Al-Moayad v. Germany (dec.)

Information Note on the Court’s case-law No. 94

February 2007

Al-Moayad v. Germany (dec.) - 35865/03

Decision 20.2.2007 [Section V]

Article 3

Extradition

Extradition to the United States of a Yemeni national charged with membership of terrorist associations, allegedly risking being subjected to interrogation methods amounting to torture: inadmissible

Article 5

Article 5-1-f

Extradition

Yemeni national tricked by the US authorities into travelling to Germany, where he was arrested in order to be extradited to the US: inadmissible

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Extradition to the United States of a person allegedly risking indefinite detention without access to a court or a lawyer: inadmissible

Article 34

Hinder the exercise of the right of petition

Extradition allegedly despite the authorities having been notified that the applicant had lodged a Rule 39 request for an interim measure to be indicated by the Court: inadmissible

A Yemeni citizen on an undercover mission in Yemen for the US investigation and prosecution authorities convinced the applicant that he could put him in touch with a person abroad who was willing to make a major financial donation. Thereupon, the applicant decided to travel to Germany, where he was arrested, under an arrest warrant issued by the US authorities, which charged him with supporting terrorist groups.

The US authorities requested formally his extradition for criminal prosecution and charged him finally with membership of two terrorist associations, Al-Qaeda and the extremist branch of the Hamas. In Germany, the applicant was remanded in custody pending extradition.

The US Embassy gave an assurance to the German authorities that the applicant would not be prosecuted by a military tribunal or by any other extraordinary court.

Thereupon, and as there was nothing to warrant the conclusion that the applicant might be subjected to unfair criminal proceedings or torture in the US, the extradition to the USA was granted. The applicant’s appeals against his extradition were dismissed.

The applicant filed a constitutional complaint. He argued, in particular, that his surveillance by the FBI in Yemen and his abduction from that country to Germany had been in breach of public international law and that, accordingly, his detention pending extradition had no legal basis. He claimed that if he were to be extradited, he would be placed in preventive detention in the USA indefinitely without access to a court or a lawyer, and exposed to interrogation methods amounting to torture. The Constitutional Court rejected his complaint. It stated in particular that there was no general rule of public international law to prevent a person being lured by trickery from his State of origin to a State to which a request was then made for his extradition in order to circumvent a ban on extradition that was valid in his State of origin.

The German Government thereafter authorised the extradition, on condition that the applicant was not sentenced to death or committed to stand trial before a military tribunal. The applicant lodged a request before the Court under Rule 39 of its Rules of Court for his extradition to be stayed pending the outcome of his application to the Court. Two days later, the German authorities extradited him. At that time, the Court had not yet rendered a decision on the applicant’s request. The applicant was brought before a judge immediately after his arrival in the USA. A US court began trying him on charges of having provided material support to Al-Qaeda about one year and two months after his arrival in the USA. The applicant has been sentenced to imprisonment.

Inadmissible under Article 3 – On the basis of reports concerning the ill-treatment of prisoners associated with international terrorism, the applicant complained that following his extradition he would be subjected to interrogation methods amounting to torture at the hands of the US authorities.

However, these reports concern prisoners detained by the US authorities outside the national territory and the German authorities were satisfied by the assurance given to them by the US authorities that the applicant would not be detained in any of these places. The German authorities expressly stated in the extradition proceedings and in their conditions for allowing the applicant’s extradition that they understood the US authorities’ assurance to comprise an undertaking not to detain the applicant in a facility outside the USA. This assessment has indeed been confirmed following the extradition. Moreover, it had not been Germany’s experience that assurances given to them in the course of proceedings concerning extraditions to the USA were not respected in practice or that the suspect was subsequently ill‑treated in US custody. Finally, the applicant’s personal circumstances were carefully considered by the German authorities and courts in the light of a substantial body of material concerning the current situation in the USA. Hence, the assurance obtained was such as to avert the risk of the applicant’s being subjected to interrogation methods contrary to Article 3 following his extradition: manifestly ill-founded.

Inadmissible under Article 5(1)(f) – The applicant claimed that his detention pending extradition had been unlawful, as his placement under surveillance in and abduction from Yemen by the US authorities had breached public international law.

However, no use of force had been alleged. The applicant was tricked by the US authorities into travelling to Germany. The respondent State was not the one responsible for the extraterritorial measures on Yemen’s territory aimed at inciting the applicant to leave that country. The cooperation between German and US authorities on German territory, pursuant to the rules governing mutual legal assistance in arresting and detaining the applicant, does not in itself give rise to any problem under Article 5: manifestly ill-founded.

Inadmissible under Article 6(1) – The applicant argued that he risked suffering a flagrant denial of fair trial in the extradition’s State.

However, at the time of his extradition, there were no substantial grounds for believing that he would subsequently suffer a flagrant denial of a fair trial by being detained without access to a lawyer and to the ordinary US criminal courts. Regard must be had, in this respect, to the assurance given by the US authorities, to the fact that the extradition was granted on the basis of a bilateral treaty between Germany and the USA, to the thorough examination of the circumstances of the case carried out by the German authorities and courts and to their long-standing experience of extraditions to the USA, and in particular to the fact that the assurances given to them up to that point had been respected in practice. The German Government was entitled to infer from the assurance given that the applicant would not be transferred to one of the detention facilities outside the USA – that is, the facilities in which terrorist suspects were held without being granted access to a lawyer or to the ordinary criminal courts. The German authorities could reasonably infer from the assurance given to them in the course of the extradition proceedings that the applicant would in fact be committed to stand trial for the offences in respect of which his extradition had been granted and that he would therefore not be detained for an indefinite duration without being able to defend himself in court: manifestly ill-founded.

Inadmissible under Article 34 – The applicant argued that the German authorities had extradited him to the USA even though the Government had been notified that he had lodged an application and a Rule 39 request with the Strasbourg Court.

As this Court had not yet rendered a decision on the applicant’s request for interim measures under Rule 39 at the time the German authorities extradited him, the respondent Government could not be said to have failed to comply with measures formally indicated under Rule 39.

Moreover, it had not been established that the competent German authorities were duly informed that a request under Rule 39 had been made by the applicant. Hence the Court could conclude that those authorities deliberately prevented it from taking a decision on the applicant’s Rule 39 request or from notifying them of this decision in a timely manner, in breach of the respondent Government’s obligation to cooperate with the Court in good faith: manifestly ill-founded.

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

Click here for the Case-Law Information Notes

 

Full & Egal Universal Law Academy