6 February 2001
In the case of Bensaid v. the United Kingdom,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr J.-P. Costa, President,
Mr L. Loucaides,
Mr P. Kuris,
Mr W. Fuhrmann,
Sir Nicolas Bratza,
Mrs H.S. Greve,
Mr K. Traja, judges,
and Mrs S. Dollé, Section Registrar,
Having deliberated in private on 6 June 2000 and 16 January 2001,
Delivers the following judgment, which was adopted on the last-
I. THE CIRCUMSTANCES OF THE CASE
Schizophrenia is an illness or group of illnesses affecting language, planning, emotion, perceptions and movement. "Positive symptoms" often accompany acute psychotic episodes (including delusions, hallucinations, disordered or fragmented thinking and catatonic movements). "Negative symptoms", associated with long-term illness, include feelings of emotional numbness, difficulty in communicating with others, lack of motivation and inability to care about or cope with everyday tasks.
"It is not for this Court to take the decision as to whether the applicant should in all the circumstances be removed to Algeria. It is for this Court to review in appropriate cases the decision of the Secretary of State on well-known grounds and the limitations imposed on the Courts are well-established. [Counsel for the applicant], of course, is submitting that the facts as disclosed in the evidence filed on behalf of the applicant show that the decision is unreasonable in a Wednesbury sense and/or constitutes a breach of Article 3. However, it has to be said that the letters from the Chief Immigration Officer answer, it seems to me, with particularity each of the points which is made on behalf of the applicant. It is not for us to judge where the truth lies, for example, between the account of Mr Joffé [Deputy Director of the Royal Institute of International Affairs] on the one hand and the account on which the Secretary of State has based his view on the other as to the situation obtaining in the area between Rouina and Blida. What would have to be established if this application were to stand any chance of success would be that the decision of the Secretary of State in the light of the information available was so unreasonable that no reasonable Secretary of State could have come to it. For my part, I see no prospect of a Court being persuaded, if leave were granted, that that was the position. Moreover it is clear from the letter of 15 July that quite exceptional steps are intended to be taken by the Secretary of State to endeavour that the applicant is adequately cared for on the journey and on his arrival, and, finally, I observe that it has twice been reiterated that his case will be reviewed in respect of the situation in Algeria and also no doubt in respect of his current state of health before any removal directions are put into effect. ... while this is obviously a case which must have occasioned the Secretary of State considerable thought and which poses difficult decisions, he has taken decisions on the basis of information available to him and given a full and detailed explanation of his reasons. I see no prospect whatever of the Court being persuaded that his decision is in the circumstances so unreasonable that no reasonable Secretary of State could have reached it."
"highly likely that stressful life events such as deportation together with the more stressful environment he would be likely to encounter in Algeria would trigger exacerbation of his symptoms as occurred on his last visit to Algeria. ... his fearfulness when unwell and also the motivational difficulties and flatness of affect makes it very difficult for him to seek appropriate help when he does become unwell. ... If he were unable to obtain appropriate help, if he began to relapse I think that there would be a great risk that his deterioration would be very great and he would be at risk of acting in obedience to the hallucinations telling himself to harm himself or others ... Thus I do think that there is a substantial likelihood that forcible repatriation would result in significant and lasting adverse effect."
She further advised that any change in medication from olanzapine to sulpiride would create a risk of deterioration in his negative symptoms and diminish the control of the positive symptoms.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Immigration legislation and rules
"2.1. Eligibility criteria
ELE/R [exceptional leave to enter or remain] must be granted to asylum applicants if they fall under the following criteria
– where the 1951 UN Convention requirements are not met in the individual case but return to the country of origin would result in the applicant being subjected to torture or other cruel, inhuman or degrading treatment or where the removal would result in an unjustifiable break up of family life. For example ...
– where there is credible medical evidence that return, due to the medical facilities in the country concerned, would reduce the applicant's life expectancy and subject him to acute physical and mental suffering, in circumstances where the UK can be regarded as having assumed responsibility for his care. In cases of doubt, a second opinion should be sought from a credible source. ...
2. Disqualifying criteria
A person should never be disqualified from ELE/R if there are substantial reasons for believing that he or she would be tortured or otherwise subjected to inhuman or degrading treatment if they were to be returned to their country of origin ..."
B. Judicial review
"I therefore conclude that the domestic court's obligation on an irrationality challenge in an Article 3 case is to subject the Secretary of State's decision to rigorous examination and this it does by considering the underlying factual material for itself to see whether it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed.
All that said, however, this is not an area in which the Court will pay any especial deference to the Secretary of State's conclusion on the facts. In the first place, the human right involved here – the right not to be exposed to a real risk of Article 3 treatment – is both absolute and fundamental: it is not a qualified right requiring a balance to be struck with some competing social need. Secondly, the Court here is hardly less well placed than the Secretary of State himself to evaluate the risk once the relevant material is before it. Thirdly, whilst I would reject the applicant's contention that the Secretary of State has knowingly misrepresented the evidence or shut his eyes to the true position, we must, I think, recognise at least the possibility that he has (even if unconsciously) tended to depreciate the evidence of risk and, throughout the protracted decision-making process, may have tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather than reassess the position with an open mind. In circumstances such as these, what has been called the 'discretionary area of judgment' – the area of judgment within which the Court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant's removal ... – is decidedly a narrow one."
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
A. The parties' submissions
B. The Court's assessment
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
"1. Everyone has the right to respect for his private ... life ...
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 ... the economic well-being of the country, for the prevention of disorder or crime ..."
A. The parties' submissions
B. The Court's assessment
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
"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."
A. The parties' submissions
B. The Court's assessment
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 6 February 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Sir Nicolas Bratza joined by Mr Costa and Mrs Greve is annexed to this judgment.
It is with considerable hesitation that I have voted in favour of a finding that the return of the applicant to Algeria would not violate Article 3 of the Convention.
As is rightly emphasised in the Court's judgment, it is beyond doubt that the applicant is suffering from a mental illness which is both genuine and serious. His condition, when his psychotic illness was first diagnosed, was so severe that consideration was given to his compulsory detention in a mental hospital. In the event, the applicant responded sufficiently to treatment to make this unnecessary and, subject to a minor relapse in 1997 for which he was admitted to hospital and to signs of deterioration in his condition in February 1999, his illness has been successfully managed with the use of antipsychotic medication – most recently and currently, olanzapine.
Nevertheless, the applicant's mental illness remains serious. In the view of Dr Johnson, not only was his illness likely to be a long-term one, but the applicant was likely to continue to have positive symptoms (delusions, hallucinations and thoughts of self-harm), which would persist and could worsen although controlled to a substantial degree by olanzapine. In addition, there had in her view been a significant deterioration in the applicant's level of social functioning which was likely to be significantly handicapping in the coming years. While, with continuing medication and support from the mental health services, the applicant would, in the view of Dr Johnson, be likely to remain at the same level and not require very long periods of institutionalisation, the prognosis if he were returned to Algeria was more uncertain. It was her uncontradicted view that it was "highly likely" that the stress caused by the deportation to Algeria and the environment there would trigger an exacerbation of the applicant's symptoms; that his fearfulness when unwell and motivational problems would make it difficult for him to seek help; and that if, without such help, he began to relapse "there would be a great risk that his deterioration would be very great and he would be at risk of acting in obedience to his hallucinations telling him to harm himself or others".
The availability of appropriate treatment and medication in Algeria remains imponderable. It is common ground that olanzapine would not be free to the applicant as an outpatient and that the closest hospital with facilities for dealing with mental patients, where he could be treated as an inpatient, is some 75 to 80 km from the village where his family live. It is in dispute whether olanzapine is available to outpatients on payment in hospital pharmacies, but the cost of such drug would be likely in any event to prove prohibitive. It is also in dispute whether the security situation in Algeria would render travel to the Frantz-Fanon Hospital dangerous but,even if such a journey could be safely made, regular travel to the hospital at such a distance would be likely to pose serious practical problems for the applicant.
In these circumstances, the central question raised is whether the risk of a relapse and the risk that any such relapse would go untreated because of lack of appropriate support or medication have been shown to be sufficiently real and certain that the applicant's removal to Algeria would amount to a violation of Article 3. The standard required is a high one. In D. v. the United Kingdom (judgment of 2 May 1997, Reports of Judgments and Decisions 1997-III), the Court required that the circumstances surrounding the case should be subjected to a "rigorous scrutiny" where the source of the risk of proscribed treatment in the receiving country stemmed from factors which could not engage either directly or indirectly the responsibility of the public authorities of that country. The circumstances in D. v. the United Kingdom itself were correctly categorised by the Court as "very exceptional". The applicant in that case was in an advanced stage of a terminal and incurable illness; at the date of the Court's hearing there had been a marked decline in his condition and he had to be transferred to a hospital where his condition was giving rise to concern; the abrupt withdrawal of sophisticated treatment and medication which he enjoyed in the United Kingdom would, as the Court found, have entailed dramatic consequences for him, hastening his death and subjecting him to acute mental and physical suffering, since any medical treatment which he might hope to receive in St Kitts could not contend with the infections which he might possibly contract on account of his lack of shelter and proper diet, as well as exposure to the health and sanitation problems which beset the population of that island.
As is pointed out in the Court's judgment, the present case does not disclose exceptional circumstances similar to those of D. v. the United Kingdom, the risk that the applicant would, if returned to Algeria, suffer treatment reaching the threshold of Article 3 being less certain and more speculative than in that case. For this reason, I have on balance arrived at a different conclusion from that reached by the Court in D. v. the United Kingdom. Nevertheless, on the evidence before the Court, there exist in my view powerful and compelling humanitarian considerations in the present case which would justify and merit reconsideration by the national authorities of the decision to remove the applicant to Algeria.