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 the applicant through the Yemeni Consulate General in Frankfurt a. M. and would return the form to the Court once completed and signed by the applicant. Since that date the Court received no further correspondence from him.
On 15 December 2003 the application was communicated to the respondent Government and the applicant’s lawyer was informed thereof.
On 24 March 2004 the Court received the Government’s observations in German on the admissibility and merits of the application. The applicant’s lawyer was invited to submit any written observations he wished to make in reply on behalf of the applicant by 24 May 2004.
As the applicant’s observations on the admissibility and merits had not been received by the indicated time-limit, the Court, by a letter dated 2 July 2004 sent by registered mail, informed the parties thereof. It advised the applicant’s lawyer that pursuant to Article 37 § 1 (a) of the Convention the Court could strike a case out of its list of cases where the circumstances led to the conclusion that the applicant did not intend to pursue the application.
On 13 August 2004 the Court forwarded a copy of the English translation of the Government’s observations to the applicant’s lawyer and referred him to its letter of 2 July 2004.
On 22 November 2004 the Court again advised the applicant’s lawyer that the failure to submit observations in reply might result in the application being struck out of the list of cases pursuant to Article 37 § 1 (a) of the Convention. The letter was sent by registered mail; the applicant’s law firm confirmed its receipt on 26 November 2004.
To date the Court did not receive an answer. All letters were sent to the Frankfurt a. M. address of the applicant’s law firm indicated on his correspondence with the Court. According to information available on internet, the applicant’s lawyer keeps working for this law firm which has its offices still at the same address.
The applicant himself has never been in contact with the Court; his current address is unknown to the Court.
THE LAW
Article 37 § 1 of the Convention, in so far as relevant, provides:
“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;
...
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.”
Rule 36 of the Rules of Court, as relevant, reads:
“1. Persons, non-governmental organisations or groups of individuals may initially present applications under Article 34 of the Convention themselves or through a representative.”
Rule 45 § 3 of the Rules of Court provides:
“Where applicants are represented in accordance with Rule 36, a power of attorney or written authority to act shall be supplied by their representative or representatives.”
The Court recalls that – as the wording of Article 37 § 1 indeed indicates – an applicant’s intention not to uphold his or her application with the Court may not only be assumed if he or she expressly withdraws the application. “[T]he circumstances lead to the conclusion that ... the applicant does not intend to pursue his application” within the meaning of that Article also where he or she overtly or tacitly shows to have lost interest in the proceedings (see, for example, Mihailov v. Bulgaria (dec.), no. 52367/99, 9 September 2004).
This can be the case, for example, if the applicant fails to respond to repeated requests to return an appropriately completed form of authority (see, inter alia, Fitzmartin and Others v. the United Kingdom (dec.), nos. 34953/97 and others, 21 January 2003; Willis and Others v. the United Kingdom (dec.), nos. 49764/99 and others, 4 March 2003). The Court notes in this respect that where applicants choose to be represented by a solicitor under Rule 36 of the Rules of Court, rather than to introduce their application themselves, it is a requirement, under Rule 45 § 3 of the Rules of Court, that a power of attorney or written authority to act shall be supplied by their representatives.
The Court further reiterates that an applicant’s failure to submit written observations on the admissibility and merits of the case or other information or documents requested by the Court may equally warrant the conclusion that he or she does not intend to pursue the application (see, inter alia, Mihailov, cited above; Kazimov v. Russia (dec.), no. 17645/04, 9 March 2006).
In the present case the Court observes that the applicant himself has never been in contact with the Court directly. His application has been lodged by his lawyer, who was therefore requested by the Court to submit a duly completed and signed form of authority as required by Rule 45 § 3 of its Rules. The applicant’s representative indeed assured to return the form of authority once it had been signed by the applicant to whom he had sent the form through the Yemeni Consulate. Despite this, the Court subsequently did not receive a power of attorney.
The Court accepts that following the applicant’s extradition it has probably not been easy for the applicant’s counsel to contact the applicant in the USA. The Court notes, however, that the applicant’s representative has to date not given any explanations why he failed to submit a power of attorney. In fact, he has not responded to the Court’s correspondence since 3 December 2003. The Court further finds that he could indeed have obtained a written authority to act before the applicant’s removal from German territory, as he represented the applicant already in the proceedings before the Federal Constitutional Court and had lodged the application with this Court prior to the applicant’s extradition.
In the Court’s view, this failure to submit a power of attorney over a lengthy period of time alone suffices to infer that the applicant does not intend to pursue his application within the meaning of Article 37 § 1 (a) of the Convention.
In addition to that, the Court observes that the applicant’s lawyer was advised by the Court that he was to submit written observations on the admissibility and merits of the case. After expiry of the time-limit for submission of his observations, he was reminded of the Court’s request in three letters and advised that the failure to submit observations might result in the application being struck out of the Court’s list of cases. To date, the applicant’s representative failed to reply. There is nothing to indicate that he has not received the Court’s letters, two of which have been sent by registered mail. The Court derives also therefrom that the applicant does not intend to pursue his application within the meaning of Article 37 § 1 (a).
The Court does not consider that respect for human rights requires it to continue the examination of the present application pursuant to Article 37 § 1 in fine of the Convention. It observes in particular that the application of Al-Moayad v. Germany, no. 35865/03, which dealt with issues similar to those raised in the present case, has been declared inadmissible.
Accordingly, the Court considers that the present application should be struck out of its list of cases under Article 37 § 1 (a) of the Convention.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy