CEDH · PRESS;GCJUDGMENTS;ENG — 4 février 2005

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sFE832CA2 { margin-top:0pt; margin-left:18pt; margin-bottom:0pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s1EDF3BA6 { font-family:Arial; font-size:8pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS 053 4.2.2005   Press release issued by the Registrar   GRAND CHAMBER JUDGMENT MAMATKULOV AND ASKAROV v. TURKEY     The European Court of Human Rights has today delivered at a public hearing a Grand Chamber judgment [1] in the case of Mamatkulov and Askarov v. Turkey (application no. 46827/99).   The Court held: by 14 votes to three, that there had been no violation of Article 3 (prohibition of torture or inhuman or degrading treatment or punishment) of the European Convention on Human Rights; unanimously, that no separate examination of the complaint under Article 2 (right to life) of the Convention was necessary; unanimously, that Article 6 § 1 (right to a fair trial) did not apply to the extradition proceedings in Turkey; by 13 votes to four, that there had been no violation of Article 6 § 1 concerning the criminal proceedings in Uzbekistan; and,   by 14 votes to three, that Turkey had failed to comply with its obligations under Article 34 (right of individual petition).   Under Article 41 (just satisfaction), the Court awarded each of the applicants 5,000 euros (EUR) for non-pecuniary damage and EUR 15,000, jointly, for costs and expenses (less EUR 2,613.17 received from the Council of Europe in legal aid). (The judgment is available in English and French.)     1. Principal facts   The case concerns applications brought by two Uzbek nationals, Rustam Mamatkulov and Abdurasulovic Askarov, who were born in 1959 and 1971 respectively.   The applicants are members of the ERK “Freedom” Party (an opposition party in Uzbekistan). They were extradited from Turkey to Uzbekistan on 27   March 1999 and are understood to be currently in custody there.   Mr Mamatkulov arrived in Istanbul from Kazakhstan on 3 March 1999 on a tourist visa. The Turkish police arrested him at Atatürk Airport (Istanbul) and took him into police custody. Mr Askarov came into Turkey on 13 December 1998 on a false passport. The security forces arrested him and took him into police custody on 5 March 1999.   Both men were suspected of murder, causing injuries by the explosion of a bomb in Uzbekistan, and an attempted terrorist attack on the President of the Republic. They were brought before a judge who ordered them to be remanded in custody. Uzbekistan requested their extradition under a bilateral treaty with Turkey.   Mr Mamatkulov was questioned by a judge at Bakırköy Criminal Court and Mr   Askarov was brought before Fatih Criminal Court (Istanbul). The judge and court noted that the offences with which the applicants were charged were neither political nor military in nature, but ordinary criminal offences. They ordered them to be detained pending their extradition.   The applicants lodged applications with the European Court of Human Rights, which on 18 March 1999 indicated to the Turkish Government, under Rule 39 (interim measures) of the Rules of Court, that “it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to extradite the applicants to Uzbekistan until the Court had had an opportunity to examine the application further at its forthcoming session on 23 March”. On that date the Chamber extended the interim measure until further notice. In the meantime, on 19 March 1999, the Turkish Cabinet had issued a decree for the applicants’ extradition. They were handed over to the Uzbek authorities on 27 March 1999.   In a judgment of 28 June 1999 the High Court of the Republic of Uzbekistan found the applicants guilty of the offences as charged and sentenced them to 20 and 11 years’ imprisonment respectively.     2.     Procedure     The applications were lodged with the European Court of Human Rights respectively on 11 and 22 March 1999. They were both declared admissible on 31 August 1999. A Chamber hearing was held on 23 October 2001.   In a Chamber judgment of 6 February 2003 the Court held, unanimously, that there had been no violation of Article 3; that Article 6 was inapplicable to the extradition procedure in Turkey; and, that no issue arose regarding the second complaint lodged under Article 6. It held, by six votes to one, that there had been a breach of Article 34 because Turkey had not complied with the interim measures indicated by the Court.   On 28 April 2003 the Turkish Government requested that the case be referred to the Grand Chamber. The panel of the Grand Chamber granted the request on 21 May 2003.   On 18 December 2003 the President of the Grand Chamber granted three non-governmental organisations – the Aire Centre (London), Human Rights Watch (New York) and the International Commission of Jurists (Geneva) – leave to intervene as third parties in the proceedings.   A Grand Chamber hearing took place in public in the Human Rights Building, Strasbourg, on 17 March 2004.     3. Composition of the Court   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Luzius Wildhaber (Swiss), President , Christos Rozakis (Greek), Jean-Paul Costa (French), Nicolas Bratza (British), Giovanni Bonello (Maltese), Lucius Caflisch (Swiss) [2] , Elisabeth Palm (Swedish) Ireneu Cabral Barreto (Portuguese), Riza Türmen (Turkish), Françoise Tulkens (Belgian), Nina Vajić (Croatian), John Hedigan (Irish), Matti Pellonpää (Finnish), Margarita Tsatsa-Nikolovska (Citizen of “the Former Yugoslav Republic of Macedonia”), András Baka (Hungarian), Anatoli Kovler (Russian), Stanislav Pavlovschi (Moldovan), judges , and also Paul Mahoney , Registrar .     4.     Summary of the judgment [3]   Complaints   Relying on Articles 2 and 3, the applicants’ representatives submitted that, at the time of the applicants’ extradition, they faced a real risk of being tortured or ill-treated.   They also complained, under Article 6, of the unfairness of the extradition procedure in Turkey and of the criminal proceedings in Uzbekistan.   They further maintained that, in extraditing the applicants, Turkey had failed to discharge its obligations under the Convention by not acting in accordance with the indications given by the Court under Rule 39 of its Rules of Court.   Decision of the Court   Articles 2 and 3 The Court took note of reports from international human-rights organisations denouncing an administrative practice of torture and other forms of ill-treatment of political dissidents in Uzbekistan and the Uzbek regime’s repressive policy towards such dissidents. 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...”.   However, the Court found that, although those findings described the general situation in Uzbekistan, they did not support the specific allegations made by the applicants, which required corroboration by other evidence.   The Court took into consideration the date the applicants were extradited (27 March 1999) when assessing whether there was a real risk of their being subjected in Uzbekistan to treatment proscribed by Article 3.   The Turkish Government had contended that the applicants were extradited after an assurance was obtained from the Uzbek Government 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”. The Government also produced medical reports from the doctors of the Uzbek prisons where Mr Mamatkulov and Mr Askarov were being held.   In the light of the material before it, the Court was not able to conclude that substantial grounds existed on 27 March 1999 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 prevented the Court from assessing whether a real risk existed in the manner it considered appropriate in the circumstances of the case. Consequently, no violation of Article 3 could be found.   Having considered the applicants’ allegations under Article 3, the Court found it unnecessary to examine them separately under Article 2.   Article 6 § 1 Concerning the applicants’ complaint that they had not had a fair hearing before the criminal court that ruled on their extradition, the Court reiterated that decisions regarding the entry, stay and deportation of aliens did 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. Consequently, Article 6 § 1 was not applicable.   Concerning the applicants submission that there was no possibility of their being given a fair trial in Uzbekistan, the Court considered that the risk of a flagrant denial of justice had to be assessed by reference to the facts which the State knew or should have known when it extradited those concerned. When extradition was deferred following an indication by the Court under Rule 39, the risk of a flagrant denial of justice had also be assessed in the light of the information available to the Court when it considered the case.   Although, in the light of the information available, there might have been reasons for doubting at the relevant time that the applicants would receive a fair trial in the State of destination, there was not sufficient evidence to show that any possible irregularities in the trial were liable to constitute a flagrant denial of justice. Consequently, no violation of Article 6 § 1 could be found.   Article 34 The Court noted that the applicants, once extradited, lost contact with their lawyers, and therefore lost an opportunity to gather evidence in support of their allegations under Article 3. As a consequence, the Court was prevented from properly assessing whether the applicants were exposed to a real risk of ill-treatment.   The Court observed that, in a number of recent decisions and orders, international courts and institutions had 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. In proceedings concerning international disputes, the purpose of interim measures was to preserve the parties’ rights.   The Court also stressed that the Convention right to individual application had over the years become of high importance and was now a key component of the machinery for protecting the rights and freedoms set out in the Convention.   In that context, the Court noted 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 could not be dissociated from the proceedings to which they related or the decision on the merits they sought to protect. The Court reiterated that Article 31 § 1 of the Vienna Convention on the Law of Treaties provided that treaties had to be interpreted in good faith in the light of their object and purpose, and also in accordance with the principle of effectiveness.   The Court observed that the International Court of Justice, the Inter-American Court of Human Rights, the Human Rights Committee and the Committee against Torture of the United Nations had all 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 represented an essential objective of interim measures in international law. Whatever the legal system in question, the proper administration of justice required that no irreparable action be taken while proceedings were pending.   Under the Convention system, interim measures, as they had consistently been applied in practice, played 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 those conditions, a failure by a State which had ratified the Convention to comply with interim measures would 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 in the Convention.   Indications of interim measures given by the Court allowed 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 was effective; such indications also subsequently allowed the Council of Europe’s Committee of Ministers to supervise execution of the final judgment. Such measures therefore enabled the State concerned to discharge its obligation to comply with the final judgment of the Court, which was legally binding by virtue of Article 46 of the Convention.   Consequently, the effects of the indication of an interim measure to a Contracting State – in this case Turkey – had to be examined in the light of the obligations which are imposed by Articles 1, 34 and 46 of the Convention.   The facts of the case clearly showed 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, which the applicants’ extradition rendered meaningless.   The Court reiterated that, by virtue of Article 34, States which had ratified the Convention undertook to refrain from any act or omission that might hinder the effective exercise of an individual applicant’s right of application. A failure to comply with interim measures had 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.   Having regard to the material before it, the Court concluded that, by failing to comply with the interim measures indicated under Rule 39 of the Rules of Court, Turkey was in breach of its obligations under Article 34.     Judge Cabral Barreto expressed a concurring opinion; Judge Rozakis expressed a partly dissenting opinion; Judges Sir Nicolas Bratza, Bonello and Hedigan expressed a joint partly dissenting opinion and Judges Caflisch, Türmen and Kovler expressed a joint partly dissenting opinion, all of which are annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Grand Chamber judgments are final (Article 44 of the Convention). [2] Judge elected in respect of Liechtenstein. [3] This summary drafted by the Registry is not binding on the Court.