DISSENTING OPINION OF JUDGE ZUPANČIČ

I regret that I am unable to agree to a finding of no violation in this case.

The facts of this case are to some extent analogous to those of the case of A.A. v. the United Kingdom [1] , and also bring to mind that of Aswat v. the United Kingdom [2] . In all three cases we are dealing with a foreigner who had committed a censurable act and who was in turn earmarked for an expulsion or extradition by the authorities.

The two above-cited cases ought to have provided sufficient reasons for deciding this case differently.

In Aswat the Court found that the extradition of the applicant – a paranoid schizophrenic – to the United States would amount to a violation of Article 3, precisely on account of the applicant ’ s vulnerability due to his mental illness. In Aswat , however, the applicant was to be extradited to a fairly structured, albeit prison, environment in which his mental illness was to be, according to the explicit assurances given by the United States Department of Justice, taken care of.

Nevertheless, the Court in Aswat took the position that a mere change of setting – from the protected environment of the Broadmoor [mental] Hospital to the facility in the United States – would be sufficiently austere and traumatic to amount to a violation of Article 3 of the Convention. It is useful, therefore, to keep in mind that the applicant in the case at hand would contrariwise be released into completely unstructured surroundings in Pakistan with total uncertainty as to the possibilities of her continued mental care in a country from which she has been absent for 23 years and where her relatives have already rejected the possibility of taking care of her.

In A.A. v. the United Kingdom the application was based on Article 8, as in the present case. The applicant, when 13 years old, committed a rape and was sentenced to four years in a Young Offenders ’ Institution. The question was posed subsequently whether his expulsion to Nigeria, in view of this offence, was, under the Convention, acceptable, given that between the age of 13 and 29 the applicant had not re-offended. His family life consisted of relationships with his mother and his sisters. The Court, after a careful consideration of all the factors in play, and in particular the situation at the time of the proposed expulsion, maintained as follows (§ 67) :

“Any other approach would render the protection of the Convention theoretical and illusory by allowing Contracting States to expel applicants months, even years, after a final order had been made notwithstanding the fact that such expulsion would be disproportionate having regard to subsequent developments .” (emphasis added) ”

It further found (§ 68):

“... in a case where deportation is intended to satisfy the aim of preventing disorder or crime, the period of time which has passed since the offence was committed and the applicant ’ s conduct throughout that period are particularly significant.” (emphasis added).

In the case before us, the applicant has likewise not reoffended for a period of 11 years, that is, if it could be maintained for the sake of argument that she, as an insane person with schizophrenia and diminished intelligence, had “offended” in the first place. In the light of what the Court held in Aswat and in A.A., to expel a schizophrenic woman who is now 53 years old, because she purportedly represents a danger “for the prevention of disorder or crime”, is clearly incompatible with the Court ’ s case-law.

The applicant in this case, it is said in paragraph 13 of the judgment, had committed “manslaughter” in a state of mental incapacity because at the time of the act she had been in a state of acute psychosis. A medical expert noted that she had been suffering from schizophrenia and diminished intelligence.

It is true that insanity is an excuse, not a justification, for the act. In German law, the distinction is made between the reasons that exclude the very illegality of the act itself (e.g. self-defence) on the one hand and the reasons that exclude only criminal responsibility (e.g. insanity) on the other. A similar distinction is made in the common law between the justification (for the act) and the excuse (for the actor).

The question, therefore, is whether the insane person has or has not committed a criminal act. Since the basic criminal law doctrine requires that the act be a genuine emanation of the actor ’ s personality, it is impossible to maintain that an actor who is of unsound mind has himself or herself committed the act. The causal link, as required for the very establishment of an insanity defence, is to the mental illness. It follows logically that the mental illness is to blame. The actor is thus blameless, as indeed Shakespeare understood:

“This presence knows, and you must needs have heard,

How I am punished with a sore distraction.

What I have done

That might your nature, honour and exception

Roughly awake, I here proclaim was madness.

Was ’ t Hamlet wronged Laertes? Never Hamlet.

If Hamlet from himself be ta ’ en away

And when he ’ s not himself does wrong Laertes,

Then Hamlet does it not; Hamlet denies it.

Who does it then? His madness. If ’ t be so,

Hamlet is of the faction that is wronged –

His madness is poor Hamlet ’ s enemy. ” [3]

However, if somebody commits a homicide (a neutral term) in a state of mental incapacity, i.e., if he or she is insane, that homicide cannot be legally characterised as “manslaughter” because according to the strict criminal law criteria an insane person cannot commit a criminal act. The first of the criteria from the case of Ãœner v. the Netherlands ([GC], no. 46410/99, ECHR 2006 ‑ XII) refers to the nature and seriousness of the offence committed by the applicant –, whereas in the present case the applicant had, quite simply, not committed a criminal act at all. In paragraph 54 of the present judgment the Court nevertheless refers to the “continuous danger to public safety” that the applicant, who is now 52 years old, is said to represent, and which supposedly necessitates her deportation to Pakistan.

In the cases of A.A. v. the United Kingdom and Aswat v. the United Kingdom , situations that were comparable to that of the case at hand were resolved in the opposite direction. In A.A. the “continued danger” of the applicant ’ s presence for the public, although he was a young man and therefore in principle more likely to reoffend, was not decisive for the subsequent outcome of the case; the danger was reassessed by the Court as being insignificant. However, in the case before us, to maintain that a schizophrenic and oligophrenic woman aged 52, who has been inoffensive for 11 years, because she continues to be under antipsychotic medication, now represents an objective danger to the public, is absurd.

Moreover, the applicant ’ s mental illness, after 23 years in Germany, will obviously be exacerbated by her forcible removal from the country in which she is a longstanding immigrant, and by being sent back to Pakistan, where even her relatives do not wish to care for her. The forced removal of a schizophrenic person with diminished intelligence, from an environment that she has been used to, is not equivalent to the removal, as in the case of A.A. , of a normal person in full command of his or her mental capacities.

In other words, this cannot be a question of the 250 euros she will be receiving from Germany as her pension and which would presumably be sufficient for her to be able to pay for her medication. It is quite clear, therefore, that her mental state following expulsion to Pakistan will, in view of her fragile mental health, be fatally affected.

A finding of a possible violation in this case if the applicant were to be expelled would have prevented the tragedy. Empathy would require no less. [4]

DECLARATION OF JUDGE YUDKIVSKA

I have voted with the majority in favour of finding no violation of Article 8 in the present case; however, this was purely for the reasons s et out in paragraphs 52-53 of the judgment, namely that the applicant ’ s reintegration in Pakistan does not appear im possible and medical treatment for her condition is available there.

Nevertheless, I profoundly disagree with the application of the Üner test in these circumstances, since it cannot be claimed that the applicant had committed a crime in terms of criminal law. In this respect I fully share the views expressed by Judge Zupančič in his dissenting opinion .

[1] A.A. v. the United Kingdom , no. 8000/08 , 20 September 2011 .

[2] Aswat v. the United Kingdom , no. 17299/12 , 16 April 2013 .

[3] W. Shakespeare, Hamlet (The Arden Shakespeare 2006), Act 5, Scene 2 (emphasis added).

[4] See the very persuasive dissenting opinion of Judge Pinto de Albuquerque in the recent case of S. J. v . Belgium , no. 70055/10 , 19 March 2015.