A patient has won an appeal in the Court of Justice of the European Union to remain in the Netherlands in order to continue accessing cannabis treatment.
A medical cannabis patient fighting deportation in the Netherlands has won their case in a landmark ruling by the Court of Justice of the European Union this week.
The Russian national was appealing an asylum rejection on the grounds that he would lose access to his medicinal cannabis treatment if he returned to his home country.
In what may be the first case of its kind regarding medical cannabis, on Tuesday 22 November, the Court of Justice of the European Union ruled in the patient’s favour, deeming that his access to the treatment overruled the illegality of his stay in the Netherlands.
The individual, who developed a rare form of blood cancer at the age of 16, is currently receiving the treatment for analgesic purposes to manage pain. However, the use of medicinal cannabis is still prohibited in Russia.
After a number of his requests for asylum were rejected – the last of which was in 2020 – he brought an action before the rechtbank Den Haag (District Court of the Hague) against the decision.
His case argued that he should be issued with a residence permit or that his removal should be postponed on the grounds that the treatment is ‘so essential to him that he would no longer be able to lead a decent life if it was discontinued’ and may even become depressed and suicidal.
Drawing on its own case law and that of the European Court of Human Rights, the court ruled that to force the patient to return to Russia would be a breach of EU law and risked exposing him to ‘inhuman’ treatment.
A press statement issued on behalf of the court said: “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.”
While the ruling applies to any medical treatment not available in the receiving country, this is thought to be the first time a case has involved medicinal cannabis.
Robert Jappie, a UK lawyer who specialises in the medical cannabis sector, believes this is a significant ‘step forward’ in terms of the recognition of the treatment.
“The European Convention on Human Rights is the highest standard of human rights in the world, so the procedures are rigorous,” he commented.
“Extensive medical evidence would have been submitted to support the fact that the pain treatment he is receiving cannot be replicated in Russia and that there are no suitable alternatives. The court must have considered this and the fact that it has recognised that his medical cannabis treatment is essential is very significant.”
The interpretation is not only binding for the Netherlands but for all EU Member States. This means it could be relied upon by patients facing deportation in similar circumstances in the future.
This includes patients in the UK, who still have the right to seek assistance from the European Court of Human Rights despite leaving the EU in 2020.
Mr Jappie continued: “It’s quite common to see these types of cases, as there are numerous reasons why traditional deportation may be challenged and refused, but this is certainly the first time I’ve heard of someone relying on their medicinal cannabis treatment.
“This judgement could be relied upon in similar cases in any EU country, including the UK, to prevent deportation.”
He added: “It is a clear indication that medicinal cannabis treatment is being taken seriously.”
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