SEPARATE OPINION OF JUDGE Sir Nicolas BRATZA JOINED BY JUDGES COSTA AND GREVE

It is with considerable hesitation that I have voted in favour of a finding that the return of the applicant to Algeria would not violate Article 3 of the Convention.

As is rightly emphasised in the Court's judgment, it is beyond doubt that the applicant is suffering from a mental illness which is both genuine and serious. His condition, when his psychotic illness was first diagnosed, was so severe that consideration was given to his compulsory detention in a mental hospital. In the event, the applicant responded sufficiently to treatment to make this unnecessary and, subject to a minor relapse in 1997 for which he was admitted to hospital and to signs of deterioration in his condition in February 1999, his illness has been successfully managed with the use of antipsychotic medication – most recently and currently, olanzapine.

Nevertheless, the applicant's mental illness remains serious. In the view of Dr Johnson, not only was his illness likely to be a long-term one, but the applicant was likely to continue to have positive symptoms (delusions, hallucinations and thoughts of self-harm), which would persist and could worsen although controlled to a substantial degree by olanzapine. In addition, there had in her view been a significant deterioration in the applicant's level of social functioning which was likely to be significantly handicapping in the coming years. While, with continuing medication and support from the mental health services, the applicant would, in the view of Dr Johnson, be likely to remain at the same level and not require very long periods of institutionalisation, the prognosis if he were returned to Algeria was more uncertain. It was her uncontradicted view that it was “highly likely” that the stress caused by the deportation to Algeria and the environment there would trigger an exacerbation of the applicant's symptoms; that his fearfulness when unwell and motivational problems would make it difficult for him to seek help; and that if, without such help, he began to relapse “there would be a great risk that his deterioration would be very great and he would be at risk of acting in obedience to his hallucinations telling him to harm himself or others”.

The availability of appropriate treatment and medication in Algeria remains imponderable. It is common ground that olanzapine would not be free to the applicant as an outpatient and that the closest hospital with facilities for dealing with mental patients, where he could be treated as an inpatient, is some 75 to 80 km from the village where his family live. It is in dispute whether olanzapine is available to outpatients on payment in hospital pharmacies, but the cost of such drug would be likely in any event to prove prohibitive. It is also in dispute whether the security situation in Algeria would render travel to the Frantz-Fanon Hospital dangerous but,

even if such a journey could be safely made, regular travel to the hospital at such a distance would be likely to pose serious practical problems for the applicant.

In these circumstances, the central question raised is whether the risk of a relapse and the risk that any such relapse would go untreated because of lack of appropriate support or medication have been shown to be sufficiently real and certain that the applicant's removal to Algeria would amount to a violation of Article 3. The standard required is a high one. In D. v. the United Kingdom (judgment of 2 May 1997, Reports of Judgments and Decisions 1997-III), the Court required that the circumstances surrounding the case should be subjected to a “rigorous scrutiny” where the source of the risk of proscribed treatment in the receiving country stemmed from factors which could not engage either directly or indirectly the responsibility of the public authorities of that country. The circumstances in D. v. the United Kingdom itself were correctly categorised by the Court as “very exceptional”. The applicant in that case was in an advanced stage of a terminal and incurable illness; at the date of the Court's hearing there had been a marked decline in his condition and he had to be transferred to a hospital where his condition was giving rise to concern; the abrupt withdrawal of sophisticated treatment and medication which he enjoyed in the United Kingdom would, as the Court found, have entailed dramatic consequences for him, hastening his death and subjecting him to acute mental and physical suffering, since any medical treatment which he might hope to receive in St Kitts could not contend with the infections which he might possibly contract on account of his lack of shelter and proper diet, as well as exposure to the health and sanitation problems which beset the population of that island.

As is pointed out in the Court's judgment, the present case does not disclose exceptional circumstances similar to those of D. v. the United Kingdom , the risk that the applicant would, if returned to Algeria, suffer treatment reaching the threshold of Article 3 being less certain and more speculative than in that case. For this reason, I have on balance arrived at a different conclusion from that reached by the Court in D. v. the United Kingdom . Nevertheless, on the evidence before the Court, there exist in my view powerful and compelling humanitarian considerations in the present case which would justify and merit reconsideration by the national authorities of the decision to remove the applicant to Algeria .