FIFTH SECTION
DECISION
Application no. 45293/06
by Hasan ATMACA
against Germany
The European Court of Human Rights (Fifth Section), sitting on 6 March 2012 as a Chamber composed of:
Dean Spielmann, President,
Karel Jungwiert,
Boštjan M. Zupančič,
Mark Villiger,
Ann Power-Forde,
Angelika Nußberger,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 29 October 2006,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by the Turkish Government and, jointly, by the AIRE Centre and Human Rights Watch,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Hasan Atmaca, is a Turkish national who was born in 1957 and lives in Bergisch Gladbach. His application was lodged on 29 October 2006. He is represented before the Court by Mr R. Marx, a lawyer practising in Frankfurt am Main. The German Government (“the Government”) were represented by their Agents, Mrs A. Wittling‑Vogel, Ministerialdirigentin, and Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
The applicant, who is of both Turkish and Armenian origin, has been active in the PKK (the Kurdistan Workers’ Party) since 1979, inter alia, in Iraq and several European countries. From 1980 to 1988 he was detained in Diyarbakir military prison and allegedly tortured. He was sentenced to death in 1983. This judgment was quashed by the Turkish Supreme Court in 1988 and he was released from prison. He was again arrested in Istanbul in 1990 and released in 1991 following his acquittal.
On 4 February 2005 the applicant was arrested and placed in pre-trial detention when entering Germany on the basis of an arrest warrant issued by the investigating judge of the Federal Court of Justice.
On 15 March 2005 the Frankfurt am Main Court of Appeal ordered the applicant’s provisional detention pending extradition to Turkey.
On 20 April 2005 the Frankfurt am Main Court of Appeal ordered the applicant’s formal detention pending extradition. In its reasoning (running to one page) the Court found that the Turkish authorities had formally requested the applicant’s extradition to Turkey for the purposes of criminal prosecution. According to the arrest warrant issued by the Van State Security Court on 15 February 2000, the applicant was suspected of having been involved in the armed conflict led by the PKK in the Semdinli region from 1992 onwards and of having incited subordinate members of the PKK to commit offences. These offences were punishable both under German and Turkish law and extraditable. The applicant’s continued placement in detention pending extradition was necessary as there was a risk he would abscond if released.
In criminal proceedings instituted against the applicant in Germany, the Frankfurt am Main Court of Appeal, by judgment of 22 December 2005, convicted the applicant of having been a leading member of a criminal organisation and sentenced him to two years and three months’ imprisonment. It found that the applicant, who had confessed to the offence he was charged with, had been one of the leaders of the PKK in Europe. He had recently left the PKK, by which he was now regarded as a traitor. He was therefore no longer a threat to public safety in Germany. Moreover, he had neither ordered nor actively participated in any violent offences committed by the PKK.
The applicant served the prison term imposed by this judgment until February 2007, when the remainder of the sentence was suspended on probation. He was subsequently further remanded in detention pending extradition.
2. The extradition proceedings at issue
a. The proceedings before the Frankfurt am Main Court of Appeal
On 4 May 2005 the Frankfurt am Main Court of Appeal declared the applicant’s extradition to Turkey on charges of membership in the PKK and participation in the armed conflict against the Turkish authorities to be admissible. Referring to the grounds given in its decision of 20 April 2005 (concerning the applicant’s detention pending extradition, see above) it found, without giving any further reasons, that the extradition was admissible as the offence the applicant was accused of in the arrest warrant issued by the Van State Security Court on 15 February 2000 was punishable and extraditable under both Turkish and German law.
On 9 June 2005 the applicant lodged a remonstrance against this decision.
By a decision of 11 May 2006 the Court of Appeal asked the Turkish Government to give an assurance, binding under public international law, that if extradited the applicant would be detained in an F-type prison with identical conditions of detention as in the Sincan F-type prison and that the German Embassy in Turkey would be given an opportunity to visit the applicant in prison and to inform itself of the specific conditions of his detention.
In a verbal note dated 26 June 2006 the Turkish Government gave an assurance that the applicant, if extradited, would be detained in an F-type high security prison. Moreover, the Turkish Government would look benevolently on requests by the German Embassy or Consulate to visit the applicant in prison.
In its report dated 11 January 2007, submitted at the Court of Appeal’s request, on the situation in Turkey in so far as it was relevant for decisions concerning asylum and expulsion, the Ministry of Foreign Affairs stated that ill-treatment was subject to punishment in Turkey. The Turkish Government adopted a “zero-tolerance-policy” with respect to torture and the intensity and number of human rights violations had decreased since 1999. Despite legislative measures and numerous improvements, the criminal prosecution of persons accused of torture remained, however, deficient. The Turkish Government had not yet succeeded in completely suppressing torture and ill-treatment.
In a further report dated 5 March 2007, equally submitted at the court’s request, the Ministry of Foreign Affairs took the view that the conditions of detention in F-type high security prisons complied with European standards. As to the risk of (former) members of the PKK being ill-treated it referred to its findings in its report dated January 2007. Furthermore, it conceded that a past request by the German Embassy in Turkey to visit Turkish nationals who had been extradited had been refused by the Turkish authorities by reference to the fact that Turkey complied with its duties arising from the conventions on human rights it was a party to.
On 23 May 2007 the Frankfurt am Main Court of Appeal dismissed the applicant’s remonstrance against its extradition decision of 4 May 2005 and his request for an oral hearing. Referring to its decisions of 20 April 2005 and 4 May 2005, it argued that it was clear from the documents submitted in support of the extradition request that the applicant was accused of membership of the PKK and of having led the PKK in the Semdinli region from 1992 onwards. It noted that the applicant had been convicted of having been a leading member of a criminal organisation, the PKK, in Germany in 2005. He had confessed in these proceedings that he had worked as a trainer, and thus in a leading position, in the PKK at the relevant time. In view of this, there was nothing to indicate that the charges against the applicant, on which the extradition request was based, had been fabricated.
Moreover, the Court of Appeal considered that the applicant did not run a risk of being subjected to treatment contrary to Article 3 of the Convention if extradited. According to the country report of January 2007 submitted by the Ministry of Foreign Affairs, the Turkish Government now prevented torture and it was unlikely that prisoners would be ill-treated by the security forces. The Council of Europe had further found that there were no longer any cases of ill-treatment in Turkish prisons. As regards the applicant’s conditions of detention, the Turkish Government, at the court’s request, had given the assurance that the applicant would be detained in an F-type high security prison. According to the report of the Ministry of Foreign Affairs, this prison type complied with central European standards and thus with the standards set by the European Convention and by the Standard Minimum Rules for the Treatment of Prisoners of 12 February 1987. In these circumstances, the applicant did not risk being killed by members of the PKK for being a dissident in that organisation either.
b. The proceedings before the Federal Constitutional Court
On 10 June 2005 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Frankfurt am Main Court of Appeal of 4 May 2005. He complained about a breach of his right to be heard and his right to political asylum, claiming that he was subject to prosecution for a political offence and risked being subjected to ill-treatment on his return to Turkey.
On 13 June 2007 the applicant extended his complaint to include the decision of the Frankfurt am Main Court of Appeal of 23 May 2007 and referred to the judgment delivered by the Darmstadt Administrative Court on 31 May 2007 (see below). He claimed, in particular, that if extradited, he risked being ill-treated contrary to Article 3 of the Convention.
In his submissions dated 8 July 2007 the applicant, supplementing his constitutional complaint, submitted a copy of the judgment of the Darmstadt Administrative Court of 31 May 2007. Referring to further decisions taken recently by other administrative courts which had taken the same view as the Darmstadt Administrative Court in comparable cases, he argued that even though this decision was not binding for the extradition proceedings pursuant to section 4, second sentence, of the Act on Asylum Procedure (see “Relevant domestic law” below), it demonstrated that he risked being ill-treated if extradited.
On 9 July 2007 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the two decisions of the Court of Appeal of 4 May 2005 and 23 May 2007 (no. 2 BvR 1274/07). It found that the applicant’s complaint was inadmissible for lack of sufficient substantiation because he had failed to submit a copy of the decision taken by the Frankfurt am Main Court of Appeal on 20 April 2005, which had been referred to in the reasoning of the impugned two decisions.
The decision was served on the applicant’s counsel on 11 July 2007.
On 18 July 2007 the Federal Constitutional Court decided to register the observations made by the applicant to it immediately on receipt of its decision of 9 July 2007 on 11 July 2007 as a new constitutional complaint against the decisions taken in the extradition proceedings, including a fresh application for interim measures. The court communicated the constitutional complaint to the Government for observations. It did not take a decision on the applicant’s request to stay the extradition pending the proceedings before it. However, it obtained verbal assurance from the Federal Office for Judicial Affairs (Bundesamt für Justiz) that no authorisation to extradite the applicant would be given until the Federal Constitutional Court had taken its decision on the new constitutional complaint.
On 20 September 2007 the Federal Constitutional Court declined to consider the applicant’s second constitutional complaint (no. 2 BvR 1539/07). It found that this (second) complaint was inadmissible as it had been lodged only on 11 July 2007, outside the one-month time‑limit. The time-limit had started to run when the decision of the Court of Appeal of 23 May 2007 had been served on the applicant’s counsel in the proceedings before that court and not only with the subsequent service of the decision also on the applicant’s present counsel. It had therefore ended on 9 July 2007.
The decision was served on the applicant’s counsel on 1 October 2007.
c. The authorisation proceedings before the Federal Ministry of Justice
Following the Federal Constitutional Court’s decision on 9 July 2007, the Federal Ministry of Justice started examining whether or not to authorise the applicant’s extradition (sections 12, 13 and 74 of the Act on International Legal Assistance in Criminal Matters, see “Relevant domestic law” below).
3. The asylum proceedings brought by the applicant
In February 2005 the applicant lodged a request for asylum when entering Germany.
On 13 September 2006 the Federal Office for Migration and Refugees dismissed the applicant’s asylum request. It found that it did not have to examine whether there was a prohibition on deporting the applicant under section 60 § 1 of the (Aliens) Residence Act (Aufenthaltsgesetz; see “Relevant domestic law” below) due to threats to his life and liberty in Turkey. According to section 60 § 8 of the (Aliens) Residence Act, the prohibition on deportation in section 60 § 1 did not apply as there were serious grounds for suspecting the applicant, who had been a leading member of the PKK for twenty-five years, of having committed a serious non-political crime outside Germany. Moreover, the applicant did not face a real risk of being subjected to torture if deported to Turkey (section 60 § 2 of the (Aliens) Residence Act).
On 31 May 2007 the Darmstadt Administrative Court, having heard the applicant in person, allowed his action and instructed the Federal Office for Migration and Refugees to declare that the applicant was a refugee and could not be deported to Turkey pursuant to section 60 § 1 of the (Aliens) Residence Act. The court noted that the applicant was a well-known PKK member who had committed offences under Turkish law. Relying on further recent decisions of other administrative courts, it argued that the applicant therefore still risked being subjected to political persecution, including ill‑treatment, by the Turkish authorities, despite the efforts made by the Turkish Government to suppress torture. It emerged from the country report issued by the Ministry of Foreign Affairs in January 2007 that the Turkish Government had not yet brought an end to ill-treatment in police custody. Moreover, the assurance given by the Turkish Government in its verbal note dated 26 June 2006 was insufficient to guarantee the applicant the minimum standards with respect to his prison conditions and fair criminal proceedings. The cautiously worded report given by the Ministry of Foreign Affairs on 5 March 2007 on these issues did not warrant a different conclusion. The applicant was not precluded from protection as a refugee pursuant to section 60 § 8 of the (Aliens) Residence Act as there were no serious grounds for suspicion that he presently posed a risk to Germany’s national security or public order. As already found by the Frankfurt am Main Court of Appeal in its judgment of 22 December 2005, the applicant had by then left the PKK, by which he was regarded as a traitor. The judgment was served on the applicant’s counsel on 3 July 2007.
On 12 July 2007 the Federal Office for Migration and Refugees applied for leave to appeal against that judgment.
4. Subsequent developments (following the communication of the application)
a. The extradition proceedings
The Federal Ministry of Justice is currently still examining whether or not to authorise the applicant’s extradition. The Government confirmed that the Ministry awaited the outcome of the separate asylum proceedings before the Hessian Administrative Court of Appeal (Hessischer Verwaltungsgerichtshof) before it would take a decision on the authorisation of the applicant’s extradition, taking into consideration, inter alia, the decision of that court.
b. The applicant’s detention pending extradition
On 24 April 2008 the Frankfurt am Main Court of Appeal quashed the arrest warrant against the applicant dated 15 March 2005 together with its decision of 20 April 2005 ordering the applicant’s detention pending extradition.
The Frankfurt am Main Court of Appeal noted that following this Court’s indication to the German Government, under Rule 39 of its Rules of Court, that the applicant should not be extradited to Turkey until further notice, the Government intended to await the Court’s decision on the application before deciding whether or not to authorise the applicant’s extradition to Turkey.
The court further noted that the Federal Constitutional Court, in its decision dated 4 March 2008 (file no. 2 BvR 264/08), had explained that the special diligence necessary in detention matters obliged the Federal Government to terminate the proceedings concerning the authorisation of the applicant’s extradition within a reasonable time. The fact that the European Court of Human Rights had requested it under Rule 39 of its Rules of Court not to extradite the applicant pending its decision on his application did not justify the Federal Government’s total inactivity in the authorisation proceedings. That request, in particular, did not prevent the Federal Government from deciding not to authorise the applicant’s extradition. The Federal Ministry of Justice had nevertheless explained that it considered itself unable to take a decision in the authorisation proceedings prior to the outstanding decisions of the Hessian Administrative Court of Appeal and of the European Court of Human Rights.
The Frankfurt am Main Court of Appeal considered that these reasons did not prevent a decision on the authorisation of the applicant’s extradition from being taken. In particular, the fact that the European Court of Human Rights had requested the Federal Government not to execute the applicant’s extradition did not prevent the Federal Government from deciding whether or not the applicant should be extradited.
As the applicant’s detention pending extradition could therefore no longer be considered proportionate, the Court of Appeal quashed the detention order against him.
The applicant was released thereupon.
c. The asylum proceedings
On 18 December 2008 the Hessian Administrative Court of Appeal adjourned the proceedings concerning the Federal Office for Migration and Refugees’ request to be granted leave to appeal in order to await a decision of the Federal Administrative Court in a similar case (file no. 10 C 46.07). It noted that the Federal Administrative Court, for its part, had adjourned the proceedings before it in that said case and had submitted the case to the Court of Justice of the European Union for a preliminary ruling on the interpretation of a directive governing the subject matter.
On 9 November 2010 the Court of Justice of the European Union delivered its preliminary ruling on the Federal Administrative Court’s request (file nos. C-57/09 and C-101/09). It concerned Article 12(2)(b) and (c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection. The court held that the said provision and the content of the protection granted had to be interpreted as meaning that exclusion from refugee status pursuant to that Article was not conditional on the person concerned representing a present danger to the host Member State. It further held that Article 3 of Directive 2004/83/EC had to be interpreted as meaning that Member States could grant a right of asylum under their national law to a person who was excluded from refugee status pursuant to Article 12(2) of the directive, provided that that other kind of protection did not entail a risk of confusion with refugee status within the meaning of the directive.
On 12 December 2011 the Hessian Administrative Court of Appeal, following the Federal Administrative Court’s decision in a case parallel to that in relation to which the Administrative Court of Appeal had adjourned the proceedings, resumed the proceedings. On 22 December 2011 it dismissed the request made by the Federal Government, represented by the Federal Office for Migration and Refugees, to be granted leave to appeal against the judgment of the Darmstadt Administrative Court of 31 May 2007.
On 30 January 2012 the Hessian Administrative Court of Appeal dismissed the objection lodged by the Federal Office for Migration and Refugees about a breach of its right to be heard. The Administrative Court of Appeal’s decision of 22 December 2011 became final thereby.
B. Relevant domestic law
1. Provisions relating to the extradition of foreigners
Under sections 12 and 13 of the Act on International Legal Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen), a foreigner’s extradition may only be authorised if the competent Court of Appeal has declared the extradition to be admissible.
Pursuant to section 74 of the said Act, decisions concerning requests made by other countries for legal assistance shall be taken by the Federal Ministry of Justice in agreement with the Federal Ministry of Foreign Affairs and any other Federal Ministries whose remit is affected by the legal assistance.
2. Provisions relating to asylum and deportation of foreigners
The residence, work and integration of foreigners on German territory is governed by the (Aliens) Residence Act (Aufenthaltsgesetz).
Section 60 of that Act, in its version in force at the relevant time, defines cases in which the deportation of a foreigner is prohibited. Paragraph 1 of that section stipulates that a foreigner may not, pursuant to the Geneva Convention relating to the status of Refugees of 28 July 1951, be deported to a State in which his life or liberty is threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion. A foreigner may also not be deported to a State in which he faces a real risk of being subjected to torture (section 60 § 2 of the (Aliens) Residence Act). According to section 60 § 8 of the Act, the prohibition on deportation laid down in paragraph 1 does not apply if, for serious reasons, the foreigner is to be regarded as a risk to the security of the Federal Republic of Germany or constitutes a risk to the general public because he has been sentenced by final judgment to at least three years’ imprisonment for a crime or a particularly serious offence. The same applies if there is good cause for suspicion that the foreigner committed a serious non‑political crime outside the territory of Germany before entering Germany as a refugee.
Pursuant to section 4 of the Act on Asylum Procedure (Asylverfahrensgesetz), in its version in force at the relevant time, the decision on an asylum request is binding in all matters in which it is legally relevant whether the conditions of section 60 § 1 of the (Aliens) Residence Act are met (first sentence). As an exception to that rule, this binding nature does not extend to extradition proceedings (second sentence).
C. Procedure before the Court
The decision of the Federal Ministry of Justice whether or not to authorise the applicant’s extradition was initially scheduled for 18 July 2007.
On 17 July 2007 the President of the Fifth Section indicated to the German Government that Rule 39 of the Rules of Court would be applied if a decision were taken to permit the extradition of the applicant in this case. If applied, the ruling would be effective until the Section had the opportunity to consider the case, on 28 August 2007.
On 28 August 2007 – when the proceedings were again pending before the Federal Constitutional Court and the applicant’s extradition was de facto suspended – a Chamber of the Fifth Section decided not for the time being to extend the effect of the President’s decision of 17 July 2007.
On 3 October 2007, in the light of the Federal Constitutional Court’s decision of 20 September 2007, the acting President of the Fifth Section indicated to the German Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Turkey until further notice. She further decided that the case should be communicated to the German Government.
By letter of 3 February 2012 the German Government, following a request made by the President of the Fifth Section to that effect, gave the following undertaking in case the Court discontinued the application of Rule 39 of the Rules of Court:
“The Government undertake that in the event of a future decision by the Federal Office of Justice to authorize the applicant’s extradition, the applicant or his representative would be notified of the decision. They would be given an opportunity to apply to the Court for interim measures within two weeks from the notification of that decision to his representative or to himself. The applicant’s extradition shall not be enforced until the Court has decided on the applicant’s request for interim measures, which it shall do as soon as possible on receipt of such a request.”
COMPLAINTS
The applicant complained under Article 3 of the Convention that, if extradited to Turkey, he faced a real risk of being tortured or subjected to inhuman or degrading treatment in Turkish police custody in Van and during police questioning on the offences he was accused of. He stressed that he was a well-known former leading member of the PKK and of Armenian origin. Moreover, he risked being exposed to degrading prison conditions in an F-type high security prison if he received a long prison sentence following extradition.
The applicant further claimed that if extradited he would be wrongly convicted on the basis of mere speculation, contrary to Article 6 of the Convention.
THE LAW
The applicant complained that he ran a risk of being tortured and being exposed to degrading prison conditions and that he would be convicted in an unfair trial if extradited to Turkey. He relied on Articles 3 and 6 of the Convention which, in so far as relevant, provide:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 6
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
A. Admissibility
1. The parties’ submissions
a. The Government
The Government argued that the applicant had failed to exhaust domestic remedies in compliance with the formal requirements of domestic law, as required by Article 35 § 1 of the Convention. The Federal Constitutional Court had declined to consider the applicant’s constitutional complaints as these had failed to respect the applicable formal conditions and deadlines.
As regards the applicant’s first constitutional complaint of 13 June 2007, the Federal Constitutional Court had declined to consider it as the applicant had failed to submit a copy of the decision of the Frankfurt am Main Court of Appeal of 20 April 2005 ordering the applicant’s formal detention pending extradition. It had been indispensable for the Federal Constitutional Court to dispose of a copy of that decision in order to make a ruling, as the court decisions the applicant had complained about in his constitutional complaint had referred to it.
The applicant’s second constitutional complaint of 11 July 2007 had been lodged out of time. The decision of the Frankfurt am Main Court of Appeal dated 23 May 2007 had been served on another counsel mandated by the applicant more than one month before he had lodged his constitutional complaint. The fact that the latter decision had been served on the applicant’s current counsel less than one month before the applicant, represented by that counsel, had lodged his constitutional complaint, did not alter that conclusion. It was also irrelevant that the latter counsel had had no knowledge of the fact that another counsel had also been mandated in the proceedings before the Court of Appeal.
b. The applicant
The applicant took the view that he had exhausted domestic remedies in accordance with Article 35 § 1 of the Convention. He stressed that in his constitutional complaint dated 10 June 2005, supplemented on 13 June 2007, he had complained about the decision to declare his extradition to Turkey admissible. His complaint at issue had not concerned his detention pending extradition and the decision of 20 April 2005 taken in the latter proceedings had not been relevant to the Federal Constitutional Court’s decision concerning his complaints under Article 3 of the Convention. It had therefore been at the least excessively formalistic, if not arbitrary, to dismiss his constitutional complaint on account of his failure to submit a copy of that decision.
Moreover, the applicant argued that his further submissions to the Federal Constitutional Court dated 11 July 2007, including a copy of the said decision, had equally been a supplement to his initial constitutional complaint, and had not, therefore, been lodged out of time.
c. The third-party interveners
(i) The Turkish Government
The Turkish Government took the view that the application was inadmissible within the meaning of Article 35 of the Convention because, having regard to the current legislation and practice in force in Turkey, the applicant did not risk being subjected to treatment in breach of Articles 3 or 6 of the Convention if extradited to Turkey.
(ii) The AIRE Centre and Human Rights Watch
The AIRE Centre and Human Rights Watch did not make observations on the admissibility of the application.
2. The Court’s assessment
The Court considers it unnecessary, in the present case, to examine the plea of inadmissibility raised by the Government for the reasons which follow.
B. Application of Article 37 of the Convention
The Court notes that following the first indication to the German Government on 17 July 2007 that Rule 39 of the Rules of Court would be applied if a decision were taken to authorise the extradition of the applicant and following the communication of the application to the respondent Government on 3 October 2007 there have been new factual developments in the present case.
Firstly, the decision of the Federal Ministry of Justice whether or not to authorise the applicant’s extradition to Turkey, which had initially been scheduled for 18 July 2007, has not been taken to date. Secondly, the applicant was released from detention pending extradition on 24 April 2008. Thirdly, the Government gave an undertaking that, in case the Court discontinued the application of Rule 39 of the Rules of Court, the applicant would be given an opportunity to apply to the Court for interim measures again were the Government to authorise his extradition at a later stage.
The Court will therefore ascertain whether these new developments are such as to lead it to decide to strike the application out of its list of cases in application of Article 37 of the Convention, which provides:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
The Court observes that the applicant intends to pursue his application. Consequently, Article 37 § 1 (a) does not apply. It further finds that the matter before it has not been resolved for the purposes of sub-paragraph (b) of Article 37 § 1. The applicant complained before the Court about the German courts’ decision to declare his extradition to Turkey admissible. This decision is still valid and his extradition will become enforceable if the Federal Ministry of Justice decides to authorise it. Therefore, the circumstances complained of directly by the applicant still obtain and the dispute has not, therefore, been “resolved” (see for the criteria developed in the Court’s case-law on that point, inter alia, Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002; Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 97, ECHR 2007‑I; and El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 30, 20 December 2007).
The above-mentioned developments may, however, lead the Court to conclude that, “for any other reason ... it is no longer justified to continue the examination of the application” and that the application should therefore be struck out of the list in application of Article 37 § 1 (c).
It is clear from the latter provision that the Court enjoys a wide discretion in identifying grounds capable of being relied upon in striking out an application on this basis, it being understood, however, that such grounds must reside in the particular circumstances of each case (see Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 37, ECHR 2006‑XIV; Predescu v. Romania, no. 21447/03, § 29, 2 December 2008, and F.I. and Others v. the United Kingdom (dec.), no. 8655/10, 15 March 2011).
The Court has summarised its case-law illustrating its wide discretion in this respect in its case of Association SOS Attentats and de Boery, cited above, § 37, as follows:
“... The Court has, for example, ruled that in certain circumstances it may be appropriate to strike an application out of its list of cases under this provision on the basis of a unilateral declaration by the respondent Government even though the applicant wishes the examination of the merits of his case to be continued (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 75-77, ECHR 2003‑VI; see also, in particular, Akman v. Turkey (striking out), no. 37453/97, ECHR 2001‑VI; Haran v. Turkey, no. 25754/94, 26 March 2002; Meriakri v. Moldova (striking out), no. 53487/99, 1 March 2005; and Van Houten v. the Netherlands (striking out), no. 25149/03, ECHR 2005‑IX). It has also proceeded in that manner in cases where the applicants had reached an agreement or settlement with the domestic authorities which largely satisfied the demands that they had made under the Convention, and had thus lost their victim status (see, for example, Calì and Others v. Italy (striking out), no. 52332/99, 19 May 2005, and La Rosa and Alba v. Italy (striking out), no. 58274/00, 28 June 2005). It has also struck applications out of its list in application of this provision on the ground that the applicant in question had died in the course of the proceedings and that no heir or close member of their family had expressed the wish to pursue the proceedings (see, for example, Gładkowski v. Poland (striking out), no. 29697/96, 14 March 2000, and Sevgi Erdoğan v. Turkey (striking out), no. 28492/95, 29 April 2003) or that the heir who expressed such an intention had no legitimate interest in that regard (see S.G. v. France (striking out), no. 40669/98, 18 September 2001), or, in the light of a lack of diligence on the part of the applicant (see, for example, Hun v. Turkey (striking out), no. 5142/04, 10 November 2005, and Mürrüvet Küçük v. Turkey (striking out), no. 21784/04, 10 November 2005) or his or her lawyer (see, for example, Falkovych v. Ukraine (striking out), no. 64200/00, 4 October 2005; and Fleury v. France (dec.), no. 2361/03, 6 July 2006), or on the ground that the applicant had failed to appoint a lawyer to represent him pursuant to Rule 36 §§ 2 and 4 (a) of its Rules of Court (see Grimaylo v. Ukraine (dec.), no. 69364/01, 7 February 2006).”
In a more recent application, the Court has further considered that it was not justified, in the circumstances of the case, for it to continue the examination of a case where proceedings were simultaneously pending in a court of a Contracting Party by which the applicant attempted to obtain redress in relation to the very subject matter of his application before the Court (Article 37 § 1 (c); see Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, § 267, 3 October 2008).
Furthermore, the Court found that the particular circumstances of the application were such that it was no longer justified to continue its examination, for the purposes of Article 37 § 1 (c), where the respondent Government undertook not to remove the applicant to his country of origin until a fresh decision regarding his removal has been taken by the domestic courts (see F.I. and Others v. the United Kingdom, cited above).
The Court notes that the present application differs from the above‑mentioned examples of cases in which Article 37 § 1 (c) was applied. In particular, there has neither been any lack of diligence on the applicant’s part nor have any measures been taken by the domestic authorities in order to redress the situation complained of.
The Court observes in this connection that the proceedings before the Federal Ministry of Justice for the authorisation of the applicant’s extradition have already been pending for some four-and-a-half years without any decision having been taken. It further notes that these proceedings cannot be considered as a remedy “available” to the applicant to afford redress in respect of the breaches of the Convention alleged, for the purposes of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention (for this condition see, in particular, Akdivar and Others v. Turkey [GC], 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV). It is not within the applicant’s power to institute these proceedings. The Government have accordingly not pleaded that the applicant failed to exhaust domestic remedies as a result of the fact that the proceedings before the Federal Ministry of Justice were still pending.
Nevertheless, the Federal Ministry of Justice’s decision on the authorisation of the applicant’s extradition is a precondition for the domestic courts’ decision that his extradition was permissible to become enforceable. The Ministry’s decision to refuse that authorisation may therefore result in the matter being “resolved” for the purposes of Article 37 § 1 (b) of the Convention or, possibly, in the loss of the applicant’s victim status for the purposes of Article 34 of the Convention. It may thus lead to a possible Convention violation being prevented at domestic level.
The Court would point out in this context that the subsidiary nature of the supervisory mechanism of complaints to the Court articulated in the Convention (in particular in its Articles 1, 35 § 1 and 13) and reiterated in the Interlaken Declaration of 19 February 2010 (PP 6 and part B., § 4 of the Action Plan) lays the primary responsibility for implementing and enforcing the rights and freedoms of the Convention on the national authorities. States must be given an opportunity – and shall avail themselves thereof – to put matters right through their own legal system before answering before an international body for their acts (see, mutatis mutandis, Akdivar, cited above, § 65). This reflects the joint responsibility of the State Parties and this Court in securing the rights set forth in the Convention.
Having regard to these principles, the Court considers that it should continue with the examination of the present case only if, and after it has become clear that the Convention violation alleged by the applicant has not been prevented or redressed by the decision of the Federal Ministry of Justice.
The Court regrets in that context that the Ministry’s decision on whether or not to authorise the applicant’s extradition has apparently been adjourned by reference, inter alia, to the Court’s decision to indicate to the German Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Turkey until further notice. The application of Rule 39 only aimed at suspending the execution of a decision by the domestic authorities to extradite the applicant. It did not prevent the Government from deciding at any moment whether or not the applicant should be extradited. This was indeed rightly explained already by the Federal Constitutional Court in its decision dated 4 March 2008, and by the Frankfurt am Main Court of Appeal in its decision of 24 April 2008.
The Court further notes that by the latter decision, the applicant was released from detention pending extradition. He could not, therefore, be extradited immediately, were a decision taken to authorise his extradition. Moreover, the Government have given an undertaking, in case the Court discontinued the application of Rule 39 of the Rules of Court, that the Federal Ministry of Justice (assisted by the Federal Office of Justice) would give the applicant a real opportunity to re-apply to the Court for interim measures in the event that the Federal Office of Justice authorised the applicant’s extradition in the future. In these particular circumstances, the applicant cannot currently be considered to be facing a real and imminent risk of being extradited (see also, mutatis mutandis, Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 46, 7 December 2007 with further references, and F.I. and Others v. the United Kingdom, cited above).
In view of the foregoing, in particular the undertaking given by the respondent Government, the Court considers that for the above-mentioned reasons, it is currently no longer justified to continue the examination of the application. Furthermore, it is satisfied that respect for human rights as defined in the Convention and its Protocols does not require it at present to continue the examination of the application (Article 37 § 1 in fine).
The Court would stress in that context that this decision is not based on a different legal assessment of the facts underlying the present application compared to the assessment made when Rule 39 was applied and the application was communicated to the respondent Government. It would further refer to Article 37 § 2 of the Convention, which allows it to restore an application to its list of cases if it considers that the circumstances justify taking such a course.
Consequently, it is appropriate to strike the application out of the list.
As a result, for the time being, the application of Rule 39 of the Rules of Court comes to an end.
C. APPLICATION OF RULE 43 § 4 OF THE RULES OF COURT
Rule 43 § 4 of the Rules of Court provides:
“When an application has been struck out, the costs shall be at the discretion of the Court. ...”
The applicant claimed to be liable to pay 10,000 euros (EUR) net for lawyers’ fees incurred in the extradition proceedings before the domestic courts, EUR 4,000 net for lawyers’ fees incurred in the asylum proceedings before the domestic courts and EUR 1,426 gross for a report drawn up by an expert on potential violations of the applicant’s Convention rights if returned to Turkey. He further claimed EUR 10,000 net for lawyers’ fees incurred in the proceedings before this Court.
The applicant submitted copies of the agreements concluded between his lawyer and a third party on his behalf, confirming the above amounts, in order to support his claims. It resorts from these agreements that costs amounting to EUR 5,625 for lawyers’ fees incurred in the proceedings before this Court were paid by two non-governmental organisations.
The Government did not comment on this point.
The Court points out that, unlike Article 41 of the Convention, which comes into play only if the Court has previously found “that there has been a violation of the Convention or the Protocols thereto”, Rule 43 § 4 allows it to make an award solely for costs and expenses in the event that an application has been struck out of the list of cases (see Sisojeva and Others, cited above, § 132, and Kovačić and Others, cited above, § 275).
The Court reiterates that the general principles governing reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention. In other words, in order to be reimbursed, the costs and expenses must relate to the alleged violation or violations, must have been actually and necessarily incurred and must be reasonable as to quantum (see Pisano, cited above, §§ 53-54, and Sisojeva and Others, cited above, § 133).
The Court notes, in particular, that the proceedings at issue in the present application were the – quite complex – extradition proceedings against the applicant alone and that the applicant confirmed that he was personally liable to pay the associated costs, having thus incurred the above amounts himself. Having regard to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 12,000, covering costs and expenses under all heads, plus any tax that may be chargeable to the applicant.
The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
For these reasons, the Court unanimously
1. Decides to strike the application out of its list of cases;
2. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable to him, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Claudia WesterdiekDean Spielmann
RegistrarPresident
Full & Egal Universal Law Academy