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A Russian man appealing an asylum rejection in the Netherlands on the grounds that he would lose access to medicinal cannabis if he returned to Russia has won his case.
In a landmark ruling issued Tuesday, the Court of Justice of the European Union said the man’s medicinal cannabis treatment for a rare type of blood cancer trumped the illegality of his stay in the Netherlands.
The interpretation is binding, not only for the Netherlands but for the whole of the EU.
The Russian national’s case was assigned to the grand chamber, where the most important and legally significant — less than 10 percent — of cases end up and where legal precedents are set, a CJEU spokesperson said.
The significance of the case lies in that the right to health prevails over any other consideration, said Vincenzo Salvatore, current counsel and leader of the health care and life sciences focus team at Milan-based law firm BonelliErede.
“This could be a precedent for other jurisdictions to follow this approach and interpretation,” Salvatore said.
Tuesday’s judgment is aligned with the court’s previous case law and that of the Strasbourg-based European Court of Human Rights regarding asylum rights and the prohibition of sending people back to their country of origin if this would endanger their human dignity.
Though the case addresses access to medicinal cannabis, the ruling applies to any medical treatment not available in the receiving country.
“A third country national who is suffering from a serious illness may not be removed if, in the absence of appropriate medical treatment in the receiving country, that national risks being exposed to a real risk of a rapid, significant and permanent increase in the pain linked to that illness,” the court said in a statement.
This requires establishing that the absence of the treatment would lead to pain “of such intensity that it would be contrary to human dignity in that it could cause him or her serious and irreversible psychological consequences, or even lead him or her to commit suicide,” the statement reads.
The Russian man, who developed the rare blood cancer at the age of 16, had previously said that discontinuing his treatment would lead to pain so severe it would make him depressed and suicidal.
Tuesday’s decision aligns with the opinion issued in June by an adviser to the EU’s top court, Advocate General Priit Pikamäe.
The case now goes back to the Dutch court to decide on the Russian man’s fate on the basis of the CJEU interpretation.
