ADDITIONAL DISSENTING OPINION OF JUDGE MOUROU-VIKSTRÖM (ON PARAGRAPH 7 OF THE COMMON DISSENTING OPINION)

(Translation)

I wish to reiterate my full agreement with the contents of the joint dissenting opinion appended to the Savran v. Denmark judgment.

However, as regards the question addressed in paragraph 7, I consider it important to set out my own position, which is based on a different interpretation of the Paposhvili v. Belgium judgment ([GC], no. 41738/10, 13 December 2016).

The Paposhvili judgment does not refer explicitly to mental illnesses in paragraph 183, in which it defines the “other very exceptional cases” which, within the meaning of the N. v. the United Kingdom judgment ([GC], no. 26565/05, ECHR 2008), may infringe Article 3 in the event of the removal of a seriously ill person. Paragraph 183 focuses on the consequences of the removal and of the lack of appropriate treatment, rather than on the nature of the original medical problem, which is described in general terms as a “serious illness”.

Thus, while it is true that mental illness is not specifically excluded from the scope of the judgment, it is in my view impossible to infer from the Paposhvili judgment that the criteria which it lays down apply equally and in a strictly identical manner to physical and mental illnesses.

Indeed, it may be established by converse implication that mental illness has deliberately not been included as such in the wording of the Paposhvili judgment. This is to my mind a wise and significant choice, since diagnosis of this type of illness is not straightforward, is not always based on objective criteria, often gives rise to heated discussions among experts, and above all does not exclude the possibility of error due to simulation.

Hence the consequences of removal for a person with mental disorders should not be perceived in the same way as for a person with a physical disease such as leukaemia, the existence, symptoms and progress of which and the treatment required can be established by scientifically incontrovertible medical examinations.

Mental illness is more “volatile” and open to question. It cannot therefore constitute an obstacle to removal in the light of the criteria established in Paposhvili and requires a different approach and a higher threshold for finding a violation of Article 3, which the Grand Chamber will no doubt be called upon to set.