Information Note on the Court’s case-law 50

February 2003

Mamatkulov and Abdurasulovic v. Turkey - 46827/99 and 46951/99

Judgment 6.2.2003 [Section I]

Article 34

Hinder the exercise of the right of application

Extradition notwiststanding interim measure indicated by the Court under Rule 39 of the Rules of Court: violation

Facts : The two applicants, who were Uzbek nationals, were arrested in Turkey. They were wan ted in their country of origin, inter alia , for the attempted assassination of the President of the Republic. The Uzbek authorities requested their extradition. Saying that policy towards political dissidents in the Republic of Uzbekistan was repressive, t he representative of one of the applicants argued that his client risked being subjected to torture in prison. The Turkish authorities ordered the applicants’ extradition one day after the Court had adopted an interim measure under Rule 39 of the Rules of Court indicating that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court for the applicants not to be extradited pending the Court’s decision. The Supreme Court of the Republic of Uzbekistan found th e applicants guilty of the charges and sentenced them to terms of imprisonment.

Law : Article 3 – The reports of international bodies responsible for investigating human-rights abuses and denouncing an administrative practice of torture and other forms of i ll-treatment of political dissidents and the Uzbek regime’s repressive policy towards such dissidents only described the general situation in the Republic of Uzbekistan. There was nothing in the reports to support the specific allegations that had been mad e by the applicants in the case before the Court, which allegations required corroboration by other evidence. The Court took formal cognisance of diplomatic notes from the Uzbek authorities that had been produced by the Turkish government and of the judgme nt of the Supreme Court of the Republic of Uzbekistan. Having regard to the circumstances of the case and the evidence before it, the Court considered that there was insufficient evidence for it to conclude that there had been a violation of Article 3.

Con clusion : no violation (unanimously).

Article 6 § 1 – (a) This provision did not apply to the extradition proceedings in Turkey.

(b) With regard to the allegation that the applicants had not received a fair trial in the criminal proceedings in the country to which they had been extradited, it had not been shown that they had faced a real risk of being subjected to torture or inhuman or degrading treatment as a result of their extradition. Referring to its findings under Article 3, the Court held that it ha d not been established by the evidence produced to it that the applicants had been denied a fair trial. Accordingly, no issue arose under Article 6 § 1 of the Convention.

Conclusion : no separate examination necessary (unanimously).

Article 34 – After being extradited, the applicants were unable to remain in contact with their representatives. It was implicit in the effective exercise of the right of individual application that for the duration of the proceedings in Strasbourg the principle of equality of ar ms should be observed and the applicant’s right to sufficient time and necessary facilities in which to prepare his or her case respected. However, in the case before the Court, the applicants’ representatives had not been able to contact the applicants, d espite their requests to the Turkish and Uzbek authorities for permission to do so. The applicants had thus been denied an opportunity to have further inquiries made in order for evidence in support of their allegations under Article 3 of the Convention to be obtained.

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 meri ts they sought to protect.

It followed from Article 34 that, firstly, applicants were entitled to exercise their right to individual application effectively, within the meaning of Article 34 in fine – that is to say, Contracting States were not to prevent the Court from carrying out an effective examination of the application – and, secondly, an applicant who alleged a violation of Article 3 of the Convention was entitled to an effective examination of the issue whether a proposed extradition or expulsion w ould entail a violation of Article 3. Indications given by the Court, as in the present instance, under Rule 39 of the Rules of Court, permitted it to carry out an effective examination of the application and to ensure that the protection afforded by the C onvention was effective; such indications also subsequently allowed the Committee of Ministers to supervise the execution of the final judgment. Such measures thus 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. Thus, in the case before the Court, compliance with the indication given by the Court would undoubtedly have helped the applicants to argue their case before it and the fact t hat they had been unable to take part in the proceedings before the Court or to speak to their lawyers had hindered them in contesting the Government’s arguments on the factual issues and in obtaining evidence. All State Parties to the Convention were unde r a duty to refrain from any act or omission that might undermine the authority and effectiveness of the final judgment (see Article 46). The applicants’ extradition, in disregard of the indications that had been given under Rule 39, had rendered nugatory the applicants’ right to individual application. 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 refr ain from any act or omission that would undermine the authority and effectiveness of the final judgment. Consequently, by failing to comply with the interim measures indicated by the Court Under Rule 39, Turkey was in breach of its obligations under Articl e 34 of the Convention.

Conclusion : violation (unanimously).

Article 41 – The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. It made an award for costs and expenses.

© Council of Europe/European Court of Human R ights This summary by the Registry does not bind the Court.

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