CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 6 février 2003

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS     070   6.2.2003   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF MAMATKULOV AND ABDURASULOVIC v. TURKEY     The European Court of Human Rights has today notified in writing a judgment [1] in the case of Mamatkulov and Abdurasulovic v. Turkey (application nos. 46827/99 and 46951/99). The Court held:   ● unanimously that there has been no violation of Article 3 (prohibition of torture) of the European Convention on Human Rights; ● unanimously that Article 6 (right to a fair trial) of the Convention is not applicable to the extradition proceedings in Turkey; ● unanimously that no issue arises in respect of the second complaint under Article 6 of the Convention; ● by six votes to one that there has been a violation of Article 34 (individual applications) of the Convention.   The Court held unanimously that the finding of a violation was in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. It awarded them 10,000 euros (EUR) for costs and expenses, less EUR 905 which had been paid by the Council of Europe in legal aid. (The judgment is in French only.)   1.     Principal facts   The case concerns two applications lodged by two Uzbek nationals, Rustam Mamatkulov and Askarov Abdurasulovic, who were born in 1959 and 1971 respectively. They are members of the ERK 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.   Mamatkulov v. Turkey On 3 March 1999 the applicant arrived in Istanbul from Alma-Ata (Kazakhstan) on a tourist visa. He was arrested by Turkish police at Atatürk Airport (Istanbul) under an international arrest warrant and taken into police custody on suspicion of homicide, causing injuries by the explosion of a bomb in Uzbekistan and the attempted terrorist attack on the President of Uzbekistan. Uzbekistan requested the applicant’s extradition under a bilateral treaty with Turkey.   On 11 March 1999 the applicant was interviewed by the judge of Bakırköy Criminal Court. An order made by the judge on the same day under the urgent procedure mentioned the charges against the applicant and noted that the offences concerned were not political or military in nature but ordinary criminal offences. The judge also remanded the applicant in custody pending his extradition.   Abdurasulovic v. Turkey The applicant entered Turkey on 13 December 1998 on a false passport. On 5 March 1999, following an extradition request made by the Republic of Uzbekistan, the Turkish police arrested him and took him into police custody. He was suspected of homicide, causing injuries by the explosion of a bomb in Uzbekistan and an attempted terrorist attack on the President of Uzbekistan.   On 7 March 1999 the applicant was brought before a judge, who remanded him in custody. On 15 March 1999 Fatih Criminal Court (Istanbul) determined his nationality and ruled on the nature of the offence, under Article 9 of the Turkish Criminal Code. It held that the offences with which the applicant had been charged were not political or military in nature but ordinary criminal offences. The court also remanded the applicant in custody pending his extradition.   On 18 March 1999 the European Court of Human Rights indicated to the Government of Turkey under Rule 39 of the Rules of Court (interim measures) that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to extradite the applicant to Uzbekistan until the Court had had an opportunity to examine the application further at its forthcoming session on 23 March 1999. On 19 March 1999 the Turkish Cabinet issued a decree for the applicants’ extradition. On 23 March 1999, the Court decided to extend the interim measure until further notice.   ***   On 27 March 1999 the applicants were handed over to the Uzbek authorities. In a judgment of 28 June 1999, the High Court of the Republic of Uzbekistan found the applicants guilty as charged and sentenced them to 20 and 11 years’ imprisonment respectively.   Their representatives say that they have had no news of the applicants since their extradition.   2.     Procedure and composition of the Court   The applications were lodged on 11 and 22 March 1999 and declared admissible on 31   August 1999. A hearing was held on 23 October 2001.   Judgment was given by a Chamber of seven judges, composed as follows:   Elisabeth Palm (Swedish), President , Wilhelmina Thomassen (Netherlands), Gaukur Jörundsson (Icelandic), Riza Türmen (Turkish), Corneliu Bîrsan (Romanian), Josep Casadevall (Andorran), Rait Maruste (Estonian), judges ,   and also Michael O’Boyle , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants complained that following their extradition their lives were at risk and they were in danger of being subjected to torture, contrary to the provisions of Articles 2 (right to life) and 3 of the Convention.   They further complained of the unfairness of the extradition procedure in Turkey and of the criminal proceedings against them in Uzbekistan.   Pointing out that the applicants had in fact been extradited, their representatives alleged that 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 (interim measures) of its Rules of Court.   Decision of the Court   Article 2 and 3 of the Convention   The Court considered that the complaint should be examined under Article 3.   It reiterated that Contracting States had the right to control the entry, residence and expulsion of aliens. There was no right to political asylum in the Convention or its Protocols. However, State responsibility might be engaged where substantial grounds existed for believing that a person would face a real risk of being subjected to treatment contrary to Article 3 if extradited.   The Court noted that the applicants’ representatives had cited in support of their allegations the reports of international investigative bodies working in the field of human rights which had condemned an administrative practice of torture and other forms of ill-treatment of opposition-party supporters. However, the Court considered that despite the serious concerns to which those reports gave rise, they only described the general situation in Uzbekistan. They did not confirm the specific allegations made by the applicants, which had to be corroborated by other evidence. It was not possible to make conclusive factual findings in the case, as the applicants had been denied an opportunity to request that certain inquiries be made to obtain evidence supporting their allegations.   The Court noted that the Turkish Government maintained that the request for extradition had been granted after guarantees had been obtained from the Uzbek Government, including an assurance that the applicants would not be subjected to torture or capital punishment. The Court noted the terms of the diplomatic notes from the Uzbek authorities that had been produced by the Turkish Government and of the judgment sentencing the applicants to prison. In addition, it noted that the applicants’ representatives’ allegations that the applicants had been subjected to treatment contrary to Article 3 were not corroborated by medical examinations that had been conducted by doctors in the prisons where the applicants were being held. In the light of the circumstances of the case and of the material before it, the Court found that there was insufficient evidence to warrant a finding a violation of Article 3 of the Convention.   Article 6 of the Convention   As regards the extradition proceedings in Turkey, the Court reiterated that Article 6 § 1 of the Convention was not applicable to decisions relating to the entry, residence and expulsion of aliens, as such decisions did not concern the determination of civil rights and obligations or of any criminal charge against the person concerned.   As to the criminal proceedings in Uzbekistan, the Court referred to its findings under Article   3 and held that the evidence before it did not establish that the applicants had suffered a denial of justice. Therefore, no issue arose on that point under Article 6 § 1 of the Convention.   Article 34 of the Convention   The Court noted that the fact that Turkey had extradited the applicants without complying with the interim measures indicated under Rule 39 of the Rules of Court raised the issue whether, in view of the special nature of Article 3, there had been a violation of Article 34 of the Convention. It reiterated that implicit in the notion of the effective exercise of the right of individual application was the observance of the principle of equality of arms and the provision of sufficient time and proper facilities to applicants in which to prepare their case. In the case before it, the applicants’ representatives had been unable, despite their efforts, to contact the applicants, who had thus been deprived of the possibility of having further inquiries carried out to obtain evidence in support of their allegations.   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 safeguard. It emphasised that the right to individual application was one of the cornerstones of the machinery for protecting the rights and freedoms set out in the Convention.   Under Article 34, applicants were entitled to exercise their right to individual application effectively, which meant that Contracting States should not prevent the Court from carrying out an effective examination of applications. Further, an applicant who complained of a violation of Article 3 was entitled to an effective examination of an allegation that a proposed extradition or expulsion would entail a violation of Article 3. Indications given by the Court under Rule 39 of the Rules of Court were intended to permit it to carry out an effective examination of the application and to ensure that the protection afforded by the Convention was effective. They also subsequently allowed the Committee of Ministers to supervise execution of the final judgment. Interim measures thus enabled the State concerned to discharge its obligation to comply with the final judgment of the Court, as it was legally bound to do by Article 46 (binding force and execution of judgments) of the Convention.   In the case before the Court, compliance with the indications would undoubtedly have helped the applicants to present their application. The fact that they had been unable to take part in the proceedings or to speak to their representatives had hindered them in contesting the Government’s arguments on the factual issues and in obtaining evidence. In view of the duty of all State Parties to the Convention to refrain from any act or omission that might adversely affect the cohesion and effectiveness of the final judgment (see Article 46) and in view of the foregoing, the Court found that the extradition of Mr Mamatkulov and Mr Abdurasulovic, in disregard of the indication that had been given under Rule 39, rendered nugatory the applicants’ right to individual application.   The Court concluded that any State Party to the Convention to which interim measures had been indicated in order to avoid irreparable harm being caused to the victim of an alleged violation had to comply with those measures and refrain from any act or omission that might adversely affect the cohesion and effectiveness of the final judgment. Accordingly, by failing to comply with the interim measures indicated by the Court, Turkey was in breach of its obligations under Article 34 of the Convention.   Judge Türmen expressed a dissenting opinion, which is 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 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 in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] .     This summary by the Registry does not bind the Court.