By Tobias Thienel

A while back, I had a few comments, many critical, on the judgment of the ECtHR’s Grand Chamber in N v. United Kingdom, the latest case concerning the expulsion of an AIDS patient to a receiving state providing little in the way of health care. In particular, I was less than satisfied with a few things the Court said in its treatment of Article 3 ECHR, clearly the main issue in the case. But there is another aspect to the case that is also far from edifying: after having found that there would be no violation of Article 3 were the applicant in fact expelled to Uganda, the Court very briefly held that the applicant’s additional complaint under Article 8 did not raise any separate issue. It was therefore unnecessary for the Court to examine that complaint (para 53 of N). To be sure, the Court often finds after examining a complaint under one article of the Convention that another article does not raise any separate issue, and does not call for any separate enquiry. This happens, for instance, where at the level of the law of the Convention, consideration of one article must take precedence over consideration of another, because the former article more specifically covers the conduct in question. Then the former article is a kind of lex specialis vis-à-vis the latter (though not in the sense of the lex specialis rule as a means of resolving norm conflicts; there is likely to be no such conflict; see A Lindroos, ‘Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of lex specialis‘, Nordic Journal of International Law 74 (2005), 27-66). This is the case, for instance, where Article 10 ECHR (the freedom of expression) is raised alongside Article 3 of the First Protocol (the right to vote and stand in elections): if Article 3 P1 is engaged, then clearly it should be dispositive of the issue, rather than Article 10. Article 10 will then raise no separate issue (see Hirst v United Kingdom (No 2), para 89). Furthermore, detentions will not be examined under Article 8, even though they clearly do affect a person’s private and family life; Article 5 deals with deprivations of liberty, and is the applicable lex specialis (see Storck v Germany, para 142). Similarly, where an eviction from certain land is complained of under Article 8, and the execution of the eviction also interfered with the enjoyment of the applicant’s property (Article 1 P1), the issue as to property falls to be considered as merely ‘a consequential element of the eviction’, and therefore as encompassed by the larger issue under Article 8 (Connors v United Kingdom, para 100). This aspect, however, cannot justify the treatment, or rather non-treatment, of Article 8 in N. Article 3 no more specifically addresses suffering caused by a removal from jurisdiction than does Article 8; in particular, Article 3 is not intended to be dispositive of all concerns about extraditions and expulsions. Article 8, too, applies to prohibit such action where flagrant violations of its terms are expected in the receiving State (see Bensaid v United Kingdom, para 48, and the treatment of that case in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, paras 9, 58). Aside from this strictly legal reason of lex specialis, aspects of a case under a second or third article of the Convention are also sometimes held to raise ‘no separate issue’ for simple reasons of judicial economy. For example, no separate issue will be held to arise under a second article if the arguments adduced under the second article raised are really the same as those already considered by reference to the first article (see e.g. Storck, cited above, paras 118, 122, 133, 136). It just would not make sense to have a lengthy examination of one article, followed by the exact same line of reasoning, only now relative to another article. Similarly, if one set of facts has been held to have violated the Convention, and further arguments under another article are made in relation to the very same facts, it may not make sense to consider them as well. The second line of argument would then raise no further issue (see e.g. Hoffmann v Austria, para 38). The respondent State will know already from the preceding analysis under the first article that what it has done was unlawful, and that it will have to change its ways in this respect. There is no need for the Court to drive home the same point under two articles. [Perhaps surprisingly, the Court also follows this line of thought where a finding of a violation of Article 2 is made, and Article 3 is raised on the same facts: Nikolova and Velichkova v Bulgaria, para 78. It might have been thought that Article 3 ought still to be considered, because of its special relevance as one of the central values of the Convention, i.e. for more or less political reasons. But, of course, Article 2 very largely shares the special position of Article 3 (McCann and Others v United Kingdom, para 147).] In a related aspect of its practice, the Court also declines, in cases where it has found a violation of a right of freedom (e.g. Articles 2-11 ECHR), to examine whether there has also been unlawful discrimination with respect to the enjoyment of that freedom in the sense of Article 14 (see e.g. Hirst, cited above, para 87; Connors, cited above, para 97; Larissis and Others v Greece, para 69). The Court having found that the applicant’s rights have been breached by the State conduct in question, it is hardly necessary also to hold that, having been treated unlawfully, the applicant has also been unreasonably treated differently from other people. [Except, perhaps, to show that such things do happen in the respondent State, and that this must stop: see Anguelova v Bulgaria, Partly Dissenting Opinion of Judge Bonello, paras 1-3.] So, does this justify the Court’s attitude in N v United Kingdom? I don’t think so. It is one thing to hold that, if State conduct violates one article, it is not strictly necessary to decide whether it also violates another. The conduct in question will be ruled unlawful either way. But it is quite another thing to refuse to consider a second article after having failed to find a violation under the first legal aspect examined. Nor does it seem sensible to hold that the arguments under Article 8 would have been the same as those answered by reference to Article 3. True, Article 8 protects a person’s physical and psychological integrity, as does Article 3 (Bensaid, cited above, paras 46-47), but Article 8 clearly has a much lower threshold test of the intensity of suffering than does Article 3 (see ibid. and also Smith and Grady v United Kingdom, paras 112, 120-122). This must be true even of the concept of flagrant breaches of Article 8, as relevant to the extradition/expulsion context; if it were not, then the protection of Article 8 would not go beyond that already afforded by Article 3, and one could do away with Article 8 in that particular context. Article 8 therefore does not even nearly pose the same question as Article 3, and therefore had to be considered on its own merits. It therefore cannot be said that, no matter what the different questions, the reasoning of the Grand Chamber in relation to Article 3 would as such also have put paid to any complaint under Article 3. Article 8 could have been engaged even though Article 3 was not. This would have forced the Court to enter into a full examination of the proportionality of the removal in the circumstances of the individual case. As it is, its brief invocation of the State’s interest in not becoming the ‘sick-bay of the world’ (the dissenters’ choice of phrase) did not sufficiently consider both sides of the problem. Nor, I imagine, would the Court be altogether happy to have this passage regarded as a proportionality review. That, of course, is inappropriate in the context of Article 3. The Court’s quote from Soering v United Kingdom, para 89, at para 44 of N, may well have sinned against that basic truth – as I have previously argued it has – but it has not stated flatly that it was looking for proportionality in the sense of Article 8(2) (et al). The Court’s simple, silent, transposition of its Article 3 analysis to Article 8, however, may have done just that. That, I would think, is taking judicial economy much too far.