CASE OF MAMATKULOV AND ASKAROV v.
(Applications nos. 46827/99 and 46951/99)
JUDGMENT
In the case of Mamatkulov and Askarov v.
The European Court of
Human Rights, sitting as a Grand Chamber composed of:
Mr L. Wildhaber,
President,
Mr C.L. Rozakis,
Mr J.-P. Costa,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr L. Caflisch,
Mrs E. Palm,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr J. Hedigan
Mr M. Pellonpää,
Mrs M. Tsatsa-Nikolovska,
Mr A.B. Baka,
Mr A. Kovler,
Mr S. Pavlovschi,
judges,
and Mr P.J. Mahoney,
Registrar,
Having deliberated in
private on 17 March, 15 September and
Delivers the
following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in two applications (nos. 46827/99 and 46951/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Uzbek nationals, Mr Rustam Sultanovich Mamatkulov and Mr Zainiddin Abdurasulovich Askarov (“the applicants”), on 11 and 22 March 1999 respectively.
2. The
applicants, who had been granted legal aid, were represented by Mr İ.Ş.
Çarsancaklı, a member of the Istanbul Bar. The Turkish Government (“the
Government”) were represented by Mr M. Özmen, co-Agent.
3. The
applications concern the applicants' extradition to the
4. The
applications were allocated to the First Section of the Court (Rule 52 §
1). On
5. In
its judgment of
6. On
7. On
8. The
composition of the Grand Chamber was determined according to the provisions of
Article 27 §§ 2 and 3 of the Convention and Rule 24.
9. The
applicants and the Government each filed a memorial. Observations were also
received from the International Commission of Jurists and the human rights
organisations Human Rights Watch and the AIRE Centre, which had been given
leave by the President to intervene in the written procedure (Article 36 § 2 of
the Convention and Rule 44 § 2).
10. A
hearing took place in public in the
There appeared before the Court:
(a) for the
Government
Mr M. Özmen, Co-Agent,
Ms M. Gülşen,
Ms V. Sirmen,
Ms H. Sari, Advisers;
(b) for the
applicants
Mr İ.Ş.
Çarsancakli, Counsel,
Mr L. Korkut, Adviser.
The Court heard
addresses by Mr Çarsancaklı, Mr Korkut, Mr Özmen
and Ms Sırmen.
THE FACTS
I. THE CIRCUMSTANCES OF THE
CASE
11. The
applicants were born in 1959 and 1971 respectively and are currently in custody
in the
A. The
first applicant
12. On
13. The
14. On
15. On
16. In
written pleadings that were lodged at a hearing on
17. On
B. The
second applicant
18. The
second applicant entered
19. On
20. At
a hearing on
21. In
a letter of
22. In
a decision of
23. On
C. The
extradition of the applicants and subsequent events
24. On 18 March 1999 the President of the relevant Chamber of the Court decided to indicate to the Government, on the basis of Rule 39 of the Rules of Court, that it was desirable in the interest of the parties and of the smooth progress of the proceedings before the Court not to extradite the applicants to Uzbekistan prior to the meeting of the competent Chamber, which was to take place on 23 March 1999.
25. On
26. On
27. On
28. In a letter of 19 April 1999, the Government informed the Court that it had received the following assurances regarding the two applicants from the Uzbek authorities: on 9 March and 10 April 1999 the Uzbek embassy in Ankara had transmitted two notes from the Ministry of Foreign Affairs to which were appended two letters from the Public Prosecutor of the Republic of Uzbekistan, stating:
“The applicants' property will not
be liable to general confiscation, and the applicants will not be subjected to
acts of torture or sentenced to capital punishment.
The
29. On
“It appears from investigations
conducted by the Uzbek judicial authorities that Mr Mamatkulov and Mr
Askarov have played an active role in planning and organising terrorist acts
against the leaders of the
It appears from information
obtained through cooperation with the intelligence services of foreign
countries that Mr Mamatkulov and Mr Askarov have committed offences in
Their indictment, which was drawn up on the basis of previously obtained evidence, includes a number of charges: setting up a criminal organisation, terrorism, a terrorist attack on the President, seizing power through the use of force or by overthrowing the constitutional order, arson, uttering forged documents and voluntary homicide.
All the investigations have been conducted with the participation of their lawyers. The defendants have made statements of their own free will on the activities of the criminal organisation and their role within it. That information has been corroborated by the other evidence that has been obtained.
The assurances given by the Public
Prosecutor of the
The defendants and their lawyers
have examined the prosecution evidence relating to the investigation and the
proceedings and a copy of the indictment transmitted to the Supreme Court has
been served on them.
Arrangements for the accused's security during the investigation and trial have been made through the use of secure premises (with cells specially equipped for that purpose) and appropriate measures have been taken to prevent them being attacked.
The defendants' trial in the Supreme Court has recently begun with hearings in public. The hearings are attended by members of the local and foreign press. Members of diplomatic missions and representatives of human rights organisations also attend the hearings.
Officials from the embassy of the
30. In
a letter of
31. In a letter to the Court dated 15 September 1999, the applicants' representatives said that they had not been able to contact their clients, that conditions in Uzbek prisons were bad and prisoners subjected to torture. They noted, inter alia:
“...
The applicants did not have a fair
trial in the
We wrote to the Uzbek embassy in
As to the assertion that the applicants' trial was followed by 'members of the local and foreign press and representatives of human rights organisations', the only non-governmental organisation present in Uzbekistan that was able to follow the trial was Human Rights Watch. Although we have made express requests to that organisation, we have not been able to obtain any detailed information about the hearings and events at the trial.
Since the applicants' extradition, we have been unable to contact them by either letter or telephone. We still have no means of contacting them. This state of affairs serves to confirm our suspicions that the applicants are not being held in proper prison conditions.
According to the letter sent by
the Court on
32. On
“On 28 June 1999 the Supreme Court of the Republic of Uzbekistan found R. Mamatkulov and Z. Askarov guilty of the offences listed below and sentenced them to twenty years' and eleven years' imprisonment respectively:
R. MAMATKULOV
(a) Eighteen years'
imprisonment pursuant to Articles 28 and 97 of the Criminal Code (homicide with
aggravating circumstances, namely:
(i) murder of two or
more people;
(ii) murder of a person
on official duty or of a close relative of such a person;
(iii) use of means
endangering the lives of others;
(iv) use of cruel means;
(v) offence committed
in the defendant's own interests;
(vi) offence committed
on the basis of religious beliefs;
(vii) offence committed
with the aim of concealing another offence or of facilitating its commission;
(viii) offence
committed by a group of people or a criminal organisation in the interests of
that organisation;
(ix) repeat offence);
(b) Eighteen years' imprisonment pursuant to Article 155 § 3 (a) and (b) of the Criminal Code (terrorist offence);
(c) Ten years' imprisonment pursuant to Article 156 § 2 (d) of the Criminal Code (incitement to hatred and hostility giving rise to discrimination on grounds of race and religion);
(d) Eighteen years'
imprisonment pursuant to Article 158 § 1 of the Criminal Code (attempted
terrorist attack on the President of the
(e) Eighteen years'
imprisonment pursuant to Article 159 § 4 of the Criminal Code (attempt to
undermine the constitutional regime of the
(f) Fifteen years' imprisonment pursuant to Article 161 of the Criminal Code (attempt to destroy property or to damage health, massacres committed with the intention of harming the activities of State bodies and undermining social, political and economic stability);
(g) Twelve years' imprisonment pursuant to Article 168 § 4 (a) and (b) of the Criminal Code (fraud, obtaining the property of others by fraud or deception by or in the interests of a group of individuals);
(h) Ten years'
imprisonment pursuant to Article 223 § 2 (b) (entering or leaving Uzbek
territory illegally and with premeditation);
(i) Two years' community service pursuant to Article 228 § 3 (manufacture, use and sale of false documents: seal, stamp, headed notepaper);
(j) Eighteen years' imprisonment pursuant to Article 242 § 1 (forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang).
Is sentenced to twenty years'
imprisonment pursuant to Article 59 of the Criminal Code (aggregation of
sentences for several offences) to be served in strict-regime penal
institutions.
R. Mamatkulov is currently serving
his sentence in Zarafshan Prison, which is under the authority of the Office of
Internal Affairs of the
Z. Abdurasulovich ASKAROV
(a) Ten years' imprisonment pursuant to Articles 28 and 97 of the Criminal Code (homicide with aggravating circumstances, namely:
(i) murder of two or
more people;
(ii) murder of a person
on official duty or of a close relative of such a person;
(iii) use of means
endangering the lives of others;
(iv) use of cruel means;
(v) offence committed
in the defendant's own interests;
(vi) offence committed
on the basis of religious beliefs;
(vii) offence committed
with the aim of concealing another offence or of facilitating its commission;
(viii) offence
committed by a group of people or a criminal organisation in the interests of
that organisation;
(ix) repeat offence);
(b) Ten years'
imprisonment pursuant to Article 155 § 2 (a) and (b) of the Criminal Code
(terrorist offence, causing another's death);
(c) Ten years' imprisonment pursuant to Article 156 § 2 (d) of the Criminal Code (incitement to hatred and hostility giving rise to discrimination on grounds of race and religion);
(d) Nine years'
imprisonment pursuant to Article 158 § 1 of the Criminal Code (attempted
terrorist attack on the President of the
(e) Nine years'
imprisonment pursuant to Article 159 § 4 of the Criminal Code (attempt to
undermine the constitutional regime of the
(f) Nine years' imprisonment pursuant to Article 161 of the Criminal Code (attempt to destroy property or to damage peoples' health, massacres committed with the intention of harming the activities of State bodies and undermining social, political and economic stability);
(g) Nine years'
imprisonment pursuant to Article 173 § 3 (b) (destruction of, or intentional
damage to, property belonging to others by or in the interests of a group of
individuals);
(h) Ten years'
imprisonment pursuant to Article 223 § 2 (b) (entering or leaving Uzbek
territory illegally and with premeditation);
(i) Two years' community service pursuant to Article 228 § 3 (manufacture, use and sale of false documents: seal, stamp, headed notepaper);
(j) Ten years' imprisonment pursuant to Article 242 § 1 (forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang).
Is sentenced to eleven years'
imprisonment pursuant to Article 59 of the Criminal Code (aggregation of
sentences for several offences) to be served in strict-regime penal
institutions.
Z. Askarov is currently serving
his sentence in Şayhali Prison, which is under the authority of the Office
of Internal Affairs of the
33. At
the hearing on
34. On
“... Mr Mamatkulov was imprisoned
on
On
“... Mr Abdurasulovich Askarov was
imprisoned on
35. On
the basis of lists that had been communicated by the Uzbek authorities, the
Government informed the Court on
36. To date, the applicants' representatives have been unable to contact the applicants.
II. RELEVANT DOMESTIC LAW
A. Criminal
law
37. Article
9 of the Criminal Code provides:
“The
When called upon to deal with a request by a foreign State for the extradition of an alien, the criminal court with jurisdiction for the place in which the person concerned is located shall determine that person's nationality and the nature of the offence.
No request for extradition may be granted if the criminal court finds that the person concerned is a Turkish national or that the offence is political or military in nature or related to such an offence.
If the criminal court finds that
the person whose extradition is requested is an alien and that the offence is
an ordinary criminal offence, the request for extradition may be granted by the
Government. ...”
B. Extradition
38. Extradition
between
III. RELEVANT
INTERNATIONAL LAW AND PRACTICE
A. The
39. Article
31 of the Vienna Convention of 1969, which is headed “General rule of
interpretation”, provides:
“1. A treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in the light of its object and
purpose.
2. The context for the
purpose of the interpretation of a treaty shall comprise, in addition to the
text, including its preamble and annexes:
(a) any agreement
relating to the treaty which was made between all the parties in connection
with the conclusion of the treaty;
(b) any instrument
which was made by one or more parties in connection with the conclusion of the
treaty and accepted by the other parties as an instrument related to the
treaty.
3. There shall be taken
into account, together with the context:
(a) any subsequent
agreement between the parties regarding the interpretation of the treaty or the
application of its provisions;
(b) any subsequent
practice in the application of the treaty which establishes the agreement of
the parties regarding its interpretation;
(c) any relevant rules
of international law applicable in the relations between the parties.
4. A special meaning
shall be given to a term if it is established that the parties so intended.”
B. Universal
systems of human rights protection
1. The
United Nations Human Rights Committee
40. Rule 86 of the Rules of Procedure of the United Nations Human Rights Committee provides:
“The Committee may, prior to
forwarding its views on the communication to the State Party concerned, inform
that State of its views as to whether interim measures may be desirable to
avoid irreparable damage to the victim of the alleged violation. In doing so,
the Committee shall inform the State Party concerned that such expression of
its views on interim measures does not imply a determination on the merits of
the communication.”
41. In
its decision of
42. In
its decision of
“By adhering to the Optional Protocol, a State Party to the Covenant recognises the competence of the Human Rights Committee to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant (Preamble and Article 1). Implicit in a State's adherence to the Protocol is an undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications, and after examination to forward its views to the State Party and to the individual (Article 5 §§ 1 and 4). It is incompatible with these obligations for a State Party to take any action that would prevent or frustrate the Committee in its consideration and examination of the communication, and in the expression of its Views.
Quite apart, then, from any violation of the Covenant charged to a State Party in a communication, a State Party commits grave breaches of its obligations under the Optional Protocol if it acts to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its Views nugatory and futile. ...
...
Interim measures pursuant to Rule 86 of the Committee's rules adopted in conformity with Article 39 of the Covenant, are essential to the Committee's role under the Protocol. Flouting of the Rule, especially by irreversible measures such as the execution of the alleged victim or his/her deportation from the country, undermines the protection of Covenant rights through the Optional Protocol.”
The Committee
reiterated this principle in its decision of
2. The
United Nations Committee against Torture
43. Rule
108 § 9 of the Rules of Procedure of the Committee against Torture enables
provisional measures to be adopted in proceedings brought by individuals
alleging a violation of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment. It reads as follows:
“In the course of the consideration
of the question of the admissibility of a communication, the Committee or the
working group or a special rapporteur designated under Rule 106, paragraph 3,
may request the State Party to take steps to avoid possible irreparable damage
to the person or persons who claim to be victim(s) of the alleged violation.
Such a request addressed to the State Party does not imply that any decision
has been reached on the question of the admissibility of the communication.”
44. In the case of a Peruvian citizen resident in Venezuela who was extradited to Peru despite the fact that a stay of her extradition had been called for as a provisional measure (see Cecilia Rosana Núñez Chipana v. Venezuela, decision of 10 November 1998), the Committee against Torture expressed the view that the State had failed to “comply with the spirit of the Convention”. It noted the following:
“... the State Party, in ratifying
the Convention and voluntarily accepting the Committee's competence under Article
22, undertook to cooperate with it in good faith in applying the procedure.
Compliance with the provisional measures called for by the Committee in cases
it considers reasonable is essential in order to protect the person in question
from irreparable harm, which could, moreover, nullify the end result of the
proceedings before the Committee.”
45. In
another decision that concerned the extradition to India of an Indian national
resident in Canada (see T.P.S. v. Canada,
decision of 16 May 2000) despite the fact that Canada had been requested to
stay the extradition as a provisional measure, the Committee against Torture
reiterated that failure to comply with the requested provisional measures “...
could ... nullify the end result of the proceedings before the Committee”.
C. The
International Court of Justice (ICJ)
46. Article 41 of the Statute of the ICJ provides:
“1. The Court shall
have the power to indicate, if it considers that circumstances so require, any
provisional measures which ought to be taken to preserve the respective rights
of either party.
2. Pending the final
decision, notice of the measures suggested shall forthwith be given to the
parties and to the Security Council.”
47. The
ICJ has pointed out in a number of cases that the purpose of provisional
measures is to preserve the respective rights of the parties to the dispute
(see, among other authorities, the judgment of
“... has as its object to preserve
the respective rights of the parties pending the decision of the Court, and
presupposes that irreparable prejudice should not be caused to rights which are
the subject of dispute in judicial proceedings; and ... the Court must be concerned
to preserve by such measures the rights which may subsequently be adjudged by
the Court to belong either to the Applicant or to the Respondent”.
48. In
its judgment of
“102. ... The context
in which Article 41 has to be seen within the Statute is to prevent the Court
from being hampered in the exercise of its functions because the respective
rights of the parties to a dispute before the Court are not preserved. It
follows from the object and purpose of the Statute, as well as from the terms
of Article 41 when read in their context, that the power to indicate
provisional measures entails that such measures should be binding, inasmuch as
the power in question is based on the necessity, when the circumstances call
for it, to safeguard, and to avoid prejudice to, the rights of the parties as
determined by the final judgment of the Court. The contention that provisional
measures indicated under Article 41 might not be binding would be contrary to
the object and purpose of that Article.
103. A related reason
which points to the binding character of orders made under Article 41 and
to which the Court attaches importance, is the existence of a principle which has
already been recognised by the Permanent Court of International Justice when it
spoke of 'the principle universally accepted by international tribunals and
likewise laid down in many conventions ... to the effect that the parties to a
case must abstain from any measure capable of exercising a prejudicial effect
in regard to the execution of the decision to be given, and, in general, not
allow any step of any kind to be taken which might aggravate or extend the
dispute' (Electricity Company of Sofia
and Bulgaria, Order of 5 December 1939 ...).”
This
approach was subsequently confirmed in the court's judgment of
D. The
Inter-American system of human rights protection
1. The
Inter-American Commission on Human Rights
49. Rule
25 of the Rules of Procedure of the Inter-American Commission on Human Rights
provides:
“1. In serious and
urgent cases, and whenever necessary according to the information available,
the Commission may, on its own initiative or at the request of a party, request
that the State concerned adopt precautionary measures to prevent irreparable
harm to persons.
2. If the Commission is
not in session, the President, or, in his or her absence, one of the
Vice-Presidents, shall consult with the other members, through the Executive
Secretariat, on the application of the provision in the previous paragraph. If
it is not possible to consult within a reasonable period of time under the
circumstances, the President or, where appropriate, one of the Vice-Presidents
shall take the decision on behalf of the Commission and shall so inform its
members.
3. The Commission may
request information from the interested parties on any matter related to the
adoption and observance of the precautionary measures.
4. The granting of such
measures and their adoption by the State shall not constitute a prejudgment on
the merits of a case.”
50. The
scope of the precautionary measures is determined by reference to the scope of the
recommendations made by the Commission in respect of the individual petition.
In its judgment of 17 September 1997 in Loayza
Tamayo v. Peru, the Inter-American Court of Human Rights ruled that the
State “has the obligation to make every effort to apply the recommendations of
a protection organ such as the Inter-American Commission, which is, indeed, one
of the principal organs of the Organisation of American States, whose function
is 'to promote the observance and defence of human rights' ...”.
2. The
Inter-American Court of Human Rights
51. Article 63 § 2 of the American Convention on Human Rights states:
“In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission.”
52. Rule
25 of the Rules of Procedure of the Inter-American Court of Human Rights
provides:
“1. At any stage of the proceedings involving cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court may, at the request of a party or on its own motion, order such provisional measures as it deems pertinent, pursuant to Article 63 § 2 of the Convention.
2. With respect to matters not yet submitted to it, the Court may act at the request of the Commission.
3. The request may be made to the President, to any judge of the Court, or to the Secretariat, by any means of communication. In every case, the recipient of the request shall immediately bring it to the President's attention.
4. If the Court is not sitting, the President, in consultation with the Permanent Commission and, if possible, with the other judges, shall call upon the government concerned to adopt such urgent measures as may be necessary to ensure the effectiveness of any provisional measures that may be ordered by the Court at its next session.
5. The Court, or its President if the Court is not sitting, may convoke the parties to a public hearing on provisional measures.
6. In its Annual Report
to the General Assembly, the Court shall include a statement concerning the
provisional measures ordered during the period covered by the report. If those
measures have not been duly implemented, the Court shall make such
recommendations as it deems appropriate.”
53. The
Inter-American Court has stated on several occasions that compliance with
provisional measures is necessary to ensure the effectiveness of its decisions
on the merits (see, among other authorities, the following orders: 1 August
1991, Chunimá v. Guatemala; 2 July and
13 September 1996, 11 November 1997 and 3 February 2001, Loayza Tamayo v. Peru; 25 May and 25 September 1999, 16 August
and 24 November 2000, and 3 September 2002, James et al. v. Trinidad and Tobago; 7 and 18 August 2000,
and 26 May 2001, Haitians and Dominican
nationals of Haitian origin in the Dominican Republic v. the Dominican Republic;
10 August and 12 November 2000, and 30 May 2001, Alvarez et al. v. Colombia; see also the judgment of 21 June 2002, Hilaire, Constantine, Benjamin et al. v.
Trinidad and Tobago).
In two orders
requiring provisional measures, the Inter-American Court of Human Rights ruled
that the States Parties to the American Convention on Human Rights “must fully
comply in good faith (pacta sunt servanda)
with all of the provisions of the Convention, including those relative to the
operation of the two supervisory organs of the American Convention [the Court
and the Commission]; and that, in view of the Convention's fundamental
objective of guaranteeing the effective protection of human rights (Articles 1
§ 1, 2, 51 and 63 § 2), States Parties must refrain from taking actions that
may frustrate the restitutio in integrum
of the rights of the alleged victims” (see the orders of 25 May and 25
September 1999 in James et al. v.
Trinidad and Tobago).
IV. BRIEFING AND REPORT OF
AMNESTY INTERNATIONAL ON
54. As
regards the situation in
“... Amnesty International remains
concerned that Uzbekistan has failed to implement its treaty obligations fully
despite numerous, wide-ranging and officially endorsed national initiatives in
the fields of human rights education and democratisation and judicial and
legislative reforms aimed at bringing national legislation into line with
international standards.
Since December 1997, when several
murders of law enforcement officials in the
This briefing does not attempt to
be a comprehensive study of torture and ill-treatment in
Failure to ensure that all acts of torture are offences under the
criminal law (Article 4)
Uzbekistan fails to fully meet the
requirements under Article 4 of the Convention [against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment] to ensure that all acts of
torture are offences under its criminal law and that such offences are
punishable by appropriate penalties which take into account their grave nature.
Neither the Constitution nor the Criminal Code, although respectively prohibiting and punishing acts of torture, contain a definition of torture as set out in Article 1 of the Convention. ...
Article 235 of the [Uzbek]
Criminal Code criminalises obtaining a confession by coercion. Although
explicit in its description of prohibited methods of coercion (beatings,
inflicting grievous or less grievous bodily harm, torture) and specific in
naming the perpetrators (investigating and interrogating officers, procurators)
the Article is still far more narrow in its definition of torture than Article
1 of the Convention. The maximum penalty prescribed under this Article is five
to eight years' imprisonment.
Other Articles, including Article 110 of the Uzbek Criminal Code, punish various assaults but do not relate specifically to agents of the State ... The Uzbek press has reported that law enforcement officers have been prosecuted for using unlawful methods in detaining and interrogating suspects. However, to Amnesty International's knowledge, in the period under review, none of the law enforcement officials identified as perpetrators of acts of torture by victims of human rights violations whose cases the organisation has taken up has been charged under the above Articles of the Criminal Code ...
Time and again Amnesty
International has received credible reports that suspects were denied access to
a lawyer of their choice. Often the lawyers are only given access by law
enforcement officials after the suspect has been held in custody for several
days, which is when the risk of torture or ill-treatment is the greatest. In
many cases law enforcement officials will only grant access to the lawyer after
the suspect has signed a confession. Meetings between lawyers and clients, when
they are granted, are generally infrequent, because unlimited access to a
client as prescribed by the law is difficult for lawyers to obtain. Defence
lawyers are rarely allowed to be present at all stages of the investigation ...
Article 17 of the Code of Criminal
Procedure explicitly prohibits the use of torture and obliges judges,
procurators, investigators and interrogators to respect a person's honour and
dignity at every stage of legal proceedings. Nevertheless, Amnesty
International has received countless reports from different sources – former
prisoners, relatives of prisoners, defence lawyers, human rights monitors,
international human rights organisations, diplomats, copies of court documents
– that law enforcement officials continue to routinely violate legal
obligations not to subject any person to torture or cruel, inhuman or degrading
treatment.
...
Prison conditions
Conditions under which detainees are held pre-trial are reportedly so poor as to amount to cruel, inhuman and degrading treatment. In 1997 the Uzbek authorities admitted that conditions of detention fall far short of the UN basic minimum standards for the treatment of prisoners. Overcrowding is the norm, with at least two inmates to a bunk bed, sleeping in turns. Inadequate sanitation, shortages of food and basic medication exacerbate the risk of disease, such as tuberculosis. Former prisoners have described punishment cells as underground 'holes', one square metre with standing room only near the door. The rest of the cell is said to be only 1.5 metres in height, allowing the prisoner only to crouch or sit. Cells are also said to be overrun with vermin. As with the conditions on death row, these allegations are difficult to verify independently given the Uzbek authorities' refusal to allow access to independent monitors.”
55. In
its annual report of
“Reports of ill-treatment and torture by law enforcement officials of alleged supporters of banned Islamist opposition parties and movements, such as Hizb-ut-Tahrir, continued unabated. Thousands of devout Muslims and dozens of members or supporters of the banned secular political opposition parties and movements Erk and Birlik were serving long prison sentences, convicted after unfair trials of membership of an illegal party, distribution of illegal religious literature and anti-State activities. Reports continued to be received that devout Muslim prisoners were singled out for particularly cruel, inhuman and degrading treatment in places of detention, particularly prison camps. Several prisoners, among them a prominent human rights defender, died in custody, allegedly as a result of torture. There were at least 22 death sentences, reportedly imposed after unfair trials, and at least four executions were carried out.
...
In November Muhammad Salih, the
exiled leader of the banned opposition democratic party Erk, was detained by Czech police at
In September President Karimov
publicly stated that around 100 people were executed each year. In October the
number of offences punishable by death was reduced to four.
Allegations of torture and ill-treatment
...
Reports continued to be received that devout Muslim prisoners were singled out for particularly cruel, inhuman and degrading treatment in places of detention, especially in strict regime prison camps...
In June [2001], 73 ethnic Tajik
mountain villagers were found guilty of collaborating with the IMU during their
incursion into Uzbekistan in August 2000 and sentenced to between three and 18
years' imprisonment in four separate closed trials. This was despite earlier
government assurances to the UN Human Rights Committee that the action to
evacuate the villagers was taken in order to improve the living conditions of
the people concerned and that no criminal cases would be opened against these
forcibly displaced villagers. The group trials, which opened simultaneously and
without prior notice at the end of May in
Only one foreign observer,
representing the non-governmental organisation Human Rights Watch, obtained
access to one of the trials. All others, including foreign diplomats, local human
rights monitors and the media, were barred.
According to the Human Rights
Watch observer, the prosecution failed to provide any substantive evidence to
prove the defendants' guilt. All the defendants had allegedly been held
incommunicado until their trial and had not been granted the right to be
represented by a lawyer of their own choice. In court the defendants reportedly
withdrew their confessions and alleged that they had been tortured in order to
force them to confess to fabricated charges. They alleged that they had been
forced to memorise and recite prepared confessions on film. Some of the men
showed the court marks on their bodies allegedly caused by torture. The court,
however, failed to take any of these allegations into consideration. ...”
THE LAW
I. ALLEGED
VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
56. The
applicants alleged that their extradition to the
Article 2
“1. Everyone's right to
life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life
shall not be regarded as inflicted in contravention of this Article when it
results from the use of force which is no more than absolutely necessary:
(a) in defence of any
person from unlawful violence;
(b) in order to effect
a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully
taken for the purpose of quelling a riot or insurrection.”
Article 3
“No one shall be subjected to
torture or to inhuman or degrading treatment or punishment.”
In view of the facts
of the case, the Court will first examine this complaint under Article 3.
A. The
Chamber judgment
57. The
Chamber found that the reason it had not been possible for any conclusive
findings of fact to be made was that the applicants had been denied an
opportunity to have additional inquiries made in order to obtain evidence in
support of their allegations under Article 3 of the Convention. It considered
that there was insufficient evidence before it to conclude that there had been
a violation of that provision (see paragraphs 74 and 77 of the Chamber
judgment).
B. The
parties' submissions
1. The applicants
58. The
lawyers representing the applicants said that at the time of the latter's
extradition there were substantial grounds for believing that their return to
Uzbekistan would result in their being subjected to treatment proscribed by
Article 3. In that connection, they denounced the poor conditions and use of
torture in Uzbek prisons.
59. In
support of their allegations, they referred to reports by “international
investigative bodies” in the human rights field denouncing both an
administrative practice of torture and other forms of ill-treatment of
political dissidents, and the Uzbek regime's repressive policy towards
dissidents.
60. They
stated that the applicants had denied the charges in the extradition
proceedings in
2. The
Government
61. The
Government maintained that in extradition proceedings Article 3 should only
apply in cases in which it was certain that the prohibited treatment or
punishment would be inflicted in the requesting State and in which the person
concerned had produced strong evidence that substantial grounds existed for
believing that he or she faced torture or ill-treatment.
62. The
Government observed that the applicants had been extradited after assurances
had been obtained from the Uzbek authorities. Those assurances included an
undertaking not to impose the death penalty and to ensure that the applicants
would not be subjected to torture or ill-treatment or be liable to confiscation
of their property generally. The Uzbek authorities had given an assurance that
the
63. The
Government noted that the applicants, who had been charged with acts of
terrorism, had been sentenced by the Uzbekistan Supreme Court to twenty and
eleven years' imprisonment respectively and that their trial had been attended
by some eighty people, including officials from the Turkish and other embassies
and representatives of Helsinki Watch. They added that the applicants had been
visited in prison in
64. The
Government argued that Article 3 was not to be construed in a way that would
engage the extraditing State's responsibility indefinitely. The State's
responsibility should end once the extradited person had been found guilty and
had started to serve his or her sentence. It would be straining the language of
Article 3 intolerably to hold that by surrendering a suspect in accordance with
the terms of an extradition agreement, the extraditing State had subjected him
to the treatment or punishment he received after his conviction and sentence in
the receiving State. Such a decision would interfere with rights under
international treaties and conflict with the norms of international judicial
process, as it would entail adjudication on the internal affairs of foreign
States that were not Parties to the Convention. There was a risk that it would
cause serious harm to the
3. Third-party
interveners
65. Human
Rights Watch and the
C. The
Court's assessment
1. The
relevant principles
66. The Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. The right to political asylum is not contained in either the Convention or its Protocols (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, p. 34, § 102).
67. It
is the settled case-law of the Court that extradition by a Contracting State
may give rise to an issue under Article 3, and hence engage the responsibility
of that State under the Convention, where substantial grounds have been shown
for believing that the person in question would, if extradited, face a real
risk of being subjected to treatment contrary to Article 3 in the receiving
country. The establishment of such responsibility inevitably involves an
assessment of conditions in the requesting country against the standards of
Article 3 of the Convention. Nonetheless, there is no question of adjudicating
on or establishing the responsibility of the receiving country, whether under
general international law, under the Convention or otherwise. In so far as any
liability under the Convention is or may be incurred, it is liability incurred
by the extraditing Contracting State by reason of its having taken action which
has as a direct consequence the exposure of an individual to proscribed
ill-treatment (see Soering v. the United
Kingdom, judgment of 7 July 1989, Series A no. 161, pp. 35-36, §§
89-91).
68. It would hardly be compatible with the “common heritage of political traditions, ideals, freedom and the rule of law” to which the Preamble refers, were a Contracting State knowingly to surrender a person to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture or inhuman or degrading treatment or punishment (see Soering, cited above, pp. 34-35, § 88).
69. In
determining whether substantial grounds have been shown for believing that a
real risk of treatment contrary to Article 3 exists, the Court will assess the
issue in the light of all the material placed before it or, if necessary,
material obtained proprio motu. Since
the nature of the Contracting States' responsibility under Article 3 in cases
of this kind lies in the act of exposing an individual to the risk of
ill-treatment, the existence of the risk must be assessed primarily with
reference to those facts which were known or ought to have been known to the
Contracting State at the time of the extradition; the Court is not precluded,
however, from having regard to information which comes to light subsequent to
the extradition. This may be of value in confirming or refuting the
appreciation that has been made by the Contracting Party of the
well-foundedness or otherwise of an applicant's fears (see Cruz Varas and Others v. Sweden, judgment of 20 March 1991,
Series A no. 201, pp. 29-30, §§ 75-76, and Vilvarajah and Others, cited
above, p. 36, § 107).
However, if the applicant has not been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1856, §§ 85-86).
This situation
typically arises when deportation or extradition is delayed as a result of an
indication by the Court of an interim measure under Rule 39 of the Rules
of Court. Such an indication means more often than not that the Court does not
yet have before it all the relevant evidence it requires to determine whether
there is a real risk of treatment proscribed by Article 3 in the country
of destination.
70. Furthermore, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration and its physical or mental effects (see Vilvarajah and Others, cited above, p. 36, § 107).
Allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis, Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, pp. 17-18, § 30).
2. Application
of the above principles to the present case
71. For
an issue to be raised under Article 3, it must be established that at the time
of their extradition there existed a real risk that the applicants would be
subjected in
72. The Court has noted the applicants' representatives' observations on the information in the reports of international human rights organisations denouncing an administrative practice of torture and other forms of ill-treatment of political dissidents, and the Uzbek regime's repressive policy towards such dissidents. It notes that Amnesty International stated in its report for 2001: “Reports of ill-treatment and torture by law enforcement officials of alleged supporters of banned Islamist opposition parties and movements ... continued ...” (see paragraph 55 above).
73. However,
although these findings describe the general situation in
74. The
applicants were extradited to
75. By
applying Rule 39, the Court indicated that it was not able on the basis of the
information then available to make a final decision on the existence of a real
risk. Had Turkey complied with the measure indicated under Rule 39, the
relevant date would have been the date of the Court's consideration of the case
in the light of the evidence that had been adduced (see paragraph 69 above and Chahal, cited above, p. 1856, §§ 85-86).
76. The
Court notes that the Government have contended that the applicants were
extradited after an assurance had been obtained from the Uzbek government. The
terms of the document indicate that the assurance that “[t]he applicants'
property will not be liable to general confiscation, and the applicants will
not be subjected to acts of torture or sentenced to capital punishment” was
given by the Public Prosecutor of the Republic of Uzbekistan, who added: “The
Republic of Uzbekistan is a party to the United Nations Convention against
Torture and accepts and reaffirms its obligation to comply with the
requirements of the provisions of that Convention as regards both Turkey and
the international community as a whole”. The Government also produced medical
reports from the doctors of the Uzbek prisons in which Mr Mamatkulov and Mr
Askarov are being held (see paragraphs 28 and 34 above).
77. In
the light of the material before it, the Court is not able to conclude that
substantial grounds existed at the aforementioned date for believing that the
applicants faced a real risk of treatment proscribed by Article 3. Turkey's
failure to comply with the indication given under Rule 39, which prevented the
Court from assessing whether a real risk existed in the manner it considered
appropriate in the circumstances of the case, must be examined below under
Article 34.
Consequently,
no violation of Article 3 of the Convention can be found.
78. Having
considered the applicants' allegations under Article 3 (see paragraphs 71-77
above), the Court finds that it is not necessary to examine them separately
under Article 2.
II. ALLEGED
VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
79. The
applicants complained of the unfairness of the extradition proceedings in
“In the determination of ... any
criminal charge against him, everyone is entitled to a fair ... hearing ... by
an independent and impartial tribunal established by law. ...”
A. The
Chamber judgment
80. The
Chamber found that Article 6 § 1 was not applicable to the extradition
proceedings in
B. The
extradition proceedings in
81. The
applicants alleged that they had not had a fair hearing in the criminal court
that had ruled on the request for their extradition, in that they had been
unable to gain access to all the material in the case file or to put forward
their arguments concerning the characterisation of the offences they were
alleged to have committed.
82. The
Court reiterates that decisions regarding the entry, stay and deportation of
aliens do not concern the determination of an applicant's civil rights or
obligations or of a criminal charge against him, within the meaning of Article
6 § 1 of the Convention (see Maaouia v.
France [GC], no. 39652/98, § 40, ECHR 2000-X; Penafiel Salgado v. Spain (dec.), no. 65964/01, 16 April 2002;
and Sardinas Albo v. Italy (dec.),
no. 56271/00, ECHR 2004-I).
83. Consequently,
Article 6 § 1 of the Convention is not applicable in the instant case.
C. The
criminal proceedings in
84. The
applicants submitted that they had no prospect of receiving a fair trial in
their country of origin and faced a real risk of being sentenced to death and
executed. They argued in that connection that the Uzbek judicial authorities
were not independent of the executive.
85. The applicants' representatives alleged that the applicants had been held incommunicado until the start of their trial and had not been permitted representation by a lawyer of their choosing. They said that the depositions on which the finding of guilt had been based had been extracted under torture.
86. The Government maintained that the applicants' extradition could not engage the State's responsibility under Article 6 § 1 of the Convention.
87. Two
of the intervening parties, Human Rights Watch and the AIRE Centre, pointed out
that the applicants had been held incommunicado until their trial started and
that, as they had been assigned lawyers by the prosecutor in charge of the
investigation, they had not been able to obtain representation by a lawyer of
their choosing.
88. The
Court observes that in Soering (cited
above, p. 45, § 113), it held:
“The right to a fair trial in
criminal proceedings, as embodied in Article 6, holds a prominent place in a
democratic society ... The Court does not exclude that an issue might exceptionally
be raised under Article 6 by an extradition decision in circumstances where the
fugitive has suffered or risks suffering a flagrant denial of a fair trial ...”
89. The
Court notes that in the instant case the applicants were handed over to the
Uzbek authorities on
90. The
Court considers that, like the risk of treatment proscribed by Article 2
and/or Article 3, the risk of a flagrant denial of justice in the country of
destination must primarily be assessed by reference to the facts which the
91. The
applicants were extradited to
Consequently, no
violation of Article 6 § 1 of the Convention can be found.
III. ALLEGED VIOLATION OF ARTICLE
34 OF THE CONVENTION
92. The
applicants' representatives maintained that, by extraditing Mr Mamatkulov
and Mr Askarov despite the measure indicated by the Court under Rule 39 of the
Rules of Court, Turkey had failed to comply with its obligations under Article
34 of the Convention.
Article 34 of the
Convention provides:
“The Court may receive
applications from any person, non-governmental organisation or group of
individuals claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the Protocols
thereto. The High Contracting Parties undertake not to hinder in any way the
effective exercise of this right.”
Rule 39 of the Rules
of Court provides:
“1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.
2. Notice of these
measures shall be given to the Committee of Ministers.
3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”
A. The
Chamber judgment
93. In
its judgment of
“110. ... any State
Party to the Convention to which interim measures have been indicated in order
to avoid irreparable harm being caused to the victim of an alleged violation
must comply with those measures and refrain from any act or omission that will
undermine the authority and effectiveness of the final judgment.
111. Consequently, by
failing to comply with the interim measures indicated by the Court under Rule
39 of the Rules of Court, Turkey is in breach of its obligations under Article
34 of the Convention.”
B. The
parties' submissions
1. The
applicants
94. The
applicants' representatives stated that, despite requests to the authorities,
they had been unable to contact their clients following the latter's
extradition. The applicants had consequently been deprived of the possibility
of having further inquiries made in order to obtain evidence in support of their
allegations under Article 3. The applicants' extradition had thus proved a real
obstacle to the effective presentation of their application to the Court.
2. The
Government
95. The
Government submitted that no separate issue arose under Article 34 of the
Convention, as the complaint under that provision was the same as the one that
the applicants had raised under Article 3 of the Convention, which the
Government said was unfounded.
96. As regards the effects of the interim measures the Court had indicated in the instant case under Rule 39, the Government referred to Cruz Varas and Others, cited above, as authority for the proposition that the Contracting States had no legal obligation to comply with such indications.
97. In
the Government's submission, it was clear from the very terms of the letter
indicating the interim measure in the instant case that the measure was not
intended to be binding. International courts operated within the scope of the
powers conferred upon them by international treaties. If the treaty did not
grant them power to order binding interim measures, then no such power existed.
3. Third-party
intervener
98. The
International Commission of Jurists submitted that in the light of the general
principles of international law, the law of treaties and international
case-law, interim measures indicated under Rule 39 of the Rules of Court were
binding on the State concerned.
C. The
Court's assessment
99. The
fact that the Government failed to comply with the measures indicated by the
Court under Rule 39 of the Rules of Court raises the issue of whether the
respondent State is in breach of its undertaking under Article 34 of the
Convention not to hinder the applicants in the exercise of their right of
individual application.
1. General
considerations
(a) Exercise
of the right of individual application
100. The
Court has previously stated that the provision concerning the right of
individual application (Article 34, formerly Article 25 of the Convention
before Protocol No. 11 came into force) is one of the fundamental guarantees of
the effectiveness of the Convention system of human rights protection. In
interpreting such a key provision, the Court must have regard to the special
character of the Convention as a treaty for the collective enforcement of human
rights and fundamental freedoms. Unlike international treaties of the classic
kind, the Convention comprises more than mere reciprocal engagements between
Contracting States. It creates, over and above a network of mutual, bilateral
undertakings, objective obligations which, in the words of the Preamble,
benefit from a 'collective enforcement' (see, mutatis mutandis, Loizidou v.
101. The
object and purpose of the Convention as an instrument for the protection of
individual human beings require that its provisions be interpreted and applied
so as to make its safeguards practical and effective, as part of the system of
individual applications. In addition, any interpretation of the rights and
freedoms guaranteed has to be consistent with “the general spirit of the
Convention, an instrument designed to maintain and promote the ideals and
values of a democratic society” (see Soering,
cited above, p. 34, § 87, and, mutatis
mutandis, Klass and Others v. Germany,
judgment of 6 September 1978, Series A no. 28, p. 18, § 34).
102. The
undertaking not to hinder the effective exercise of the right of individual
application precludes any interference with the individual's right to present
and pursue his complaint before the Court effectively. That issue has been
considered by the Court in previous decisions. It is of the utmost importance
for the effective operation of the system of individual application instituted
under Article 34 that applicants or potential applicants should be able to
communicate freely with the Court without being subjected to any form of
pressure from the authorities to withdraw or modify their complaints. As the
Court has noted in previous decisions, “pressure” includes not only direct
coercion and flagrant acts of intimidation against actual or potential
applicants, members of their family or their legal representatives, but also
other improper indirect acts or contacts designed to dissuade or discourage
applicants from pursuing a Convention remedy (see, among other authorities, Petra v. Romania, judgment of 23 September
1998, Reports 1998-VII, pp. 2854-55, §
43; Kurt v. Turkey, judgment of
25 May 1998, Reports 1998-III,
p. 1192, § 159; Aksoy v. Turkey,
judgment of 18 December 1996, Reports 1996-VI, p. 2288, § 105; and Akdivar and Others v. Turkey, judgment
of 16 September 1996, Reports 1996-IV,
p. 1219, § 105). For present purposes, the Court concludes that the
obligation set out in Article 34 in fine
requires the Contracting States to refrain not only from exerting pressure on
applicants, but also from any act or omission which, by destroying or removing the subject matter of an application,
would make it pointless or otherwise prevent the Court from considering it
under its normal procedure.
(b) Indication
of interim measures under the Convention system
103. Rule
39 of the Rules of Court empowers a Chamber or, where appropriate, its
President, to indicate interim measures. The grounds on which Rule 39 may be
applied are not set out in the Rules of Court but have been determined by the
Court through its case-law. As was the practice of the European Commission of
Human Rights prior to the entry into force of Protocol No. 11 to the Convention
in 1998, the Court applies Rule 39 only in restricted circumstances.
104. Interim
measures have been indicated only in limited spheres. Although it does receive
a number of requests for interim measures, in practice the Court applies Rule
39 only if there is an imminent risk of irreparable damage. While there is no
specific provision in the Convention concerning the domains in which Rule 39
will apply, requests for its application usually concern the right to life
(Article 2), the right not to be subjected to torture or inhuman treatment
(Article 3) and, exceptionally, the right to respect for private and family
life (Article 8) or other rights guaranteed by the Convention. The vast
majority of cases in which interim measures have been indicated concern
deportation and extradition proceedings.
105. In
most cases, measures are indicated to the respondent Government, although there
is nothing to stop the Court from indicating measures to applicants (see, among
other authorities, Ilaşcu and Others
v. Moldova and Russia [GC], no. 48787/99, § 11, ECHR 2004-VII). Cases
of States failing to comply with indicated measures remain very rare.
106. Rule
36 of the Rules of Procedure of the European Commission of Human Rights, which
came into force on
“The Commission, or when it is not in session, the President may indicate to the parties any interim measure the adoption of which seems desirable in the interest of the parties or the proper conduct of the proceedings before it.”
Even
before the provisions regulating the question of interim measures came into
force, the Commission had not hesitated to ask respondent Governments for a
stay of execution of measures liable to make the application pending before it
devoid of purpose. The Commission adopted that practice very early on,
particularly in extradition and deportation cases, and the States concerned
proved very cooperative (see, inter alia:
Greece v. the United Kingdom, no. 176/56, Commission's report of 26
September 1958, unpublished; X v. the Federal
Republic of Germany, no. 2396/65, Commission's report of 19 December 1969,
Yearbook 13; Denmark, Norway, Sweden and
the Netherlands v. Greece, nos. 3321/67, 3322/67, 3323/67 and 3344/67, Commission's
report of 5 November 1969, Yearbook 12; Denmark, Norway and Sweden v.
Greece, no. 4448/70, Commission's report of 4 October 1976, Decisions and
Reports (DR) 6; and E.R. v. the Federal
Republic of Germany, no. 5207/71, Commission decision of 13 December 1971,
Collection of Decisions 39).
In
Brückmann v. the Federal Republic of Germany (no. 6242/73, Commission's
report of
107. Rule
36 of the Rules of the former Court, which came into force on
“1. Before the
constitution of a Chamber, the President of the Court may, at the request of a
Party, of the Commission, of the applicant or of any other person concerned, or
proprio motu, indicate to any Party
and, where appropriate, the applicant, any interim measure which it is
advisable for them to adopt. The Chamber when constituted or, if the Chamber is
not in session, its President shall have the same power.
...”
The
most noteworthy case concerning the indication of interim measures by the
former Court is Soering, cited above,
in which the Court indicated to the British Government under Rule 36 of its
Rules that it would be undesirable to extradite the applicant to the
2. Did the applicants' extradition hinder the effective exercise of the right of application?
108. In cases such as the present one where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to maintain the status quo pending the Court's determination of the justification for the measure. As such, being intended to ensure the continued existence of the matter that is the subject of the application, the interim measure goes to the substance of the Convention complaint. As far as the applicant is concerned, the result that he or she wishes to achieve through the application is the preservation of the asserted Convention right before irreparable damage is done to it. Consequently, the interim measure is sought by the applicant, and granted by the Court, in order to facilitate the “effective exercise” of the right of individual petition under Article 34 of the Convention in the sense of preserving the subject matter of the application when that is judged to be at risk of irreparable damage through the acts or omissions of the respondent State.
In the present case,
because of the extradition of the applicants to
In addition, the Court considers that it is
implicit in the notion of the effective exercise of the right of application
that for the duration of the proceedings in
109. The Court has previously considered whether, in the absence of an express clause in the Convention, its organs could derive from Article 34 (former Article 25), taken alone or in conjunction with Rule 39 (former Rule 36), or from any other source, the power to order interim measures that were binding (see Cruz Varas and Others, cited above, and Čonka v. Belgium (dec.), no. 51564/99, 13 March 2001). In those cases it concluded that such a power could not be inferred from either Article 34, in fine, or from other sources (see Cruz Varas and Others, pp. 36-37, §§ 102-03).
110. In examining the present case, the Court will also have regard to general principles of international law and the view expressed on this subject by other international bodies since Cruz Varas and Others.
111. The
Court reiterates in that connection that the Convention must be interpreted in
the light of the rules set out in the Vienna Convention of 23 May 1969 on
the Law of Treaties, Article 31 § 3 (c) of which states that account must be
taken of “any relevant rules of international law applicable in the relations
between the parties”. The Court must determine the responsibility of the States
in accordance with the principles of international law governing this sphere,
while taking into account the special nature of the Convention as an instrument
of human rights protection (see Golder
v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, p. 14,
§ 29). Thus, the Convention must be interpreted so far as possible consistently
with the other principles of international law of which it forms a part (see Al-Adsani v. the United Kingdom [GC],
no. 35763/97, § 60, ECHR 2001-XI).
112. Different
rules apply to interim, provisional or precautionary measures, depending on
whether the complaint is made under the individual petition procedures of the
United Nations organs, or the
113. In a number of recent decisions and orders, international courts and institutions have stressed the importance and purpose of interim measures and pointed out that compliance with such measures was necessary to ensure the effectiveness of their decisions on the merits. In proceedings concerning international disputes, the purpose of interim measures is to preserve the parties' rights, thus enabling the body hearing the dispute to give effect to the consequences which a finding of responsibility following adversarial process will entail.
114. Thus, under the jurisprudence of the Human Rights Committee of the United Nations, a failure to comply with interim measures constitutes a breach by the State concerned of its legal obligations under the International Covenant on Civil and Political Rights and the Optional Protocol thereto, and of its duty to cooperate with the Committee under the individual communications procedure (see paragraphs 41 and 42 above).
115. The
United Nations Committee against Torture has considered the issue of a State
Party's failure to comply with interim measures on a number of occasions. It
has ruled that compliance with interim measures which the Committee considered
reasonable was essential in order to protect the person in question from
irreparable harm, which could nullify the end result of the proceedings before
the Committee (see paragraphs 44 and 45 above).
116. In various orders concerning provisional measures, the Inter-American Court of Human Rights has stated that in view of the fundamental objective of the American Convention on Human Rights, namely guaranteeing the effective protection of human rights, “States Parties [had to] refrain from taking actions that may frustrate the restitutio in integrum of the rights of the alleged victims” (see the orders of 25 May and 25 September 1999 in James et al. v. Trinidad and Tobago).
117. In
its judgment of 27 June 2001 in LaGrand
(Germany v. the United States of America),
the ICJ stated: “The object and purpose of the Statute is to enable the Court
to fulfil the functions provided for therein, and in particular, the basic
function of judicial settlement of international disputes by binding decisions
in accordance with Article 59 of the Statute. The [purpose of] Article 41 ...
is to prevent the Court from being hampered in the exercise of its functions
because the respective rights of the parties to a dispute before the Court are
not preserved. It follows from the object and purpose of the Statute, as well
as from the terms of Article 41 when read in their context, that the power to
indicate provisional measures entails that such measures should be binding,
inasmuch as the power in question is based on the necessity, when the
circumstances call for it, to safeguard, and to avoid prejudice to, the rights
of the parties as determined by the final judgment of the Court. The contention
that provisional measures indicated under Article 41 might not be binding would
be contrary to the object and purpose of that Article.”
Furthermore,
in that judgment, the ICJ brought to an end the debate over the strictly
linguistic interpretation of the words “power to indicate” (“pouvoir d'indiquer” in the French text)
in the first paragraph of Article 41 and “suggested” (“indication” in the French text) in the second paragraph. Referring
to Article 31 of the Vienna Convention on the Law of Treaties, which provides
that treaties shall be interpreted in the light of their object and purpose, it
held that provisional measures were legally binding. This approach was
subsequently confirmed in the court's judgment of
118. The
Court observes that in Cruz Varas and
Others (cited above) it determined the question whether the European
Commission of Human Rights had power under former Article 25 § 1 of the
Convention (now Article 34) to order interim measures that are binding. It
noted that that Article applied only to proceedings brought before the
Commission and imposed an obligation not to interfere with the right of the
individual to present his or her complaint to the Commission and to pursue it.
It added that Article 25 conferred upon an applicant a right of a procedural
nature distinguishable from the substantive rights set out in Section I of the
Convention or the Protocols to the Convention. The Court thus confined itself
to examining the Commission's power to order interim measures, not its own. It
considered the indication that had been given in the light of the nature of the
proceedings before the Commission and of the Commission's role and concluded:
“Where the State has had its attention drawn in this way to the dangers of
prejudicing the outcome of the issue then pending before the Commission any
subsequent breach of Article 3 ... would have to be seen as aggravated by the
failure to comply with the indication” (Cruz
Varas and Others, cited above, pp. 36-37, § 103).
119. The
Court emphasises in that connection that, unlike the Court and the Committee of
Ministers, the Commission had no power to issue a binding decision that a
120. In
Čonka (decision cited above) the
Court referred to the argument set out in paragraph 109 above and added: “The
Belgian authorities expelled the applicants the same day ..., without giving
any reasons for their decision to ignore the measures that had been indicated
under Rule 39 of the Rules of Court. In view of the settled practice of
complying with such indications, which are given only in exceptional circumstances,
such a manner of proceeding is difficult to reconcile with 'good faith
co-operation with the Court in cases where this is considered reasonable and
practicable'.”
121. While
the Court is not formally bound to follow its previous judgments, in the
interests of legal certainty and foreseeability it should not depart, without
good reason, from its own precedents (see, among other authorities, mutatis mutandis, Chapman v. the United Kingdom [GC], no. 27238/95, § 70, ECHR
2001-I, and Christine Goodwin v. the United Kingdom [GC], no.
28957/95, § 74, ECHR 2002-VI). However, it is of crucial importance that the
Convention is interpreted and applied in a manner which renders its rights
practical and effective, not theoretical and illusory. It is a living
instrument which must be interpreted in the light of present-day conditions (see,
among other authorities, Tyrer v. the
United Kingdom, judgment of 25 April 1978, Series A no. 26, pp. 15-16, § 31,
and Christine Goodwin, cited above, §
75).
122. Furthermore,
the Court would stress that although the Convention right to individual
application was originally intended as an optional part of the system of
protection, it has over the years become of high importance and is now a key
component of the machinery for protecting the rights and freedoms set forth in
the Convention. Under the system in force until
123. In
this context, the Court notes that in the light of the general principles of
international law, the law of treaties and international case-law, the
interpretation of the scope of interim measures cannot be dissociated from the
proceedings to which they relate or the decision on the merits they seek to
protect. The Court reiterates in that connection that Article 31 § 1 of the
Vienna Convention on the Law of Treaties provides that treaties must be
interpreted in good faith in the light of their object and purpose (see paragraph 39
above), and also in accordance with the principle of effectiveness.
124. The
Court observes that the ICJ, the Inter-American Court of Human Rights, the
Human Rights Committee and the Committee against Torture of the United Nations,
although operating under different treaty provisions to those of the Court,
have confirmed in their reasoning in recent decisions that the preservation of
the asserted rights of the parties in the face of the risk of irreparable
damage represents an essential objective of interim measures in international
law. Indeed it can be said that, whatever the legal system in question, the
proper administration of justice requires that no irreparable action be taken
while proceedings are pending (see, mutatis
mutandis, Soering, cited above,
p. 35, § 90).
It has previously
stressed the importance of having remedies with suspensive effect when ruling
on the obligations of the State with regard to the right to an effective remedy
in deportation or extradition proceedings. The notion of an effective remedy
under Article 13 of the Convention requires a remedy capable of preventing the
execution of measures that are contrary to the Convention and whose effects are
potentially irreversible. Consequently, it is inconsistent with Article 13 for
such measures to be executed before the national authorities have examined
whether they are compatible with the Convention (see Čonka v.
125. Likewise,
under the Convention system, interim measures, as they have consistently been
applied in practice (see paragraph 104 above), play a vital role in avoiding
irreversible situations that would prevent the Court from properly examining the application and, where
appropriate, securing to the applicant the practical and effective benefit of
the Convention rights asserted. Accordingly, in these conditions a failure by a
respondent State to comply with interim measures will undermine the effectiveness of the right of individual application
guaranteed by Article 34 and the State's formal undertaking in Article 1 to protect
the rights and freedoms set forth in the Convention.
Indications
of interim measures given by the Court, as in the present case, permit it not
only to carry out an effective examination of the application but also to
ensure that the protection afforded to the applicant by the Convention is effective; such indications also subsequently
allow the Committee of Ministers to supervise execution of the final judgment.
Such measures thus enable the State concerned to discharge its obligation to
comply with the final judgment of the Court, which is legally binding by virtue
of Article 46 of the Convention.
126. Consequently,
the effects of the indication of an interim measure to a
127. The
facts of the case, as set out above, clearly show that the Court was prevented
by the applicants' extradition to Uzbekistan from conducting a proper
examination of their complaints in accordance with its settled practice in
similar cases and ultimately from protecting them, if need be, against
potential violations of the Convention as alleged. As a result, the applicants
were hindered in the effective exercise of their right of individual
application guaranteed by Article 34 of the Convention, which the applicants'
extradition rendered nugatory.
3. Conclusion
128. The
Court reiterates that by virtue of Article 34 of the Convention Contracting
States undertake to refrain from any act or omission that may hinder the
effective exercise of an individual applicant's right of application. A failure
by a
129. Having
regard to the material before it, the Court concludes that, by failing to
comply with the interim measures indicated under Rule 39 of the Rules of Court,
Turkey is in breach of its obligations under Article 34 of the Convention.
IV. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
130. Article
41 of the Convention provides:
“If the Court finds that there has
been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
131. Before the Grand Chamber, the applicants' representatives repeated the claims they had made before the Chamber for pecuniary damage and non-pecuniary damage in the sum of 1,000,000 French francs, that is, 304,898 euros (EUR), for each of their clients.
132. The
Chamber found as follows (see paragraph 115 of the Chamber judgment):
“As the applicants have not
specified the nature of their alleged pecuniary damage, the Court has no
alternative but to dismiss that claim. As regards the alleged non-pecuniary
damage, the Court holds that its finding concerning Article 34 constitutes in
itself sufficient just satisfaction for the purposes of Article 41.”
133. The
Government said that they could accept the Chamber's findings in the event of
the Grand Chamber finding a violation of the Convention. In the alternative,
they submitted that the amounts claimed were exorbitant.
134. Like the Chamber, the Court does not consider that the alleged pecuniary damage has been proved.
Conversely, it finds
in the circumstances of the case that the applicants undeniably suffered
non-pecuniary damage as a result of
Consequently, ruling
on an equitable basis in accordance with Article 41 of the Convention, the
Court awards each applicant EUR 5,000 for non-pecuniary damage.
B. Costs
and expenses
135. The applicants' representatives repeated the claims they had made before the Chamber and left the question of their fees for the proceedings before the Grand Chamber to the Court's discretion.
136. The
Government considered that the claim for costs and expenses had not been
properly proved.
137. For
the proceedings up until the Chamber judgment, the Chamber awarded the
applicants EUR 10,000, less EUR 905 that had been paid by the Council of Europe
in legal aid.
138. The
Court awards the applicants EUR 15,000 to cover all the costs incurred in the
Court, less EUR 2,613.17 received from the Council of Europe in legal aid.
C. Default
interest
139. The
Court considers it appropriate that the default interest should be based on the
marginal lending rate of the European Central Bank, to which should be added
three percentage points.
FOR THESE REASONS, THE COURT
1. Holds by fourteen votes to three that there has been no violation
of Article 3 of the Convention;
2. Holds unanimously that no separate examination of the complaint
under Article 2 of the Convention is necessary;
3. Holds unanimously that Article 6 § 1 does not apply to the
extradition proceedings in
4. Holds by thirteen votes to four that there has been no violation of
Article 6 § 1 as regards the criminal proceedings in
5. Holds by fourteen votes to three that
6. Holds by fourteen votes to three
(a) that the respondent State is
to pay, within three months, the following sums plus any tax that may be
chargeable:
(i) EUR 5,000 (five thousand
euros) to each of the applicants for non-pecuniary damage, to be converted into
the national currency of each applicant's country of residence;
(ii) EUR 15,000 (fifteen thousand
euros) in respect of costs and expenses, less EUR 2,613.17 (two thousand six
hundred and thirteen euros seventeen cents) received from the Council of Europe
in legal aid, to be converted into Turkish liras at the rate applicable at the
date of settlement;
(b) that from the expiry of the
above-mentioned three months until settlement simple interest shall be payable
on the above amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points;
7. Dismisses unanimously the remainder of the applicants' claim for
just satisfaction.
Done in English and in French, and
delivered at a public hearing in the Human Rights Building,
Luzius
Wildhaber
President
Paul Mahoney
Registrar
In accordance with Article 45 § 2 of the
Convention and Rule 74 § 2 of the Rules of Court, the following separate
opinions are annexed to this judgment:
(a) concurring
opinion of Mr Cabral Barreto;
(b) partly dissenting opinion of Mr Rozakis;
(c) joint partly dissenting opinion of Sir Nicolas Bratza, Mr Bonello and Mr Hedigan;
(d) joint partly dissenting opinion of Mr Caflisch, Mr Türmen and Mr Kovler.
L.W.
P.J.M.
CONCURRING
OPINION OF JUDGE CABRAL BARRETO
(Translation)
I concur with the majority's view that
Accordingly, the applicants have been
hindered in the effective exercise of their right of individual application
(see paragraph 127 of the judgment).
However, I find it difficult to agree with
the majority's conclusion that: “A failure by a Contracting State to comply
with interim measures is to be regarded as preventing the Court from
effectively examining the applicant's complaint and as hindering the effective
exercise of his or her right and, accordingly, as a violation of Article 34.” (see
paragraph 128 of the judgment).
This general conclusion constitutes a
departure from the principles that were established in Cruz Varas and Others v. Sweden (judgment of
If I have correctly understood the reasoning of the majority, the mere fact that a Government have failed to comply with a request to take interim measures per se entails a violation of Article 34 of the Convention.
It is this “mechanical” finding of a violation of Article 34 which I am unable to agree with.
To my mind, the fact that the States have always refused to accord binding force to interim measures prevents the Court from doing so and imposing on the States obligations which they have declined to accept.
The States Parties to the Convention have, however, undertaken not to hinder the exercise of the right of individual application.
Thus, if a refusal to comply with a request for interim measures has hindered the exercise of the right of application, the conclusion must be that there has been a violation of the obligations arising under Article 34 of the Convention.
However, the conclusion has to be different if, despite such a refusal, it has been possible for the applicant to exercise his right of application effectively and the Court to examine the case properly.
That, in my opinion, is the effect of the provisions of the Convention and the Rules of Court and warranted highlighting in the judgment.
I see situations in which, despite a Government's failure to comply with a request by the Court, the applicant has been able to exercise his right of individual application effectively and the Court to conduct a proper examination of the application in satisfactory conditions.
I have in mind, in particular, detention cases in which a person is suffering from an illness in conditions which may come within Article 3 of the Convention and are so bad as to justify interim measures being taken to bring the situation to an end.
In such cases, the procedural aspects do not come into play.
While the Government's failure to comply with the Court's request may entail a finding of a violation, even an aggravated violation, of Article 3, it will not give rise to a violation of Article 34 as the applicant has exercised his right of application and the Court has duly examined the complaint.
Another type of case that also comes to mind is where a person is extradited to a country which has the death penalty despite a request from the Court not to extradite before the application has been examined.
However, the fact that the applicant was
represented by a lawyer who worked in the requesting State will have allowed
useful contact between the applicant and his lawyer and, in a way, helped the
applicant to present his complaint in better conditions.
While regretting that the member States of the Council of Europe have not given the Court the power to impose binding interim measures, I am forced to conclude that there will be a violation of Article 34 of the Convention only if the Contracting State's failure to comply with interim measures prevents the applicant from exercising his right of application and thereby makes an effective examination of his complaint by the Court impossible.
PARTLY DISSENTING OPINION OF JUDGE ROZAKIS
While I share the opinion of the majority of the Court that in the circumstances of the case there has been a violation of Article 34 and no violation of Article 3 of the Convention, I am unable to follow them in their finding that there has been no violation of Article 6, for the reasons elaborated by Judges Sir Nicolas Bratza, Bonello and Hedigan in their joint partly dissenting opinion, to which I fully subscribe.
JOINT PARTLY DISSENTING OPINION
OF JUDGES Sir Nicolas BRATZA, BONELLO
AND HEDIGAN
1. While we share the conclusion and reasoning of the majority of the Court that, in extraditing the applicants to Uzbekistan, Turkey failed to comply with its obligations under Article 34 of the Convention, we are unable to agree with their conclusion that the extradition of the applicants did not also give rise to a violation of Articles 3 and 6 of the Convention. In our view there was, in the circumstances of the present case, a violation of the applicants' rights under both those Articles.
Article 3
2. The general principles governing the application of Article 3 of the Convention to cases of extradition or expulsion of an individual are summarised in paragraphs 66 to 70 of the judgment. We would only add to that summary that the prohibition in Article 3 against ill-treatment is an absolute prohibition even in the case of expulsion and extradition and that the activities of the individual in question, however undesirable or dangerous and whether or not terrorist-related, cannot be a material consideration where a real risk of treatment contrary to Article 3 has been shown (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1855, §§ 79-80). Nor, where such a risk has been shown, is it any answer that a refusal to extradite would interfere with rights under international treaties or conflict with the norms of international judicial process or would inevitably involve an assessment of conditions in the requesting country which is not a Party to the Convention against the standards of Article 3 of the Convention (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, pp. 32-33, § 83, and pp. 34-36, §§ 88-91).
3. As is noted in the judgment,
the existence of the risk that the individual concerned will, if returned, be
subjected to treatment proscribed by Article 3 in the receiving country must be
assessed primarily with reference to those facts which were known or ought to
have been known to the Contracting State responsible for returning the person
at the time of the extradition or expulsion in question. The Court is not
precluded from having regard to information which comes to light subsequent to
the return of the person, such information being of potential value in
confirming or refuting the appreciation made by the
applicant on his return to the receiving country is not conclusive, the essential question being whether it was foreseeable at the time of the expulsion that the person would be subjected to ill-treatment reaching the threshold of Article 3.
4. The two applicants were
detained in
5. By applying Rule 39 the Chamber
of the Court was necessarily satisfied that there existed at least a prima
facie case for the existence of such a risk. There appears to us to have been a
strong basis for such a view. As noted in the judgment, the general human
rights situation in Uzbekistan at the relevant time was very poor, the
contemporary reports of international human rights organisations denouncing an
administrative practice of torture and other forms of ill-treatment of
political dissidents in that country. In particular, Amnesty International's
briefing for the United Nations Committee against Torture, which was made
public in October 1999, found a failure on the part of
6. While accepting that the findings of the various reports of human rights organisations accurately described the general situation in
7. We cannot agree that the
undisputed findings concerning the general situation in
8. It is unclear to us what further corroborative evidence could reasonably be expected of the applicants, particularly in a case such as the present, where it was Turkey's failure to comply with the interim measures indicated by the Court which has prevented the Court from carrying out a full and effective examination of the application in accordance with its normal procedures. In such a situation, we consider that the Court should be slow to reject a complaint under Article 3 in the absence of compelling evidence to dispel the fears which formed the basis of the application of Rule 39.
9. In concluding that the required level of risk had not been sufficiently shown, the majority of the Court place reliance on three particular features of the case – the assurances given by the Uzbek government; the statement by the Public Prosecutor of the Republic of Uzbekistan, which accompanied those assurances, to the effect that Uzbekistan was a party to the United Nations Convention against Torture and accepted and reaffirmed its obligation to comply with the requirements of that convention; and the medical reports from the doctors of the Uzbek prisons in which the two applicants were being held.
10. We do not consider any of these factors to be compelling or to be sufficient, either individually or collectively, to allay the serious concerns concerning the treatment which was liable to await the applicants on their return. As to the assurances, we find it striking that the only assurance which was received prior to the applicants' surrender (namely, that of 9 March 1999) was not even communicated to the Court until 19 April 1999, well after the application of Rule 39 and after the extradition had been effected in disregard of the Court's interim measures. Moreover, an assurance, even one given in good faith, that an individual will not be subjected to ill-treatment is not of itself a sufficient safeguard where doubts exist as to its effective implementation (see, for example, Chahal, cited above, p. 1861, § 105). The weight to be attached to assurances emanating from a receiving State must in every case depend on the situation prevailing in that State at the material time. The evidence as to the treatment of political dissidents in Uzbekistan at the time of the applicants' surrender is such, in our view, as to give rise to serious doubts as to the effectiveness of the assurances in providing the applicants with an adequate guarantee of safety.
11. The same applies to the
majority's reliance on the fact that
12. As to the medical reports from the doctors at Zarafshan and Şayhali Prisons, we would draw attention to the fact that these very brief and unspecific reports followed medical examinations apparently carried out in December 2000 and April 2001 (in the case of the first applicant) and between July and October 2001 (in the case of the second applicant), that is at least twenty-one months after the extradition of the applicants and some eighteen months after their trial and conviction. In so far as any regard may be had to events occurring after the extradition had taken place, we can attach very little weight to these reports which cast no light on the treatment received by the applicants in the intervening period and, more particularly, in the period leading up to their trial. Certainly, evidence as to the applicants' physical integrity so long after the events in question cannot in our view be relied on as refuting the well-foundedness of the applicants' fears at the time of their extradition.
13. For these reasons we consider that substantial grounds have been shown for believing that the applicants faced a real risk of ill-treatment and that, in returning the applicants despite this risk, Article 3 of the Convention has been violated.
Article 6
14. While the Court has not to date found that the expulsion or extradition of an individual violated, or would, if carried out, violate Article 6 of the Convention, it has on frequent occasions held that such a possibility cannot be excluded where the person being expelled has suffered or risks suffering a flagrant denial of a fair trial in the receiving country (see, for example, Soering, cited above, p. 45, § 113; Drozd and Janousek v. France
and Spain, judgment of 26 June 1992,
Series A no. 240, pp. 34-35, § 110; Einhorn
v.
Article 6 if occurring within the Contracting State itself. As the Court has
emphasised, Article 1 cannot be read as justifying a general principle to the
effect that a Contracting State may not surrender an individual unless
satisfied that the conditions awaiting him in the country of destination are in
full accord with each of the safeguards of the Convention (see Soering, cited above, pp. 33-34, § 86).
In our view, what the word “flagrant” is intended to convey is a breach of the
principles of fair trial guaranteed by Article 6 which is so fundamental
as to amount to a nullification, or destruction of the very essence, of the
right guaranteed by that Article.
15. As in the case of the risk of treatment proscribed by Article 3 of the Convention, the risk of a flagrant denial of justice in the receiving State for the purposes of Article 6 must be assessed primarily by reference to the facts which were known or should have been known by the respondent State at the time of the extradition.
16. The majority of the Court
acknowledge that, in the light of the information available, there “may have
been reasons for doubting at the time” that the applicants would receive a fair
trial in
17. We consider, on the contrary, that on the material available at the relevant time there were substantial grounds not only for doubting that the applicants would receive a fair trial but also for concluding that they ran a real risk of suffering a flagrant denial of justice. The Amnesty International briefing document afforded, in our view, credible grounds for believing that self-incriminating evidence extracted by torture was routinely used to secure guilty verdicts and that suspects were very frequently denied access to a lawyer of their choice, lawyers often being given access to their client by law enforcement officials after the suspect had been held in custody for several days, when the risk of torture was at its greatest. In addition, it was found that in many cases law enforcement officials would only grant access to a lawyer after the suspect had signed a confession, and that meetings between lawyers and clients, once granted, were generally infrequent, defence lawyers rarely being allowed to be present at all stages of the investigation.
18. So, far from the fears of an
unfair trial being allayed in the case of the two applicants, the information
coming to light after their extradition serves only to confirm in our view the
well-foundedness of those fears. We note at the outset that, while the Turkish
Government received assurances concerning the property rights and treatment of
the applicants in
19. In our view, the evidence before the Court in the present case is sufficient to establish the existence at the date of extradition of a real risk that the applicants would suffer a flagrant denial of justice. In these circumstances, the surrender of the applicants was also in violation of Article 6 of the Convention.
JOINT PARTLY DISSENTING OPINION
OF JUDGES CAFLISCH, TÜRMEN
1. Preliminary
observations
1. The judgment from which we partly dissent is ambiguous about the binding effect of interim measures indicated by the Court. Although, without any doubt, this is an essential issue, there is no direct reference to the legal consequences of interim measures “indicated” under Rule 39 of the Court's Rules of Procedure. Nevertheless, it can be deduced from paragraph 128 of the judgment that the majority wishes to attribute binding effect to such measures. The judgment bases the mandatory nature of interim measures essentially on Article 34 of the Convention. Paragraph 128 of the judgment states that the failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant's complaint, as impeding the effective exercise of his or her right and, accordingly, as a violation of Article 34 of the Convention (right of individual application).
2. We are of the view that Article 34 of the Convention cannot serve as a basis for holding that the Court's interim measures are binding on the States Parties to the Convention. But even if one were to admit – which we are not prepared to do – that non-compliance may occasionally amount to a violation of Article 34, one would have to determine in each case whether such non-compliance indeed prevents the Court from examining the applicant's complaint and hinders the effective exercise of the individual's right of application. There are certainly cases where the Court has all the elements to examine the applicant's complaint despite non-compliance; and there are also cases where the Court applies Rule 39 to the applicant (for instance, in cases of hunger strike) and not to the Government.
3. In the present case, the
Court did have the necessary elements to examine the applicants' Article 3
complaint. The respondent State received official guarantees from the Uzbek
authorities that the applicants would not be sentenced to death, that they
would not be subjected to torture and that their property would not be
confiscated. The medical reports submitted to the Court, after the applicants
were sentenced and imprisoned, indicate that they had not been ill-treated and
were in good health, both physically and psychologically. Furthermore, two
members of the Turkish embassy in
4. Having made these initial observations, we now turn to the specific issue motivating our dissent: the Court's conclusion that failure to abide by interim measures “indicated” by the Court amounts to a violation of Article 34 of the Convention. We shall deal with this issue by examining successively: (i) the Court's case-law; (ii) the case-law of the International Court of Justice (ICJ); (iii) the European Convention on Human Rights in the light of the canons of treaty interpretation; and (iv) the relevant rules of general international law.
2. The
Court's case-law
5. The Court's position in
the matter is summed up in Cruz Varas and
Others v. Sweden (judgment of
6. The precedent described
above was recently confirmed by the Court, in connexion with its own provisional measures – which had
not been heeded by the
7. The above-mentioned case-law means, in essence, that while the Court is entitled to interpret the provisions of the Convention it may not – by way of interpretation or through the enactment of rules of procedure, or both – write new rules into the Convention, not even if there is a fairly widespread practice in the desired sense, as long as that practice is not uniform (see Belgium's attitude in Čonka or that of Turkey in the present instance), accompanied by a corresponding opinio juris. Only the States Parties as a whole may amend the Convention by supplementing it. A comment to be added here is that if the binding character of interim measures could be derived from the necessity of giving full effect to the right of individual application enshrined in Article 34 of the Convention, what would the situation in inter-State cases be? Would measures indicated in such cases continue to be optional? Or would they be considered binding, by analogy, to give the fullest effect possible to Article 33 (inter-State cases) of the Convention?
3. The
case-law of the ICJ: LaGrand
8. The Court's judgment
relies on the recent decision of the ICJ in LaGrand
(judgment of
9. In LaGrand the ICJ was called upon to interpret a provision of its own constitutive treaty, that is, Article 41 of its Statute. The States Parties to that Statute had unquestionably acquiesced in that Article and were bound by it. Consequently, the issue was one of pure treaty interpretation, namely, whether the verb “indicated” used in Article 41 must be taken to mean that measures formulated under that provision are binding on the States parties to the dispute. After years of avoiding coming to grips with this issue, the ICJ, in LaGrand, reached an affirmative conclusion, basing itself on the rules of interpretation found in the 1969 Vienna Convention on the Law of Treaties and, in particular, on the object and purpose of Article 41 of the Statute, which was and is a treaty provision binding on all States Parties. In connection with Article 41, the “object and purpose” in question are “to preserve the respective rights of either party” and to enable the court to render binding decisions in accordance with Article 59 of its Statute; and it certainly made sense to hold that this result depended on the binding character of the interim measures. There is here, in other words, a close relation between the enabling treaty provision and the aim pursued.
10. It is to be expected that
the States Parties to other international dispute settlement mechanisms which
contain provisions on interim measures using language similar to that of
Article 41 of the Statute of
11. By contrast, no such provision can be found in the European Convention on Human Rights; and neither Article 26 (d) of that Convention, empowering the Court to enact Rules of Procedure, nor Article 34, instituting the right of individual application, is sufficiently connected to the issue under consideration to fill a “gap” in the Convention by instituting binding interim measures ex nihilo, thereby imposing on the States Parties to the Convention an obligation without their consent. To put it differently, there is a wide difference between the mere interpretation of a treaty and its amendment, between the exercise of judicial functions and international law-making.
12. What the Court's Grand
Chamber has done, and the Chamber before it, in Mamatkulov and Askarov is to exercise a legislative function, for
the Convention as it stands nowhere prescribes that the States Parties to it
must recognise the binding force of interim measures indicated by this Court.
This is why, in our view, the Court cannot go down the path shown by
4. The
European Convention on Human Rights in the light of the canons of treaty
interpretation
13. It has been shown that
the existing case-law of the
possibility come to the fore after the ICJ's recent rulings. It remains to be seen, however, whether, independently of these two factors, the canons of interpretation contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties support the conclusions drawn by the Court in the present judgment. In this connection, the following rules on interpretation of the 1969 Vienna Convention may be considered: the text of the treaty; teleological interpretation; the subsequent practice of the Contracting Parties; the preparatory work; and relevant rules of international law.
14. As already pointed out, the text of the Convention is silent on interim measures and their binding force. The only basis for such measures can be found in Article 26 (d) of the Convention authorising the plenary Court to enact Rules of Procedure. The Court has done exactly that and has inserted Rule 39 in its Rules of Procedure. It is obvious that it was allowed to do that, given that the Rule in question did not contravene the Convention by imposing on States Parties obligations not provided for by it. It is also obvious that the Parties, when drawing up the Convention, had no intention whatsoever of asserting a duty to comply with interim measures indicated by the Court on the sole strength of the Rules of Procedure it would enact; nor did they have any intention of doing so later on, as is shown by the absence of any mention of interim measures and of their binding nature in the Additional Protocols and by the non-acceptance of proposals to introduce in a protocol a provision on the binding character of interim measures (see paragraph 18 below).
15. The teleological method of interpretation (“object and purpose” of the treaty), applied by the Court under the “living instrument” doctrine, is heavily relied on in the judgment, but we see little reason to do so. In Cruz Varas, that method had not even been expressly mentioned. Moreover, regarding the nature of interim measures, nothing much has changed between the time when that judgment was adopted and now: binding interim measures were as desirable then as they are today, yet they cannot be justified without an enabling provision in the Convention, the Court's constitutive instrument. Furthermore, Cruz Varas was confirmed, regarding measures issued by the Court itself, in the Čonka decision, only three months before the LaGrand judgment of the ICJ.
16. It has been contended
that the right of individual application established in Article 34 of the
Convention makes little sense without a power conferred on the Court to issue binding
interim measures and that, accordingly, to meet the object and purpose of that
Article, it is indispensable to accept the mandatory character of such
measures. It has in fact been said that, domestically as well as internationally,
a right of application without the possibility of attracting binding interim
measures is not an effective right at all. This may be so on the domestic
level, where the principle of compulsory
jurisdiction of the courts prevails.
It is certainly not on the international level. Firstly, States are entirely
free to accept or to refuse compulsory
jurisdiction of international courts and, if they do accept it, to limit
its scope, for instance by not including rules on the binding character of
provisional measures. This is the case in the framework of the arbitration
procedure instituted by the Washington (World Bank) Convention of
17. The travaux préparatoires of the Convention may be referred to by virtue of Article 32 of the Vienna Convention of Treaties. The European Court's judgment in Cruz Varas shows that, despite proposals to include in the 1950 Convention a provision similar to Article 41 of the Statute of the ICJ, this was not done (p. 34, § 95) – a circumstance which is certainly not favourable
to reading a power to issue binding provisional measures into the Convention.
18. Another element to be
examined, also discussed in Cruz Varas,
is the subsequent practice of the
Contracting Parties mentioned as an element of interpretation in the Vienna
Convention on the Law of Treaties. Article 31 § 3 (b) of that convention
refers to “any subsequent practice in the application of the treaty which
establishes the agreement of the Parties regarding its interpretation”. This
practice was equally considered in Cruz
Varas. After describing early unsuccessful attempts of the Convention institutions
at adopting recommendations in the matter (pp. 34-35, § 96), the Court found
that the prevailing – but not complete – compliance with provisional measures
was inspired by the desire of States Parties to cooperate. There was, in other
words, no evidence that that practice, as is required by the Vienna Convention,
“established the agreement of the Parties
regarding its interpretation”. That the contrary is true is first shown by the
fact that, at its extraordinary meeting in early 1994, the Committee of Experts
for the Improvement of Procedures for the Protection of Human Rights (DH-PR)
received reform proposals from the European Commission of Human Rights on
19. All three proposals, if accepted, would have made it possible to argue (as with Article 41 of the ICJ's Statute) that the Court's interim measures must be regarded as mandatory. All three proposals were, however, rejected by the government experts. Later on, the Committee on Migration, Refugees and Demography suggested that interim measures indicated pursuant to Rule 36 of the Court's Rules of Procedure be made obligatory for member States (Draft Report, AS/PR(1997)2 revised, 19 February 1997). The Committee of Ministers declined to include a provision on interim measures in the Convention. This can only mean that the widespread acceptance of the practice in question rests on courtesy, cooperation and convenience, but not on an agreed interpretation. Nor has the Committee of Ministers seen fit to suggest the introduction of a provision on binding provisional measures in Draft Protocol No. 14. Again this must have been so because there was no agreement on making such measures compulsory and not because the Committee thought it superfluous to do anything on the assumption that provisional measures were binding.
20. In the present case, the
Court itself considered its interim measures to be optional. This is
evident from the wording of Rule 39, which uses the words “indicate” and
“should be adopted”, as well as from the text of the letter of
“La
Présidente de la première section a décidé aujourd'hui d'indiquer à votre Gouvernement, en application de l'article 39 du
Règlement de la Cour, qu'il était souhaitable,
dans l'intérêt des parties et du bon déroulement de la procédure devant la
Cour, de ne pas extrader le requérant vers la République ouzbèke avant la
réunion de la chambre compétente, qui se tiendra le 23 mars 1999.”[1]
21. What, finally, about the “relevant rules of international law applicable in the relations between the Parties”, relied on by the Chamber on the basis of Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties? It is true that many treaties constitutive of international courts and tribunals do authorise the “indication” of provisional measures, that being the term used in most of them. The meaning attributed to it by the ICJ in the recent LaGrand case will undoubtedly have a considerable impact on the interpretation of these treaties; but it cannot have such an impact on the present Court as long as the latter's constitutive instrument – the European Convention – contains no authorisation to “indicate” interim measures at all.
5. The
relevant rules of international law
22. There remains the question of whether the Court may, on the basis of a rule of general international law or a general principle of law recognised by civilised nations: (i) indicate provisional measures; and (ii) order such measures. If that were the case, the Court could justify the enactment of mandatory interim measures by such a rule or principle even in the absence of any enabling treaty provision. Regarding general principles of law recognised by civilised nations, there may well be a widespread rule on obligatory interim measures on the domestic level, based on the rule of compulsory jurisdiction applicable on that level. By contrast, as pointed out earlier (see paragraph 16 above), that rule does not prevail on the international level, which is why it cannot be applied as such on that level. In other words, the principle cannot be transposed to the business of international courts.
23. There must, however, be a customary rule allowing international courts and tribunals, even in the absence of a treaty provision, to enact Rules of Procedure, a rule which may include the power to formulate interim measures. But that rule cannot be taken to include the power to prescribe such measures.
6. Conclusion
24. It follows from all the above that the compulsory nature of interim measures “indicated” by this Court cannot be derived from the rules of general international law, nor from Articles 34 (right of individual application) or 26 (d) (right of the Court to enact rules of procedure) of the Convention, as interpreted in the light of the Vienna Convention on the Law of Treaties of 23 May 1969. The same conclusion results from the practice of the European Court of Human Rights itself, including its initial attitude in the instant case (see paragraph 24 of the present judgment).
25. Our basic conclusion is,
therefore, that the matter examined here is one of legislation rather than of judicial
action. As neither the constitutive instrument of this Court nor general
international law allows for holding that interim measures must be complied
with by States, the Court cannot decide the contrary and, thereby, impose a new
obligation on States Parties. To conclude that this Court is empowered, de lege lata, to issue binding
provisional measures is ultra vires.
Such a power may appear desirable; but it is up to the Contracting Parties to
supply it.
1. Translation: “The President of the First Section has decided to indicate to your government, on the
basis of Rule 39 of the Rules of Court, that it is desirable, in the interest of the parties and of the smooth
progress of the proceedings before the Court, not to extradite the applicant to
the Republic of Uzbekistan prior to the meeting of the competent Chamber, which
will take place on 23 March 1999.”