Exceptional Circumstances: Too Exceptional?

Introduction

Article 3 of the European Convention on Human Rights prohibits torture and inhuman or degrading treatment or punishment. Although the brevity of Article 3 itself does not allow us to classify it as an absolute right, Strasbourg case law has shown that it has to be considered as such.[1] Article 3 proscribes three categories of treatment – i) torture, ii) inhuman treatment and iii) degrading treatment or punishment. Case law has also established that these three distinct but related areas exist.[2] Torture refers to aggravated inhuman treatment, which has a purpose (extracting information or confessions) or the infliction of punishment. It is generally seen as an aggravated form of inhuman treatment. Treatment or punishment is degrading if it is grossly humiliating to the victim. The organic nature of the Convention has allowed it to be interpreted in line with increasingly high standards of human rights. Treatment not considered torture in Ireland v UK[3], may be classified as such today.

The scope of Article 3 includes not only physical maltreatment but also psychological maltreatment,[4] discrimination,[5] corporal punishment[6] and, neglect or maltreatment by a public authority[7]. It is evident from the case law that the scope of Article 3 is quite extensive. However, it is submitted that the current opinion of the Court regarding medical asylum cases under Article 3 requires further expansion. In D v United Kingdom[8], the Court established a test of ‘exceptional circumstances’ in medical asylum cases. A breach of Article 3 for medical asylum cases can be established only on the application of this test. This paper argues for a less severe application of the exceptional circumstances test and states reasons why policy decisions against such an interpretation are unacceptable.

Exceptional Circumstances

The Court has been unclear in the past as to what constitutes a ‘minimum level of severity’ for a breach of Article 3 and its right to exercise discretion.[9] Discrimination, corporal punishment, neglect or maltreatment by a public authority are relatively straightforward violations of Article 3 when compared to cases where violations of social rights[10] are claimed. In a majority of the cases, the Court has been reluctant to enforce social rights under Article 3, its reasoning being that the Convention itself is directed at the protection of civil and political rights rather than social and economic rights[11]. I am inclined to agree with the general argument in favour of enshrining social rights,[12] but it would be expanding the scope of Article 3 too far if all social rights were enforceable under the Convention. These are long term policy matters which may need to be addressed separately under a different convention. However, medical asylum claims should be admitted under Article 3, especially in cases discussed below where the conditions of the applicants were quite grim and yet the Court decided to deport them.

The D v UK test

In D v UK, the applicant was a citizen of St. Kitts who had been convicted of possession of controlled Class A Drugs and sentenced to 6 years imprisonment, during which, he was diagnosed with AIDS. Prior to his release and deportation, he applied to the Secretary of State for leave to remain in the UK as his removal to St. Kitts would entail a loss of medical treatment he was receiving in the UK. On being refused by the Secretary, he applied to the Court contending, inter alia, that his removal to St. Kitts would be an Article 3 violation.  The Court found for the Applicant stating that:

“In view of these exceptional circumstances, and bearing in mind the critical stage now reached in the applicant’s fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent state in violation of Article 3.”[13]

The term ‘exceptional circumstances’ is a very nebulous and subsequent cases have been distinguished from D v UK on the grounds that these cases did not pass the ‘exceptional circumstances’ test.[14] Examining the facts of each case, one comes to a conclusion that the reason for distinguishing D from these other cases was because; i) the applicant in D was in the final stages of his illness and was close to death, whereas none of the applicants had reached such a stage yet (they had the same disease, AIDS, except in Bensaid) and, ii) the medical treatment the applicants were receiving in the Contracting State was available ‘in principle’ in their respective home countries. This is a very severe application of the test which does not seem to take into account the ‘integrated approach’ to interpretation adopted by the Court.[15] Even though the Court, had knowledge of the socio-economic conditions of each applicant and their home countries, their applications were rejected just based on the fact that the treatment was technically available. The ability of the applicants to access the medical treatment was not considered as relevant. In some of the cases, the Court clearly had knowledge that the applicant would have considerable difficulty in access. For example, in Ndangoya the applicant was from a rural area and the medication he required could be acquired only at ‘considerable cost’ and extended travel to urban medical centres. Similarly, in Bensaid, the applicant had to travel a considerable distance and the religious affiliation and economic condition of his family made it highly unlikely that he would receive any medical treatment in his home country, Algeria.

The justification for maintaining the high threshold decided in D is stated in the majority opinion in N v. UK. The justifications were i) a finding contrary to the high threshold would place too much of an economic burden on Contracting States; ii) the Convention is essentially directed at the protection of civil and political rights[16]; and iii) the source of the future harm would emanate from the lack of sufficient resources in the country of origin. I am inclined to agree with the opinion of the dissenting Judges Tulken, Bonello and Spielmann who have emphasised that the budgetary implications of finding for the applicants should not be a consideration of the Court[17]. Article 3 imposes an absolute obligation on Contracting States and there can be no derogation under any condition.[18] Besides, the reason of financial strain has not stopped the Court establishing a breach in previous cases involving foreign nationals; in Gayagusuz v Austria, where ECtHR found a breach of the Convention as the applicant had been refused a social benefit due to his nationality, and in Koua Poirezz v France, where the disability allowance was denied on the ground of nationality.[19]

Academics have also argued against the reasoning used by the majority judges in N.[20] The floodgates argument is not an appropriate legal consideration for the Court to have; rather it is a political concern.[21] Furthermore, there have not been any statistics to prove that refugees flee their home countries to enjoy better privileges elsewhere.[22] In a sense, the Court was shifting the cause of the breach on to the home country. However, it has been argued that the crucial act to be considered here is the act of deportation by the Contracting States.[23] It is this act that pushes the applicants to a situation where they suffer inhuman treatment.  Arguing otherwise is akin to saying it is the fault of the hard ground for injury suffered by a person pushed from a cliff rather than the hand that pushed him. Hence, the violation of the Convention does not happen extra-territorially, it happens within the borders of the Contracting State. A similar reasoning is used by Court in cases where a serious threat of torture exists to applicants if deported to their home countries.[24] This begs the question why different standards are applied by the Court to breaches of the same Article of the Convention.

Furthermore, in Airey, the Court stated that the Convention does not make watertight distinctions between social rights and civil and political rights. The mere fact that an interpretation of the Convention may extend into social and economic rights cannot be a reason against such an interpretation[25].

A New Test

As discussed above, it may be argued that the exceptional circumstances test is, currently, applied in such a way that only if the applicant is in such an advanced stage of illness that his death is imminent, he may be allowed to stay in the Contracting State and receive medication. A better application of the test would be to additionally consider:

i)              the seriousness of the illness that the applicant has;

ii)            the applicant’s ability to access medical treatment in his/her country of origin.

Applicants with diseases like AIDS which severely reduce the duration and quality of life unless constant medication is taken, should be allowed to stay in the Contracting State. Reports of the WHO and other specialist organisations can be used to determine which diseases are serious enough to be considered under Article 3 as well as to assess the access of medication in the country of origin of the applicant. Assessing the applicant’s ability to access medical treatment is an important condition as, in many cases; applicants (especially from Third World States) may not have access to the required medication which might be available in their country of origin because their socio-economic condition does not allow them to do so.

Increasingly, when deciding whether the violation of such a social right may be construed as a breach of the Convention, the Court has to balance individual interests and the demands of the general interest of the community (especially where absolute rights are concerned). By considering all the three aspects stated above in the test of exceptional circumstances, the Court will be able to achieve a favourable balance. By keeping applicants with dangerous communicable diseases like AIDS (which appears to afflict majority of applicants in such cases) in a much more secure environment with access to good medical aid, the danger of an epidemic of such diseases may also be contained, thus upholding individual interests as well as serving the interest of the community.

Conclusion

The ECHR is an organic treaty which requires a constant review of standards and principles applied by the Court for it to be effective. The current view of the Court regarding medical asylum applicants gives more weightage to the financial considerations of the Contracting States over the social rights of the applicants. In light of growing arguments in favour of enforcing certain social rights, the Court should include medical asylum cases under the ambit of Article 3. If the Court does not do so, there is a serious possibility that it will be taking a step back rather than forward in its role as the protector of human rights.

Antony Julian
University College London


[1] See further, M. K. Addo and N. Grief, ‘Does Article 3 of The European Convention of Human Rights Enshrine Absolute Rights?’, Eur J Int Law (1998) 9 (3): 510

[2] The Greek Case 12 (1969) YECHR

[3] (1979-80) 2 E.H.R.R. 25; the Court decided that although the treatment could be qualified as inhuman and degrading treatment under Article 3, it did not amount to torture or a breach of Article 3. The Court relied on the definition of torture adopted by the UN General Assembly.

[4] Akkoc v Turkey (2000) 34 EHRR 1173

[5] East African Asians Case (1973) 3 EHRR 76

[6] Tyrer v U.K. (1978) 2 EHRR 1; A v U.K. (1999) 27 EHRR 611

[7] KL v U.K. (1998) 26 EHRR CD 113

[8] (1997) 24 EHRR 423

[9] See A. Cassese, ‘Can the Notion of Inhuman and Degrading Treatment be Applied to Socio-Economic Conditions?’ 2 EJIL 141 (1991)

[10] While, there is no authoritative definition of Social rights, the International Covenant on Economic, Social and Cultural Rights lists Right to Health as the right to ‘the enjoyment of the highest attainable standard of physical and mental health’.

[11] N v United Kingdom App no 26565/05

[12] See generally, V. Mantouvalou, ‘The Case for Social Rights’, in C. Gearty and V. Mantouvalou, Debating Social Rights, (Oxford Hart Publishing 2010)

[13] D at para 53

[14] Karara v Finland no 40900/98; SCC v Sweden (dec) no 46553/99; Bensaid v UK no 44599/98 (Applicant was Schizophrenic); Arcila Henao v the Netherlands (dec) no 13669/03, Ndangoya v Sweden (dec) no 17868/03

[15] See generally, E. Brems, ‘Indirect Protection of Social Rights by the European Court of Human Rights’ in Barak-Erez and Gross (eds), Exploring Social Rights (Oxford, Hart: 2007) 135

[16] N at para 44

[17] ibid, para 8 of the joint dissenting opinion

[18] A reference to Saadi v Italy App no 37201/06, para 138 is made.

[19] Gaygusuz v Austria App No17371/90; Koua v France App No 40892/98

[20] V. Mantouvalou, ‘N v UK: No Duty to Rescue the Nearby Needy?’, MLR 2009, 72(5) at p. 825; C. O’Cinneide, ‘A modest proposal: destitution, state responsibility and the European Convention on Human Rights’, EHRLR 2008, 5 at p. 588, generally argues that ‘suffering that stems from extreme poverty can in appropriate circumstances constitute ‘degrading treatment’ for the purposes of Art. 3

[21] ibid at p. 826, other jurisdictions regard the floodgates argument as a political concern. Considering it a judicial concern would distort the judicial-political relationship

[22] ibid, p. 826-27

[23] ibid, p. 819-20

[24] See  Saadi v Italy App no 3720/106 at para 125

[25] Airey v Ireland App no 6289/73


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