JOINT DISSENTING OPINION OF JUDGES CREMONA , THÓR VILHJÁLMSSON, WALSH, MACDONALD, BERNHARDT , DE MEYER, MARTENS, FOIGHEL AND MORENILLA

In our view there has been a violation of Article 25 (art. 25) insofar as the first applicant was expelled to Chile on 6 October 1989 , that is, one day after the application was lodged with the European Commission of Human Rights and a few hours after the Commission had asked the Government "not to deport the applicants to Chile ..."

1. The present judgment confirms the view expressed in the Soering judgment that extradition and expulsion may contravene the Convention. It cannot be otherwise since the Convention provides for a real and effective protection of human rights for all persons present in the member States; their governments cannot be permitted to expose such persons to serious violations of human rights in other countries. This should be beyond doubt in cases where torture or violations of other basic human rights are to be feared.

The protection under the Convention would be meaningless if a State had the right to extradite or expel a person without any prior possibility of clarification - as far and as soon as possible - of the consequences of the expulsion. The Court has repeatedly underlined that "the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective" (see the Soering judgment of 7 July 1989, Series A no. 161, p. 34, § 87). This basic principle must be kept in mind when we consider the procedural guarantees contained in the Convention.

2. It is true that Article 25 § 1 (art. 25-1), second sentence, of the Convention seems, according to its wording, to protect only the effective exercise of the right to lodge a complaint. However, this does not imply that States are permitted to make the possible result of an application devoid of any practical relevance. Otherwise States would be obliged to allow a person to lodge a petition with the Commission but would be able to expel him immediately thereafter irrespective of the consequences however serious they might be. We cannot accept such an interpretation. In our view, the procedural guarantee contained in Article 25 (art. 25) presupposes and includes the right of the individual to be afforded, at the least, an opportunity to have the application considered more closely by the Convention organs and to have his basic rights finally protected if need be.

3. These principles do not lead to the result that every application under Article 25 (art. 25) automatically inhibits extradition or expulsion to another country. The mere fact that a complaint under Article 25 (art. 25) has been lodged concerning a decision to extradite or expel should not restrict the power of governments to consider and to weigh the available evidence and to decide whether the decision should, nevertheless, be enforced. In reaching this decision they can take into account that applications are often obviously unfounded. Considerations of State security and public policy and other facts (including the length of the procedure before the Convention organs) may also be relevant. But at this stage - and only at this stage - the indication of provisional measures under Rule 36 of the Commission ’ s Rules of Procedure comes into play. Such an indication gives the respondent State the assurance that the Commission considers the application to be of great importance under the Convention and that it will investigate the matter speedily (see paragraphs 52-55 above). Seen in this perspective, measures indicated under Rule 36 bind the State concerned since this is the only means to protect the applicant against a possible violation of his or her rights causing irreparable harm. Furthermore, it is, in our view, implicit in the Convention that in cases such as the present the Convention organs have the power to require the parties to abstain from a measure which might not only give rise to serious harm but which might also nullify the result of the entire procedure under the Convention.

In the final analysis, it is incompatible with Article 25 (art. 25) of the Convention that the first applicant in this case was expelled immediately after he had lodged his complaint contrary to the indication made under Rule 36 of the Commission ’ s Rules of Procedure.

4. It cannot be of any relevance in the present case that in the event the applicant was not tortured on his return to Chile and that he was able to take the necessary steps in the procedure before the Convention organs. The critical date is 6 October 1989 . At that date a grave violation of human rights following deportation could not have been excluded and the Commission had clearly indicated that closer investigation appeared necessary and would be conducted speedily.

5. It is true that, unlike some other international instruments, the Convention does not contain any express provision as to the indication of provisional measures. But this does not exclude an autonomous interpretation of the European Convention with special emphasis placed on its object and purpose and the effectiveness of its control machinery. In this context too, present-day conditions are of importance. Today the right of individual petition and the compulsory jurisdiction of the Court have been accepted by nearly all the member States of the Council of Europe. It is of the essence that the Convention organs should be able to secure the effectiveness of the protection they are called on to ensure.

SEPARATE OPINION OF JUDGE DE MEYER

Having regard to the circumstances of the case, as desc ribed in detail in the judgment [1] , and to the fact that in October 1989 the situation in Chile was still not wholly reassuring [2] , there were, in my view, grounds for believing that the first applicant ’ s expulsion to that country was likely to expose him there to "a real risk of being subjected to torture or to inhuman or deg rading treatment or punishment" [3] . I am therefore of the opinion that there has been a violation of his rights under Article 3 (art. 3) of the Convention.

[*]  The case is numbered 46/1990/237/307.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   The amended Rules of Court which entered into force on 1 April 1989 are applicable to the present case.

[*]  Note by the Registrar.  As amended by Article 11 of Protocol No. 8 (P8-11) to the Convention which came into force on 1 January 1990 .

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 201 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[1] See paragraphs 12-33 above. See also the statement of Dr Jacobsson , summarised in paragraphs 49-57 of the Commission’s report and at paragraphs 39 and 40 of the judgment, and the findings of Prof. Mariano Castex and of Dr Søndergaard referred to at paragraphs 44 and 45 of the judgment.

[2] General Pinochet was still President. See, further, paragraph 35, in fine, of the judgment, and paragraph 4 of the joint dissenting opinion.

[3] Soering judgment of 7 July 1989 , Series A no. 161, p. 35, § 91.