The mentally ill offender cannot be deported without sufficient guarantees of effective access to appropriate care.
Savran v. Denmark 1/10/2019 (no. 57467/15)
The case concerned the applicant’s complaint that owing to his mental health his rights would be violated if he were to be returned to Turkey. The Court found in particular that psychiatrists had recommended that the applicant receive close monitoring and follow-up in order to make his treatment effective and allow for his reintegration into society after committing a serious offence. The Court had doubts about the applicant receiving such care in Turkey, where moreover he had no family network and would need a regular and personal contact person to help him. Given such doubts, the Danish authorities needed to obtain sufficient and individual assurances on his care, otherwise removing him would violate Article 3.
The applicant, Arıf Savran, is a Turkish national who was born in 1985.
He moved to Denmark as a six year old with his family in 1991. After being convicted of aggravated assault committed with other people, which had led to the victim’s death, the applicant was in 2008 placed in the secure unit of a residential institution for the severely mentally impaired for an indefinite period and ordered to be expelled. In January 2012 the applicant’s guardian ad litem asked that the prosecution review his sentence and the prosecution brought the case before the City Court in December 2013.
On the basis of medical reports, Immigration Service opinions and statements by the applicant, the City Court in October 2014 changed Mr Savran’s sentence to treatment in a psychiatric department. It also held that despite the severity of his crime it would be inappropriate to enforce the expulsion order. In particular, the medical experts stressed the need for continued treatment and follow-up in order to ensure his recovery, while the applicant highlighted that all his family were in Denmark, that he could not speak Turkish, only some Kurdish, and that he was worried about the availability of the necessary treatment in Turkey.
On appeal by the prosecution, the High Court reversed the City Court’s judgment in January 2015. Basing its conclusion on information on access to medicines in Turkey in the European Commission’s MedCOI medical database and a report from the Foreign Ministry, the court found that Mr Savran would be able to continue his treatment in Turkey. It also emphasised the nature and gravity of the crime. He was refused leave to appeal to the Supreme Court in May 2015.
THE DECISION OF THE COURT..
The Court reiterated the principles in Paposhvili v. Belgium on the removal of seriously ill people and the factors to be taken into consideration by domestic courts. In particular, the authorities had to determine on a case-by-case basis whether the care generally available in the receiving State was sufficient and appropriate to treat an applicant’s illness to prevent suffering that was contrary to Article 3. There was a high threshold for the application of that provision in such cases. Important factors were actual access to the necessary care, involving considerations such as the cost of treatment, the existence of a social and family network and the distance to be travelled for treatment. If serious doubts remained on the impact of removal, the returning State had to obtain individual and sufficient assurances about accessibility and availability as a precondition for removal. The Court noted that a key element in Mr Savran’s case was the need for follow-up and control to prevent a worsening of his psychotic symptoms when discharged.
The City Court had doubted that he would have such facilities and had ruled against his return, although the High Court had overturned that finding. It had held that the necessary medicines were available, and that access to care would be possible if he lived, as expected, in a village which was 100 km from the nearest city, Konya. He would also be able to speak Kurdish to medical staff. The Court, however, noted that the need for Mr Savran to receive follow-up and control was an important additional element in his case. Psychiatrists had stated that he needed to take medication on a daily basis and that the prospects for his reintegration into society were good if he had suitable home and intensive outpatient treatment, otherwise the prospects were bad. However, the High Court had not developed on that issue.
Furthermore, the applicant had no family network in Turkey. While that issue had not been highlighted in the medical reports, the Court found that the absence of such a network would cause him additional hardship and make it all the more crucial that he have the necessary follow-up and control. For that purpose, he would need at least assistance in the form of a regular and personal contact person and the Danish authorities should have assured themselves that such a person would be available for him.
Overall, the Court shared the concerns of the City Court about Mr Savran being able to receive the necessary treatment in Turkey. That uncertainty raised serious doubts as to the impact of removal on him, which the returning State had to dispel by obtaining individual and sufficient assurances from the receiving State as a precondition to removal.
The assurances had to show that the appropriate care would be available and accessible and that the person would not find themselves in a situation which was contrary to Article 3. The Court concluded that removing Mr Savran to Turkey without the Danish authorities receiving such individual and sufficient assurances would violate that provision of the Convention. Other articles The Court found that it did not need to carry out a separate examination of a complaint by the applicant under Article 8.
Just satisfaction (Article 41)
The Court held that the finding in the judgment constituted sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.
Judges Kjølbro, Motoc and Mourou-Vikström expressed a joint dissenting opinion which is annexed to the judgment.