LUXEMBOURG (CN) — The Netherlands cannot deport a Russian national whom it denied asylum after discrediting his claim that he would be persecuted in his homeland for using medical marijuana as part of his cancer treatment, the European Court of Justice ruled Tuesday.
Referred to in the opinion by the initial X, the immigrant in question was just 16 when he was diagnosed with polycythaemia vera, a kind of cancer that causes the body’s bone marrow to make too many red blood cells, thickening the blood. X's treatment regime in Russia kept the cancer in check but caused debilitating side effects that he has managed to abate with a cannabis-based treatment.
As marijuana use for any reason is a criminal offense in Russia, X pursued treatment options abroad. He first applied for asylum in the Netherlands in 2013, which Dutch authorities denied. The Netherlands denied X refugee status on the basis that his health was not in crisis.
Five years later, the District Court for The Hague referred the case to the EU's top court, asking if people with a serious illness are protected from removal to a country where their current treatment regime is not available. In particular, the Dutch court wanted clarification as to whether, in matters of of residence rights, psychological symptoms, such as suicidal ideation, must be considered, as well as the imminence of onset pain.
During a March 2022 hearing in Luxembourg, the Dutch argued X was at not at risk of a “medical emergency” if he was deported and that, in his present state, he was able to travel. Lawyers for the Netherlands also argued that the efficiency of cannabis treatment had not been proven.
Lawyers for X argued that, without cannabis, their client would likely experience intense and unbearable pain that would even put him at risk of suicide. They submitted evidence to the court that his doctors considered cannabis the only effective treatment for his pain.
The European Court of Justice cited its own case law and the case law of the European Court of Humans Rights in finding that countries cannot deport residents if there is a real risk of “a rapid, significant and permanent increase in the pain caused by his or her illness” because treatment is not available.
Unsympathetic to the Netherlands, the 17-judge panel pointed to numerous cases from the European Court of Human Rights that prevent the deportation of anyone who is likely to suffer medical repercussions. In the 2016 case Paposhvili v. Belgium, the ECHR sided with a Georgian national suffering from leukemia and tuberculosis who argued that he would not receive adequate medical care if he was forced to return to his homeland.
Based in Strasbourg, the ECHR was created in 1959 by the European Convention of Human Rights. Although the Court of Justice is not obliged to follow case law from the ECHR, it considers the rulings as guidance.
The Netherlands started one of the first medical marijuana programs in the world in 2003. Multiple strains of medicinal cannabis are available to patients at all Dutch pharmacies for the treatment of chronic pain, Tourette's syndrome, and nausea and vomiting relating to cancer treatment. The country also allows residents to grow and use marijuana for recreational purposes.
X's fears about prosecution in Russia for the use of medical marijuana are not unfounded. U.S. basketball star Brittney Griner is serving nine years in a Russian prison colony for possessing vape cartridges containing cannabis oil.
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