CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 14 décembre 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .s943B079B { width:33.54pt; display:inline-block } .s4D2D3397 { width:115.07pt; display:inline-block } .s9852CA4C { width:7.54pt; display:inline-block } .s9E436411 { width:138.09pt; display:inline-block }     FIFTH SECTION DECISION Application no. 34474/20 J.N. against Sweden   The European Court of Human Rights (Fifth Section), sitting on 14   December 2023 as a Committee composed of:   Stéphanie Mourou-Vikström , President ,   Lado Chanturia,   Mattias Guyomar , judges , and Sophie Piquet, Acting Deputy Section Registrar, Having regard to: the application (no.   34474/20) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 22   July 2020 by a Philippine national, Mr J.N., who was born in 2010 (“the applicant”) and who was represented by Mr Y. Djuanvat, a lawyer practising in Hudiksvall; the decision to give notice of the complaint concerning Article 3 to the Swedish Government (“the Government”), represented by their Agent, Ms   H.   Lindquist, of the Ministry for Foreign Affairs, and to declare the remainder of the application inadmissible; the decision to give priority to the application (Rule 41 of the Rules of Court); the decision to indicate an interim measure to the Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the applicant’s deportation to the Philippines. His asylum application was dismissed by the domestic authorities and courts, the final decision being taken in January 2020, after which he unsuccessfully lodged applications claiming that there were impediments to the enforcement of the deportation order. 2.     The applicant is a 13-year-old boy who is to be deported together with his father, also a Philippine national. The applicant suffers from, inter alia , hydrocephalus and an arachnoid cyst in his brain. At a young age he underwent surgery in the Philippines to place a shunt in his brain to drain excess cerebrospinal fluid. Since arriving in Sweden in 2015 he has been hospitalised on several occasions and in June 2020 he underwent emergency surgery to replace the shunt. In 2021 he underwent additional surgery to reposition the shunt on account of malfunction. 3.     The applicant complained that his deportation would be in breach of Article 3 of the Convention in view of his medical condition and the lack of access to adequate treatment in the Philippines. He submitted that post-surgery complications were common and that any shunt malfunction would need to be dealt with within a few hours by neurosurgical experts. In the Philippines, he would be living several hours away from Manila and would not have sufficiently rapid access to medical care. Travelling that distance would also be unreasonable. The applicant further submitted that his father would be unable to earn enough to afford accommodation in Manila or to pay for the applicant’s medical treatment since he would need to provide the applicant with constant care and monitoring. Furthermore, the applicant had no other family in the Philippines that could support him. Moreover, the applicant submitted that travelling to the Philippines would be potentially life-threatening and contrary to the advice of his doctors. THE COURT’S ASSESSMENT 4.     The Government questioned whether the applicant had exhausted domestic remedies as he had failed to make a final appeal in the asylum proceedings. The applicant argued that the failure to appeal was attributable to the negligence of the lawyer who had been assigned to him by the State and should therefore not be viewed as a failure by him to exhaust domestic remedies. The Court finds that it is not necessary to examine this issue further, since the complaint is in any event inadmissible for the reasons set out below. 5.     The general principles regarding the expulsion of seriously ill aliens have been summarised in Paposhvili v. Belgium ([GC], no.   41738/10, §§   172 ‑ 93, 13 December 2016) and Savran v. Denmark ([GC], no.   57467/15, §§   124-36, 7 December 2021). 6.     The medical certificates submitted by the applicant demonstrate that he has a vital need for a functioning shunt and that in the event of a shunt malfunction he needs rapid access to neurosurgical expertise, failing which he risks rapid neurological deterioration and a fatal outcome. 7.     The applicant has thus demonstrated that in the event of a shunt malfunction, and in the absence of appropriate treatment or lack of access to such treatment, he would risk being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering or a significant reduction in life expectancy. 8.     The crux of the matter is therefore whether the appropriate treatment is available in the Philippines and whether the applicant would have access to such treatment. 9.     The domestic authorities found, in the light of relevant country-of-origin information, that an extensive range of healthcare was available in the Philippines. There were both private and State hospitals and clinics, as well as an insurance programme for healthcare in the country. The availability and quality of care could vary geographically, as the majority of medical care facilities were located in the large cities. However, in Manila, all kinds of medical care were available. The applicant did not explicitly dispute this information or present any evidence to the contrary. 10.     The domestic authorities further noted that the applicant had previously received treatment in the Philippines. Moreover, he was from Santa Rosa, Laguna, close to Manila (approximately 40 kilometres away). 11.     Additionally, the domestic authorities noted that the applicant had relatives in the Philippines and that there was no indication that his father could not ensure that his basic material needs would be met in the Philippines. 12.     Lastly, the domestic authorities took the best interests of the child into account in their decisions. The Court finds reason to add that while the best interests of children must be afforded significant weight in all cases where children are involved, they cannot alone be decisive (see, for example, Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3   October 2014). 13.     The applicant, for his part, has not substantiated his claim that appropriate treatment would not be accessible to him. The Court notes, for instance, that he has not shown that appropriate treatment is unavailable in his home town or that the distance to Manila would be too far to travel in the case of an emergency. Furthermore, he has not provided any details regarding his father’s financial situation, the opportunities his father may have to work in the Philippines or the alleged lack of support from relatives. Moreover, the applicant has not claimed that the treatment he previously received in the Philippines was inadequate, nor has he explained what circumstances have changed since then to make such care inaccessible to him upon his return. 14.     In the light of the above, the Court finds that substantial grounds have not been shown for believing that the applicant would face a real risk, on account of the absence of appropriate treatment in the Philippines or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering or to a significant reduction in life expectancy (see Paposhvili , cited above, §   183, and Savran , cited above, § 134). 15.     As to the alleged risks faced during the journey to the Philippines, the medical certificates submitted do not address any risks related to travelling and do not indicate that the applicant’s transfer, in itself, would give rise to a real risk of his being subjected to treatment contrary to Article   3. Furthermore, the enforcement procedure in Sweden allows the implementation of a deportation order only if the authority responsible for the deportation considers that the individual’s medical condition so permits and that authority is required to ensure that appropriate measures are taken with regard to the individual’s particular needs (see, for example, Al-Zawatia v.   Sweden (dec.), no. 50068/08, § 58, 22 June 2010; Karim v. Sweden (dec.), no.   24171/05, 4 July 2006; and Imamovic v. Sweden (dec.), no.   57633/10, 13   November 2012). The applicant has therefore not demonstrated that there are substantial grounds to believe that the transfer, in itself, would expose him to a real risk of treatment contrary to Article 3. 16.     The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s deportation to the Philippines would not be contrary to Article 3. 17.     Accordingly, the application is manifestly ill-founded and must therefore be rejected in accordance with Article   35 §§   3   (a) and   4 of the Convention. 18.     The interim measure previously indicated in this application therefore ceases to have any basis. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 18 January 2024.     Sophie Piquet   Stéphanie Mourou-Vikström   Acting Deputy Registrar   President