Information Note on the Court’s case-law No. 88
July-August 2006
Olaechea Cahuas v. Spain - 24668/03
Judgment 10.8.2006 [Section V]
Article 34
Hinder the exercise of the right of petition
Failure to comply with an indication by the Court not to extradite the applicant: failure to comply with obligations under Article 34
Article 3
Extradition
Extradition of the applicant to Peru after assurances had been obtained from the Peruvian Government:no violation
Facts: On 3 July 2003 the applicant, against whom an international arrest warrant had been issued on the grounds of his presumed membership of the “Shining Path” (Sendero Luminoso), was arrested in Spain during a routine check. Peru requested his extradition for a terrorist offence and the applicant was taken into custody with a view to his extradition. When invited to comment on the question of his extradition, in accordance with the Treaty concerning Extradition of 28 June 1989 between Peru and Spain, he agreed to “simplified extradition” (to be returned immediately to the requesting country) with the benefit of the speciality rule (to be tried only in respect of the offence for which extradition is requested). Noting that the Peruvian Government was bound by international standards in the field of the protection of fundamental rights, such as the American Convention on Human Rights, and that it had undertaken not to sentence the applicant to the death penalty or life imprisonment, the Audiencia Nacional granted the applicant’s extradition on 18 July 2003. The applicant lodged an appeal against that decision, which was dismissed by the investigating judge on 4 August 2003. The applicant lodged an application with the European Court of Human Rights, which indicated to the Spanish Government on 6 August 2003 that they should not extradite him to Peru before the examination of the case on 26 August 2003. The following day, however – on 7 August 2003 – the applicant was extradited to Peru. He was conditionally released in November 2003 on account of the lack of sufficient evidence that he was a member of the “Shining Path”. In February 2004 the Audiencia Nacional allowed the Peruvian authorities to extend the extradition charges so that the applicant could be tried in Peru on the charge of funding the “Shining Path” terrorist group from abroad. An amparo appeal lodged by the applicant against that decision is pending before the Constitutional Court.
Law: Article 3 – The applicant had been extradited after guarantees had been obtained from the Peruvian Government that he would not be sentenced to death or life imprisonment. Moreover, it had been specified that the guarantees provided by the Peruvian Government reflected the fact that they were bound by international standards in the field of the protection of fundamental rights, one of which was the scrutiny of the Inter-American Court of Human Rights. In the light of the material in its possession, including in particular the information obtained after the applicant’s extradition to Peru, the Court concluded that there was insufficient evidence to make out the existence of treatment contrary to Article 3 in the applicant’s case. Spain’s failure to comply with the indication given under Rule 39 of the Rules of Court, which had prevented the Court from assessing whether there existed an actual risk in the manner it considered appropriate in the circumstances of the case, fell to be examined under Article 34.
Conclusion: no violation (unanimously).
Article 5(1) – It was indisputable that extradition proceedings had been under way against the applicant when he was taken into custody pending a ruling on his extradition. Moreover, both the central investigating judge and the Audiencia Nacional had reviewed and established the lawfulness of the proceedings in question under Spanish law. Hence, the entire period of the applicant’s detention had been covered by the exception provided for in Article 5(1)(f).
Conclusion: no violation (unanimously).
Article 6(1) – Although, in the light of the available information, there might at the time of the applicant’s extradition have been some doubts about the fairness of the trial that he would face in Peru, there was insufficient evidence that the possible flaws in the trial would amount to a “flagrant denial of justice”.
Conclusion: no violation (unanimously).
Article 34 – An interim measure was by definition a temporary one, the necessity of which was assessed at a precise moment in time based on the existence of a risk that might hinder the effective exercise of the right of petition guaranteed by Article 34. If the State concerned complied with the decision to apply the interim measure, the risk was averted and any future hindrance of the right of petition eliminated. If it did not comply with the interim measure, however, the risk of hindering the effective exercise of the right of petition continued and it was the facts occurring after the Court’s decision and the Government’s non-compliance which determined whether the risk had materialised or not. Even if it did not, the interim measure had to be regarded as having binding force. A State’s decision whether to comply with the measure could not be put off pending confirmation that a risk existed. The mere fact of non-compliance with an interim measure decided by the Court on the basis of the existence of a risk was, in itself, a serious hindrance, at that precise point in time, of the effective exercise of the right of individual petition. By failing to comply with the interim measures indicated under Rule 39 of the Rules of Court, Spain had not fulfilled its obligations under Article 34.
Conclusion: violation (unanimously).
Article 41 – EUR 5,000 in respect of non‑pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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