European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 19537/06
by Andrew ABBEY
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 9 December 2008 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 10 May 2006,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Andrew Abbey, is a Ghanaian national who was born in 1958. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Upton of the Foreign and Commonwealth Office.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was to be deported from the United Kingdom after a conviction for rape and ten counts of indecent assault.

The applicant’s medical file, submitted to the Court by the Government, would appear to indicate the following. The applicant was diagnosed as a type 2 diabetic in or around 1985. Due to long-term neurological/cervical spine problems he began using a wheelchair in 1995. As a result of his diabetes, he suffers from neuropathy, retinopathy, sickle cell disease and erectile dysfunction. In addition, he has ischaemic heart disease and high blood pressure. The applicant further alleged before the Court that he was suffering from kidney problems that would require dialysis.

The applicant, in a number of letters to the Court, alleged that his health would be at serious risk if he were to be deported to Ghana and requested, pursuant to Rule 39 of the Rules of Court, that the Court stop his deportation.

On 21 May 2007 the Acting President of the Section of the Court to which the application was allocated decided under Rule 39 not to grant this request but decided under Rule 54 § 2 (b) that notice of the application should be given to the Government of the United Kingdom. The application was formally communicated to the Government for their observations on the same day.

The Government’s observations were received on 1 August 2007.

On 8 October 2007, the Government informed the Court that the applicant, through his legal representatives, had indicated that he wished to return to Ghana as soon as possible to attend his father’s funeral on 2 November 2007. The Government stated that they intended to accede to the request and make arrangements for his deportation.

On 7 April 2008, the Government confirmed that the applicant had been removed to Ghana on 22 November 2007 at his own request. The relevant visa application records showed that no application had been made by the applicant to return to the United Kingdom.

On 8 May 2008 the applicant wrote to the Court from Ghana stating that he wished to maintain his application. He alleged he had suffered two major heart attacks there and his daughter had attempted suicide in the United Kingdom.

On 4 September 2008, the Government commented that no evidence had been provided to support either allegation.

COMPLAINT

The applicant complained under Article 3 of the Convention that, given his illnesses and the lack of medical treatment available in Ghana, his deportation would breach Article 3 of the Convention.

THE LAW

I. ARTICLE 37 § 1 OF THE CONVENTION

Article 37 § 1 of the Convention provides:

‘‘1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application; or

(b)  the matter has been resolved; or

(c)  for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.’’

In order to determine whether the application should be struck out of the list pursuant to Article 37 § 1 (c) the Court must consider whether ‘‘the circumstances lead it to conclude’’ that “for any other reason....it is no longer justified to continue the examination of [it]’’. The Court recalls that it enjoys a wide discretion in identifying grounds capable of being relied upon in deciding whether to strike out an application on this basis; however, it also recalls that such grounds must reside in the particular circumstances of each case (Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 37, ECHR 2006 ...).

In the Court’s view, the particular circumstances of this application are such that it is no longer justified to continue its examination. The applicant, in his application, alleged that his health would be seriously endangered if he were returned to Ghana, yet his return there was entirely voluntary, although prompted by family circumstances, and there is no indication that his removal, in accordance with his clear wishes, gave rise to irreparable harm to his life or health.

In accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. Accordingly, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Lawrence Early Lech Garlicki
Registrar President