In the case of Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique) (C-69/21, 22.11.2022), the CJEU ruled on the lawfulness under the Return Directive (2008/115) of a return procedure initiated in the Netherlands against a Russian national who developed a rare form of blood cancer the treatment of which consists, inter alia, of the administration of medical cannabis for analgesic purposes, which is forbidden in Russia.

The CJEU dealt with that issue inter alia from the perspective of the prohibition of ill-treatment (Article 4 of the EU-Charter) and the right to protection of private life (Article 7 of the EU-Charter). In light of Article 52(3) of the EU-Charter, both provisions were found to have the same meaning and scope as the corresponding provisions of the Convention, Articles 3 and 8 respectively.

As regards the impact of Article 4 of the EU-Charter on the return decision at issue, a striking feature of this judgment is its extensive reliance on Strasbourg case-law, notably Paposhvili v. Belgium and Savran v. Denmark, which are the leading cases on the deportation of seriously ill persons considered under Article 3 of the Convention.

This is another illustration of the “toolbox function” fulfilled by the Convention when Strasbourg case-law is used to fill lacunae in EU legislation or case-law (for another example, see Spetsializirana prokuratura(trial of an absconded suspect)). This kind of reliance on the Convention, which is to be welcomed as an important contribution to the coherence of European fundamental rights protection, is to be distinguished from the “benchmark function” of the Convention, which is less frequently mentioned and refers to the fact that pursuant to Article 52(3) of the EU-Charter, the Convention protection level also applies under EU law (as recently applied in Politsei- ja Piirivalveamet, §§ 47 et seq.).