Case summary

Deciding Body
District Court of The Hague
Rechtbank Den Haag
National case details
Date of decision: 04.02.21
Registration ID: NL20.6998
Instance: 1st Instance
Case status: Pending
Area of law
Migration and asylum
Health law

Dublin Regulation
Safeguards for access to justice
The obligation of the administration to give reasons for its...
Relevant principles applied
Equivalence, Effectiveness
In judicial dialogue
Judgement of the CJEU Case C-542/13 Mohamed M’Bodj v État belge, Case C-578/16 C. K. and Others v Republika Slovenija

Life-cycle diagram

  1. 12 March 2014

    Decision, Supreme Court of The Netherlands

  2. 8 October 2015

    Rejection confirmed, Supreme Court of The Netherlands

  3. 20 December 2018

    Decision on appeal, District Court of The Hague

  4. 28 March 2019

    Supreme Court confirmes District Court of The Hague's decision

  5. 4 February 2021

    Case Reopened, referral to CJEU for a preliminary ruling

  6. The matter is now pending before the CJEU in Case C-69/21

Identification of the case

Fundamental rights involved
  • Human dignity (art. 1 CFREU)
  • Prohibition of torture and inhuman or degrading treatment or punishment (art. 4 CFREU)
  • Respect for private and family life (art. 7 CFREU)
  • Protection in the event of removal, expulsion or extradition (art. 19 CFREU)
National law sources
  • Vreemdelingenwet 2000 (Law on foreign nationals of 2000; ‘Vw’), Article 64
  • Vreemdelingencirculaire 2000 (Circular on foreign nationals; ‘Vc’), par. A3/7
EU law sources
  • Directive 2008/115/EG (Return Directive), Art. 5, 6 and 9
ECHR provisions
Art. 3 and 8

Summary of the case

Facts of the case

The claimant is a Russian national living in The Netherlands. He suffers from polycythaemica vera, a rare form of blood cancer. He is being treated with medicinal cannabis, which is illegal in Russia, his country of origin. His second application for asylum in May 2016 was rejected in March 2018 by the defendant, the State Secretary (staatssecretaris). Claimant’s argument that he should be granted asylum on the basis of Article 46 Law on foreign nationals (Vreemdelingenwet) due to his illness was rejected by the defendant. Thereafter, his appeal to this decision was partially upheld by the court in 2019. Defendant was then required to reconsider the request on the basis of Article 8 ECHR but rejected it again in February 2020. In the present case, the claimant’s appeal to this decision is considered. Claimant believed that due to his medical situation he should be granted asylum on the basis of Article 8 ECHR or postponement of departure under Art 64 Vw. According to the claimant, the treatment with medical cannabis he received in The Netherlands provided him with up to 70% pain relief. The treatment is not available in Russia. Quitting this treatment would be inhumane and would result in physical and mental issues. The defendant did not believe this situation would be a medical emergency, as there is alternative treatment available in Russia. The mere fact of undergoing a medical treatment in The Netherlands is not sufficient for claimant to rely on Article 8 ECHR. Furthermore, defendant stated that the claimant was able to travel, thus claimant is was eligible for postponement of departure under Art 46 Law on Foreign Nationals.

Type of enforcement
  • Administrative judicial enforcement
Measures, actions, remedies claimed/applied

Annulment of the administrative decision; Suspensive effect of the appeal.

Preliminary questions
  1. Can a significant increase in pain intensity due to a lack of medical treatment, while the clinical picture remains unchanged, constitute a situation which is contrary to Article 19(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), read in conjunction with Article 1 of the Charter and Article 4 of the Charter, if no postponement of the departure obligation resulting from Directive 2008/115/EC (‘the Return Directive’) is permitted?
  2. Is the setting of a fixed period within which the consequences of the lack of medical treatment must materialise in order to constitute a medical obstacle to an obligation to return resulting from the Return Directive compatible with Article 4 of the Charter, read in conjunction with Article 1 of the Charter? If the setting of a fixed period is not contrary to EU law, is a Member State then permitted to set a general period that is the same for all possible medical conditions and all possible medical consequences?
  3. Is a determination that the consequences of expulsion should be assessed solely in terms of whether, and under what conditions, the foreign national can travel, compatible with Article 19(2) of the Charter, read in conjunction with Article 1 of the Charter and Article 4 of the Charter, and with the Return Directive?
  4. Does Article 7 of the Charter, read in conjunction with Article 1 of the Charter and Article 4 of the Charter, and in the light of the Return Directive, require that the medical condition of the foreign national and the treatment he is undergoing in the Member State be assessed when determining whether private life considerations should result in permission to stay being granted? Does Article 19(2) of the Charter, read in conjunction with Article 1 of the Charter and Article 4 of the Charter, and in the light of the Return Directive, require that private life and family life, as referred to in Article 7 of the Charter, be taken into account when assessing whether medical problems may constitute an obstacle to expulsion?
Reasoning (legal principles applied)

At the core of the dispute at hand is the question whether the claimant should be granted asylum or postponement of departure due to his severe medical issues, specifically what role the medical consequences of not having access to his current treatment play. The Court is satisfied that an adequate alternative means of pain relief is not available in the country of origin, however it does not believe that the illness will worsen without pain relief. Therefore, it will be relevant to seek medical advice on how much worse the suffering would be without medicinal cannabis. It will await the preliminary ruling on the first question. The Court is unable to rely on any current CJEU jurisprudence to understand how Article 19(2) CFREU in conjunction with Articles 1 and 4 is used to assess whether expulsion is hindered due to medical reasons, if the clinical picture remains unchanged in case the medical treatment in the country of origin is unavailable, but the pain intensity does significantly increase. In the Paposhvili case, the ECtHR does apply Article 3 to similar situations where the foreign national would face a real risk of being exposed to “serious, rapid and irreversible decline in his or her state of health resulting in intense suffering”. However, the Court imagines that one might also be at risk of intense suffering due to a lack of pain relief.

Furthermore, following national jurisprudence, only medical consequences arising within 3 months after quitting medical treatment are to be considered in assessing whether a medical emergency will arise. The Court believes this jurisprudence is in line with Paposhvili, as it even establishes a broader period within which the consequences are to arise. The Court is unsure whether situations are to be assessed on a case-by-case basis, or whether a set time period can be used for any situation. As no jurisprudence on a fixed, general period within which medical consequences are to occur exists, the Court refers the question to the CJEU. Considering therein that the unconditional character of Article 4 CFREU and Article 3 ECHR require maximum protection. The Court further requests clarification on case C-578/16 PPU, C. K. and Others v Slovenia, which the Supreme Court has interpreted to mean that whether Article 3 ECHR is violated by factually expelling a foreigner with a severe illness is to be assessed in the context of whether they are able to travel, not in the context of the concept ‘medical emergency’. Taking into account ECtHR Paposhvili, the Court wants to know whether this national legal practice is in line with Article 4 CFREU.

Lastly, the Dutch legal system does allow for asylum seekers to base their request on Article 8 ECHR in a regular procedure. Only if no asylum can be granted on regular grounds, must the authorities consider whether medical grounds can facilitate a postponement of expulsion. The Court is unsure how Article 8 ECHR should be involved in assessing medical issues and vice-versa when it comes to asylum requests. Neither the Dutch Supreme Court, nor the CJEU have jurisprudence applicable to this case. This question is of importance to the present case, as asylum on the basis of Article 8 ECHR is legally stronger than postponement of departure, which is of a temporary character.

Role of the Charter and role of the general principles on enforcement

Relation to scope of the Charter

The Court stressed Article 52(3) CFREU; the meaning and scope of provisions corresponding to ECHR Articles shall be the same. Following this, CFREU Articles 4 and 7 are used interchangeably with Articles 3 and 8 ECHR. The claimant invoked Art 8 ECHR, as he believed his health issues should grant him asylum or postponement of departure as part of his private life. Furthermore, the prohibition of torture as well as inhuman and degrading treatment were applied by the Court in the context of quitting his medical treatment. Were he to be expelled to a country where the pain relief he was using was unavailable, the severity of pain the claimant would suffer might be inhuman and degrading treatment. The Court is concerned that not applying Article 3 ECHR might render the Convention’s rights theoretical and illusory, rather than practical and effective as required. The Court is yet to decide on the applicability of Articles 3 and 8 ECHR, as they are awaiting a CJEU preliminary ruling on how to apply these rights to the specific situation.

Safeguards for access to justice
  • The obligation of the administration to give reasons for its decisions
Relevance of CFREU and ECHR articles or related rights

The administration dealt with several applications for asylum from the claimant, all of which were rejected. The claimant has appealed to these decisions on multiple occasions, including the present one. The Secretary of State has motivated their decisions before the Court, relying for example on advice from the Bureau of Medical Advice (‘Bureau Medische Advisering’). Regarding the latest request for asylum, the Secretary of State was required to review it again to assess the application under Art 8 ECHR. They rejected the application again, to which the claimant appealed. This matter is dealt with in the present case.

Relevant principles applied
  • Equivalence
  • Effectiveness
Principle of equivalence

To ensure national law is applied in conformity with the CFREU and ECHR standards, the Court submitted preliminary questions to the CJEU. For example, under the Dutch Law on Foreign Nationals, the consequence of expulsion is assessed according to one’s ability to travel. Moreover, Dutch legislative practice sets a fixed period within which medical consequences are to arise after stopping medical treatment, for it to be an obstacle to expulsion. The Court assessed these practices according to EU law and jurisprudence. As it could not come to a conclusion, the matter was referred to the CJEU for a preliminary ruling.

Principle of effectiveness

Effectiveness of the ECHR is explicitly mentioned by the Court, as they are concerned that not interpreting Article 3 ECHR as applicable to the specific case might render the Convention theoretical and illusory. To ensure its effectiveness, they have requested a preliminary ruling, specifically on Articles 1 and 4 CFREU.

Elements of judicial dialogue

Vertical dialogue type
  • Direct dialogue between CJEU and National court (preliminary reference)
  • Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
  • Dialogue between high court - lower instance court at national level
Cited CJEU
  • CJEU C-542/13, M’Bodji
  • CJEU C-578/16 PPU, C. K. and Others
Cited ECtHR
  • Paposhvili v Belgium
  • Korošec v Slovenia
  • Devinar v Slovenia
  • Letinčić v Croatia
  • Wenner v. Germany
  • D. v The United Kingdom
  • Bensaid v. The United Kingdom
Dialogue techniques

Preliminary reference; Conform interpretation with EU law as interpreted by the CJEU.

Purposes of using judicial dialogue

The main purpose of judicial dialogue is ensuring the compliance of national legislation, jurisprudence and legal practice with the CFREU and ECHR. The facts of the case were assessed according to CJEU and ECtHR jurisprudence, although some questions remained as some issues are yet to be addressed in jurisprudence. The Court stresses the fact that the rights under the CFREU and ECHR are to be applied in such a manner that they are rendered practical and effective, as according to Paposhvili. (par. 42) The Court questions the Dutch Supreme Court‘s interpretation and application of CJEU and ECtHR jurisprudence. These matters are therefore referred to the CJEU for a preliminary ruling.

Expected effects of judicial dialogue

Most questions remained unanswered, as the Court believed they were not yet addressed in jurisprudence. Therefore, a preliminary ruling is requested, which will determine the outcome of the case.

Additional notes on the decision

Other notes

On the fundamental rights involved from the CFREU: also arts. 51(1) and 52(3).

External links

Case author

Osa McCuskey, University of Groningen

Published by Marco Nicolò on 16 May 2022