DISSENTING OPINION OF JUDGE DE GAETANO

1. I cannot share the opinion expressed by the majority in the operative part of the judgment to the effect that the applicant ’ s expulsion to Kyrgyzstan in the circumstances of the present case would not give rise to a violation of Article 3 of the Convention. In my view it would give rise to such a violation.

2. The basic facts are not disputed. The applicant has been in Sweden for just over five years. Irrespective of the original reason for his arrival in that country, and regardless of his state of health at that time, the applicant today suffers from chronic kidney failure which necessitates haemodialysis three times per week. If this treatment were interrupted, he would die within a couple of weeks, at the very most three. This has been acknowledged by both the domestic courts (see paragraphs 10 and 14) and the Court (paragraph 50).

3. The critical issue in this case is whether the applicant ’ s removal to Kyrgyzstan would expose him to a real risk of suffering treatment which reaches the minimum threshold to engage Article 3. As was stated in Pretty v. the United Kingdom , no. 2346/02, 29 April 2002, at § 52:

“The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible...”

Considering the absolute nature of Article 3, there is no logical reason why the prohibition of removal or expulsion should not equally apply “where the harm stems from a naturally occurring illness and a lack of adequate resources to deal with it in the receiving country, if the minimum level of severity, in the given circumstances, is attained. Where a rigorous examination reveals substantial grounds for believing that expulsion will expose the person to a real risk of suffering inhuman or degrading treatment, removal would engage the removing State ’ s responsibility under Article 3 of the Convention.” (see § 5 of the joint dissenting opinion of Judges Tulkens, Bonello and Spielmann in N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008); see also in this respect the partly concurring joint opinion of Judges Tulkens, Jočienė, Popović, Karakaş, Raimondi and Pinto de Albuquerque in Yoh-Ekale Mwanje v. Belgium , no. 10486/10, 20 December 2011). The same reasoning is implicit in the judgment of the Fourth Section of the Court in the case of Aswat v. the United Kingdom , no. 17299/12, 16 April 2013 (see in particular §§ 49 to 52) – although the case concerned the extradition of a suspected terrorist to the United States of America, the applicant ’ s enduring mental disorder (paranoid schizophrenia) coupled with the uncertainty as to the conditions of detention and the medical services that would be made available to him in the requesting State, led to a unanimous finding of a violation of Article 3.

4. In the instant case the applicant has, in my view, convincingly shown that he stands very little chance of receiving the required haemodialysis immediately upon his return to Kyrgyzstan. Of course haemodialysis is carried out in that country (and probably even the less effective peritoneal dialysis, but there seems to be no information on that); the applicant had also received some form of treatment there before he had left for Sweden. The question, however, is whether the applicant can now have access to haemodialysis immediately upon his arrival there. The Court, in coming to its conclusion, has regrettably glossed over with hypotheses and conjectures the hard evidence provided by the letter of 17 February 2014 from the Kyrgyz Ministry of Health in reply to the applicant ’ s father request (see paragraph 54), and also ignored the certificate of 29 December 2011 issued by the Chief Physician at the Kidney Medical Clinic of Karolinska University Hospital (paragraph 18) to the effect that it “would be completely unreasonable to expel [the applicant] without ensuring that dialysis would be available to him upon return to his home country” (paragraph 18). Instead the Court relies mainly on general (and unsubstantiated) assumptions (paragraphs 53 and 54) that the applicant has “moved up” the list of those waiting for haemodialysis since he was first placed on it. The Court also argues, or seems to argue, that since there are also “private centres” in Kyrgyzstan which offer haemodialysis and the applicant has family in his country of origin (even though the applicant has clearly stated that his family there would not be able to provide any help – paragraph 36 – a statement which the respondent Government have not really challenged) the “ Pretty threshold” has not been reached.

5. The clearest indication that that threshold has been reached in the instant case is, in my view, provided by the Court ’ s own emphasis in paragraph 56 on the “assurances”, provided by the respondent Government in their submissions, as to the manner of execution of the expulsion order, and in particular on the assurance that “the Migration Board would make every effort to see to it that the applicant would not have to pause his dialysis if expelled and that he would have access to the medical care he needs upon return to Kyrgyzstan” (emphasis added). What does the expression “every effort” imply in a situation like the one at hand? Does it mean that if the Migration Board does its very best (even with the full cooperation of the applicant) but is ultimately unsuccessful in securing uninterrupted haemodialysis, the expulsion can go ahead without there being any breach of Article 3? In Tarakhel v. Switzerland [GC], no. 29217/12, 4 November 2014, the Court found that there would be a violation of Article 3 if the applicants were removed to another State party to the Convention without the Swiss authorities having first obtained certain guarantees from that other State. I fail to see why such a condition was not inserted into the operative part of the judgment in the instant case, particularly when the country to which the present applicant is to be removed is not a party to the Convention (there is nothing in the case file to suggest that if diplomatic or other assurances were sought from the authorities of Kyrgyzstan and obtained, these would be worthless – see, by converse implication , §§ 147 and 148 of Saadi v. Italy , [GC] no. 37201/06, 28 February 2008). Conditions have been inserted without difficulty in other judgments against Sweden, such as W.H. v. Sweden , no. 49341/10, 27 March 2014 [1] , and A.A.M. v. Sweden no. 68519/10, 3 April 2014, although the conditional finding in both cases was one of no violation, and the factual context was different from the one at hand.

[1] Currently before the Grand Chamber.