CASE OF D. v. THE UNITED KINGDOM
(Application no. 30240/96)
2 May 1997
In the case of D. v. the United Kingdom,
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court A, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr C. Russo,
Mr A. Spielmann,
Mr J. De Meyer,
Sir John Freeland,
Mr A.B. Baka,
Mr P. Kuris,
Mr U. Lohmus,
Mr J. Casadevall,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private on 20 February and 21 April 1997,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government’s application referred to Article 48 (art. 48). The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 2, 3, 8 and 13 of the Convention (art. 2, art. 3, art. 8, art. 13).
Pursuant to Rule 36 of its Rules of Procedure, the Commission had requested the Government not to deport the applicant and the Government provided assurances to that effect. The Government was informed by the Registrar on 29 October 1996 that under Rule 36 of Rules of Court A the interim measure indicated by the Commission remained recommended.
(a) for the Government
Mr M. Eaton, Deputy Legal Adviser, Foreign and
Commonwealth Office, Agent,
Mr D. Pannick QC,
Mr N. Garnham, Counsel,
Ms S. McClelland,
Mr S. Hewett, Advisers;
(b) for the Commission
Mr J.-C. Geus, Delegate;
(c) for the applicant
Mr N. Blake QC,
Mr L. Daniel, Counsel,
Mr A. Simmons,
Ms R. Francis, Solicitors,
Mrs N. Mole, Adviser.
The Court heard addresses by Mr Geus, Mr Blake and Mr Pannick and also replies to questions put by two of its members.
AS TO THE FACTS
I. Particular circumstances of the case
A. The applicant
B. The applicant’s arrival in the United Kingdom and subsequent imprisonment
However, after being arrested and charged, the applicant was remanded in custody and subsequently prosecuted for being knowingly involved in the fraudulent evasion of the prohibition on the importation of controlled drugs of class A. He pleaded guilty at Croydon Crown Court on 19 April 1993 and was sentenced on 10 May 1993 to six years’ imprisonment. He apparently behaved well while in H.M. Prison Wayland and was released on licence on 24 January 1996. He was placed in immigration detention pending his removal to St Kitts. Bail was granted by an adjudicator on 31 October 1996 after the Commission’s report had been made public.
C. Diagnosis of AIDS
D. The applicant’s request to remain in the United Kingdom
"In reaching this decision full account was taken of paragraph 4 of the Immigration and Nationality Department B Division Instructions regarding AIDS and HIV-positive cases. You will be aware that paragraph 4 of this instruction which relates to persons whose applications are for leave to enter the United Kingdom states [see paragraph 27 of the judgment below]... While we are saddened to learn of Mr D[...]’s medical circumstances we do not accept, in line with Departmental Policy, that it is right generally or in the individual circumstances of this case, to allow an AIDS sufferer to remain here exceptionally when, as here, treatment in this country is carried out at public expense, under the National Health Service. Nor would it be fair to treat AIDS sufferers any differently from others suffering medical conditions ..."
E. Judicial review proceedings
"Nobody can but have great sympathy for this applicant in the plight in which he finds himself. If he is to return to St Kitts it seems that he will be unable to work because of his illness. His expectation of life, if the medical evidence is correct, may well be shorter than it would be if he remained under the treatment that he is receiving in the United Kingdom, and in many ways his plight will be great. On the other hand he would not be here if he had not come on a cocaine smuggling expedition in 1993; and if he had not been imprisoned he would have gone back to St Kitts, if he had ever come here at all, long before his AIDS was diagnosed. Taking account of the fact that the Court must give most anxious scrutiny to a decision which involves questions particularly of life expectancy, as this one apparently does, nevertheless I cannot find that an argument in this case that the decision of the Chief Immigration Officer was irrational is one that has any hope of success at all. Putting it the opposite way, it seems to me to be one which was well within the bounds of his discretion, and thus is not one with which the Court can properly interfere."
F. Reports on the applicant’s medical condition, treatment and prognosis
"His current treatment is AZT 250 mgs. b.d. and monthly nebulised pentamidine, he occasionally takes mystatin pastilles and skin emollients. In view of the fact that [the applicant] has now had AIDS for over 18 months and because this is a relentlessly progressive disease his prognosis is extremely poor. In my professional opinion [the applicant’s] life expectancy would be substantially shortened if he were to return to St Kitts where there is no medication; it is important that he receives pentamidine treatment against PCP and that he receives prompt anti-microbial therapy for any further infections which he is likely to develop ..."
G. Medical facilities in St Kitts
Results of enquiries made by the Government of the authorities in St Kitts suggest that there are two hospitals in St Kitts which care for AIDS patients by treating them for opportunistic infections until they are well enough to be discharged, and that an increasing number of AIDS sufferers there live with relatives.
H. The applicant’s family situation in St Kitts
I. The applicant’s situation since the adoption of the Commission’s report
II. Relevant domestic law and practice
A. Policy guidelines on how to proceed in cases in which persons seeking to enter or remain in the United Kingdom are suffering from AIDS or are HIV-positive
The policy guidelines distinguish between applications for leave to enter and applications for leave to remain.
"... there may be cases where it is apparent that there are no facilities for treatment available in the applicant’s own country. Where evidence suggests that this absence of treatment significantly shortens the life expectancy of the applicant it will normally be appropriate to grant leave to remain."
B. Other relevant materials
1. International policy statements on human rights and AIDS
2. Extract of the WHO report on "Health conditions in the Americas", 1994, Volume II, concerning St Kitts and Nevis
3. "Treatment issues - a basic guide to medical treatment options for people with HIV and AIDS" produced in April 1996 by the Terrence Higgins Trust
PROCEEDINGS BEFORE THE COMMISSION
The Commission declared the application admissible on 26 June 1996. In its report of 15 October 1996 (Article 31) (art. 31), it expressed the opinion that Article 3 (art. 3) would be violated if the applicant were to be removed to St Kitts (eleven votes to seven); that it was unnecessary to examine the complaint under Article 2 (art. 2) (unanimously); that no separate issue arose under Article 8 (art. 8) (unanimously); and that there had been no violation of Article 13 (art. 13) (thirteen votes to five). The full text of the Commission’s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment
FINAL SUBMISSIONS TO THE COURT
The applicant requested the Court in his memorial and at the oral hearing to find that his proposed removal from the United Kingdom would, if implemented, constitute a breach of Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8) and that he had no effective remedy in respect of those complaints in breach of Article 13 (art. 13).
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
A. Arguments of those appearing before the Court
1. The applicant
2. The Government
3. The Commission
B. The Court’s assessment
Aside from these situations and given the fundamental importance of Article 3 (art. 3) in the Convention system, the Court must reserve to itself sufficient flexibility to address the application of that Article (art. 3) in other contexts which might arise. It is not therefore prevented from scrutinising an applicant’s claim under Article 3 (art. 3) where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article (art. 3). To limit the application of Article 3 (art. 3) in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances surrounding the case to a rigorous scrutiny, especially the applicant’s personal situation in the expelling State.
The Court also notes in this respect that the respondent State has assumed responsibility for treating the applicant’s condition since August 1994. He has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3 (art. 3), his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment. Without calling into question the good faith of the undertaking given to the Court by the Government (see paragraph 44 above), it is to be noted that the above considerations must be seen as wider in scope than the question whether or not the applicant is fit to travel back to St Kitts.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION (art. 2)
"1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article (art. 2) when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)
"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
V. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that the implementation of the decision to remove the applicant to St Kitts would violate Article 3 of the Convention (art. 3);
2. Holds that having regard to its conclusion under Article 3 (art. 3) it is not necessary to examine the applicant’s complaint under Article 2 of the Convention (art. 2);
3. Holds that the applicant’s complaint under Article 8 of the Convention (art. 8) gives rise to no separate issue;
4. Holds that there has been no violation of Article 13 of the Convention (art. 13);
(a) that the respondent State is to pay the applicant, within three months, 35,000 (thirty-five thousand) pounds sterling in respect of costs and expenses less 33,216 (thirty-three thousand two hundred and sixteen) French francs to be converted into pounds sterling at the rate applicable at the date of delivery of the present judgment;
(b) that simple interest at an annual rate of 8% shall be payable from the expiry of the above-mentioned three months until settlement.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 2 May 1997.
For the President:
Jan De Meyer
For the Registrar:
Head of Division in the registry of the Court
 The case is numbered 146/1996/767/964. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
 Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
 For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997-III), but a copy of the Commission's report is obtainable from the registry.
 Judge Pettiti, who was a substitute judge in the present case and who did not participate in the final vote, wrote a concurring opinion which was mistakenly appended to the copy of the judgment which was given to the parties. This opinion was immediately withdrawn and does not form part of the judgment in the case.