PARTLY DISSENTING OPINION OF JUDGE TÃœRMEN

I regret that I have been unable to agree with the majority in finding a violation of Article 34 for non-compliance with Rule 39.

I can accept that there may be a need for indicating an interim measure with binding effect in order to ensure the protection of the rights under the Convention. However, I cannot find sufficient legal basis for holding that a power to order binding interim measures exists under the present Convention system.

In the international field, there is a wide variety of statutes and rules of procedure which provide for some form of interim measures. In certain international arbitral bodies such measures are to be found in their rules of procedure. In others they are in their statutes. Due to there being such a wide variety of means of applying interim measures, it is not possible to draw a general rule from them regarding the obligatory character of such measures.

Furthermore, international tribunals including the Court operate within a jurisdictional competence assigned to them by virtue of an international treaty. If the treaty does not provide for a power to order provisional or interim measures with binding effect, then no such power is given. This is also true for the Court. If the Contracting States had the intention to attribute such a power to the Court, they would have said so explicitly in the Convention. Article 31 of the Vienna Convention on the Law of Treaties states: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty...”

The preparatory work for the Convention and for Protocol No. 11 confirms this view.

The intention of the Contracting Parties to the Convention regarding the non-binding nature of interim measures has been unequivocal since the inception of the Strasbourg organs and there is every reason to believe that it is maintained also today.

In the text of the Convention no provision is made for interim measures. During the drafting of the Convention, the draft of 12 July 1949 contained a rule on interim measures with language almost identical to that of article 41 of the International Court of Justice Statute which was subsequently rejected. In 1971 the Consultative Assembly recommended to the Committee of Ministers that an additional Protocol to the Convention should be drafted providing explicit power to order interim measures. The Committee of Ministers declined to comply with the recommendation.

The Contracting Parties maintained the same position during the preparatory work for Protocol No. 11.

Article 32 of the Vienna Convention on the Law of Treaties states: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion,

in order to confirm the meaning resulting from the application of Article 31...”At the Committee of Experts for the Improvement of the Procedure under the European Convention on Human Rights' (DH-PR) extraordinary meeting in early 1994, the Committee received reform proposals prepared by the European Commission of Human Rights on 21 January 1994 and from the European Court of Human Rights on 31 January 1994 (Docs. DH-PR (94)2 and DH-PR (94)4). Both the Commission and the Court considered that the new Court should have the power to issue interim measures with legally binding effect which should be provided for in the text of the Convention. The Court's proposal was similar to Article 63, paragraph 2 of the 1969 American Convention on Human Rights. The Commission's preference was for the interim-measure rules contained in the Commission's (Rule 36) and the Court's (Rule 36) Rules of Procedure to be included in the text of the Convention. On the other hand, the Swiss Delegation also submitted a proposal with a view to including an Article in the Convention on interim measures to the effect that “the Court may ... prescribe any necessary interim measures” (Doc. DH-PR (93)20, 8 November 1993).

All three proposals were rejected by the Governments' experts.

Meanwhile, the Committee on Migration, Refugees and Demography made a proposal that Rule 36 of the Court should be made obligatory for member States (Draft Report, AS/PR (1997)2 revised 19 February 1997). In spite of this, the Committee of Ministers declined to include a provision in the Convention on interim measures.

The above-mentioned facts constitute a clear expression of intention by the Contracting Parties. They do not wish to see an interim-measure regime with legally binding effect. On the contrary, the opinio juris of the Contracting States is to have an interim measure which is not mandatory. This may change in the future. As the Court said in the Cruz Varas judgment, it is up to the Contracting Parties to decide whether it is expedient to remedy this situation by adopting a new provision in the Convention (§ 102).

In the absence of such a decision, to attribute binding effect to Rule 39, directly or through the interpretation of Article 34 of the Convention, would be to create a new obligation for the Contracting States that is not stipulated in the Convention and which is contrary to the intention of the Contracting Parties.

Moreover, in the letter of 18 March 1999 addressed to the respondent State indicating an interim measure, the First Section seems to accept the non-binding character of Rule 39. The text of the letter is as follows:

“ La présidente de la première section a décidé, aujourd'hui, d'indiquer à votre Gouvernement, en application de l'article 39 du règlement de la Cour, qu'il était souhaitable , dans l'intérêt des parties et du bon déroulement de la procédure devant la Cour, de ne pas extrader le requérant vers la République Ouzbek avant la réunion de la chambre compétente, qui se tiendra le 23 mars 1999 .”

In view of the word “ souhaitable ” (desirable) in the text, in sharp contrast to the words “ doit respecter ” (must comply with) in paragraph 110 of the judgment, the respondent Government could not be expected to interpret the Section's letter as attributing mandatory effect to the interim measure.

Can the power to order binding interim measures arise from Article 34 of the Convention? I share the opinion of many outstanding jurists in international law (such as Sir Ian Sinclair, Professor Matthias Herdegen , Professor Heribert Golsong , Colloquium organized by Max Planck Institute on Interim Measures, on 22 January 1993) that the power to indicate interim measures is attributed by the constituent instrument and not derived from an extra-statutory general principle of law. If this is the case, then it would be contrary to the constituent instrument, that is to say, the Convention and to the express intention of the Contracting Parties to give binding effect to Rule 39 by virtue of Article 34 of the Convention.

This is also the view of the Court as expressed in the Cruz Varas judgment and reiterated in the Conka decision of 13 March 2001 (date of the decision). In the Cruz Varas judgment, the Court states that “the power to order binding interim measures cannot be inferred from either Article 25(34) in fine , or from other sources. It lies within the appreciation of the Contracting Parties to decide...” (§ 102).

Furthermore, it is doubtful whether the language of Article 34 permits such a broad interpretation.

Judge Sperduti in his dissenting opinion to the decision of the Commission in the Cruz Varas care is of the opinion that “the words 'effective exercise' in Article [34] is to be interpreted in the light of that Article's purpose, i.e. firstly, the declaration recognizing the right to petition the Commission, secondly, an undertaking to allow free exercise of that right in its different forms”.

The Court, in its judgment in Cruz Varas stated that “it would strain the language of Article [34] to infer from the words 'undertake not to hinder in any way the effective exercise of this right' an obligation to comply with a Commission indication under Rule [39].”

I subscribe to those views.

The majority's view to the effect that in the Cruz Varas judgment the Court examined the Commission's power to order interim measure and not its own power (see paragraph 104 of the judgment) is not convincing as in the Conka decision in 2001, after the Commission had been abolished, the Court reiterated for its own jurisdiction the same principles as those set out in Cruz Varas . Moreover, in the Cruz Varas judgment, the Court establishes the general principles of law with regard to interim measures.

Even if we assume that the Court has the power to order interim measures with binding effect and that non-compliance may constitute a breach of Article 34, I do not think that the circumstances lead to such a conclusion in the present case .

In deciding whether the applicant's effective exercise of the right of application is hindered by virtue of non-compliance with Rule 39, it must be shown that irreparable damage has been caused by such non-compliance. In the present case, the applicants have not suffered irreparable damage for the following reasons:

First of all, in the judgment it is concluded that there is no violation of Article 3 or any other Article of the Convention. Therefore, no irreparable damage can be caused.

Secondly, the majority's opinion that Article 34 has been violated is based on one single fact: the applicants after they were extradited to Uzbekistan could not see their Turkish lawyers. This single fact, in my opinion, is not sufficient to find a violation of Article 34, as it does not take into account a number of other facts:

(a) The respondent State received official guarantees from the Uzbek authorities that the applicants would not be sentenced to the death penalty, would not be subjected to torture and that their property would not be confiscated. Uzbekistan is a party to the UN Convention against Torture.

(b) The applicants had a public trial and a number of foreign observers followed the trial. During the investigation and trial, they benefited from the assistance of their lawyers.

(c) The medical reports submitted to the Court after the applicants were sentenced and imprisoned indicated that they had not been ill-treated and were in good health, both physically and psychologically.

(d) Two members of the Turkish Embassy in Tashkent visited the applicants in prison and reported their observations to the Court. According to their reports the applicants were in good health, they had not been subjected to any kind of ill-treatment in detention either before or after trial, and their families can visit them regularly.

On the other hand, no evidence has been submitted by their lawyers in support of their allegations.

Moreover, the applicants' lawyers are Turkish citizens. It is a well-established principle of international law that States have the right to control the entry, residence and expulsion of aliens ( Vilvarajah and Others v. the United Kingdom , 30 October 1991, § 102). We do not know exactly why the Uzbek Government denied the Turkish lawyers permission to enter the country. They may have their own reasons which this Court cannot contest. What is important is that under international law the Uzbek Government has an undeniable right to deny permission to the Turkish lawyers to enter the country. However, the applicants had lawyers in the proceedings in Uzbekistan . It should have been possible for the Turkish lawyers to cooperate with the Uzbek lawyers for the proceedings before the Strasbourg Court and for the Uzbek lawyers to visit the applicants. If their families can visit them regularly, there is no reason to think that their Uzbek lawyers cannot do the same. Such cooperation was realised in the Öcalan case, where the applicant's foreign lawyers were not permitted to enter the country and therefore were not able to meet their client. However, no attempt was made by the applicants' Turkish lawyers to this effect.