RAMADAN & AHJREDINI v. THE NETHERLANDS
Inadmissible
The applicants, Mr Heyridin Ramadan and Mrs Sevdie Ramadan-Ahjedini, are husband and wife. They originate from what is now the Former Yugoslav Republic of Macedonia (“the FYR of Macedonia”) and are of ethnic Albanian origin. They were born in 1957 and 1966 respectively and live in Huizen. They introduced the application also on behalf of their daughter Djemile Ramadan, born in 1991, and their son Enes Ramadan, born in 1995. They are represented before the Court by Mr P.B.Ph.M. Bogaers, a lawyer practising in Nieuwegein. The respondent Government are represented by Mr R.A.A. Böcker and Mrs J. Schukking of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants, accompanied by their daughter Djemile, arrived in the Netherlands on 12 December 1992. They applied for asylum on 21 December 1992. In an interview with an immigration official on 7 July 1993 they stated, inter alia, that their parents and siblings were living in the FYR of Macedonia. On 6 April 1994 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the asylum application and informed the applicants that they would not be allowed to await the decision on any objection (bezwaar) they might lodge. The applicants lodged an objection and also requested the Regional Court (arrondissementsrechtbank) of The Hague, sitting in Haarlem, to issue a provisional measure in order for them to be allowed to await the outcome of their objection in the Netherlands. The President of the Regional Court rejected the applicants’ request on 18 November 1994. From that moment on, the applicants were no longer authorised to stay in the Netherlands. However, no action was taken to expel them. On 10 April 1995 the applicants’ son Enes was born. The Deputy Minister dismissed the objection against the refusal of the applicants’ request for asylum. The appeal against that decision was rejected by the Regional Court of The Hague sitting in Haarlem on 29 May 1997. No further appeal lay against this judgment. In a letter of 3 July 1997 the applicants’ lawyer requested the Deputy Minister to seek advice from the Ministry of Justice’s Medical Advice Bureau (Bureau Medische Advisering; “MAB”) in order to see whether the medical situation of the applicants and Enes should not lead to their expulsion being deferred in accordance with Article 25 of the Aliens Act 1965 (Vreemdelingenwet 1965). The lawyer referred to a letter of 30 June 1997 from the applicants’ general practitioner according to which – due to the tense and insecure situation in which they had found themselves in recent years – the applicants were experiencing difficulties in dealing with Enes, who was a difficult baby. A return to their country of origin meant that the applicants, for the time being, would not be capable of looking for different ways of dealing with Enes which, in these critical years, would entail consequences for the rest of his life. The Deputy Minister informed the applicants that she perceived no cause to consult the Medical Advice Bureau. The applicants lodged an objection against the Deputy Minister’s refusal, which was declared inadmissible. The applicant’s subsequent appeal and request for a provisional measure were rejected by the Acting President of the Regional Court of The Hague, sitting in Haarlem, on 27 March 1998. The Acting President held that, as long as the applicants were not actually being expelled, the refusal of the Deputy Minister did not affect their interests. No further appeal lay against this decision. In a letter of 29 May 1998 to the applicants’ lawyer, a psychiatrist working at the Regional Institute for Outpatient Mental Health Care (Regionale Instelling voor Ambulante Geestelijke Gezondheidszorg – “RIAGG”), wrote that both applicants were suffering from an adjustment disorder. Although the applicants’ daughter Djemile was doing reasonably well, a forced return to the country of origin might, especially for her, lead to serious psycho-traumatic consequences. On 25 February 1999 the applicants lodged a request for a residence permit on compelling humanitarian grounds or, alternatively, for the purposes of receiving medical treatment in the Netherlands. When, on 13 December 1999, the Deputy Minister had still not taken a decision, the applicants filed an objection against the implied refusal (fictieve weigering) of their request. In early 2000 the second applicant underwent an operation for a slipped disc. In view of her long case history, the neurologist treating her considered it likely that she would continue to have an increased vulnerability to physical and psychological violence. The neurologist was of the opinion that a forced return of the second applicant to the FYR of Macedonia, where such a situation pertained, might lead to her becoming physically disabled. A report dated 22 April 2000 from the Medical Advice Bureau concluded that both applicants were suffering from an adjustment disorder. The first applicant had emotional and behavioural problems and the second applicant was suffering from anxiety and depression. The applicants had initially been treated by a RIAGG psychiatrist and subsequently by their general practitioner. To the best of the Medical Advice Bureau’s knowledge, the applicants were not receiving specialist treatment at the time of the report. The medical conditions from which the applicants were suffering could be treated in their country of origin in more or less the same way as in the Netherlands. The Medical Advice Bureau further stated that a failure to provide immediate treatment to either of the applicants would not lead to an acute medical emergency (a situation where a person is suffering from a disorder which in its pertaining phase, if not treated immediately, would lead to death, invalidity or another form of serious psychological and/or physical harm). Neither applicant required intensive psychiatric or in-patient treatment, and they showed no symptoms of psychological decompensation or obsessive-compulsive suicidal tendencies. The longer term consequences of a failure to provide treatment would probably be the applicants’ being afflicted for longer and/or more seriously compared with the situation in which they received counselling. It could not be excluded that in the longer term a medical emergency might arise. In a letter of 12 July 2000, the RIAGG psychiatrist informed the applicants’ lawyer that, to his consternation, he had found that the psychological state of health of both applicants and their children had seriously deteriorated since he had last examined them in 1998. This had been caused by the chronic uncertainty with which the applicants had been confronted since 1992. The first applicant was suffering from a depression with psychotic characteristics, and the second applicant from a depressive disorder. Both required immediate and continuing specialist help, which would be provided by a psychiatric nurse and the psychiatrist in the form of consultations and medication. On 14 July 2000 the applicants’ general practitioner confirmed that the situation of, in particular, the first applicant had deteriorated. He was currently so frantic that the doctor feared the worst if he were to be expelled. The doctor further thought it likely that the first applicant would attempt to evade expulsion, if necessary through suicide. Should the first applicant nevertheless reach the FYR of Macedonia, it was doubtful that adequate help would be available there. The Deputy Minister transmitted the information from the RIAGG psychiatrist and the general practitioner to the Medical Advice Bureau. By letter of 9 August 2000 the Medical Advice Bureau commented on the new information. While conceding that the applicants’ condition had deteriorated, it concluded that there was no reason to amend the earlier recommendations and it was still felt that the applicants could be treated in their country of origin. As regards the possibility of the first applicant committing suicide, the Medical Advice Bureau noted that this was not related to the discontinuation of treatment but to a negative decision on his request and return to his country of origin. The Medical Advice Bureau further provided information on the system of health care in the FYR of Macedonia, which was stated as being well-developed, although a person’s ethnic origin did play a role when it came to the question of availability of health care. Anti-depressants could be obtained from private pharmacies (at a fairly high price) and from state hospitals, albeit that stocks were running low in the latter establishments and anti-depressants were therefore only used to treat serious cases. Treatment for various psychological disorders was said to be available, with psychotherapy commonly used as a treatment modality. A hearing on the applicants’ objection took place on 23 March 2001. On this occasion the applicants submitted, inter alia, that regard should also be had to the fact that they had been living in the Netherlands for eight years and to the effects which an expulsion would have on their minor children who were going to school in the Netherlands. In a letter of 27 March 2001 to the applicants’ representative, the psychiatric nurse treating them reported a further deterioration of their psychological situation. The applicants were being treated in accordance with a PTSD-protocol. It was expected that their complaints would deteriorate if they had to return to their country of origin. The second applicant was quoted as saying she would prefer to be dead in that case. On 1 June 2001 the Deputy Minister upheld the applicants’ objection in so far as it was directed against the failure to decide in a timely fashion on the request for a residence permit, but dismissed the objection for the remainder. Noting that according to the Medical Advice Bureau, treatment for the applicants’ medical and psychological complaints was available in the FYR of Macedonia, the Deputy Minister found that the applicants were ineligible for a residence permit for the purpose of receiving medical treatment in the Netherlands, since it could not be said that the latter country was the most appropriate country (het meest aangewezen land) for the applicants to receive such treatment. The applicants also did not have sufficient financial means to pay for treatment and neither did they hold valid passports. The Deputy Minister further considered that the applicants had failed to establish that compelling reasons of a humanitarian nature existed, on the basis of which they should be granted a residence permit. The applicants appealed this decision to the Regional Court of The Hague, sitting in Amsterdam, submitting, inter alia, that the Medical Advice Bureau had not itself examined the applicants but had based its conclusions on information obtained from others. Furthermore, the applicants maintained that treatment would not be available to them in the FYR of Macedonia, not in the last place because they were ethnic Albanians. The Regional Court rejected the appeal on 16 June 2003, finding that the Minister for Immigration and Integration (Minister voor Immigratie en Integratie; the successor of the Deputy Minister of Justice) could reasonably have refused the requested residence permits. The applicants lodged a further appeal with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State; “the Division”). In these proceedings they argued that there was no question of there being available in the FYR of Macedonia treatment more or less similar to that provided in the Netherlands. In this context the applicants submitted a number of reports from which they concluded that the health-care system in the FYR of Macedonia had fallen below western-European standards in recent years due to the conflict in the Balkans. Treatment of psychological disorders only took place in the form of medication. According to a report drawn up in October 2002 by the Swiss Refugee Council, there were barely adequate therapy possibilities for the treatment of post-traumatic stress disorders. Moreover, the national system of health insurance was only open to officially registered nationals of the FYR of Macedonia. According to the applicants, they were unable to obtain the nationality of the FYR of Macedonia as they did not comply with certain requirements. Nevertheless, even insured persons generally needed to resort to bribery in order to obtain specialist treatment. The applicants concluded that an expulsion to the FYR of Macedonia, where they would arrive penniless and without employment and where they would not have access to any kind of treatment of their psychological problems, constituted degrading or inhuman treatment in breach of Article 3 of the Convention. Finally, the applicants argued that the physicians working at the Medical Advice Bureau were not independent specialists, as was illustrated by the fact that this Bureau had completely misjudged the situation in the FYR of Macedonia. The Division rejected the further appeal on 30 September 2003, holding that the Regional Court had been correct in finding that the fact that treatment methods in the FYR of Macedonia were different than in the Netherlands did not mean that no treatment was available in the FYR of Macedonia. The reports submitted by the parties for the first time in the proceedings before the Division could not lead to their further appeal being upheld, as the Regional Court had not been able to have regard to the information contained therein. The applicants’ complaint to the effect that the question whether or not they would have access to health care facilities in the FYR of Macedonia had not been addressed by the Minister was also rejected, as the Division held that this issue must be assumed to have played a role in the starting points of the Minister’s policy. Moreover, the applicants were found to have failed to substantiate their complaint that the advice of the Medical Advice Bureau was not objective. Finally, the Division held that it could not examine the applicants’ argument relating to their inability to obtain the nationality of the FYR of Macedonia as this argument had not been raised by them in the proceedings before the Regional Court. In an e-mail message of 9 October 2003 from the Officer of International Affairs of the (Netherlands-based) Pharos Knowledge Centre for Refugees and Health, the applicants’ representative was informed that in the FYR of Macedonia psychological problems were mainly treated with medication. In a letter of 11 November 2003 from a RIAGG physician to the applicants’ representative, the first applicant was described as utterly desperate, extremely nervous and tense. He experienced the decision to remove the family to the FYR of Macedonia after such a long time as a death sentence and considered himself a failure as head of the family. In the opinion of the physician, the possibility of the first applicant acting on impulse or suicidally if the family were to be expelled should not be discounted. The Mental Health Atlas-2005 states, inter alia, the following as regards mental health care in the FYR of Macedonia: “A mental health policy has been reviewed and it is in the process of being adopted by the Government. The document is constituted of three parts, namely National Policy, Strategy with Action Plan and Legislation on Mental Health. ... A National Master Mental Health Plan is already prepared by the National Task Force Team (assigned by the Minister of Health) in collaboration with WHO. It is expected to be adopted shortly by the Government. There is a list of essential drugs covered by the Health Insurance Fund as part of the health insurance scheme. Currently, this list is under revision to reflect prevailing needs. ... There are budget allocations for mental health services ... The country has disability benefits for persons with mental disorders. ... Mental health patients according to the newly developed law are treated in the same way regarding employment as persons with somatic disabilities. There are examples from practice in the cities of Gevgelia and Skopje where there are companies that facilitate the employment possibilities of mentally ill persons, an issue that previously was available only for persons with somatic disabilities. ... The country had traditional hospital-based mental health services. New policy developments recognise the need for reform in this sector especially towards decentralisation and community-based services. ... A National Board for promotion and implementation of community-based services on mental health has been created. ... ... traditional hospital-based mental health services ... are not efficient and largely depend on a centralised organisation; they have not been able to meet ... extensive needs. The services are unsatisfactory from the medical, psychological, human, outcome, efficiency or economic points of view. ... The country has specific programmes for mental health for children. The host families, local health and social services, the local communities and society in general are all involved in tackling the refugee and internally displaced persons problem. ... [A number of] therapeutic drugs are generally available at the primary health care level of the country.”