FIFTH SECTION

CASE OF OLAECHEA CAHUAS v. SPAIN

(Application no. 24668/ 03 )

JUDGMENT

[Extracts]

STRASBOURG

10 August 2006

FINAL

11 / 12 /2006

In the case of Olaechea Cahuas v. Spain ,

The European Court of Human Rights ( Fifth Section), sitting as a Chamber composed of

Mr P. Lorenzen , President , M r s S. Botoucharova , Mr K. Jungwiert , Mr V. Butkevych, Mr R. Maruste , Mr J. Borrego Borrego , M r s R . Jaeger , judges , and Mrs C . Westerdiek , Section Registrar ,

Having deliberated in private on 10 July 2006,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 24668/0 3 ) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Peruvian national, Mr Adolfo Héctor Ol aechea Cahuas (“the applicant”), on 6 August 2003.

2 . The applicant was represented by Ms Nuala Mole , of the Aire Centre ( Lond on ). The Spanish Government (“the Government”) were represented by their Agent, Mr I . Blasco Lozano , Head of the Legal Department for Human Rights at the Ministry of Justice.

3 . On 18 October 2005, u nder the provisions of Article 29 § 3 of the Convention, the Fourth Section decided to examine the merits of the application at the same time as its admissibility.

4 . On 1 April 2006 the application was assigned to the newly constituted Fifth Section (Rule s 25 § 5 and 52 § 1 of the Rules of Court ).

5 . The applicant and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant was born in 1944 and currently lives in Peru .

A. The proceedings in Spain

7 . On 3 July 2003 the applicant , a suspected member of the Shining P ath ( Sendero Luminoso ) organisation , a terrorist group founded in 1970 whose aim is to transform Peru ’ s political system by armed force into a communist proletarian regime , was arrested in Almería ( Spain ) under an international arrest warrant issued by the Peruvian authorities, following a routine police check of the list s of guests registered at hotels in that province . The applicant was taken into custody pending a ruling on his extradition.

8 . In a d e cision of 3 July 2003 central investigating judge no. 6 of the Audiencia Nacional asked the applicant for his views on the extradition, in keeping with A rticle 17 of the bilat e ral extradition treaty of 28 June 1989 between the R e publi c of P eru and the Kingdom of Spain .

9 . On 7 July 2003 the e xtradition hearing requested by central investigating judge no. 6 was held. The applicant agreed to the “ simplifi ed extradition ” procedure (imm e diat e return to the requesting country ) and the application of the “ special ” rule ( under which he could b e tried only in respect of the offence for which extradition was requested). The extradition request was based on a terrorist offence .

10 . At the hearing of 7 July 2003 the applicant de clar ed that although he had agreed to simplified extradition , the Peruvian Government w ere required to guarantee his person al safety , his life , his health and his well-being , in conform ity with the standards laid down in international conventions on detention conditions and a fair trial in a reasonable time, as he considered the charges against him unfounded . T he Peruvian press having launched a campa i gn against him – which he considered warranted special protection measures – he also asked for guarantees that he would have access to the press .

11 . T he pr e limina ry hearing provided for in A rticle 504 bis 2 of the Code of Criminal Procedure was also held on 7 July 2003, following which the applicant was detained with a view to his extradition.

12 . In a d e cision of 9 July 2003 the examining ju dge , noting that the applicant had agreed to his extradition and that his requests had been granted at the hearing , called for the application of the me a sures provided for in A rticle 10 of the bilat e ral treaty between Peru and Spain and stated that in such cases it was for Spain, through its Ministry of Justice, to obtain the g uarante es provided for in that provision from the Peruvian aut h orit ies . The extradition would be conditional on the official communication of those guarantees by the ministry, to enable the examining judge to reach a decision in the extradition proce edings .

13 . On 10 July 2003 the applicant appealed against the de cision of 7 July 2003 ord ering his de tention . The appeal was dismissed on 17 July 2003. On 23 July 2003 the applicant filed an appeal against th at ruling .

14 . In a de cision of 18 July 2003 the Audiencia Nacional aut h oris ed the the applicant ’ s extradition for trial by the Peruvian judicia l authorities on the charge of terrorism. It stressed the conten t of the diplomati c note from the Peruvian Embassy , which read as follows :

“Concerning the guarante e that the accused will not be subjected to punishment causing physical harm , or to inhuma n or d e grad ing treatment, we would remind the Spanish authorities that as Peru is party to the American Convention on Human Rights , the Inter-American Convention to Prevent and Punish Torture , and the I nternational Covenant on Civil and Political Rights , the person concerned will enjoy sufficient guarantees under a treaty based on respect for human dignity, as well as the guarantees of physical, psychological and moral integrity enshrined in the main human rights protection instruments .

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1. A rticle 140 of the Peruvian C onstitution provides: “ The death penalty may be applied only for the crime of treason to the country in time of war, and for acts of terrorism ... According to Legislative Decree s no . 25475 and no. 921, the acts of terrorism with which the accus ed , Adolfo Olaechea Cahuas, is charged are not punishable by death .

2. However , the crime of t errorism referred to in A rticle 3 ( a) of Legislative Decree no. 25475 is punishable by life imprisonment . In order to facilit ate the extradition in accordance with A rticle 10 § 2 of the e xtradition treaty , it is guaranteed that even if the accused is found guilty in a fair trial , he will not be sentenced to life imprisonment but to the sentence immediately below that .

3. A fair trial is likewise guaranteed under the judicia l safeguards enshrined in the Constitution, internationa l human rights instruments and domestic law . ”

15 . In the afore mentioned d e cision of 18 July 2003 the examining judge requested that the Spanish Ministries of Justice and Foreign Affairs be informed of the extradition measure and stated that the agreement of the Council of Ministers was not needed for the extradition.

16 . On 24 July 2003 the applicant lodged an appeal to have the d e cision of 18 July 2003 overturned and the ordinary extradition procedure applied, under which the Criminal Division of the Audiencia Nacional would de cide on his extradition.

17 . In an order of 4 August 2003 the investigating judge dismissed the appeal. He reminded the applicant that he had agreed to the simplifi ed extradition procedure and that that decision was irr e vocable.

B. The proceedings before the Court

18 . On 6 August 2003 the applicant requested the application of the me a sures provided for in Ru le 39 of the Rules of Court , to have his extradition to Peru suspen ded . He relied on Articles 3, 5 and 6 of the Convention.

19 . On the same day the V ice- P r es ident of the Fourth Section of the Court d e cid ed to apply Ru le 39 of the Rules of Court and invited the Spanish G overnment not to extradit e the applicant before the C hamber had examined the case at its meeting of 26 August 2003. The Government ’ s A gent and the P ermanent Delegation of Spain to the Council of Europe were informed of that d e cision by telephone at 7 p.m., with subsequent confirmation by fax.

20 . On 7 August 2003 the Spanish G overnment sent the Court a d e cision of investigating ju d ge no. 6 of the Audiencia Nacional , to whom the Court ’ s request concerning the tempora ry suspension of the extradition had been transmitted. In it the judge rejected the request for the application of Rule 39 for the following reasons :

“ The applicant agreed to the extradition of his own free will, being fully aware of the consequences. That being so , the d e cision ordering his extradition is final and no appeal lie s against it.

Furthermore , the Peruvian authorities have provided the g u arant e es requested by the Spanish courts . Finally , the applicant applied to the European Court of Human Rights without exhausting the remedies available to him in Spanish law . ”

21 . On 7 August 2003 the applicant was extrad ited to Peru , where he was incarcerated .

22 . On 8 August 2003 the Court asked the Spanish G overnment , in accordance with Rule 39 § 3 of the Rules of Court , what steps had been taken to ensure the application of the interim me a sure indicated .

23 . Having received no reply from the Spanish G overn ment , on 2 S eptemb er 2003 the Court communi cated the application under A rticles 3, 6 and 34 of the Convention.

24 . I n N ovemb er 2003 the applicant was granted conditional release by the Peruvian anti - terrorism authorities for lack of sufficient evidence that he was a member of the Shining Path . The applicant ’ s freedom was res tr icted by an order prohibiting him from leaving Lima and Peru or changing his place of residence without the authorisation of a judge, and obliging him to report to the judge once a week. T he d e cision of the anti- terrorism authorities also indicated that as the criminal charges against the applicant were maintained , the proceedings against him remained open pending new developments in the investigation.

25 . I n January 2004 the Peruvian authorities asked the Spanish authorities to extend the extradition charges so that the ap plicant could be tried in Peru for financing the Shining Path terrorist group from abroad. Following that request a hearing before the Audiencia Nacional was scheduled for 13 February 2004.

26 . On 22 January 2004 the applicant once again asked the Court to apply Rule 39 and ask the Spanish Government to suspend the hearing until it had ruled on his application .

27 . On 27 January 2004 the Fourth S ection of the Court considered that the circumstances underlying the applicant ’ s request we re not of the kind to which, in the Court ’ s practice, Rule 39 wa s applied . The request was accordingly dismissed .

28 . The hearing went ahead as planned and , by a d e cision of 25 February 2004, the Audiencia Nacional allowed the requested extension . The applicant lodged an amparo appeal against that judgment which is still pending before the Constitutional Court .

29 . Following the judgment handed down by the Grand Chamber on 4 February 2005 in the case of Mamatkulov and Askarov v . Tur key ([GC], nos. 46827/99 and 46951/99, ECHR 2005-I), the applicant requested permission to submit additional pleadings to the Court . The Court agreed and the Government were inform ed . I n Ap ril 2005 the parties submitted their observations.

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THE LAW

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III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

63 . Lastly, the applicant relied on A rticle 34 of the Convention, alleging that the failure to comply with the interim me a sure indicated in accordance with Ru le 39 of the Rules of Court had prevented the Court from effectively examin ing his application . He based his arguments on the case of Mamatkulov and Askarov, cited above . The relevant provisions read as follows:

Article 34 of the Convention

“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

“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. Admissibility

64 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that this complaint is not inadmissible on any other grounds. It must therefore be declared admissible.

B. The merits

65 . The Government point ed out that in normal circumstances they compl ied with the me a sures indi cated by the Court . The ir failure to do so in the instant case was owed to the fact that the applicant had requested the interim measure too late, and had not given the Spanish authorities time to take the necessary steps to avoid the extradition. The application had been made on 6 August, whereas the applicant ’ s transfer was scheduled for the next day. The Government consider ed that there wa s no violation of A rticle 34 where , as in the instant case , they were given less notice than could objective ly be considered ne cessa ry and rea sonable.

66 . T he applicant pointed out that , in view of the Court ’ s practice in the matter, if he had requested the interim measure before 6 August, his request would have been disallowed because the date of his extradition had not yet been set. He was not convinced by the Government ’ s argument that they had not had enough time, alleging that two or three hours ’ notice would have sufficed to take the necessary steps to prevent his extradition.

67 . T he Court notes that the fact that the Government failed to comply with the m e asures indicated by the Court by virtue of Ru le 39 of its Rules of Court raised the question whether the respondent State had failed to honour its commitment , under A rticle 34 of the Convention, not to hinder the appl icant ’ s right o f application .

68 . In the present case the Court must analyse the Government ’ s response in both instances to the interim measures indicated .

69 . First of all, upon receipt of notification of the de cision to apply Ru le 39 of the Rules of Court , the domestic authorities sent the Court a court de cision confirm ing the correctness of the extradition. That attitude revealed implicit disregard for the interim m e a sure adopt ed by the Court ( see paragraph s 18-20 above ).

70 . Secondly , the Court points out that in their observations on the subject the Government justifie d their failure to comply with the me a sure by arguing that they had not had enough time to suspend the extradition. It should be noted in this connection that upon receiving notification of the de cision to a ppl y the interim me a sure to suspen d the extradition, the Government transmi tted the request to the competent court then relayed that court ’ s negative reply to the Court. It would not have taken any longer for the Government , the domestic authority, to order the susp ension of the extradition i n compliance with the me a sure indicated by the Court . That being so, the justification given for non-compliance with the me a sure cannot be accepted.

71 . Having established the Government ’ s failure to comply with the interim me a sure , the Court must establish whether the non-compliance constitu tes a violation of A rticle 34 of the Convention. Here the Court must refer to the way in which the princip l es embodied in its case-law on the matter have developed.

72 . In its above-cited Mamatkulov and Askarov Grand Chamber judgment the Court departed from its earlier case-law ( see, amongst other authorities, Cruz Varas and Others v. Sweden , judgment of 20 March 1991, series A no. 201, pp. 29-30, and Čonka and Others v. Belgium (d e c.), no. 51564/99, 13 March 2001) concerning the nature of the interim me a sures adopt ed under Ru le 39 of the Rules of Court . After stating that “ the Court applies Rule 39 only in restricted circumstances ” (paragraph 103), the Court went on to explain that “ Interim measures [had] been indicated only in limited spheres ” and that “ in practice the Court applie [d] Rule 39 only if there [was] an imminent risk of irreparable damage ” (paragraph 104). It conclu ded with the assertion 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 ” (paragraph 128).

73 . Th at conclusion was qualified in the Shamay ev and Others v. Ge orgi a and Russi a judgment ( no. 36378/02, §§ 473 and 478, ECHR 2005-III) , where t he Court held : “ The fact that the Court was able to complete its ex amination of the merits of [the] complaints against Georgia does not mean that the hindrance to the exercise of that right did not amount to a breach of Article 34 of the Convention ” .

74 . Lastly , in the Aoulmi v . France judgment ( no. 50278/99, § 100, ECHR 2006- ... ) the Court examined the Government ’ s su b mission “ that the applicant ’ s expulsion had taken place before the delivery of the Mamatkulov and Askarov judgment and ... that the Court was required to reach its findings with reference to the applicable legal context at the time of the impugned measure ” . The Court ’ s conclusion in that judgment is clear and leaves no room for doubt : “ [ The Court ] stresses that ... even though the binding nature of measures adopted under Rule 39 had not yet been expressly asserted at the time of the applicant ’ s expulsion, Contracting States were nevertheless already required to comply with Article 34 and fulfil their ensuing obligations ” ( paragraph 111). That was the first time the Court used the adjective “binding” in r efe rence to interim measures.

75 . In spite of the principles established in the three judgments mentioned above, one question remains unanswered : should a Contracting State ’ s obligation to comply with interim measures be linked with a subsequent finding that the effective exercise of the right of individual application has been hindered ?

76 . In the above-cited case of Mamatkulov and Askarov (§ 127), the fact was that “ 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 ”.

77 . I n th e case of Shamay ev and Others ( cited above , § 478), the Court found that “ the difficulties faced by [certain of the applicant s] following their extradition to Russia were of such a nature that the effective exercise of their right under Article 34 of the Conv ention was seriously obstructed” .

78 . In the Aoulmi case , cited above , “ Counsel for the applicant pointed out that he had not been able to make contact with his client since his removal to Algeria ” (§ 93), which prompted the Court to find that “ the applicant [had] been hindered in the effective exercise of his right of individual application” (§ 110).

79 . However, it appears from the documents submitted by the parties in the instant case that after having been extradited in spite of the interim measures indicated by the Court, the applicant had been placed in a Peruvian prison then granted conditional release three months later, and that he had constantly been in touch with his counsel in London . It is therefore not possible to conclude that the applicant ’ s right to an effective remedy was hindered in the same way as in the cases cited above.

80 . However , th at fact , which became known after the d e cision to apply the interim me a sure had been taken , does not mean that the Government complied with their obligation not to hinder i n any way the effective exercis e of the right enshrined in Article 34. That Article is closely linked to Rule 39 of the Rules of Court , which provides for the Court to determine whether or not there is a “ risk of irreparable damage [to the aplicant] through the acts or omissions of the respondent State ” ( see the Mamatkulov and Askarov judgment , cited above , § 108) and cons e quen tly whether such an act o r omission might “ hinder the effective exercise of an individual applicant ’ s right of application ” ( see the Aoulmi judgment , cited above , § 111).

81 . More particul arly, th e Court wishes to point out that an interim me a sure is provisional by nature and the need for it is assessed at a given moment because of the existence of a risk that might hinder the effective exerci s e of the right of individual application protected by A rticle 34. If the C ontract ing Party complies with the decision to apply the interim measure, the risk is avoided and any potenti al hindrance of the right of application is eliminated. If, on the other hand, th e C ontract ing Party does not comply with the interim measure , the risk of hindrance of the effective exerci s e of the right of individual application remains , and it is what happens after the de cision of the Court and the government ’ s failure to apply the me a sure that d e termine s whether the risk materialises or not. Even in such cases, however, the interim measure must be considered to have binding force . The State ’ s d e cision as to whether it complies with the me a sure cannot be deferred pending the hypothetical confirmation of the existence of a risk . F ailure to comply with an interim me a sure indicated by the Court because of the existence of a risk is in itself alone a serious hindrance, at that particular time , of the effective exercise of the right of individual application.

82 . In the light of the evidence in its possession, the Court finds that in failing to comply with the interim measures indicated under Rule 39 of its Rules of Court, Spain failed to honour its commitments under A rticle 34 of the Convention.

83 . Consequently, there has been a violation of that provision.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

84 . 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

85 . The applicant claimed 29,132.84 euros (EUR) for the non-pecuniary damage allegedly sustained .

86 . In respect of pecuniary damage he claimed EUR 90, 000, to cover in particular th e wages lost when deprived of his liberty, the expenses incurred by his wife travelling from Spain or the United Kingdom to Peru to visit him, and the personal items the Peruvian authorities allegedly consfiscated from him.

87 . The Government considered that amount excessive and left the issue to the Court ’ s discretion. They emphasised in particul a r the lack of any causal link between the da mages claimed by the applicant and the Spanish authorities ’ participation in the extradition proc e dure.

88 . Being unable to establish any causal link, on the basis of the information in the case file, between the alleged pecuniary losses and the violation of the Convention found, the Court dismisses that part of the applicant ’ s claim .

89 . However, in the light of the findings in the Mamatkulov and Askarov case cited above , the Court consid ers that t he applicant undeniably sustained non-pecuniary damage as a result of the violation by Spain of Article 34 of the Convention , and that the simple finding of failure by the respondent State to honour its commitments under A rticle 34 does not suffice to repair that damage.

90 . Making an assessment on an equitable basis, as is required by Article 41, the Court accordingly awards the applicant EUR 5,000 in respect of non-pecuniary damage.

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FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of Article 34 of the Convention;

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4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 5,000 ( five thousand euros) in respect of non-pecuniary damage ...

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Done in French, and notified in writing on 10 August 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek P. L orenzen , Registrar P resident