Chamber Judgment
(Application No. 24668/03)
10 August 2006
1. Background
Facts
The
applicant, of Peruvian origin, had been arrested in Spain under an
international warrant delivered on the basis of his alleged membership in the terrorist
group ÒSentier lumineuxÓ. Following diplomatic insurances by Peru that
the applicant would not be sentenced to death or to life imprisonment, the
Spanish Courts allowed the applicantÕs extradition to Peru.
The ECtHR, however decided to apply Rule 39,
and indicated to the authorities not to extradite the applicant before it had
examined the case. Spain decided
not to comply with this interim measure and expelled the applicant to Peru the
day after.
Complaint
The applicant complained that the expulsion to Peru would expose him to the risk of being subjected to inhuman treatment contrary to Article 3 ECHR. He also claimed that his arrest with the prospect of his extradition had violated Articles 5 and 6 ECHR. He finally submitted that the non-respect of the interim measures indicated by the Court constituted an infringement on Article 34 ECHR.
2. Decision of the Court
The alleged violation of Article 3 ECHR
Noting that the applicant received guarantees that he would
not be sentenced to death or life imprisonment, the Court found no sufficient
elements proving the existence of a treatment contrary to Article 3 in the
present case. It had been therefore no violation of Article 3.
The alleged
violation of Article 5 ¤ 1
The Court observed that the national judges had checked and established the conformity of the extradition proceedings with the Spanish law. It further stated that the whole period of detention was covered by the exception provided by Article 5 ¤ 1 f). There was, therefore, no violation of Article 5.
The alleged
violation of Article 6 ¤ 1
Even if the equity of the Peruvian proceedings against the
applicant could be called into question, the Court considered that there were
no sufficient elements establishing that the possible deficiencies of the trial
could constitute a Òflagrant denial of justiceÓ. There was, therefore, no violation of Article 6.
The alleged violation of Article 34
The Court referred to its Grand Chamber judgment delivered
in the Mamatkulov and Askarov v. Turkey[1] case. It recalled that a failure
by a Contracting State to comply with interim measures is 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 ConventionÓ. Even though the binding
nature of measures adopted under Rule 39 had not yet been expressly asserted at
the time of the applicantÕs expulsion, Contracting States were nevertheless
already required to comply with Article 34 and fulfill their ensuing
obligations.
The Court stressed that an interim measure was inherently a temporary one, the necessity of which was assessed at a precise moment in time owing to the existence of a risk that might hinder the effective exercise of the right of application guaranteed by Article 34. If the State complied with the interim measure, the risk was averted and any future hindrance of the right of application eliminated. If it did not comply, however, the risk of hindering the effective exercise of the right of application continued and it was the facts occurring after the CourtÕs decision and the GovernmentÕs non-compliance which determined whether the risk had materialized or not. Even if it did not, the force of the interim measure had to be regarded as binding.
A StateÕs decision regarding compliance with the measure could not be adjourned pending confirmation as to whether a risk existed. Mere 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 application.
Having regard to the evidence in its possession, the Court concluded that 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. Accordingly, the Court held that there had been a breach of Article 34.
STB/GS 04/01/07
Olaechea
Cahuas v Spain.doc