Mamatkulov and Askarov v. Turkey [GC]

Information Note on the Court’s case-law No. 72

February 2005

Mamatkulov and Askarov v. Turkey [GC] - 46827/99

Judgment 4.2.2005 [GC]

Article 34

Hinder the exercise of the right of petition

State’s failure to abide by provisional measure indicated by the Court under Rule 39 of its Rules of Procedure: failure to comply with obligations

Article 3

Degrading treatment

Inhuman treatment

Extradition to the Republic of Uzbekistan in spite of provisional measure indicated by the Court under Rule 39 of its Rules of Procedure: no violation

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Extradition to the Republic of Uzbekistan in spite of provisional measure indicated by the Court under Rule 39 of its Rules of Procedure: no violation

The facts: The applicants are two Uzbek nationals and members of an opposition party in Uzbekistan. They were arrested by Turkish police under international arrest warrants on suspicion of having committed terrorist acts in their country of origin. The Republic of Uzbekistan made a request for their extradition to which the Turkish authorities acceded. The applicants appealed in vain. They alleged, inter alia, that they risked being ill-treated if they were extradited. The European Court of Human Rights indicated to the Turkish Government under Rule 39 of the Rules of Court that they should not extradite the applicants until it had examined the case. However, before it had done so, the Turkish authorities issued a decree ordering extradition. The Court decided to extend the interim measure until further notice. The Turkish authorities did not comply with the measure indicated and handed the applicants over to the Uzbek authorities, subsequently informing the Court that they had received assurances before the extradition that the applicants would not be tortured or sentenced to capital punishment in Uzbekistan. The applicants were convicted by the Uzbek courts and sentenced respectively to twenty years’ and eleven years’ imprisonment. Following the applicants’ extradition, their representatives were unable to contact them further.

The law: Article 3 – The Court had to establish whether at the time of their extradition there existed a real risk that the applicants would be subjected in Uzbekistanto treatment proscribed by Article 3. The applicants had been extradited to Uzbekistan on 27 March 1999, despite the interim measure that had been indicated by the Court under Rule 39. It was, therefore, that date that had to be taken into consideration when assessing whether there was a real risk of their being subjected in Uzbekistan to treatment proscribed by Article 3. By applying Rule 39, the Court had indicated that it was not able on the basis of the information then available to make a final decision on the existence of a real risk. Had Turkey complied with the measure indicated under Rule 39, the relevant date would have been the date of the Court’s consideration of the case in the light of the evidence that had been adduced. Turkey’s failure to comply with the indication given by the Court had prevented the Court from following its normal procedure. Nevertheless, the Court could not speculate as to what the outcome of the case would have been had the extradition been deferred as it had requested. For that reason, it had to assess Turkey’s responsibility under Article 3 by reference to the situation that had obtained on 27 March 1999. In the light of the material before it, the Court was not able to conclude that substantial grounds had existed on the date the applicants were extradited for believing that they faced a “real risk” of treatment proscribed by Article 3. Turkey’s failure to comply with the indication given under Rule 39 had prevented the Court from assessing whether a “real risk” existed in the manner it considered appropriate in the circumstances of the case. That failure had to be examined under Article 34. Consequently, no violation of Article 3 of the Convention could be found.

Conclusion: no violation (14 votes to 3).

Article 6 § 1 (fair trial) – In extradition cases, the risk of a “flagrant denial of justice” in the country of destination – like the risk of treatment proscribed by Article 2 and/or Article 3 – had primarily to be assessed by reference to the facts which the Contracting State knew or should have known when it extradited the persons concerned. When extradition was deferred following an indication by the Court under Rule 39, the risk of a flagrant denial of justice also had to be assessed in the light of the information available to the Court when it considered the case. The applicants had been extradited to Uzbekistan on 27 March 1999. Although, in the light of the information available, there might have been reasons for doubting at the time that they would receive a fair trial in the State of destination, there was not sufficient evidence to show that any possible irregularities in the trial were liable to constitute a “flagrant denial of justice”. Turkey’s failure to comply with the indication given by the Court under Rule 39 of the Rules of Court, which had prevented the Court from obtaining additional information to assist it in its assessment of whether there had been a real risk of a flagrant denial of justice, would be examined under Article 34. Consequently, no violation of Article 6 § 1 could be found.

Conclusion: no violation (13 votes to 4).

Article 34 (effective exercise of right of individual application) – The fact that the respondent Government had failed to comply with the measures indicated by the Court under Rule 39 of the Rules of Court raised the issue of whether the respondent State was in breach of its undertaking under Article 34 of the Convention not to hinder the applicants’ right of individual application. The facts of the case clearly showed that the Court had been prevented by the applicants’ extradition to Uzbekistan from conducting a proper examination of their complaints in accordance with its settled practice in similar cases and ultimately from protecting them, if need be, against potential violations of the Convention as alleged. As a result, the applicants had been hindered in the effective exercise of their right of individual application guaranteed by Article 34 of the Convention, which was rendered nugatory by the applicants’ extradition.

By virtue of Article 34 of the Convention Contracting States undertook to refrain from any act or omission that might hinder the effective exercise of an individual applicant’s right of application. A failure by a Contracting State to comply with interim measures was to be regarded as preventing the Court from effectively examining the applicant’s complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34 of the Convention.

Having regard to the material before it, the Court concluded that, by failing to comply with the interim measures indicated under Rule 39 of the Rules of Court, Turkey was in breach of its obligations under Article 34 of the Convention.

Conclusion: failure by Turkey to comply with its obligations (14 votes to 3).

Article 41 – The applicants had undeniably suffered non-pecuniary damage as a result of Turkey’s breach of Article 34 which could not be repaired solely by a finding that the respondent State had failed to comply with its obligations under Article 34. The Court awarded each of the applicants an amount for non-pecuniary damage and a sum in respect of their costs.

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

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