Resolution CM/ResDH(2009)138 [1]

Execution of the judgment of the European Court of Human Rights

Olaechea Cahuas against Spain

(Application No. 24668/03, judgment of 10 August 2006, final on 11 December 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment in this case, transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the f ailure of the Spanish authorities in their obligation to comply with an interim measure indicated by the Court under Rule 39 of the Rules of Court (violation of Article 34) (see details in Appendix) ;

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Spain ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)138

Information about the measures to comply with the judgment in the case of

Olaechea Cahuas against Spain

Introductory case summary

This case concerns the failure of the Spanish authorities in their obligation to comply with an interim measure indicated by the Court under Rule 39 of the Rules of Court (violation of Article 34).

The applicant, against whom an international warrant had been issued, was arrested in July 2003 in Almeria ( Spain ) during a routine check. Peru requested his extradition on the basis of a terrorist offence. The applicant was taken into custody pending a ruling on his extradition and he agreed to the “simplified extradition” procedure (immediate return to the requesting country) and the application of the “special” rule (under which he could be tried only in respect of the offence for which extradition had been requested). Noting that the Peruvian government was bound by international norms in the field of the protection of fundamental rights, such as the American Convention on Human Rights, and that it undertook not to sentence the applicant to death or life imprisonment, the Audiencia Nacional granted the applicant ' s extradition on 18/07/2003. The applicant lodged an appeal against that decision without success.

The applicant lodged an application with the European Court , which indicated to the Spanish government on 06/08/2003, under Rule 39 (interim measures) of the Rules of Court, that it should not extradite him to Peru before the examination of the case on 26/08/2003. The following day, however, the applicant was extradited.

The European Court concluded that there was not enough evidence to establish treatment contrary to Article 3 of the Convention, given the information subsequent to the date of extradition according to which the applicant had been granted conditional release in Peru and had constantly been in touch with his counsel in London . Nevertheless, the European Court pointed out that an interim measure 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 exercise of the right of individual application protected by Article 34. If the Contracting Party does not comply with the interim measure, the risk of hindrance of the effective exercise of the right of individual application remains, and it is events subsequent to the decision of the Court and the government ' s failure to apply the measure that determine whether the risk materialises or not. Even in such cases, however, the interim measure must be considered to have binding force. Failure to comply with an interim measure 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.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5 000 EUR

3 000 EUR

8 000 EUR

Paid on 19/11/2006

b) Individual measures

The Court awarded just satisfaction in respect of the non-pecuniary damage sustained by the applicant on account of the violation found in this case. Moreover, the Court noted that it appeared from the documents submitted by the parties 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 . The Court found that it was therefore not possible to conclude that the applicant ' s right to an effective remedy was hindered (§79 of the judgment). In these circumstances, no other individual measure appears to be required.

II. General measures

The Spanish authorities consider that the Olachea Cahuas case was an isolated occurence which happened in specific circumstances. They refer to two cases subsequent to the Olaechea Cahuas case - Yaoub Saoudi (Application n o 22871/06) and Murat Ajmedovich Gasayev (Application No. 48514/06) in which Spain complied with the interim measures indicated by the Court until in the first case the Court had dismissed the claim and in the second case the Court decided to lift the interim measures it had indicated.

The Court ' s judgment has been translated into Spanish and published in the Ministry of Justice ' s information bulletin ( Boletin de Informacion, Ministero de Justicia ) and widely disseminated to the competent authorities.

III. Conclusions of the respondent state

The government considers that no individual measure is necessary in this case, apart from the payment of the just satisfaction awarded by the Court, that the general measures adopted will prevent similar violations and that Spain has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies