EHRC 2017/63, EHRM 13-12-2016, ECLI:CE:ECHR:2016:1213JUD00417381, 41738/10 (met annotatie van dr. M. den Heijer)

I. Preliminary issues

124. Following the applicant’s death, his relatives expressed the wish to pursue the proceedings (see paragraph 1 above).

125. The respondent Government did not submit any observations on this issue.

126. The Court normally permits the next-of-kin to pursue an application, provided he or she has a legitimate interest, where the original applicant has died after lodging the application with the Court (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000XII, and Murray v. the Netherlands [GC], no. 10511/10, § 79, ECHR 2016). In the present case, the Court takes note of the wish expressed by the applicant’s family (see paragraph 1, above) to pursue the proceedings. Having regard to its conclusion in paragraph 133 below, however, it considers that it is unnecessary to determine whether the family have a legitimate interest in that regard.

127. The Court must nevertheless ascertain whether, in view of the applicant’s death and the nature of the alleged violations, the application should be struck out of the list of cases or whether, on the contrary, there are special circumstances requiring its continued examination pursuant to Article 37 § 1 in fine.

128. In that connection, Article 37 § 1 of the Convention provides:

“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.”

129. The Court reiterates that the human rights cases before it generally also have a moral dimension, which must be taken into account when considering whether the examination of an application after the applicant’s death should be continued (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003-IX, and Malhous (dec.), cited above).

130. The Court has repeatedly stated that its judgments serve not only to decide those cases brought before it but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the States’ observance of the engagements undertaken by them. Although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States (see Karner, cited above, § 26).

131. The Court notes that the present case was referred to the Grand Chamber on 20 April 2015 in accordance with Article 43 of the Convention, which provides that cases can be referred if they raise “a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance”.

132. The Court observes that there are important issues at stake in the present case, notably concerning the expulsion of aliens who are seriously ill. Thus, the impact of this case goes beyond the particular situation of the applicant, unlike most of the similar cases on expulsion decided by a Chamber (compare F.G. v. Sweden [GC], no. 43611/11, § 82, ECHR 2016).

133. Having regard to the foregoing, the Court finds that special circumstances relating to respect for human rights as defined in the Convention and the Protocols thereto require it to continue the examination of the application in accordance with Article 37 § 1 in fine of the Convention.

II. Alleged violation of Articles 2 and 3 of the Convention

134. The applicant alleged that substantial grounds had been shown for believing that if he had been expelled to Georgia he would have faced a real risk there of inhuman and degrading treatment contrary to Article 3 of the Convention and of a premature death in breach of Article 2. Those Articles provide:

Article 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.

...”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. The Chamber judgment

135. The Chamber began by examining whether the applicant’s removal to Georgia would breach Article 3 of the Convention (see paragraphs 117-26 of the Chamber judgment).

136. It observed that, according to the case-law established in N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008), Article 3 protected aliens suffering from an illness against removal only in very exceptional cases, where the humanitarian grounds against the removal were compelling. The fact that the individual’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed did not constitute such grounds. In the instant case, the illnesses from which the applicant suffered were all stable and under control as a result of the treatment received in Belgium; he was fit to travel and his life was not in imminent danger.

137. The Chamber noted that medication to treat the applicant’s illnesses existed in Georgia. It acknowledged that its accessibility was not guaranteed and that, owing to a shortage of resources, not all the persons concerned received all the medicines and treatment they required. Nevertheless, in view of the fact that the applicant would not be left wholly without resources if he were to return, the fact that the Belgian authorities had been providing him with medical assistance while the case was pending before the Court and the fact that Georgia was a Contracting Party to the Convention, the Court held that, as matters stood, there were no exceptional circumstances precluding the applicant’s removal.

138. The Chamber considered that the examination of the applicant’s complaints from the standpoint of Article 2 did not lead to a different conclusion (see paragraph 127 of the Chamber judgment).

B. The parties’ observations before the Grand Chamber

1. The applicant

139. The applicant submitted that, in keeping with the Court’s case-law as established in the judgments in M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011) and Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)), the alleged violation of Article 3 of the Convention had to be examined in concreto and in the light of all the facts of the case, taking into consideration the accessibility of treatment in the country of destination and the particular vulnerability of the person concerned.

140. The applicant’s particular vulnerability resulted primarily from his state of health. His leukaemia had reached the most serious stage, Binet stage C. He had already undergone numerous courses of chemotherapy and the illness put him at risk of severe complications which called for regular monitoring in a specialised setting. He was being treated with a drug – Ibrutinib – which was very expensive, costing around EUR 6,000 per month, and the dosage of which had to be continually adjusted to his treatment for hepatitis C. The latter had recently become active again following a relapse in 2012 and 2013 and also required very expensive treatment costing EUR 700 per day. As soon as his overall condition permitted, it was planned to treat him by means of a donor transplant, at an estimated cost of EUR 150,000. This was his only hope of a cure, and the search was under way for a compatible unrelated donor. The applicant’s condition was further weakened by the repeated secondary infections caused by his chronic obstructive pulmonary disease, which had become severe and was not being monitored. In addition, the applicant had had three fingers amputated and his left arm was paralysed.

141. Besides the fact that, according to his doctor, neither Ibrutinib nor a donor transplant would have been available in Georgia, the applicant had had no guarantee that he would have had access in practice to life-saving treatment, given the proven shortcomings of the Georgian health-care system. In 2008 the Law on compulsory health insurance had been replaced by a two-tier system. People who could afford it were encouraged to take out private insurance and to avail themselves of the care provided by the hospitals that had gradually been privatised. Meanwhile, the least well-off (estimated at 20% of the population) were eligible in principle for free basic health care under a special universal insurance scheme. However, in practice, owing to an ineffective system for determining eligibility, the health-care costs of around half of the least well-off were still not covered. In addition, the provision of care and infrastructure to the least well-off was very limited.

142. Moreover, in the applicant’s submission, the burden of proving the existence of real and practical access to health care in Georgia lay with the Belgian authorities, who had greater investigative resources.

143. More specifically, it was for the Belgian authorities, in the context of the request for regularisation based on section 9ter of the Aliens Act, to assess the risk of a breach of Article 3 of the Convention in the light of the information available to them on the applicant’s personal, family and medical situation and the shortcomings of the Georgian health-care system, and not to deprive the applicant as a matter of principle of the only possibility open to him of asserting a fundamental right.

144. A fortiori, even assuming that the Belgian State had examined the request for leave to remain on the merits, it could not simply have presumed that the applicant would be treated in accordance with the requirements of the Convention. As made clear by the judgment in M.S.S. v. Belgium and Greece, the fact that Georgia was a Contracting Party to the Convention did not mean that it could be presumed ipso facto that Georgia could not be held responsible for breaches of the Convention. Acceptance of the treaties guaranteeing respect for fundamental rights was not sufficient to afford adequate protection against the risk of ill-treatment where, as in the present case, reliable sources reported practices on the part of the authorities, or tolerated by them, that were manifestly in breach of the Convention.

145. On the contrary, it was for the Belgian authorities to make enquiries and to satisfy themselves in advance that the Georgian authorities could actually guarantee in practical terms that the applicant would receive the health care he needed in order to survive and that his illness would be treated in a manner compatible with human dignity. Access to medical care must not be theoretical but must be real and guaranteed.

146. Since the Belgian State had failed to contribute, at the time of the refusal of the applicant’s request for leave to remain, to verifying the accessibility in Georgia, in real and practical terms, of the treatment which the applicant needed, and in the absence of guarantees in that regard, its responsibility under Article 3 of the Convention would have been engaged if it had proceeded with the applicant’s removal to Georgia. If removed he would have been exposed to a risk of inhuman or degrading treatment and an earlier death owing to the withdrawal of the intensive and specialised treatment he had been receiving in Belgium, and to the end of any hope of receiving a donor transplant. In addition, there was the impact which his removal would have had on his family. All of these circumstances could be regarded by the Court as “exceptional” within the meaning of D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997-III) and N. v. the United Kingdom (cited above).

147. The applicant further submitted that the fact that his irregular residence status had continued for over seven years after he had requested leave to remain on medical grounds, without his request having been examined on the merits, had played a major part in placing him in a precarious and vulnerable situation.

148. In sum, the applicant had been in greater need of protection owing to his particular vulnerability linked to his state of health, the stakes in terms of his life and physical well-being, his emotional and financial dependency and the existence of his family ties in Belgium. The Belgian State’s responsibility under Article 3 of the Convention stemmed from the fact that it was proceeding with the applicant’s removal without taking these factors into account, thereby demonstrating a lack of respect for his dignity and placing him at serious risk, in the event of his return to Georgia, of a severe and rapid deterioration in his state of health leading to his swift and certain death.

149. The applicant requested the Court to go beyond its findings in N. v. the United Kingdom and to define, in the light of these considerations, a realistic threshold of severity that was no longer confined to securing a “right to die with dignity”. He relied in that connection on the recent developments in the case-law of the Belgian courts, which had distanced themselves from the findings in N. v. the United Kingdom and now afforded more extensive protection than that provided for under Article 3 of the Convention (see paragraphs 101 et seq. above).

2. The Belgian Government

150. The Government submitted that, although it was acknowledged in the Court’s case-law that the responsibility of a Contracting Party could be engaged under Article 3 on account of the expulsion of an alien and his exposure to a risk of a breach of his economic and social rights, it nevertheless had to be taken into consideration that, where the person concerned suffered from an illness, neither the returning State nor the receiving State could be held directly responsible for the shortcomings of the health-care system and the repercussions on the health of the individual concerned. The case-law demonstrated that in order for the threshold of severity required by Article 3 to be attained in such cases the extreme nature of the applicant’s living conditions or his or her extreme vulnerability had to be established. The circumstances contrary to human dignity had to be exceptional to such a degree that the person concerned, owing to his or her critical condition prior to removal, would inevitably be placed in a situation of intense suffering solely on account of the removal procedure and the complete absence of care and treatment in the receiving country. Human rights were not synonymous with compelling humanitarian considerations and a general obligation to provide social welfare assistance could not be inferred from Article 3 even in the name of human dignity.

151. In view of this case-law it could not be concluded that the criteria for engaging the responsibility of the Belgian State had been met in the present case.

152. With reference, firstly, to developments in the applicant’s state of health, the Government argued that while his overall condition had deteriorated since the time of the Chamber judgment, mainly as a result of collateral diseases, and his condition was still life-threatening, the illnesses from which the applicant suffered had been kept under control for a long time by the medicines being administered to him in Belgium. According to the report of the Aliens Office’s medical officer of 23 June 2015, the applicant’s condition could not be regarded as critical, he was fit to travel, his illnesses were not directly life-threatening and none of his vital organs was in a condition that placed his life in immediate danger.

153. Furthermore, since the applicant had failed to provide more detailed information concerning the content of the study in the context of which his leukaemia was being treated, it was difficult to establish any objective basis for his general practitioner’s assertion that the only option at this stage had been the administration of Ibrutinib followed by a donor transplant and that in the absence of that treatment the applicant’s life expectancy would have been three months. Other factors entered into the equation, such as the increase in life expectancy as a result of the medication, the feasibility of the operation, which itself depended on how the applicant’s general condition evolved, and the low success rate of the operation. In sum, this was a private initiative on the part of the applicant’s general practitioner and appeared to be a hypothetical, strategic choice linked to research considerations. It was questionable whether there was a need to ensure its continuation. As to the applicant’s other illnesses, it had not been possible to assess their state of advancement on the basis of the medical information provided.

154. The Government submitted that, in view of this lack of clarity and of the complex and risky nature of the transplant procedure, consideration might have been given, on the basis of the information in the medical file, to abandoning the idea of a donor transplant and instead continuing to treat the applicant with Ibrutinib in Georgia under the supervision of a haematology department.

155. The next issue was whether there had been reason to believe that, following his removal, the applicant would have faced a serious risk of inhuman and degrading treatment. The Government argued that the burden of proof in that regard depended on whether the threshold of severity defined in D. v. the United Kingdom and N. v. the United Kingdom (both cited above) was changed. If the current case-law was maintained, the disparity in the level of care between the returning State and the receiving State was relevant only if the person’s condition was critical at the time of his or her expulsion. If, on the other hand, it was now a question of providing evidence, not of the conditions in which the person concerned would die but of the conditions in which he or she should be kept alive, the burden of proof shifted to the living conditions in the receiving State. This shift raised a number of issues.

156. One of the factors to be taken into consideration was the exact personal situation of the individual concerned and in particular the ties he or she had maintained with his or her country of origin and the resources available to him or her in order to continue treatment. The applicant had not provided any detailed information on that subject. Another factor was the situation of the social welfare system in the receiving State. The assessment of that situation was, by definition, complex and general and would not allow a specific treatment to be identified. Furthermore, if the sole criterion was the prospect of survival, it had to be ascertained at what stage in the applicant’s treatment his expulsion should be deemed contrary to Article 3. Bearing in mind the evolving and multi-faceted nature of medical techniques, this decision was largely arbitrary. If, as the applicant had suggested, he should have been considered vulnerable and thus recognised as having victim status on account of the deterioration of his state of health, the question then arose as to what differentiated him from other Georgian nationals suffering from illness who were reliant on the Georgian health care system. It would be difficult to argue that the difference lay in his unlawful residence and his medical treatment in Belgium. Instead of producing clear answers, these questions gave rise to general assumptions based on speculation which were insufficient to establish the State’s international responsibility beyond any reasonable doubt.

157. In the Government’s view, even if this speculative aspect could have been overcome by obtaining assurances from the receiving State, as mentioned by the Court in Tatar v. Switzerland (no. 65692/12, 14 April 2015), such assurances should be deemed to have existed in the present case and to have been sufficient. The applicant had been medically fit to travel and the local authorities would have been informed of the specific nature of his condition or would have received a list of the medication needed. No more specific guarantees had been required in the absence of any indication that the Georgian authorities would have treated the applicant less favourably than the rest of the Georgian population or that he would have been unable to obtain medical treatment that took account of the specific features of his illness. In that connection, it might have been possible to continue to treat the applicant with Ibrutinib by having his medication sent through the post under the supervision of his doctor and with the assistance of doctors in Georgia. The Government added that if a donor transplant had proved possible they would not have taken any steps to prevent it or to secure the applicant’s removal while he was in hospital.

158. Lastly, account had to be taken of the fact that the applicant would have been removed to Georgia, a Contracting Party to the Convention, and that if he had been shown to be particularly vulnerable, Belgium’s responsibility could have been engaged only if it had been established that the Georgian State would manifestly fail to comply with its Convention obligations, for instance if it had been shown that the applicant would be entirely dependent on public assistance and would be in a state of deprivation contrary to human dignity. In the absence of any indication to that effect it should have been presumed that the Georgian authorities would comply with the requirements of the Convention. Should that have proved not to be the case, it would have been up to the applicant to apply to the Court under Article 34 of the Convention.

C. Observations of the third-party interveners

1. The Georgian Government

159. The Georgian Government submitted that, since 2012, they had implemented an extensive programme of universal medical cover which had resulted to date in 90% of the population being covered in terms of primary health care. If the applicant had returned to Georgia he would have had access to that universal cover in the same way as the local residents.

160. Furthermore, the Georgian health-care system could have provided appropriate treatment for the illnesses from which the applicant had suffered, in terms of both medical infrastructure and health-care personnel. The health care provided conformed to international standards and was approved by the domestic rules.

161. With regard to the treatment of tuberculosis, a State tuberculosis management programme had been approved by Decree no. 650 of 2 December 2014, which provided for free TB examinations and medication for Georgian citizens, stateless persons resident in Georgia, prisoners and any person in the country identified as a TB carrier. New experimental treatments for tuberculosis had been introduced in Georgia over the past several years and were available on the market in sufficient quantities. The applicant would be able to take advantage of them.

162. With regard to leukaemia, the Georgian Government submitted that the programme of universal medical cover covered diagnosis, treatment (including chemotherapy and radiotherapy), medical examinations and medication for persons living below the poverty threshold who were suffering from oncological diseases. Between 2013 and 2015, 859 patients with chronic lymphocytic leukaemia had received specialised chemotherapy. This was administered in five clinics in Georgia which were equipped with all modern medical facilities.

163. The main improvements made since the information provided at the Chamber stage concerned hepatitis C. Whereas, previously, hospital treatment for patients presenting with a significant viral load and/or cirrhosis had only been covered at 50% of an amount fixed by the Government, and medicines had not been reimbursed at all, since 20 April 2015 socially vulnerable families were entitled to 70% of the diagnostic costs and other patients to 30% of the costs. Under a special programme for residents of the city of Tbilisi, 100% cover was provided. Furthermore, access to medicines was free of charge “for all patients involved in the treatment protocol on the basis of a decision by a special commission”. Finally, a pharmaceutical company had supplied Georgia with doses of a new antiretroviral treatment involving the drugs Solvadi and Harvoni, which could have been administered to the applicant if he had returned.

164. Lastly, with regard to chronic obstructive pulmonary disease, the Georgian Government stated that all modern forms of basic treatment were available in Georgia. There were also several hospitals in Tbilisi which treated this illness. Any surgery that might be needed would be covered by the programme of universal medical cover.

2. The Human Rights Centre of Ghent University

165. According to the Human Rights Centre, the present case afforded a unique opportunity to depart from the excessively restrictive approach adopted by the Court in N. v. the United Kingdom with regard to the expulsion of persons suffering from serious illness.

166. The intervener began by arguing that this approach contrasted with the general case-law concerning potential violations of Article 3 of the Convention.

167. Hence, in the judgment in Pretty v. the United Kingdom (no. 2346/02, § 52, ECHR 2002-III), the Court had indicated on what grounds and to what extent the responsibility of the Contracting State could be engaged. The Court had observed the connection between a naturally occurring illness and its exacerbation by the measure for which the authorities could be held responsible. However, in N. v. the United Kingdom, while the Court had still referred to naturally occurring illness, it had not linked it to the measure taken by the authorities that would exacerbate the illness, but to the lack of sufficient resources to deal with it in the receiving country, from which it had inferred that the alleged future harm did not engage the direct responsibility of the Contracting State.

168. However, in cases concerning the expulsion of persons suffering from serious illness, the event that triggered the inhuman and degrading treatment was the intentional removal of the persons concerned from a place where they could obtain life-saving treatment to a place where they could not, thereby exposing them to a near-certain but avoidable risk of suffering and death that engaged the State’s responsibility. The Court had consistently acknowledged that in cases where there were serious reasons for believing that the person concerned, if removed, faced a risk of being subjected to treatment contrary to Article 3, the absolute nature of that provision prohibited the Contracting Parties from proceeding with the person’s removal.

169. In N. v. the United Kingdom the Court had also based its reasoning on the “search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights” and on the observation that a finding of a violation “would place too great a burden on the Contracting States”. Such an approach was in glaring contradiction with the case-law arising out of the judgment in Saadi v. Italy ([GC], no. 37201/06, ECHR 2008), in which the Court had clearly rejected the idea of conducting a balancing exercise or applying a test of proportionality in order to assess whether an applicant’s removal was compatible with Article 3.

170. The intervener therefore suggested opting for an alternative to the criteria established in N. v. the United Kingdom, one that would be compatible with the absolute nature of the prohibition contained in Article 3. This would entail examining carefully all the foreseeable consequences of removal in order to determine whether the reduction in the life expectancy of the persons concerned and the deterioration in their quality of life would be such that the threshold of severity required by Article 3 was attained. The parameters to be taken into consideration would be, in addition to the state of health of the persons concerned, the appropriateness or otherwise, in terms of quality and promptness, of the medical treatment available in the receiving State and whether it was actually accessible to the individuals concerned. This last criterion could be assessed taking into account the actual cost of treatment, the level of family support available to the persons concerned, the distance they would have to travel in order to have access to the treatment and specific factors linked to their state of health that would heighten their vulnerability.

171. Lastly, the intervener proposed that Article 3 of the Convention be found to impose a procedural obligation on the domestic authorities in the expelling State requiring them to seek or obtain assurances from the receiving State that the persons concerned would actually have access to the treatment they needed and thus be protected against treatment contrary to Article 3.

D. The Court’s assessment

1. General principles

172. The Court reiterates that Contracting States have the right as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see N. v. the United Kingdom, cited above, § 30). In the context of Article 3, this line of authority began with the case of Vilvarajah and Others v. the United Kingdom (30 October 1991, § 102, Series A no. 215).

173. Nevertheless, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3 of the Convention where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country (see Saadi, cited above, § 125; M.S.S. v. Belgium and Greece, cited above, § 365; Tarakhel, cited above, § 93; and F.G. v. Sweden, cited above, § 111).

174. The prohibition under Article 3 of the Convention does not relate to all instances of ill-treatment. Such treatment has to attain a minimum level of severity if it is to fall within the scope of that Article. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see N. v. the United Kingdom, cited above, § 29; see also M.S.S. v. Belgium and Greece, cited above, § 219; Tarakhel, cited above, § 94; and Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015).

175. The Court further observes that it has held that the suffering which flows from naturally occurring illness may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see Pretty, cited above, § 52). However, it is not prevented from scrutinising an applicant’s claim under Article 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 (see D. v. the United Kingdom, cited above, § 49).

176. In two cases concerning the expulsion by the United Kingdom of aliens who were seriously ill, the Court based its findings on the general principles outlined above (see paragraphs 172-74 above). In both cases the Court proceeded on the premise that aliens who were subject to expulsion could not in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the returning State (see D. v. the United Kingdom, cited above, § 54, and N. v. the United Kingdom, cited above, § 42).

177. In D. v. the United Kingdom (cited above), which concerned the decision taken by the United Kingdom authorities to expel to St Kitts an alien who was suffering from Aids, the Court considered that the applicant’s removal would expose him to a real risk of dying under most distressing circumstances and would amount to inhuman treatment (see D. v. the United Kingdom, cited above, § 53). It found that the case was characterised by “very exceptional circumstances”, owing to the fact that the applicant suffered from an incurable illness and was in the terminal stages, that there was no guarantee that he would be able to obtain any nursing or medical care in St Kitts or that he had family there willing or able to care for him, or that he had any other form of moral or social support (ibid., §§ 52-53). Taking the view that, in those circumstances, his suffering would attain the minimum level of severity required by Article 3, the Court held that compelling humanitarian considerations weighed against the applicant’s expulsion (ibid., § 54).

178. In the case of N. v. the United Kingdom, which concerned the removal of a Ugandan national who was suffering from Aids to her country of origin, the Court, in examining whether the circumstances of the case attained the level of severity required by Article 3 of the Convention, observed that neither the decision to remove an alien who was suffering from a serious illness to a country where the facilities for the treatment of that illness were inferior to those available in the Contracting State, nor the fact that the individual’s circumstances, including his or her life expectancy, would be significantly reduced, constituted in themselves “exceptional” circumstances sufficient to give rise to a breach of Article 3 (see N. v. the United Kingdom, cited above, § 42). In the Court’s view, it was important to avoid upsetting the fair balance inherent in the whole of the Convention between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. A finding to the contrary would place too great a burden on States by obliging them to alleviate the disparities between their health-care system and the level of treatment available in the third country concerned through the provision of free and unlimited health care to all aliens without a right to stay within their jurisdiction (ibid., § 44). Rather, regard should be had to the fact that the applicant’s condition was not critical and was stable as a result of the antiretroviral treatment she had received in the United Kingdom, that she was fit to travel and that her condition was not expected to deteriorate as long as she continued to take the treatment she needed (ibid., § 47). The Court also deemed it necessary to take account of the fact that the rapidity of the deterioration which the applicant would suffer in the receiving country, and the extent to which she would be able to obtain access to medical treatment, support and care there, including help from relatives, necessarily involved a certain degree of speculation, particularly in view of the constantly evolving situation with regard to the treatment of Aids worldwide (ibid., § 50). The Court concluded that the implementation of the decision to remove the applicant would not give rise to a violation of Article 3 of the Convention (ibid., § 51). Nevertheless, it specified that, in addition to situations of the kind addressed in D. v. the United Kingdom in which death was imminent, there might be other very exceptional cases where the humanitarian considerations weighing against removal were equally compelling (see D. v. the United Kingdom, cited above, § 43). An examination of the case-law subsequent to N. v. the United Kingdom has not revealed any such examples.

179. The Court has applied the case-law established in N. v. the United Kingdom in declaring inadmissible, as being manifestly ill-founded, numerous applications raising similar issues, concerning aliens who were HIV positive (see, among other authorities, E.O. v. Italy (dec.), no. 34724/10, 10 May 2012) or who suffered from other serious physical illnesses (see, among other authorities, V.S. and Others v. France (dec.), no. 35226/11, 25 November 2014) or mental illnesses (see, among other authorities, Kochieva and Others v. Sweden (dec.), no. 75203/12, 30 April 2013, and Khachatryan v. Belgium (dec.), no. 72597/10, 7 April 2015). Several judgments have applied this case-law to the removal of seriously ill persons whose condition was under control as the result of medication administered in the Contracting State concerned, and who were fit to travel (see Yoh-Ekale Mwanje v. Belgium, no. 10486/10, 20 December 2011; S.H.H. v. the United Kingdom, no. 60367/10, 29 January 2013; Tatar, cited above; and A.S. v. Switzerland, no. 39350/13, 30 June 2015).

180. However, in its judgment in Aswat v. the United Kingdom (no. 17299/12, § 49, 16 April 2013), the Court reached a different conclusion, finding that the applicant’s extradition to the United States, where he was being prosecuted for terrorist activities, would entail ill treatment, in particular because the conditions of detention in the maximum security prison where he would be placed were liable to aggravate his paranoid schizophrenia. The Court held that the risk of significant deterioration in the applicant’s mental and physical health was sufficient to give rise to a breach of Article 3 of the Convention (ibid., § 57).

181. The Court concludes from this recapitulation of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision. As a corollary to this, the case-law subsequent to N. v. the United Kingdom has not provided more detailed guidance regarding the “very exceptional cases” referred to in N. v. the United Kingdom, other than the case contemplated in D. v. the United Kingdom.

182. In the light of the foregoing, and reiterating that it is essential that the Convention is interpreted and applied in a manner which renders its rights practical and effective and not theoretical and illusory (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005-I; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 175, ECHR 2012), the Court is of the view that the approach adopted hitherto should be clarified.

183. The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.

184. As to whether the above conditions are satisfied in a given situation, the Court observes that in cases involving the expulsion of aliens, the Court does not itself examine the applications for international protection or verify how States control the entry, residence and expulsion of aliens. By virtue of Article 1 of the Convention the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities, who are thus required to examine the applicants’ fears and to assess the risks they would face if removed to the receiving country, from the standpoint of Article 3. The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Article 13 and Article 35 § 1 of the Convention (see M.S.S. v. Belgium and Greece, cited above, §§ 286-87, and F.G. v. Sweden, cited above, §§ 117-18).

185. Accordingly, in cases of this kind, the authorities’ obligation under Article 3 to protect the integrity of the persons concerned is fulfilled primarily through appropriate procedures allowing such examination to be carried out (see, mutatis mutandis, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 182, ECHR 2012; Tarakhel, cited above, § 104; and F.G. v. Sweden, cited above, § 117).

186. In the context of these procedures, it is for the applicants to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see Saadi, cited above, § 129, and F.G. v. Sweden, cited above, § 120). In this connection it should be observed that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment (see, in particular, Trabelsi v. Belgium, no. 140/10, § 130, ECHR 2014 (extracts)).

187. Where such evidence is adduced, it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it (see Saadi, cited above, § 129, and F.G. v. Sweden, cited above, § 120). The risk alleged must be subjected to close scrutiny (see Saadi, cited above, § 128; Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 214, 28 June 2011; Hirsi Jamaa and Others, cited above, § 116; and Tarakhel, cited above, § 104) in the course of which the authorities in the returning State must consider the foreseeable consequences of removal for the individual concerned in the receiving State, in the light of the general situation there and the individual’s personal circumstances (see Vilvarajah and Others, cited above, § 108; El-Masri, cited above, § 213; and Tarakhel, cited above, § 105). The assessment of the risk as defined above (see paragraphs 183-84) must therefore take into consideration general sources such as reports of the World Health Organisation or of reputable non-governmental organisations and the medical certificates concerning the person in question.

188. As the Court has observed above (see paragraph 173), what is in issue here is the negative obligation not to expose persons to a risk of ill-treatment proscribed by Article 3. It follows that the impact of removal on the person concerned must be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving State.

189. As regards the factors to be taken into consideration, the authorities in the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3 (see paragraph 183 above). The benchmark is not the level of care existing in the returning State; it is not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the health-care system in the returning State. Nor is it possible to derive from Article 3 a right to receive specific treatment in the receiving State which is not available to the rest of the population.

190. The authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State. The Court observes in that regard that it has previously questioned the accessibility of care (see Aswat, cited above, § 55, and Tatar, cited above, §§ 47-49) and referred to the need to consider the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care (see Karagoz v. France (dec.), no. 47531/99, 15 November 2001; N. v. the United Kingdom, cited above, §§ 34-41, and the references cited therein; and E.O. v. Italy (dec.), cited above).

191. Where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 (on the subject of individual assurances, see Tarakhel, cited above, § 120).

192. The Court emphasises that, in cases concerning the removal of seriously ill persons, the event which triggers the inhuman and degrading treatment, and which engages the responsibility of the returning State under Article 3, is not the lack of medical infrastructure in the receiving State. Likewise, the issue is not one of any obligation for the returning State to alleviate the disparities between its health-care system and the level of treatment existing in the receiving State through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. The responsibility that is engaged under the Convention in cases of this type is that of the returning State, on account of an act – in this instance, expulsion – which would result in an individual being exposed to a risk of treatment prohibited by Article 3.

193. Lastly, the fact that the third country concerned is a Contracting Party to the Convention is not decisive. While the Court agrees with the Government that the possibility for the applicant to initiate proceedings on his return to Georgia was, in principle, the most natural remedy under the Convention system, it observes that the authorities in the returning State are not exempted on that account from their duty of prevention under Article 3 of the Convention (see, among other authorities, M.S.S. v. Belgium and Greece, cited above, §§ 357-59, and Tarakhel, cited above, §§ 104-05).

2. Application of the general principles to the present case

194. It is not disputed that the applicant was suffering from a very serious illness, chronic lymphocytic leukaemia, and that his condition was life-threatening.

195. The applicant provided detailed medical information obtained from Dr L., a doctor specialising in the treatment of leukaemia and head of the haematology department in a hospital devoted entirely to the treatment of cancer. According to this information, the applicant’s condition had become stable as a result of the treatment he was receiving in Belgium. This was a highly targeted treatment aimed at enabling him to undergo a donor transplant, which offered the last remaining prospect of a cure provided it was carried out within a fairly short timeframe. If the treatment being administered to the applicant had had to be discontinued, his life expectancy, based on the average, would have been less than six months (see paragraph 46 above).

196. In a report of 23 June 2015 the medical adviser of the Aliens Office stressed that the medical information concerning the applicant did not disclose a direct threat to his life or indicate that his state of health was critical (see paragraph 68 above).

197. The applicant submitted that, according to the information available to Dr L., neither the treatment he was receiving in Belgium nor the donor transplant was available in Georgia. As to the other forms of leukaemia treatment available in that country, he argued that there was no guarantee that he would have access to them, on account of the shortcomings in the Georgian social insurance system (see paragraph 141 above). In the Court’s view, these assertions are not without some credibility.

198. The Court notes that on 10 September 2007 and 2 April 2008 the applicant made two requests for regularisation of his residence status in Belgium on medical grounds, on the basis of section 9ter of the Aliens Act (see paragraphs 54 and 59 above). His requests were based primarily on the need to obtain appropriate treatment for his leukaemia and on the premise that he would have been unable to receive suitable care for his condition in Georgia.

199. On 26 September 2007 and 4 June 2008 the applicant’s requests for regularisation were refused by the Aliens Office on the grounds that he was excluded from the scope of section 9ter of the Act because of the serious crimes he had committed (see paragraphs 55 and 60 above). The Aliens Appeals Board, called upon to examine the applicant’s requests for a stay of execution of these decisions and his applications to set them aside, held in judgments dated 28 August 2008 and 21 May 2015 that, where the administrative authority advanced grounds for exclusion, it was not necessary for it to examine the medical evidence submitted to it. With regard to the complaints based on Article 3 of the Convention, the Aliens Appeals Board further noted that the decision refusing leave to remain had not been accompanied by a removal measure, with the result that the risk of the applicant’s medical treatment being discontinued in the event of his return to Georgia was purely hypothetical (see paragraphs 57 and 62 above). The Conseil d’État, to which the applicant appealed on points of law, upheld the reasoning of the Aliens Appeals Board and specified that the medical situation of an alien who faced removal from the country and whose request for leave to remain had been refused should be assessed at the time of enforcement of the removal measure rather than at the time of its adoption (see paragraph 64 above).

200. The Court concludes from the above that, although the Aliens Office’s medical adviser had issued several opinions regarding the applicant’s state of health based on the medical certificates provided by the applicant (see paragraphs 67-68 above), these were not examined either by the Aliens Office or by the Aliens Appeals Board from the perspective of Article 3 of the Convention in the course of the proceedings concerning regularisation on medical grounds.

201. Nor was the applicant’s medical situation examined in the context of the proceedings concerning his removal (see paragraphs 73, 78 and 84 above).

202. The fact that an assessment of this kind could have been carried out immediately before the removal measure was to be enforced (see paragraph 199 in fine above) does not address these concerns in itself, in the absence of any indication of the extent of such an assessment and its effect on the binding nature of the order to leave the country.

203. It is true that at the hearing on 15 September 2015 the Belgian Government gave assurances that, should it ultimately be decided to perform a donor transplant in Belgium, the Belgian authorities would not take any steps to prevent it or to secure the applicant’s removal while he was in hospital. The Court takes note of that statement.

204. The Government further submitted that it might have been possible to continue the applicant’s treatment by having his medication sent through the post under the supervision of his doctor and with the assistance of doctors in Georgia. However, the Government did not provide any specific information regarding the practical feasibility of such a solution.

205. In conclusion, the Court considers that in the absence of any assessment by the domestic authorities of the risk facing the applicant in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia, the information available to those authorities was insufficient for them to conclude that the applicant, if returned to Georgia, would not have run a real and concrete risk of treatment contrary to Article 3 of the Convention (see paragraph 183 above).

206. It follows that, if the applicant had been returned to Georgia without these factors being assessed, there would have been a violation of Article 3.

207. In view of this finding the Court considers that it is not necessary to examine the complaint under Article 2 of the Convention.

III. Alleged violation of Article 8 of the Convention

208. The applicant complained that his removal to Georgia, ordered together with a ten-year ban on re-entering Belgium, would have resulted in his separation from his family, who had been granted leave to remain in Belgium and constituted his sole source of moral support. He alleged a violation of Article 8 of the Convention, which provides:

“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.”

A. The Chamber judgment

209. Under Article 8 of the Convention viewed from the standpoint of the State’s positive obligations (see the Chamber judgment, § 138), the Chamber considered that the applicant’s convictions weighed heavily with regard to both the number and seriousness of the offences and the nature of the last penalty imposed (ibid., §§ 145-47).

210. It also noted that at no point during his fifteen-year stay in Belgium had the applicant been in possession of a valid residence permit and that, despite the applicant’s repeated convictions, the Belgian authorities had displayed remarkable tolerance (ibid., §§ 149-50). It further took account of the fact that the members of the family were Georgian nationals and that, as they had Belgian residence permits, his wife and children could leave and re-enter the country lawfully (ibid., §§ 151-53).

211. Lastly, taking into consideration the medical aspect of the case and the fact that the family could decide to leave Belgium temporarily for Georgia, the Chamber stressed that it did not discern any exceptional circumstances that would require the Belgian authorities to refrain from removing the applicant or to grant him leave to remain (ibid., § 154).

212. Accordingly, it held that there had been no violation of Article 8 of the Convention (ibid., § 156).

B. The parties’ observations before the Grand Chamber

1. The applicant

213. The applicant maintained that the Belgian authorities’ refusal to regularise his residence status on humanitarian grounds or to examine his request for regularisation on medical grounds amounted to interference with his private and family life in breach of Article 8.

214. He argued that the Belgian authorities had been under a duty to carry out a balanced and reasonable assessment of all the interests at stake. They should have applied the rules taking into consideration the children’s best interests and the requirement to afford them special protection on account of their vulnerability. Although the applicant’s children had Georgian nationality, from a “sociological” perspective they were Belgian, and they spoke only French. They had been given leave to remain in Belgium in 2010 and two of them had been born in Belgium. They had no ties in Georgia, did not speak Georgian or Russian and would be eligible to become fully fledged Belgian citizens in the medium term.

215. In addition, the couple’s eldest daughter, with whom his wife had arrived in Belgium in 1998, was now an adult and lived in Belgium with her two children.

216. The refusal to regularise the applicant’s status had left the family in a state of economic and social vulnerability which had had a major psychological impact and had hindered the development of their daily life. The practical implications of this situation for the applicant – the fact that he was barred from working and could not contribute to the household expenses, the constant fear of arrest, the negative effect on his self-esteem, and so forth – had affected the relationship between the children and their father. The applicant’s criminal behaviour, which had been motivated largely by the need to survive financially, belonged to the past. The applicant was in a very weak state and stayed mostly at home, venturing out only to collect his children from school.

217. The worsening of the applicant’s condition, coupled with the impossibility of maintaining his state of health in Georgia and with the length of his residence and that of his family in Belgium, should have prompted the Court to reconsider the approach taken in the Chamber judgment, to assess the situation in its entirety and to find that the applicant’s family had specific needs linked to their integration in Belgium. The solution advocated by the Chamber, which would have entailed the family moving to Georgia for long enough to take care of the applicant until his death, would not have been feasible as it would have meant taking the children out of school in Belgium and taking them to a country they did not know and where they did not speak the language. Their mother would have been unable to ensure the family’s upkeep in Georgia in view of the applicant’s condition, and the applicant would have died in particularly distressing circumstances. Furthermore, if they had had to remain in Georgia for more than one year, the applicant’s wife and children would have forfeited the right to return to Belgium. Such a solution would have been, to say the least, disproportionate when weighed against the interests of the Belgian State.

2. The Government

218. The Government stressed the significance that should be attached to the applicant’s criminal record and the fact that he had persisted in his criminal conduct despite his illness.

219. As to the children’s best interests, the Government considered that these were difficult to determine because the children were not applicants and especially because there was nothing to indicate that they would have been unable to follow their father to Georgia for a time and attend school there. Furthermore, as the applicant had not provided detailed information regarding the extent of his family in Georgia and the persons with whom he was in contact, it was difficult to make an overall assessment of the situation.

220. The Government further submitted that residence permits had been issued by a decision of 29 July 2010 to the applicant’s wife and their children, granting them indefinite leave to remain under sections 9 and 13 of the Aliens Act. The permit in question was a “type B”, in other words, a certificate of entry in the aliens’ register which was valid for five years and could be renewed for the same period – in advance, if necessary – by the municipal authorities in the place of residence. This residence permit entitled the members of the applicant’s family to leave Belgium for one year or more and return to the country, provided that they had complied with the requisite formalities in the municipality of residence and had ensured that they had a valid permit. The formalities varied according to the length of the stay outside the country: in the case of stays of three months to a year, the aliens concerned had to report to the municipal authorities before leaving and within fifteen days of returning or risk automatic removal from the municipality’s register. In the case of stays of over one year, they forfeited their right to remain unless they could demonstrate before their departure that their centre of interests still lay in Belgium and they informed the municipal authorities in their habitual place of residence of their intention to leave the country and return. The persons concerned also had to be in possession of a valid residence permit on their return and to report to the municipal authorities within fifteen days of returning.

C. The Court’s assessment

221. As regards the applicability of Article 8 and the standpoint from which the complaints should be examined, the Grand Chamber will proceed on the same premises as the Chamber (see the Chamber judgment, §§ 136-38). Firstly, it is not disputed that family life existed between the applicant, his wife and the children born in Belgium. This renders irrelevant the disagreement as to whether the applicant was the father of the child born before their arrival in Belgium, who is now an adult (ibid., § 136). Furthermore, assuming that the removal measure could have been examined from the standpoint of the applicant’s private life, the “family life” aspect should take precedence in view of the specific issues raised by the present case and the parties’ submissions. Secondly, while the case concerns both the domestic authorities’ refusal to grant the applicant leave to remain in Belgium and the threat of his removal to Georgia, in view of the specific features of the case and recent developments the Chamber found that the key question was whether the Belgian authorities were under a duty to allow the applicant to reside in Belgium so that he could remain with his family (ibid., § 138). The Grand Chamber considers that examining the complaint alleging a violation of Article 8 in this way from the standpoint of the Belgian authorities’ positive obligations is made all the more necessary by the developments in the case, in particular the deterioration of the applicant’s health and his eventual death. Lastly, the Grand Chamber reiterates that in the context of both its positive and its negative obligations, the State must strike a fair balance between the competing interests of the individual and of society as a whole, and that the extent of the State’s obligations will vary according to the particular circumstances of the persons involved and the general interest (ibid., § 140, and the references cited therein).

222. However, unlike the Chamber, having observed that the Belgian authorities did not examine the applicant’s medical data and the impact of his removal on his state of health in any of the proceedings brought before them, the Grand Chamber has concluded that there would have been a violation of Article 3 of the Convention if the applicant had been removed to Georgia without such an assessment being carried out (see paragraph 206 above).

223. A fortiori, the Court observes that the Belgian authorities likewise did not examine, under Article 8, the degree to which the applicant was dependent on his family as a result of the deterioration of his state of health. In the context of the proceedings for regularisation on medical grounds the Aliens Appeals Board, indeed, dismissed the applicant’s complaint under Article 8 on the ground that the decision refusing him leave to remain had not been accompanied by a removal measure (see paragraph 58 above).

224. Nevertheless, just as in the case of Article 3, it is not for the Court to conduct an assessment, from the perspective of Article 8 of the Convention, of the impact of removal on the applicant’s family life in the light of his state of health. In that connection the Court considers that this task not only falls to the domestic authorities, which are competent in the matter, but also constitutes a procedural obligation with which they must comply in order to ensure the effectiveness of the right to respect for family life. As the Court has observed above (see paragraph 184), the machinery of complaint to the Court is subsidiary to national systems safeguarding human rights.

225. Accordingly, if the Belgian authorities had ultimately concluded that Article 3 of the Convention as interpreted above did not act as a bar to the applicant’s removal to Georgia, they would have been required, in order to comply with Article 8, to examine in addition whether, in the light of the applicant’s specific situation at the time of removal (see, mutatis mutandis, Maslov v. Austria [GC], no. 1638/03, § 93, ECHR 2008), the family could reasonably have been expected to follow him to Georgia or, if not, whether observance of the applicant’s right to respect for his family life required that he be granted leave to remain in Belgium for the time he had left to live.

226. It follows that, if the applicant had been removed to Georgia without these factors having been assessed, there would also have been a violation of Article 8 of the Convention.

IV. Application of Article 41 of the Convention

227. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

228. The applicant claimed EUR 10,434 in respect of pecuniary damage. This amount corresponded to his out-of-pocket expenses for treatment in Belgium which had not been covered owing to his irregular residence status in the country.

229. The Court does not discern any causal link between the violation found and the pecuniary damage alleged, and dismisses this claim.

230. The applicant also claimed EUR 5,000 in respect of non-pecuniary damage resulting from his precarious socio-economic situation.

231. The Court considers that, having regard to the circumstances of the case, the conclusion it has reached under Articles 3 and 8 of the Convention (see paragraphs 206 and 226 above) constitutes sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicant. It therefore makes no award under this head.

B. Costs and expenses

232. The applicant further claimed EUR 9,411 in respect of the fees payable to his lawyers for the preparation of the written observations they had submitted to the Court prior to the request for referral to the Grand Chamber. He submitted copies of the relevant invoices in support of his claim, and stated that he had already paid approximately half of the fees, that is, EUR 4,668, and was unable to pay the remainder.

233. In their observations before the Chamber the Government argued that the applicant, as an alien, was presumed under domestic law to be in financial need and thus eligible for legal aid, including for the expenses linked to the proceedings before the Court.

234. Making its assessment on an equitable basis, the Court decides that the sum of EUR 5,000 is to be paid to the applicant’s family in respect of costs and expenses, plus any tax that may be chargeable to them (see, mutatis mutandis, Karner, cited above, § 50).

C. Default interest

235. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

For these reasons, the Court, unanimously,

1. Holds that there would have been a violation of Article 3 of the Convention if the applicant had been removed to Georgia without the Belgian authorities having assessed, in accordance with that provision, the risk faced by him in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia;

2. Holds that it is not necessary to examine the complaint under Article 2 of the Convention;

3. Holds that there would have been a violation of Article 8 of the Convention if the applicant had been removed to Georgia without the Belgian authorities having assessed, in accordance with that provision, the impact of removal on the applicant’s right to respect for his family life in view of his state of health;

4. Holds that the Court’s findings at points 1 and 3 above constitute in themselves sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicant;

5. Holds,

(a) that the respondent State is to pay the applicant’s family, within three months, EUR 5,000 (five thousand euros), plus any tax that may be chargeable to them, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Concurring opinion of Judge Lemmens

(Translation)

1. I voted like my colleagues in the Grand Chamber in favour of the (retroactive) finding of a procedural and conditional violation of both Article 3 and Article 8 of the Convention. As I was a member of the Chamber and voted then for finding no violation of those two Articles, I would like to explain briefly why I changed my mind.

2. During the Chamber’s examination of the case I took the view that we should follow the strict interpretation of Article 3 of the Convention applied by the Court since the Grand Chamber judgment in N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008). On the basis of the strict interpretation of the threshold of severity, I concluded with the majority of the Chamber that the applicant’s removal would not entail a violation of Article 3 (see paragraph 126 of the Chamber judgment of 17 April 2014). Likewise, with regard to the refusal of the applicant’s request for regularisation of his residence status, I agreed with the majority of the Chamber that the State had not failed to comply with its positive obligations under Article 8 of the Convention (see paragraph 155 of the Chamber judgment).

3. With the referral of the present case to the Grand Chamber the question arose whether strict application of the criterion established in N. v. the United Kingdom, without taking into consideration circumstances other than the fact that the person concerned was “close to death” (see paragraph 181 of the present judgment), did not create a gap in the protection against inhuman treatment. I have no difficulty finding, like my colleagues in the Grand Chamber, that such a gap exists, and in clarifying our case-law in order to fill that gap while at the same time maintaining a high threshold for the application of Article 3 of the Convention (see, in particular, paragraph 183 of the present judgment).

I also subscribe fully to the different manner in which the Grand Chamber approaches the applicant’s complaint. Whereas the Chamber examined whether the applicant’s removal would be compatible with the prohibition of inhuman and degrading treatment, the Grand Chamber stresses the primary responsibility of the national authorities when it comes to examining the arguments advanced by aliens under Article 3 of the Convention (see, in particular, paragraph 184 of the present judgment, which highlights the fact that the machinery of application to the Court is subsidiary to national systems safeguarding human rights).

From this fresh perspective I agree with my colleagues that the domestic authorities did not have sufficient information in the present case for them to conclude that, if the applicant were returned to Georgia, he would not face a real and concrete risk of treatment contrary to Article 3, regard being had to the criterion established in N. v. the United Kingdom as clarified in the present judgment.

4. As to the complaint under Article 8 of the Convention, the Grand Chamber also takes a different approach from the Chamber. Whereas the Chamber examined the refusal to regularise the applicant’s residence status from the standpoint of proportionality, the Grand Chamber, here too, focuses on the procedural obligations of the respondent State (see, in particular, paragraph 224 of the present judgment, which again emphasises that the machinery of application to the Court is subsidiary to national systems safeguarding human rights).

On the basis of this new approach I cannot but agree with my Grand Chamber colleagues that the domestic authorities’ assessment as to whether the refusal of a residence permit was compatible with Article 8 of the Convention was not based on all the relevant information in the present case.

5. I would like to take this opportunity to draw attention to the fact that the present judgment is not unrelated to developments occurring within Belgium.

At the time of the Chamber judgment some formations of the Aliens Appeals Board had already shown reluctance to apply strictly the criterion established in N. v. the United Kingdom (see paragraph 102 of the present judgment). Since then, the Conseil d’État has endorsed their approach (see paragraphs 103-05 of the present judgment) and the Aliens Appeals Board has consolidated this line of case-law in a number of judgments given by the full Board. Admittedly, this case-law relates to the interpretation of a rule of domestic law (section 9ter of the Aliens Act, concerning the possibility of granting a residence permit on medical grounds), but it is also relevant to the interpretation of Article 3 of the Convention. It emerges from the judgments of the full Aliens Appeals Board that an obstacle to the removal of an alien who is ill may arise not only where there is an imminent threat to his or her life or physical integrity (a situation in which removal would be contrary to Article 3 of the Convention according to the Court’s case-law since N. v. the United Kingdom), but also where there is a risk of inhuman or degrading treatment if no appropriate treatment exists in the receiving country (see paragraphs 106-07 of the present judgment).

To my mind, by emphasising that, in addition to the risk to life (a real and present danger to life or physical integrity), there is also a risk of inhuman or degrading treatment, the Aliens Appeals Board was able to draw the Court’s attention to the issue raised by its case-law. The present judgment may be seen as the Court’s response to the concerns expressed by the Aliens Appeals Board.