EIT:n suuressa jaostossa sovinto nigerialaisäidin käännytystapauksessa

Tapauksessa oli kyse HIV-positiivisesta nigerialaisäidistä, jota uhkasi käännytys Nigeriaan. EIT:n jaosto oli aikaisemmin äänestyksen jälkeen katsonut, että käännytys ei loukkaisi EIS 3 tai 8 artiklaa. Suuressa jaostossa hallitus ja valittaja päätyivät sovintoon, jonka EIT hyväksyi. Valitus poistettiin asialistalta.

Sovinnon mukaan hallitus myönsi valittajalle ja tämän lapsille pysyvät oleskeluluvat ja lisäksi maksoi korvauksena 7.000 euroa. Vähemmistöön jäänyt tuomari ei olisi hyväksynyt sovintoa ja valituksen poistamista asialistalta mm. seuraavilla perusteilla:

9.  As a matter of fact the majority of the Grand Chamber considers, in N.,
that the uncertainty about the specific features of the health care
available in the receiving State operates against the applicant. The
elliptical sentence contained in paragraph 50 of N.
is quite telling, if one reads between the lines: “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.” This argumentum ad ignorantiam
not only contradicts a basic tenet of legal reasoning, according to
which one should not draw conclusions from a lack of information or
incomplete or insufficient sources of information.
Worse still, the majority is ready to exchange the available scientific
treatment of a fatal disease like HIV in the removing country for faith
in uncertain scientific developments that might one day eventually also
reach the receiving country. Worst of all, the majority surreptitiously
imposes on the applicant an untenable burden of proof. Since Soering,
mere uncertainty about the possibility of ill-treatment in the
receiving State bars removal from any Contracting Party to the ECHR,
precisely because the implementation of the removal measure could lead
to prohibited ill‑treatment.
It is up to the removing State to ensure that the removal measure will
not put the removed person’s Article 2 and 3 rights in danger, if
necessary by obtaining valid international assurances, and to provide
that evidence to the Court. Implicitly, in N.,
the majority departs from this wise rule of evidence by relieving the
Government of the burden to provide similar assurances that the removed
seriously ill person will not be subjected to any form of prohibited
ill-treatment, by action or omission, and by imposing on the applicant
the burden of providing evidence, without any margin for “speculation”,
that he or she will face such prohibited ill‑treatment
or even death in the receiving State in view of the deficiencies of its
health system. This hidden reversal of the burden of proof is not
acceptable, for the reasons mentioned above.

10.  In
addition, by introducing considerations of “compassion” or “sympathy”
in place of rights-based arguments, the Court leaves unfettered
discretion to Governments to do as they please with costly and
undesirable sick people. In fact, in its opaque language, the N. judgment betrays the real concern of the majority, which is to reverse the approach taken in Airey v. Ireland.
The worrying policy considerations set out by the majority, which are
aimed at downplaying the importance of the social or economic
implications of the protection of civil and political rights, are
particularly misplaced in view of the absolute character of the
prohibition of ill‑treatment
in the Convention system. Legal reasoning is abandoned in favour of
politics. The protection of the right to life and the right to physical
integrity is no longer the subject of a State obligation, but of a more
or less obscure policy of mercy which may vary in each State according
to the political sensitivity of the Government in power.

11.  Finally, N. was rejected in no uncertain terms by the Inter-American Commission of Human Rights (“IACHR”) in the case of Andrea Mortlock v. the United States,
in which it opposed the expulsion from the US of a Jamaican with AIDS
whose state of health was stable but whose removal would have led to a
premature death: “… stopping the treatment would lead to a revival of
the symptoms and an earlier death. Therefore, even though the risk of
death may not be so imminent [as in the ECtHR D. v. UK case] in the case of Ms. Mortlock, the effects of terminating the antiretroviral treatment may well be fatal”. In blunt terms, the European standard of human rights protection is today well below the American one.

12.  Six
years have passed since the N. judgment. When confronted with
situations similar to that of N., the Court has reaffirmed its
implacable position, feigning to ignore the fact that the Grand Chamber
sent N. to her death. Too much time has elapsed since N.’s unnecessary
premature death and the Court has not yet remedied the wrong done. I
wonder how many N.s have been sent to death all over Europe during this
period of time and how many more will have to endure the same fate until
the “conscience of Europe” wakes up to this brutal reality and decides
to change course.

Refugees,
migrants and foreign nationals are the first to be singled out in a
dehumanised and selfish society. Their situation is even worse when they
are seriously ill. They become pariahs whom Governments want to get rid
of as quickly as possible. It is a sad coincidence that in the present
case the Grand Chamber decided, on the World Day of the Sick, to abandon
these women and men to a certain, early and painful death alone and far
away. I cannot desert those sons of a lesser God who, on their forced
path to death, have no one to plead for them.

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