PARTIALLY DISSENTING OPINION OF MR. J.-C. GEUS, JOINED BY

MRS. G.H. THUNE, M.P. PELLONPÄÄ, B. MARXER AND N. BRATZA

      I am unable to agree with the majority of the Commission that the

applicant had available to him an effective remedy in respect of his

complaints under Article 3 of the Convention. It is true that in its

judgment in the case of Vilvarajah and others (Eur. Court HR,

Vilvarajah and others judgment of 30 October 1991 Series A no. 215) the

Court concluded that judicial review of the Secretary of State's

refusal to grant asylum amounted to an effective remedy in relation to

the applicant's complaint under Article 3 of the Convention. In so

concluding the Court placed emphasis both on the fact that there were

examples in the case-law where courts had quashed decisions to refuse

asylum and on the fact that the domestic courts had "stressed their

special responsibility to subject administrative decisions in this area

to the most anxious scrutiny where an applicant's life or liberty may

be at risk" (loc. cit. p. 39, para. 125). Nevertheless, there are

special features in the present case which serve in my view to

distinguish the present case from cases concerning asylum. As the

majority point out, it does not appear that there was any dispute of

fact before the domestic courts as to the likely effects of a removal

on the applicant. While the Court of Appeal did address the hardship

that would result and referred to the obligation on the court to give

the most anxious scrutiny to cases where life expectancy is involved,

it nonetheless concluded that it found no grounds to grant relief. It

appears to me that the courts' approach to the case took its starting

point from the immigration authorities' distinction, based on the

applicable rules, between persons who had or had not been given leave

to enter. The existence of intervening circumstances was not accorded

any relevance in the assessment of the applicant's position. Against

that background, I am of the opinion that the consideration of risk of

ill-treatment contrary to Article 3 was shown to be in practice an

element of limited significance. Judicial review consequently failed

to afford any effective opportunity for the substance of the

applicant's complaints to be addressed. There was thus a violation of

Article 13 in the present case.