FIFTH SECTION

DECISION

Application no. 35866/03
by Mohammed Mohsen Yahya ZAYED
against Germany

The European Court of Human Rights (Fifth Section), sitting on 20 February 2007 as a Chamber composed of:

MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 14 November 2003,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mohammed Mohsen Yahya Zayed, is a Yemeni national, who was born in 1974 and lived in Yemen. He is the secretary of
Mr Al-Moayad, an adviser of the Yemeni Minister for Religious Foundations in the rank of a secretary of state and imam of the Al-Ihsan Mosque in Sanaa (Yemen). The latter also lodged an application with the Court (no. 35865/03).

The applicant is currently detained in the United States of America. Before the Court he was represented by Mr Thomas Scherzberg, a lawyer practising in Frankfurt a. M. The respondent Government were represented by their Agents, Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

A Yemeni citizen who was on an undercover mission for the US investigation and prosecution authorities in Yemen convinced
Mr Al-Moayad that he could bring him into contact with a person abroad who was willing to make a major financial donation. Thereupon, the applicant travelled to Germany together with Mr Al-Moayad in January 2003.

On 10 January 2003 the applicant was arrested in Frankfurt a. M. together with Mr Al-Moayad and was remanded in custody pending extradition to the United States of America. The US prosecution authorities charged the applicant with having promised to do fund-raising for terrorist groups, in particular Al Qaeda and the extremist branch of the Hamas.

In a verbal note of 22 May 2003 the Embassy of the United States of America gave the assurance (Zusicherung) to the German authorities that the applicant would not be prosecuted by a military tribunal or by any other extraordinary court.

On 18 July 2003 the Frankfurt a. M. Court of Appeal declared admissible the applicant’s extradition to the United States of America for the prosecution of the offences he was charged with.

On 5 November 2003 the Second Chamber of the Federal Constitutional Court unanimously dismissed the applicant’s constitutional complaint as ill‑founded. In these proceedings the applicant was represented by his counsel in the present case, Mr Thomas Scherzberg. The Federal Constitutional Court’s decision was sent to the applicant’s representative by fax on 13 November 2003.

On Sunday, 16 November 2003 the applicant and Mr Al-Moayad were extradited to the United States of America on board of an airplane of the US Air Force.

On 17 November 2003 the applicant was brought before a judge of the Brooklyn / New York District Court. On 27 January 2005 the US District Court for the Eastern District of New York opened the trial against the applicant and Mr Al-Moayad on charges of having provided material support to Al Qaeda.

COMPLAINTS

Invoking Article 5 § 1 of the Convention the applicant claimed that his detention pending extradition was unlawful, as his observation in and abduction from Yemen breached public international law. For the same reasons the extradition proceedings in Germany had not been fair and therefore violated Article 6 § 1 of the Convention.

The applicant further alleged that if extradited to the United States of America he would be placed in unlimited detention without access to a court and a lawyer and therefore risked suffering a flagrant denial of fair trial in the United States contrary to Article 6 § 1 of the Convention.

The applicant also complained that his extradition to the United States of America would violate Article 3 of the Convention because, just as other terrorist suspects, he would be subjected to interrogation methods amounting to torture at the hands of the US authorities.

PROCEDURE BEFORE THE COURT

On Friday, 14 November 2003 around 6.45 p.m. the applicant’s lawyer lodged the present application with the Court by fax on behalf of the applicant. Simultaneously he filed a request for interim measures pursuant to Rule 39 of the Rules of Court, requesting the Court to ask the German Government provisionally to stay the extradition proceedings.

On 28 November 2003 the Court requested the applicant’s lawyer to submit a duly completed form of authority.

On 3 December 2003 the applicant’s lawyer informed the Court that the applicant had been extradited to the United States of America and withdrew the motion to be granted interim measures. He informed the Court that he had sent the form of authority to