EIT:n suuressa jaostossa sovinto nigerialaisäidin käännytystapauksessa

24.03.2015

asianajaja - asianajotoimisto - Helsinki - Asianajotoimisto Lex Helsinki Oy - lakiasiaintoimisto - lakitoimisto

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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