ECtHR - Mamatkulov and Askarov v. Turkey, Application Nos. 46827/99 and 46951/99, 4 February 2005

Facts:

The case originated with two applications lodged against Turkey by Uzbek citizens relying on Art. 2, 3, and 6 ECHR. Both applicants were members of the ERK “Freedom” Party, an opposition party in Uzbekistan.

The first applicant was arrested by Turkish police on 3 March 1999 at the Atatürk Airport under an international arrest warrant on suspicion of homicide, causing injuries through the explosion of a bomb in Uzbekistan and an attempted terrorist attack on the President of Uzbekistan. requested his extradition under a bilateral treaty with Turkey. Before the Bakırköy Criminal Court the judge found the first applicant to be charged for . ordinary criminal offences in Uzbekistan. The applicant denied the charges and his representative argued that he was working for the democratisation of his country and that political dissidents in Uzbekistan were arrested by authorities and subjected to torture in prison. He added that he had been in Kazakhstan at the material time and had asked Turkish authorities for political asylum as his life was at risk. The representative argued that the applicant was being prosecuted for an offence of a political nature, and relying on Art. 9 § 2 of the Turkish Criminal Code, asked the Criminal Court to refuse the request for extradition. On 15 March the first applicant made an appeal against the order made under the expedited applications procedure but his appeal was dismissed.

The second applicant entered Turkey on 13 December 1998 on a false passport.  He was arrested on the same suspicions as the first applicant and Uzbekistan also requested his extradition. On 15 March 1999 the Fatih Criminal Court determined his nationality and held that the offences with which he was charged were ordinary criminal offences and not political nor military in nature. The applicant made an appeal but it was dismissed.

On 19 March 1999 the Turkish government issued a decree ordering the applicants’ extradition and on 27 March the applicants were handed over to the Uzbek authorities. The Uzbek authorities had issued assurances to the Turkish Ministry of Foreign Affairs stating that the applicants’ property would not be liable to general confiscation nor would they be subjected to acts of torture or sentenced to capital punishment. The Supreme Court of Uzbekistan found the applicants guilty of setting up a criminal organisation, terrorism, a terrorist attack on the President, seizing power through the use of force or by overthrowing the constitutional order, arson, uttering forged documents and voluntary homicide and sentenced them to terms of imprisonment; in October 2001 the Uzbek Ministry of Foreign Affairs informed the Turkish embassy that the first applicant was sentenced to 20 years and the second to 11 years imprisonment. This was after a letter dated 15 September 1999 by the applicants’ representatives stating that the terms were unknown, that the applicants did not have a fair and public trial (they were not allowed to observe the trial in their capacity as lawyers), and that the conditions of the Uzbek prisons were bad and prisoners subjected to torture. Two officials from the Turkish embassy visited the applicants in October 2001 and stated that the applicants were in good health. That December the Uzbek authorities sent medical certificates to the Turkish government stating that the first applicant did not reveal any pathological symptoms during two previous examinations though that November he was diagnosed with acute bronchitis and was prescribed medicine; the second applicant had not revealed any pathological symptoms. Furthermore, the applicants had received a number of visits from close relatives between 2002 and 2004. However the applicants’ representatives had still at the time of the case been unable to contact them.

After both applications were declared admissible, a Chamber hearing was held on 23 October 2001. The Chamber held unanimously on 6 February 2003 that there had been no violation of Art. 3, that Art. 6 was inapplicable, and that no issue arose regarding the second complaint under Art. 6. In a 6-1 vote, it held that there had been a breach of Art. 34. The Turkish Government then requested that the case be referred to the Grand Chamber. 

Decision & reasoning:

1. Alleged Breach of Art. 2 and 3

The Court first found that while the applicants’ representatives presented reports of international human rights organizations, such as Amnesty International, on the administrative practice of torture and other forms of ill-treatment of political dissidents in Uzbekistan, these findings described only the general situation and did not support the specific allegations made by the applicants. Because Turkey did not comply with the interim measures that had been indicated by the Court under Rule 39, the Court assessed Turkey’s responsibility under Art. 3 by reference to the situation obtained on 27 March 1999, as it could not speculate what would have happened had the extradition been deferred as requested. In light of the material before the Court, the assurances by the Uzbek government and medical reports from Uzbek prison doctors, it found that it could not conclude that substantial grounds existed at this date for believing that the applicants faced a real risk of treatment contrary to Art. 3. Consequently, no violation of Art. 3 was found, and therefore it was not necessary to examine the allegations separately under Art. 2.

2. Alleged Breach of Art. 6 § 1

The Court then considered the applicants’ complaint of unfairness of the extradition proceedings in Turkey and the criminal proceedings in Uzbekistan.

As for the extradition proceedings in Turkey, the Court reiterated that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Art. 6 § 1 (see Maaouia v. France, Penafiel Salgado v. Spain, Sardinas Albo v. Italy). Therefore, Art. 6 § 1 was not applicable.

As for the criminal proceedings in Uzbekistan, the Court considered that the risk of a flagrant denial of justice in the country of destination must be assessed by the facts that the Contracting State knew or should have known when it extradited the persons concerned. While on 27 March 1999 there may have been reasons for doubting if the applicants would receive a fair trial in Uzbekistan, there was insufficient evidence to show that that such reasons constituted a flagrant denial of justice. Therefore, no violation of Art. 6 § 1 was found.

3. Alleged Breach of Article 34

The Court assessed the applicants’ representatives’ allegation that Turkey failed to comply with its obligations under Art. 34 by extraditing the applicants despite the measure indicated by the Court under Rule 39. The Court noted that it is of the utmost importance for the effective operation of the system of individual application instituted under Art. 34 that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities, which includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts designed to dissuade applicants from pursuing a Convention remedy. The Court concluded that the obligation set out in Art. 34 in fine requires the Contracting States to refrain not only from exerting pressure on applicants, but also from any act or omission which would make it pointless or otherwise prevent the Court from considering the subject matter of an application under its normal procedure.

The Court noted that in practice it only applies interim measures under Rule 39 if there is an imminent risk of irreparable damage; usually requests for its application concern Art. 2, 3, and exceptionally, 8. The Court found that because of the extradition of the applicants to Uzbekistan, the level of protection which the Court was able to afford the rights which the applicants were asserting under Art. 2 and 3 was irreversibly reduced. It considered it implicit in the notion of effective exercise of the right of application that for the duration of the proceedings the Court should remain able to examine the application under its normal procedure. Because the applicants were extradited they lost contact with their lawyers and were denied an opportunity to have further inquiries made in order for evidence in support of their allegations to be obtained, and thus the Court was prevented from properly assessing whether the applicants were exposed to a real risk of ill-treatment.

The Court found that in light of the general principles of international law, the law of treaties and international case-law, the interpretation of the scope of interim measures could not be dissociated from the proceedings to which they relate or the decision on the merits they seek to protect. Whatever the legal system in question, the proper administration of justice requires that no irreparable action can be taken while proceedings are pending (see Soering). Under the Convention system, interim measures play a vital role in avoiding irreversible situations and securing to the applicant, where appropriate, the practical and effective benefit of the rights asserted. Therefore, failure by a respondent State to comply with interim measures would undermine the effectiveness of the right to individual application guaranteed by Art. 34 and the State’s formal undertaking in Art. 1 to protect the rights and freedoms set forth in the Convention. The Court found that it was prevented from conducting a proper examination of the applicants’ complaints and ultimately from protecting them, if need be, because of their extradition. It concluded that Turkey was therefore in breach of its obligations under Art. 34 by failing to comply with the interim measures.

4. Application of Article 41

The Court did not consider that the alleged pecuniary damage had been proved but the applicants undeniably suffered non-pecuniary damage as a result of Turkey’s breach of Art. 34 which could not be repaired solely by a finding that Turkey had failed to comply with its Art. 34 obligations. It thus made an award for non-pecuniary damage on an equitable basis. 

Outcome:

Application granted in part and denied in part. 

Observations/comments:

This case gave much weight to the importance of interim measures and the right of individual application under the Convention. Although the Court found no violations of Art. 2, 3, or 6, it suspected that it may have found such violations had the interim measures not been ignored by the respondent State. 

Other sources:

United Nations Human Rights Committee:

Glen Ashby v. Trinidad and Tobago, 26 July 1994

Dante Piandiong, Jesus Morallos and Archie Bulan v. the Philippines, 19 October 2000

Sholam Weiss v. Austria, 15 May 2003

United Nations Committee against Torture:

Cecilia Rosana Núñez Chipana v. Venezuela, 10 November 1998

T.P.S. v. Canada, 16 May 2000

International Court of Justice:

Nicaragua v. the United States of America, 27 June 1986

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), order of 13 September 1993

LaGrand (Germany v. the United States of America), 27 June 2001

Avena and other Mexican nationals (Mexico v. the United States of America), 31 March 2004

Inter-American Court of Human Rights:

Loayza Tamayo v. Peru, 17 September 1997

Vienna Convention on the Law of Treaties

Rules of Procedure of the United Nations Human Rights Committee

Rules of Procedure of the United Nations Committee against Torture

Statue of the International Court of Justice

Rules of Procedure of the Inter-American Commission on Human Rights, Rule 25 American Convention on Human Rights

Rules of Procedure of the Inter-American Court of Human Rights

Agreement for Mutual Assistance in Civil, Commercial and Criminal Matters between the Republic of Turkey and the Republic of Uzbekistan 

Amnesty International Briefing Regarding the Situation in Uzbekistan for the United Nations Committee Against Torture (made public October 1999)

Amnesty International Annual Report of 28 May 2002