is clear from the wording of [section 9ter] that there is nothing to prevent the administrative authority, when dealing with a request for leave to remain on the basis of the above-mentioned section 9ter, from ruling immediately on the exclusion of the person concerned from the scope of application of the said section 9ter without first taking a decision on the medical evidence submitted to it, if it considers at the outset that there are substantial grounds for believing that the person concerned has committed any of the acts referred to in section 55/4, cited above. The examination of that evidence would be superfluous in such a situation since the person responsible for taking the decision has in any event already decided that section 9ter should not apply. ... As regards the alleged violation of Article 3 of the Convention, it should be observed that the decision complained of in the present application is not accompanied by any expulsion order, with the result that the alleged risk of discontinuation of treatment in the event of the applicant’s deportation to Georgia is hypothetical.” 29. The Aliens Appeals Board also dismissed the complaint under Article 8 of the Convention in view of the fact that the impugned decision was not accompanied by any expulsion order. 30. On 10 September 2007, relying on the same grounds as those invoked under section 9ter of the Aliens Act (see paragraph 27 above) and on his family situation, the applicant lodged a request for regularisation on grounds of exceptional circumstances under section 9bis of the Aliens Act. 31. On 7 July 2010 the Aliens Office refused the request for regularisation, taking the view that the protection of the State’s best interests took precedence over the applicant’s social and family interests and that by committing serious punishable acts the applicant himself had placed his family’s unity in jeopardy. That decision was served on the applicant on 11 July 2010. 32. On 26 July 2010 the applicant lodged a request with the Aliens Appeals Board under the ordinary procedure for a stay of execution of the refusal decision of 7 July 2010, together with an application to have the decision set aside (Aliens Appeals Board case no. 57.444). In so far as necessary, the application also related to the order to leave the country issued on the same date (see paragraphs 48 to 51 below). The applicant alleged a violation of Articles 2 and 3 of the Convention and argued that his serious health problems amounted to exceptional humanitarian circumstances as defined by the Court in D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997III), that he would not have access to treatment in Georgia and that the withdrawal of treatment would lead to his premature death. He further alleged an infringement of Article 8 of the Convention and of the International Convention on the Rights of the Child, on the ground that if he were deported to Georgia he would be separated from his family permanently. 33. A hearing was held on 16 November 2010. On 31 May 2011 the Aliens Appeals Board ordered a fresh hearing to enable the parties to update the factual and legal evidence in the case. A hearing was scheduled for 17 November 2011 but was cancelled on 10 November 2011. 34. According to the information in the case file these proceedings are still pending before the Aliens Appeals Board. 35. In the meantime, on 2 April 2008, the applicant had lodged a second request for regularisation on medical grounds on the basis of section 9ter of the Aliens Act. In addition to his various medical problems he referred to the fact that he had been continuously resident in Belgium for eleven years and had lasting social ties in that country, and to his family situation. He also argued that if he was sent back he would be left to fend for himself while ill in a country in which he no longer had family ties and where the medical facilities were unsuitable and expensive. 36. The request was refused by the Aliens Office on 4 June 2008 for the same reason it had cited previously (see paragraph 26 above). 37. On 16 July 2008 the applicant lodged an application with the Aliens Appeal Board to have that decision set aside (Aliens Appeals Board case no. 29.316). 38. According to the information in the file those proceedings are currently pending. 39. On 10 June 1999, on the grounds that the Belgian authorities did not have responsibility under the Dublin Convention for examining the asylum application, the Aliens Office issued an order for the applicant and his wife to leave the country with a view to their transfer to Italy. However, their departure was postponed because the applicant’s wife was pregnant. 40. After the birth, the family was granted leave to remain until 14 October 1999 because the new-born baby was in hospital. Their leave to remain was subsequently extended until 15 March 2000 on the ground that the child needed regular supervision by a paediatric gastroenterologist. 41. The time-limit for enforcement of the order to leave the country was extended several times during the first half of 2000 because of the need to treat the applicant’s tuberculosis (see paragraphs 59 and 60 below) and the six-month course of anti-tubercular treatment required by the whole family. 42. On 23 October 2000 the Aliens Office informed the applicant’s lawyer that the time-limit had been extended until the applicant and his child had made a full recovery. 43. On 16 August 2007, in a deportation order issued under section 20 of the Aliens Act, the Minister of the Interior directed the applicant to leave the country and barred him from re-entering Belgium for ten years. The order referred to the applicant’s extensive criminal record, allied to the fact that “the pecuniary nature of the offences demonstrate[d] the serious and ongoing risk of further breaches of public order”. 44. The order became enforceable on the date of the applicant’s release but was not in fact enforced because the applicant was undergoing medical treatment at the time (see paragraph 63 below). 45. The applicant, who was in hospital, did not contact his lawyer in order to lodge an application to have the ministerial order set aside. However, on 15 November 2007 the lawyer lodged an application on his own initiative. 46. In a judgment of 27 February 2008 the Aliens Appeals Board rejected the application as being out of time. 47. In the meantime, as the applicant was about to finish serving the prison sentence imposed in 2005, he had been transferred on 14 August 2007 to Bruges Prison with a view to enforcement of the ministerial deportation order. He remained there until 27 March 2010, when he was transferred to Merksplas Prison. 48. In parallel with its decision of 7 July 2010 refusing the applicant’s request for regularisation on grounds of exceptional circumstances (see paragraph 31 above), the Aliens Office on 7 July 2010 issued an order for him to leave the country, together with an order for his detention. These were served on the applicant on 11 July 2010. 49. Also on 7 July 2010 it was decided that the applicant should be transferred on 11 July to the Merksplas closed facility for illegal aliens with a view to his expulsion to Georgia. 50. On 16 July 2010 the Georgian embassy in Brussels issued a travel document valid until 16 August 2010. 51. As stated above (paragraph 32), the applicant lodged a request with the Aliens Appeals Board on 26 July 2010 under the ordinary procedure for a stay of execution of the refusal decision of 7 July 2010, together with an application to have the decision set aside. In so far as necessary, the application also related to the order to leave the country issued on the same date (Aliens Appeals Board case no. 57.444). According to the information in the file those proceedings are still pending (see paragraph 34 above). On the same day the applicant also lodged a request under the ordinary procedure for a stay of execution and an application to set aside, directed specifically against the aforementioned order to leave the country dated 7 July 2010 (Aliens Appeals Board case no. 57.447). Those proceedings are likewise still pending. 52. On 30 July 2010, two days after the indication by the Court of an interim measure (see paragraph 57 below), an order was made for the applicant’s release and he was given until 30 August 2010 to leave the country voluntarily. 53. In a letter dated 30 August 2010 the applicant’s lawyer applied for an extension of the time-limit for enforcement of the order to leave the country. The time-limit was extended initially until 13 November 2010 and was subsequently extended several times until 28 February 2011. 54. The applicant continued to make regular requests for extension but received no reply. 55. On 18 February 2012 the Aliens Office issued an order to leave the country “with immediate effect” on the basis of the ministerial deportation order of 16 August 2007. 56. On 23 July 2010 the applicant applied to the Court for an interim measure under Rule 39 of the Rules of Court. Relying on Articles 2, 3 and 8 of the Convention, he alleged that if he were expelled to Georgia he would no longer have access to the health care he required and that, in view of his very short life expectancy, he would die within an even shorter period of time, far removed from his family. 57. On 28 July 2010 the Court indicated to the Belgian Government that it was desirable, in the interests of the parties and the proper conduct of the proceedings before the Court, to suspend enforcement of the order for the applicant to leave the country issued on 7 July 2010 “pending the outcome of the proceedings before the Aliens Appeals Board”. 58. In August 1999 the applicant’s wife gave birth to a child. 59. In 2000 the applicant was diagnosed with “active pulmonary tuberculosis responding to antibiotic treatment”. 60. The applicant continued to be treated for his tuberculosis and received emergency medical assistance and social welfare assistance for that purpose. 61. In July 2006 the applicant’s wife gave birth to their second child. 62. In 2006, while the applicant was in prison (see paragraphs 12 and 13 above), he was diagnosed with hepatitis C and chronic lymphocytic leukaemia (CLL) in Binet stage B, with a very high level of CD38 expression (a marker associated with a poor prognosis and a risk of progression of the disease). No treatment was commenced. 63. As his health had deteriorated, the applicant was admitted to the Bruges prison hospital complex from 14 August to 23 October 2007 in order to receive a course of treatment based on Leukeran (Chlorambucil). 64. During his time in Bruges Prison from 14 August 2007 to 27 March 2010 (see paragraph 47 above) the applicant received visits on an almost daily basis from his wife and/or his children. Merksplas Prison, to which he was subsequently transferred and where he remained until 11 July 2010 (see paragraphs 47 and 49 above), informed the applicant that they did not have a record of the number of visits he had received. 65. A report prepared on 11 February 2008 by Antwerp University Hospital, where the applicant was being treated, stated that his condition was life-threatening and that, on the basis of the averages observed in 2007, his life expectancy was between three and five years. The report stated that, following treatment, his white blood cell count had fallen from 110,300/mm3 with 97 % lymphocytes in August 2007 to 28,900/mm3 with 83 % lymphocytes in January 2008. 66. During 2008 the applicant’s tuberculosis was found to have become active again. 67. From 8 to 14 May 2010 the applicant was confined to hospital in Turnhout with respiratory problems. The medical report concerning his stay prescribed antibiotics and bronchodilators. It also noted an increase in his white blood cell count to 72,440 mm3, with 85% lymphocytes, and the progression of the applicant’s other conditions. It recommended that the applicant be treated as an outpatient by a lung specialist and a haematologist. This treatment did not materialise on his return to Merksplas Prison, where he was being held. 68. On 22 July 2010 a doctor from Antwerp University Hospital visited the applicant in the Merksplas closed facility, to which he had been transferred in the meantime, in order to carry out a full medical check-up. The doctor’s report noted that the treatment administered for the applicant’s lung disease was insufficient. It went on to note that the applicant had not received adequate medical care for his leukaemia, which was progressing rapidly towards Binet stage C, and that his treatment needed to be switched to chemotherapy combining Fludarabine and Cyclophosphamide. Lastly, the doctor observed that no medical examination had been carried out in connection with the applicant’s hepatitis C. He recommended that the applicant be admitted to hospital for urgent tests and treatment. The report was forwarded to the Aliens Office. 69. In a fax dated 28 July 2010 the doctor attached to the Merksplas facility for illegal aliens expressed the view that the applicant required specialised treatment which could not be provided within the closed facility. The doctor therefore recommended that he be released on medical grounds. 70. On 30 July 2010 the applicant was released (see paragraph 52 above). 71. On 12 September 2012 a doctor from the haematology department of St Pierre University Hospital in Brussels (“the University Hospital”), where the applicant was being treated following his release, drew up a certificate which stated as follows: “... D. Possible complications if treatment is discontinued. Failure to treat the liver and lung disease could result in organ damage and ensuing disorders (respiratory insufficiency, cirrhosis and/or liver cancer). Without treatment, the CLL could lead to the patient’s death as a result of the disease itself or the effects of serious infections. A return to Georgia would expose the patient to inhuman and degrading treatment. E. Progression and prognosis Chronic lymphocytic leukaemia (CLL): good if treated, but the risk of relapse is real so that close monitoring is required even during remission. Chronic obstructive pulmonary disease (COPD): stabilisation if treated. Hepatitis C: good prognosis if patient responds to treatment. ... F. Specific needs Regular biological and radiological monitoring in a specialised facility. Chemotherapy centre.” 72. The applicant was requested to report to the Aliens Office’s medical service on 24 September 2012 for a medical check-up and to enable the Belgian authorities to “reply to the Court’s questions”. 73. The report prepared by the medical adviser on that occasion listed the consultations held and the treatment, in particular chemotherapy, undertaken since the applicant’s release in July 2010. It stated that the leukaemia had stabilised after several cycles of chemotherapy and was being monitored closely, that the applicant was receiving medical care for his lung disease and that his treatment consisted of Zovirax to prevent herpes, Pantomed to prevent gastric problems and Flixotide, an antiinflammatory corticosteroid. 74. Referring to the Court’s judgment in the case of N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008), the report concluded as follows: “On the basis of this medical file it cannot ... be said that the threshold of severity required by Article 3 of the Convention, as interpreted by the Court, has been reached .... It appears from the file that the diseases to which the medical certificates refer ... are not directly life-threatening. The conditions from which the applicant suffers are serious and potentially fatal but are currently under control. None of the patient’s vital organs is in a condition that presents a direct threat to his life. His hepatitis C is not currently causing any cirrhosis. The pulmonary disease is controlled by the treatment, consisting solely of an inhaled corticosteroid. The patient’s haematological disorder is currently stable. The lymph nodes are no longer swollen and the patient’s haemolytic anaemia is resolved. Chemotherapy has been discontinued for the time being. ... Neither monitoring of the patient’s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient’s survival. The disease cannot be considered at present to be in the terminal stages. ... The patient is close to Binet stage A at present. His chronic obstructive pulmonary disease is also currently under control.” 75. On 5 November 2009 the applicant’s wife lodged a request for regularisation on the basis of section 9bis of the Aliens Act (exceptional circumstances), relying on her family situation and the length of her residence in Belgium. 76. On 29 July 2010 she and her three children were granted indefinite leave to remain.