DISSENTING OPINION OF JUDGE JAMBREK

I regret that I am unable to join the majority in finding no violation in the case of H.L.R. v. France . For me, the danger or degree of risk run by the applicant, if deported to Colombia , of suffering treatment proscribed by Article 3 (art. 3) is the most important criterion. I agree that such a risk is more predictable when the State authorities are involved. However, in my view, a clear distinction cannot be made in abstracto between situations where the danger comes from the State, or where there is complicity on the part of the Government, or even where the State is non-existent and the applicant cannot be protected. Therefore, an assessment must be made in the light of the particular circumstances of each case.

The key reasons given in paragraphs 42 and 43 of the present judgment did not convince me that the risk for the applicant was not sufficiently documented as real and serious, and that the Colombian authorities were capable of affording him appropriate protection. Given that the applicant cooperated with the French authorities while in detention, it would in my view be appropriate for them to give him at least minimal protection against the threat of reprisals by Colombian drug traffickers by refraining from executing the order for his deportation.

On the other hand, it seems that his continued presence on French territory would not represent such a threat to public order as to outweigh the risk of his being subjected to treatment proscribed by Article 3 (art. 3), if deported to Colombia. It does not seem to me to be likely that he would continue with his criminal activities after his recruitment by the drug traffickers had been exposed and he had been punished.

Otherwise, I agree with most of the reasons given in Judge Pekkanen ’ s dissenting opinion.

[1] The case is numbered 11/1996/630/813. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997-III), but a copy of the Commission's report is obtainable from the registry.

[4] See the Chahal v. United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, pp. 1859-62, paras . 98-107.

[5] See his dissenting opinion below, para . 4.

[6] Ibid., para . 5.