ITEMID: 001-113129
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BUCKLAND v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 5. The applicant was born in 1959 and lives in Cardiff.
6. The applicant is a gypsy. In 1999 she moved to the Cae Garw caravan site in Port Talbot, Wales, with her two children. The site was owned by Neath Port Talbot County Borough Council.
7. On 12 June 2000 Neath Port Talbot County Borough Council entered into a licence agreement with the Gypsy Council which provided that the latter would manage the site.
8. On 29 March 2004 the applicant entered into a licence agreement with the Gypsy Council to occupy pitch 16 on the site. It was a condition of the licence that:
“The Licensee or his/her resident family ... must not create a nuisance on the sites or to neighbouring properties. The Licensee shall be held responsible if any ... person living with ... her contravenes any of these Site Rules or Conditions.”
9. On 30 December 2004 the Gypsy Council issued a notice of termination of licence to the applicant which expired on 6 February 2005. The notice referred to a clause of her licence agreement which provided:
“The Gypsy Council or the Licensee may terminate this licence by giving the other not less than 28 days written notice to expire on a Sunday in any week.”
10. No further reasons justifying the termination were given.
11. Notices to quit were also given to her parents, who occupied a different pitch on the site.
12. On 18 January 2005 amendments to section 4 of the Caravan Sites Act 1968 (“the 1968 Act”) entered into force which introduced the possibility for possession orders to be suspended by a court on the application of the occupier for up to twelve months at a time (see paragraph 36 below).
13. On 2 August 2005 the Gypsy Council issued a claim for possession against the applicant and five members of her extended family, including her parents, in Neath Port Talbot County Court. In its particulars of claim, the Gypsy Council alleged that all six defendants were guilty of causing very substantial nuisance to the site to the detriment of other occupiers.
14. The applicant’s parents did not apply for suspension or postponement of the orders. On 1 June 2006, possession orders were made against them by consent.
15. An oral hearing took place between 24 and 26 July 2006 in Swansea County Court and 28 July 2006 in Neath County Court in respect of the claim for possession against the applicant. In a witness statement lodged prior to the hearing, the applicant indicated that she intended to leave the site when her parents left.
16. On 25 July 2006 Judge Bidder QC gave a judgment on the preliminary issue of whether the applicant could challenge the making of a possession order in her case. He considered himself bound by the decision of the House of Lords in Kay and Price (see paragraph 42 below), which had examined the effect of this Court’s judgment in Connors v. the United Kingdom, no. 66746/01, 27 May 2004. Thus, he concluded, the only options open to the applicant were to challenge the domestic law itself or to commence judicial review proceedings based on conventional grounds. He concluded:
“58. ... I do not consider it to be arguable that the decision of the claimants to seek possession against her was unreasonable or that their decision to invoke their domestic law rights could be castigated as unreasonable ...
59. Moreover, the fact that parliament has amended the applicable domestic legislation to afford the gypsy occupier the opportunity to contend that any possession order should be suspended for 12 months at a time distinguishes that case from Connors, and given that that amendment was considered in Kay and Price I find it impossible to say ... that there is a seriously arguable point raised that the law which enables the court to make the possession order is incompatible with article 8 ...”
17. He invited submissions from the applicant as to the possible temporary suspension of any possession order. He added:
“71. I should say that on the issue of suspension of the ... order against the [applicant] of possession I would invite the parties to consider the date of 4th November 2006 being the date on which the [applicant’s] parents are required to leave and on which she indicates that she would leave anyway ...”
18. On 28 July 2006, following the applicant’s submissions that any possession order against her should be suspended, the judge handed down his judgment on the remaining issues. Having reviewed the allegations made against the applicant by the claimant, the judge concluded:
“27. ... I am not satisfied that Maria Buckland has herself been guilty of any offensive behaviour on site, or of any breach of licence, apart from the relatively minor failure to pay the water charges.”
19. He was, however, satisfied that her son, who resided part of the time with her, had been involved in an incident on site in which he threatened someone with a gun, although it was not clear whether the gun had been real or merely an imitation; and had dumped garden refuse on the site.
20. Turning to consider whether the applicant’s personal circumstances, and those of her son, justified a suspension of the possession order which he would be making in her case the judge noted:
“32. In relation to Maria Buckland, while I am obliged to make a possession order, I find her only breach of site conditions has been recent and is a very modest failure to pay water charges. She has indicated in a recent statement that she intends to move from the site when [her parents] leave, that is on or before 4pm on 24th November. I do consider it appropriate to suspend enforcement of the possession order against her until the same time and date. However, I am clear that the behaviour of [her son] on this site and his attitude towards the Farrows [the family of the site manager] is such that I have to impose conditions on her continued possession, as sought in the draft order – [her son] lives half his time with his father, and I have no doubt that if he cannot live with his mother, he will be able to live with his father ...”
21. He made an order for possession against the applicant, which he suspended until 24 November 2006 upon the condition that her son leave the site and that she discharge the GBP 95 arrears of water charges at the rate of GBP 5 per week.
22. On 18 April 2007 the applicant, who was still resident at the site, was granted permission to appeal the possession order to the Court of Appeal. A stay of execution of the order of 28 July 2006 was also ordered.
23. In November 2007 a bill which would amend the Mobile Homes Act 1983 (“the 1983 Act”) was introduced to Parliament. The effect of the proposed amendment was to allow a defendant in possession proceedings such as the applicant to challenge before the County Court the reasonableness of making a possession order.
24. On 12 December 2007 the applicant’s appeal was dismissed. Considering the impact of the amendment to the 1968 Act to allow suspension of a possession order on whether the applicant could succeed in a conventional public law challenge to the decision to seek a possession order, Lord Justice Dyson noted:
“42. The significance of the amendment is that a claimant’s decision to seek possession does not involve summary eviction without judicial scrutiny of the justification of the claim to possession. By issuing proceedings, the claimant submits to the jurisdiction of the court,, including the claimant’s complaints about the defendant’s behaviour.”
25. He continued:
“43. ... It may be that, for the reasons given by Lord Brown [in Kay], a public law defence could have been raised successfully in Connors. I would suggest that this is not so much because the family had been in occupation for a great length of time, but rather because it was unreasonable and grossly unfair for the local authority to seek a possession order and obtain the eviction of the occupier merely on the basis of a termination of the licence ‘without the need to make good any underlying reason for taking such precipitate action’. The real difference between the present case and Connors is not that the appellant had been in occupation for a shorter period than was the family in Connors ... On any view, the site was her home and had been for a substantial period of time. The fact that she had not been in occupation for as long as the family in Connors is not, in my judgment, of much significance. The real difference between the two cases is that in Connors, once the licence had been terminated, the authority was entitled to an order for possession whose enforcement could not be suspended by the court.”
26. He concluded that since the amendment to the 1968 Act, it was difficult to conceive of a case in which a public law defence would succeed. Referring also to the fact that Judge Bidder had made a finding of misconduct on the site by the applicant’s son, for whose behaviour she was responsible under the terms of the licence, Dyson LJ considered that the judge was right to hold that the public law defence was not seriously arguable.
27. Dyson LJ further noted that the factual situation of Connors was not materially different from the present case in that in both cases the defendant had occupied a site as a home for a number of years. Further, in both cases the claimant had validly and properly terminated the defendant’s licence to occupy so that the defendant had become a trespasser; the claimant was entitled to an order for possession as the owner of the land; and no further justification was required to seek an order for possession. However, it was agreed by the parties that it was not necessary to decide whether the present case could be distinguished from Connors as the distinction was only relevant for any appeal before the House of Lords.
28. Finally, in respect of the applicant’s argument that the amendment to section 4 of the 1968 Act did not remedy the incompatibility with Article 8, Dyson LJ emphasised that, in principle, a wide margin of appreciation was left to the national authorities in such matters. However, he accepted that the vulnerable position of gypsies as a minority meant that “some special consideration should be given to their needs and different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases” (citing Connors, § 83). He found that the main reason for the narrowing of the margin of appreciation in Connors itself was that the complete absence of any procedural safeguards was a serious interference with the applicant’s Article 8 rights in that case, which called for particularly weighty reasons of public interest in justification. However, the precise scope of these safeguards was in his view, a matter for the national authorities to determine. He considered that provided that a reasonable degree of protection was afforded by the domestic law, the Strasbourg Court would not interfere, even if a greater degree of protection could have been afforded. He accordingly rejected the applicant’s submissions, noting:
“60. The objectionable feature of the legal regime in place before the amendment was that the court was bound not merely to make an order for possession, but to order the eviction of an occupant such as the appellant provided that the 4 weeks’ notice was given. Absent a public law challenge, the occupant had no opportunity to challenge the reasons given by the local authority for seeking possession and the court had no jurisdiction to take the reasons into account in deciding whether to order the occupant’s eviction. The local authority’s reasons were irrelevant as were the occupant’s personal circumstances. Nor did the court have power to suspend an order for possession even in circumstances of extreme hardship which indicated that eviction would not be justified under article 8(2). In short, there was no opportunity for the court to make any assessment of the justification for eviction in order to determine whether the interference with an occupier’s rights under article 8(1) was justified on an application of article 8(2). Provided that the relevant formal requirements had been satisfied, the role of the court was purely mechanistic.
61. The amendment has introduced procedural protections which ensure that the role of the court is no longer a mechanistic one even when a local authority seeks to evict a licensee from a caravan site. Summary eviction has been replaced by judicial examination. Section 4(1) now provides that the enforcement of a possession order may be suspended for such period up to 12 months ‘as the court thinks reasonable’. The court has a wide discretion under subsection (2) to impose conditions when making an order for suspension. By subsection (3), the court may extend the suspension of the possession order for up to 12 months at a time. Subsection (4) requires the court to have regard to ‘all the circumstances’ in deciding whether to exercise its power to suspend. The court is, therefore, ...”
29. He concluded:
“63. In my judgment, the decision to provide the procedural safeguards introduced by the amendment of section 4 of the 1968 Act was within the margin of appreciation available to the United Kingdom. More generous safeguards could have been introduced (and they will be when the 1983 Act is amended). But the amendment goes far enough to meet the real thrust of the criticisms made in Connors.”
30. As to the applicant’s argument that the legislation discriminated against gypsies, Dyson LJ found that although the discrimination point was one of the features of the Court’s reasoning in Connors, it was not the main reason for the decision. Even if that was wrong, Dyson LJ considered that by addressing the lack of procedural safeguards for gypsies of local authority sites, the amendment had also gone a long way to meeting the discrimination point. While discrimination would not be cured completely until the 1983 Act was amended, it had been much mitigated. Thus to the extent that the discrimination persisted, the decision not to eliminate it altogether fell within the margin of appreciation accorded to the contracting States.
31. On 18 February 2008 the House of Lords refused the applicant’s request for permission to appeal.
32. In May 2008 the applicant left Cae Garw caravan site for alternative accommodation on land owned by her brother. She claims that her departure was the result of the refusal of leave to appeal and in the face of further threats of eviction The land owned by her brother has no planning permission for residential use and its occupants, which include the applicant’s brother, his six children and the applicants’ parents, share minimal facilities, namely one toilet and one sink with cold running water in a shed with no lighting.
33. Part I of the Caravan Sites Act 1968 (“the 1968 Act”) provides limited security of tenure to certain occupiers of caravans and caravan sites. Section 2 provides that at least four weeks’ notice of termination of a licence to occupy a caravan site must be given.
34. Section 4(1) provides that when a court makes an order for the removal or exclusion of an occupier from a caravan site, it may suspend the enforcement of that order for up to twelve months at a time.
35. Section 4(4) provides that in considering whether or how to exercise its powers under this section, the court shall have regard to all the circumstances, and in particular to the questions:
“(a) whether the occupier of the caravan has failed, whether before or after the expiration or determination of the relevant residential contract, to observe any terms or conditions of that contract, any conditions of the site licence, or any reasonable rules made by the owner for the management and conduct of the site or the maintenance of caravans thereon;
(b) whether the occupier has unreasonably refused an offer by the owner to renew the residential contract or make another such contract for a reasonable period and on reasonable terms;
(c) whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation for his caravan (or, as the case may be, another suitable caravan and accommodation for it).”
36. Section 4(6) of the 1968 Act formerly excluded the court’s power to suspend the enforcement of a possession order under section 4(1) in the case of possession proceedings brought by local authorities. However, the exclusion of local authority caravan sites from the ambit of the power to suspend under section 4(1) was removed by the Housing Act 2004, which entered into force on 18 January 2005, in respect of proceedings begun on or after that date.
37. The Mobile Homes Act 1983 (“the 1983 Act”) was enacted, inter alia, to restrict the eviction from caravan sites of occupiers of caravans. It applies to any agreement under which a person is entitled to station a mobile home on land forming part of a “protected site” and to occupy it as his only or main residence and implies into licence agreements falling within the ambit of its provisions various protective terms.
38. Section 2(1) and paragraph 4 of Schedule 1 to the 1983 Act provide that the owner of a relevant site is entitled to terminate the licence only if (i) he satisfies the court that the occupier has breached a term of the licence agreement and has failed to comply with a notice to remedy the breach; and (ii) the court considers it reasonable for the agreement to be terminated.
39. Section 5(1) defines “protected site” by reference to its definition in the 1968 Act (essentially applying to land authorised for long-term residence). However, the section expressly excludes from the definition any land occupied by a local authority as a caravan site providing accommodation for gypsies.
40. Pursuant to section 321 and Schedule 16 of the Housing and Regeneration Act 2008, which was enacted on 22 July 2008, the exclusion of land used for accommodating gypsies from the definition of “protected site” in section 5(1) of the 1983 Act is removed. The amendment has entered into force in England but has not yet entered into force in Wales.
41. For a general summary of domestic proceedings prior to November 2010 regarding the right of defendants to rely on Article 8 in the context of a defence to possession proceedings, see the Court’s judgment in Kay and Others v. the United Kingdom, no. 37341/06, §§ 18-43, 21 September 2010.
42. Notably, in Kay and others v. London Borough of Lambeth and others; and Leeds City Council v. Price and others [2006] UKHL 10, Lord Hope of Craighead clarified that a challenge to possession proceedings could only be based either on an argument that the law itself was incompatible with Article 8; or on conventional judicial review grounds.
43. The subsequent case of Doherty and others v. Birmingham City Council [2008] UKHL 57, decided after the applicant’s appeal was dismissed, concerned the eviction of gypsies from a local authority caravan site. Lord Hope concluded that it was open to the defendant to argue that the law itself was incompatible with the Convention because the relevant legal framework was indistinguishable from that which applied in Connors. He considered that in light of the clear terms of the legislation allowing the local authority possession, there was no scope for interpreting it in a manner which was Convention-compatible and continued:
“50. ... This raises the question whether your Lordships should make a declaration of incompatibility ... The incompatibility with the appellant’s article 8 rights that was to be found in section 4(6)(a) of the 1968 Act has been removed by section 211(1) of the Housing Act 2004. As already noted, a clause was included in the Housing and Regeneration Bill to remove the exclusion of local authority sites which provide accommodation for gipsies from the protection of the 1983 Act. Nevertheless, prior to its receiving the Royal Assent ..., Lord Walker favoured the making of a declaration of incompatibility in relation to section 5(1) of the 1983 Act.
51. I was at first inclined to doubt whether a declaration was necessary. The power to make a declaration ... is, after all, a discretionary one. But on reflection I agreed that it would be appropriate to make such a declaration in this case. Indeed I considered that the decision of the Strasbourg court in Connors left the House with no alternative but to do this. That was a judgment which was pronounced in a case against the United Kingdom. Its decision is as plain an indication as there could be that there was an incompatibility in our legislation that ought to be addressed by the United Kingdom Parliament ... In such circumstances the decision as to whether the incompatibility should remain was not for the court to take. It had to be left to the government and to Parliament, and it could not be taken for granted that the amending legislation would be passed. In the events that have happened, however, the making of a declaration has become unnecessary ...”
44. On 3 November 2010 the Supreme Court handed down its judgment in Manchester City Council v. Pinnock [2010] UKSC 45 (“Pinnock”), sitting as a panel of nine judges. The case concerned possession proceedings brought against a demoted tenant. Following a review of the case-law, the Supreme Court considered the following propositions to be well-established in the jurisprudence of this Court:
“(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end ...
(b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues ...
(c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with ...
(d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.”
45. The Supreme Court considered that in order for domestic law to be compatible with Article 8 of the Convention, where a court was asked by a local authority to make an order for possession of a person’s home, the court had to have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact. In terms of the practical implications of this principle, the Supreme Court noted that if domestic law justified an outright order for possession, the effect of Article 8 could, albeit in exceptional cases, justify granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether. Finally, the court observed that the need for a court to have the ability to assess the Article 8 proportionality of making a possession order in respect of a person’s home might require certain statutory and procedural provisions to be revisited.
46. On 23 February 2001 the Supreme Court handed down its judgment in the joined cases of Mayor and Burgesses of the London Borough of Hounslow v. Powell; Leeds City Council v. Hall; Birmingham City Council v. Frisby [2011] UKSC 8 (“Powell and others”). In its judgment, the court extended its approach in Pinnock to introductory tenancies and tenancies under the homelessness regime.
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-60924
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF MAMATKULOV AND ABDURASULOVIC v. TURKEY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 3;No violation of Art. 6 as regard the extradition proceedings;No separate issue under Art. 6 as regard the other complaints;Violation of Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 12. The applicants were born in 1959 and 1971 and are currently in custody in the Republic of Uzbekistan. They are members of the Erk (“Freedom”) Democratic Party of Uzbekistan (O'zbekiston Erk Demokratik Partiyasi), an opposition party in the Republic of Uzbekistan.
13. On 3 March 1999 the applicant arrived in Istanbul from Alma-Ata (Kazakhstan), on a tourist visa. He was arrested by Turkish police at Atatürk Airport (Istanbul) under an international arrest warrant and taken into police custody on suspicion of homicide, causing injuries by the explosion of a bomb in the Republic of Uzbekistan and an attempted terrorist attack on the President of Uzbekistan.
14. The Republic of Uzbekistan requested the applicant's extradition under a bilateral treaty with Turkey.
15. On 5 March 1999 the Bakırköy Public Prosecutor made an application to the investigating judge for the applicant to be remanded in custody. The applicant, who was assisted by his lawyer, was brought before the judge the same day and remanded in custody for forty-five days, in accordance with the European Convention on Mutual Assistance in Criminal Matters, which was opened for signature on 20 April 1959.
16. On 11 March 1999 the first applicant was interviewed by the judge of the Bakırköy Criminal Court. In an order made on the same day under the expedited-applications procedure the judge referred to the charges against the first applicant and noted that the offences concerned were not political or military in nature but “ordinary criminal” offences. The judge also made an order remanding the first applicant in custody pending his extradition. The applicant, who was assisted by his lawyer and an interpreter, denied the charges and protested his innocence.
17. In written pleadings that were lodged at a hearing on 11 March 1999, the first applicant's representative argued that the applicant was working for the democratisation of his country and that political dissidents in Uzbekistan were arrested by the authorities and subjected to torture in prison. He added that the first applicant had been in Kazakhstan at the material time and had asked the Turkish authorities for political asylum as his life was at risk. He argued that his client had been prosecuted for an offence of a political nature and, relying on Article 9 of the Turkish Criminal Code, asked the Criminal Court to refuse the Republic of Uzbekistan's request for extradition.
18. On 15 March 1999 the applicant appealed to the Bakırköy Assize Court against the order made under the expedited-applications procedure on 11 March 1999. The Assize Court examined the file that had been produced to it and dismissed the applicant's appeal on 19 March 1999.
19. The applicant entered Turkey on 13 December 1998 on a false passport. On 5 March 1999, acting on a request for his extradition by the Republic of Uzbekistan, the Turkish police arrested him and took him into police custody. He was suspected of homicide, causing injuries to others by the explosion of a bomb in the Republic of Uzbekistan and an attempted terrorist attack on the President of Uzbekistan.
20. On 7 March 1999 the Bakırköy Public Prosecutor made an application to the investigating judge for the applicant to be remanded in custody. On the same day the applicant was brought before a judge, who remanded him in custody.
21. In a letter of 12 March 1999 the Fatih Public Prosecutor applied to the Fatih Criminal Court for a determination of the applicant's nationality and of the nature of the alleged offence.
22. In a decision of 15 March 1999, after hearing the applicant, the Criminal Court determined his nationality and the nature of the offence pursuant to Article 9 of the Turkish Criminal Code. It held that the offences with which he had been charged were not political or military in nature but “ordinary criminal” offences. It also made an order remanding the applicant in custody pending his extradition.
23. At a hearing on 11 March 1999 the applicant's representative submitted that the offence with which the applicant had been charged was political in nature and that political dissidents in Uzbekistan were arrested by the authorities and subjected to torture in prison. He added that the applicant had been in Turkey at the material time on a false passport.
24. On 18 March 1999 the applicant appealed to the Istanbul Assize Court against the judgment of 15 March 1999. The Assize Court examined the file that had been produced to it and dismissed the applicant's appeal on 26 March 1999.
25. On 18 March 1999 the President of the Chamber decided to “indicate to the Government, pursuant to Rule 39 of the Rules of Court, that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to extradite the applicants to the Republic of Uzbekistan until the Court has had an opportunity to examine the application further at its forthcoming session on 23 March 1999”.
26. On 19 March 1999 the Turkish Cabinet issued a decree for the applicants' extradition.
27. On 23 March 1999 the Chamber decided to extend the interim measure indicated pursuant to Rule 39 until further notice.
28. On 27 March 1999 the applicants were handed over to the Uzbek authorities.
29. In a letter of 19 April 1999 the Government informed the Court that it had received the following assurances about the two applicants from the Uzbek authorities:
(i) On 9 March and 10 April 1999 the Ambassador of the Republic of Uzbekistan transmitted two notes from the Ministry of Foreign Affairs to which were appended two letters from the Public Prosecutor, stating: “The applicants' property will not be liable to general confiscation, and the applicants will not be subjected to acts of torture or sentenced to capital punishment”;
(ii) The Uzbek authorities added “The Republic of Uzbekistan is a party to the United Nation's Convention against Torture and accepts and reaffirms its obligations to comply with the requirements of the provisions of that Convention both as regards Turkey and the international community as a whole”.
30. On 11 June 1999 the Government transmitted to the Court a diplomatic note dated 8 June 1999 from the Ministry of Foreign Affairs of the Republic of Uzbekistan setting out the following points:
“It appears from investigations conducted by the Uzbek judicial authorities that Mamatkulov and Abdurasulovic have played an active role in planning and organising terrorist acts against the leaders of the Republic of Uzbekistan and its people since May 1997, as members of a criminal organisation led by C.H. and T.Y., who are notorious religious extremists.
It appears from information obtained through cooperation with the intelligence services of foreign countries that Mamatkulov and Abdurasulovic have committed offences in Kazakhstan and Kyrgyzstan.
Their indictment, which was drawn up on the basis of previously obtained evidence, contains a number of counts: setting up a criminal organisation, terrorism, a terrorist attack on the President, seizing power by the use of force or by the overthrow of the constitutional order, arson, uttering forged documents and voluntary homicide.
All the investigations have been conducted with the participation of their lawyers. The defendants have made statements of their own free will on the activities of the criminal organisation and their role within it. That information has been corroborated by the other evidence that has been obtained.
The assurances given by the Public Prosecutor of the Republic of Uzbekistan concerning Mamatkulov and Abdurasulovic comply with Uzbekistan's obligations under the United Nation's Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984.
The defendants and their lawyers have examined the prosecution evidence relating to the investigation and the proceedings and a copy of the indictment transmitted to the Supreme Court has been served on them.
Arrangements for the accused's security during the investigation and trial have been made through the use of secure premises (with cells specially equipped for that purpose) and appropriate measures have been taken to prevent them being attacked.
The defendant's trial in the Supreme Court has recently begun with hearings in public. The hearings are attended by members of the local and foreign press. Members of diplomatic missions and representative of human-rights organisations also attend the hearings.
Officials from the Embassy of the Republic of Turkey may also attend.”
31. In a letter of 8 July 1999, the Government informed the Court that by a judgment of 28 June 1999 the Supreme Court of the Republic of Uzbekistan had found the applicants guilty of the offences charged and had sentenced them to terms of imprisonment.
32. In a letter of 15 September 1999, the applicants' representatives said that they were unable to contact the applicants. They said that conditions in Uzbek prisons were bad and that prisoners were subjected to torture. They noted, inter alia:
“...
The applicants did not have a fair trial in the Republic of Uzbekistan. The rule requiring trials to be held in public was not complied with. Our only information about the applicants' trial comes from the Uzbek authorities.
We wrote to the Uzbek Embassy in Ankara on 25 June 1999 requesting permission to attend the trial as observers in our capacity as lawyers, but have received no reply.
As to the allegation that the applicants' trial was followed by 'national and international journalists and representatives from human-rights organisations', the only non-governmental organisation present in Uzbekistan that was able to follow the trial was Human Rights Watch. Although we have made express requests to that organisation, we have not been able to obtain any detailed information about the hearings and events at the trial.
Since the applicants' extradition, we have been unable to contact them either by letter or by telephone. We still have no means of contacting them. This state of affairs serves to reinforce our suspicions that the applicants are not being held in proper prison conditions.
According to the letter sent by the Court [ECHR] on 9 July 1999 and information published in the press, the applicant Rustam Mamatkulov has been sentenced to twenty-years' imprisonment. That is the heaviest sentence that can be handed down under the Uzbek Criminal Code. Furthermore, if account is taken of the conditions of detention in Uzbek prisons, and in particular of the use of torture, it is very difficult for prisoners to serve their sentences in the prisons in proper conditions. Moreover, it is generally believed that certain prisoners, in particular those convicted for offences pertaining to freedom of expression, are given additional sentences.”
33. On 15 October 2001 the Ministry of Foreign Affairs for the Republic of Uzbekistan forwarded the following information to the Turkish Embassy:
“On 28 June 1999 the Supreme Court of the Republic of Uzbekistan found R. Mamatkulov and Z. Askarov guilty of the charges listed below and sentenced them to twenty-years' and eleven-years' imprisonment respectively:
R. MAMATKULOV
(a) Eighteen-years' imprisonment pursuant to Articles 28 and 97 of the Criminal Code (homicide with aggravating circumstances, namely:
(i) murder of two or more people,
(ii) murder of a person on official duty or of a close relative of such a person,
(iii) use of means endangering the lives of others,
(iv) use of cruel means,
(v) offence committed in the defendant's own interests,
(vi) offence committed on the basis of religious beliefs,
(vii) offence committed with the aim of concealing another offence or of facilitating its commission,
(viii) offence committed by a group of people or a criminal organisation in the interests of that organisation,
(ix) repeat offence);
(b) Eighteen-years' imprisonment pursuant to Article 155 § 3 (a) and (b) of the Criminal Code (terrorist offence);
(c) Ten-years' imprisonment pursuant to Article 156 § 2 (d) of the Criminal Code (incitement to hatred and hostility giving rise to discrimination on grounds of race and religion);
(d) Eighteen-years' imprisonment pursuant to Article 158 § 1 of the Criminal Code (attempted terrorist attack on the President of the Republic of Uzbekistan);
(e) Eighteen-years' imprisonment pursuant to Article 159 § 4 of the Criminal Code (attempt to undermine the constitutional regime of the Republic of Uzbekistan, conspiracy to take power or overthrow the constitutional regime of the Republic of Uzbekistan);
(f) Fifteen-years' imprisonment pursuant to Article 161 of the Criminal Code (attempt to destroy property or to damage peoples' health, massacres committed with the intention of harming the activities of State bodies and undermining social, political and economic stability);
(g) Twelve-years' imprisonment pursuant to Article 168 § 4 (a) and (b) of the Criminal Code (fraud, obtaining the property of others by fraud or deception, by or in the interests of a group of individuals);
(h) Ten-years' imprisonment pursuant to Article 223 § 2 (b) (entering or leaving Uzbek territory illegally and with premeditation);
(i) Two-years' community service pursuant to Article 228 § 3 (manufacture, use and sale of false documents: seal, stamp, headed notepaper);
(j) Eighteen-years' imprisonment pursuant to Article 242 § 1 (forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang).
Is sentenced to twenty-years' imprisonment pursuant to Article 59 of the Criminal Code (aggregation of sentences for several offences) to be served in 'strict-regime' penal institutions.
R. Mamatkulov is currently serving his sentence in Zarafşan Prison, which is under the authority of the Office for Internal Affairs of the Province of Navoi. He is in good health and is entitled to receive visits from close relatives. He did not receive an amnesty under the 'Amnesty Decree' of 22 August 2001.
Z. Abdurasuloviç ASKAROV
(a) Ten-years' imprisonment pursuant to Article 28 and 97 of the Criminal Code (aggravated with aggravating circumstances, namely:
(i) murder of two or more people,
(ii) murder of a person on official duty or of a close relative of such a person,
(iii) use of means endangering the lives of others,
(iv) use of cruel means,
(v) offence committed in the defendant's own interests,
(vi) offence committed on the basis of religious beliefs,
(vii) offence committed with the aim of concealing another offence or of facilitating its commission,
(viii) offence committed by a group of people or a criminal organisation in the interests of that organisation,
(ix) repeat offence);
(b) Ten-years' imprisonment pursuant to Article 155 § 2 (a) and (b) of the Criminal Code (terrorist offence, causing another's death);
(c) Ten-years' imprisonment pursuant to Article 156 § 2 (d) of the Criminal Code (incitement to hatred and hostility giving rise to discrimination on grounds of race and religion);
(d) Nine-years' imprisonment pursuant to Article 158 § 1 of the Criminal Code (attempted terrorist attack on the President of the Republic of Uzbekistan);
(e) Nine-years' imprisonment pursuant to Article 159 § 4 of the Criminal Code (attempt to undermine the constitutional regime of the Republic of Uzbekistan, conspiracy to take power or overthrow the constitutional regime of the Republic of Uzbekistan);
(f) Nine-years' imprisonment pursuant to Article 161 of the Criminal Code (attempt to destroy property or to damage peoples' health, massacres committed with the intention of harming the activities of State bodies and undermining social, political and economic stability);
(g) Nine-years' imprisonment pursuant to Article 173 § 3 (b) (destruction of or intentional damage to property belonging to others by or in the interests of a group of individuals);
(h) Ten-years' imprisonment pursuant to Article 223 § 2 (b) (entering or leaving Uzbek territory illegally and with premeditation);
(i) Two-years' community service pursuant to Article 228 § 3 (manufacture, use and sale of false documents: seal, stamp, headed notepaper);
(j) Ten-years' imprisonment pursuant to Article 242 § 1 (forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang).
Is sentenced to eleven-years' imprisonment pursuant to Article 59 of the Criminal Code (aggregation of sentences for several offences) to be served in 'strict regime' penal institutions.
Z. Askarov is currently serving his sentence in Şayhali Prison, which is under the authority of the Office for Internal Affairs of the Province of Kaşkadarya. He is in good health and is entitled to receive visits from close relatives. He did not receive an amnesty under the 'Amnesty Decree' of 22 August 2001.
34. At the hearing on 23 October 2001, the Government informed the Court that on 19 October 2001, two officials from the Turkish Embassy had visited the applicants in Zarafşan Prison and Şayhali Prison, which are respectively 750 and 560 kilometres from Tashkent. According to the Embassy officials, the applicants were in good health and had not complained about their prison conditions either before or after trial.
35. On 3 December 2001 the Uzbek authorities communicated to the Government medical certificates that had been drawn up by military doctors in the prisons in which the applicants were being held. The doctors made the following findings:
“... Mr Mamatkulov was imprisoned on 9 December 2000. He did not present any health problems on arrival. Examinations on 14 February 2000 and 2 April 2001 did not reveal any symptoms of pathology.
On 19 November 2001 the prisoner attended the prison medical centre complaining of general weakness and a bout of coughing. ... on examination he was diagnosed as suffering from acute bronchitis and was prescribed medication ...”
... Mr Abdurasulovic Askarov was imprisoned on 21 July 2001. He did not complain of any health problems on arrival. Examinations conducted on 25 July, 30 August and 23 October 2001 did not reveal any symptoms of pathology...”
36. To date, the applicants' representatives have been unable to contact the applicants.
37. Article 9 of the Turkish Criminal Code reads as follows:
“The Turkish State shall not accede to a request for the extradition of an alien by a foreign country for offences that are political in nature or related thereto.
When called upon to deal with a request by a foreign State for the extradition of an alien, the criminal court with jurisdiction for the place in which the person concerned is located shall determine that person's nationality and the nature of the offence.
No request for extradition may be granted if the criminal court finds that the person concerned is a Turkish national or that the offence is political or military in nature or related to such an offence.
If the criminal court finds that the person whose extradition is requested is an alien and that the offence is an ordinary criminal offence the request for extradition may be granted by the Government...”
38. Extradition between Turkey and the Republic of Uzbekistan is governed by the “Agreement for Mutual Assistance in Civil, Commercial and Criminal Matters between Turkey and the Republic of Uzbekistan”, which entered into force on 18 December 1997. Under the relevant provisions of that agreement, “each Contracting Party undertakes to extradite to the other, in the circumstances and subject to the conditions set out in this agreement, anyone found in its territory who is accused or has been found guilty of an offence committed within the jurisdiction of the other Party”.
39. Rule 86 of the Rules of Procedure provides:
“The Committee may, prior to forwarding its views on the communication to the State party concerned, inform that State of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation. In doing so, the Committee shall inform the State party concerned that such expression of its views on interim measures does not imply a determination on the merits of the communication.”
40. Rule 108 § 9 of the Rules of Procedure of the Committee against Torture enables interim measures to be adopted in proceedings brought by individuals alleging a violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It reads as follows:
“In the course of the consideration of the question of the admissibility of a communication, the Committee or the working group or a special rapporteur designated under rule 106, paragraph 3, may request the State party to take steps to avoid possible irreparable damage to the person or persons who claim to be victim(s) of the alleged violation. Such a request addressed to the State party does not imply that any decision has been reached on the question of the admissibility of the communication.”
41. Article 41 provides:
“1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.”
42 Article 63 § 2 of the Convention states:
“In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission.”
43. Rule 25 provides:
“1. At any stage of the proceedings involving cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court may, at the request of a party or on its own motion, order such provisional measures as it deems pertinent, pursuant to Article 63(2) of the Convention.
2. With respect to matters not yet submitted to it, the Court may act at the request of the Commission.
3. The request may be made to the President, to any judge of the Court, or to the Secretariat, by any means of communication. In every case, the recipient of the request shall immediately bring it to the President's attention.
4. If the Court is not sitting, the President, in consultation with the Permanent Commission and, if possible, with the other judges, shall call upon the government concerned to adopt such urgent measures as may be necessary to ensure the effectiveness of any provisional measures that may be ordered by the Court at its next session.
5. The Court, or its President if the Court is not sitting, may convoke the parties to a public hearing on provisional measures.
6. In its Annual Report to the General Assembly, the Court shall include a statement concerning the provisional measures ordered during the period covered by the report. If those measures have not been duly implemented, the Court shall make such recommendations as it deems appropriate.”
44. Rule 25 provides:
1. In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons.
2. If the Commission is not in session, the President, or, in his or her absence, one of the Vice-Presidents, shall consult with the other members, through the Executive Secretariat, on the application of the provision in the previous paragraph. If it is not possible to consult within a reasonable period of time under the circumstances, the President or, where appropriate, one of the Vice-Presidents shall take the decision on behalf of the Commission and shall so inform its members.
3. The Commission may request information from the interested parties on any matter related to the adoption and observance of the precautionary measures.
4. The granting of such measures and their adoption by the State shall not constitute a prejudgment on the merits of a case.”
45. In its decision of 26 July 1994 (Glen Ashby v. Trinidad and Tobago), the Committee dealt with the first case of a refusal by a State to comply with interim measures requesting it to stay execution of the death penalty. It pointed out that by ratifying the Optional Protocol, the State Party had undertaken to cooperate with the Committee in proceedings under the Protocol, and that it had not discharged its obligations under the Optional Protocol and the Covenant (Report of the Human Rights Committee, Volume I).
46. In its decision of 19 October 2000 (Piandiong et al v. The Philippines, Communication No. 869/1999 (15 June 1999), U.N. Doc. CCPR/C/70/D/869/1999), the Committee said:
“5.1 By adhering to the Optional Protocol, a State party to the Covenant recognizes the competence of the Human Rights Committee to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant (Preamble and Article 1). Implicit in a State's adherence to the Protocol is an undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications, and after examination to forward its views to the State party and to the individual (Article 5 (1), (4)). It is incompatible with these obligations for a State party to take any action that would prevent or frustrate the Committee in its consideration and examination of the communication, and in the expression of its Views.
5.2 Quite apart, then, from any violation of the Covenant charged to a State party in a communication, a State party commits grave breaches of its obligations under the Optional Protocol if it acts to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its Views nugatory and futile...
5.4 Interim measures pursuant to rule 86 of the Committee's rules adopted in conformity with article 39 of the Covenant, are essential to the Committee's role under the Protocol. Flouting of the Rule, especially by irreversible measures such as the execution of the alleged victim or his/her deportation from the country, undermines the protection of Covenant rights through the Optional Protocol.”
47. In the case of a Peruvian citizen resident in Venezuela who was extradited to Peru despite the fact that interim measures had been indicated requesting a stay of extradition (Cecilia Rosana Núñez Chipana v. Venezuela, 10 November 1998, Committee against Torture, Communication No. 110/1998, § 8), the Committee against Torture expressed the view that the State had failed to “comply with the spirit of the Convention”. It noted:
“... the State party, in ratifying the Convention and voluntarily accepting the Committee's competence under article 22, undertook to cooperate with it in good faith in applying the procedure. Compliance with the provisional measures called for by the Committee in cases it considers reasonable is essential in order to protect the person in question from irreparable harm, which could, moreover, nullify the end result of the proceedings before the Committee.”
48. In another decision that concerned the extradition to India of an Indian National resident in Canada (decision of 16 May 2000, T.P.S. v. Canada, Communication No. 99/1997) despite the indication of interim measures requesting Canada to stay the extradition, the Committee against Torture reiterated that failure to comply with the requested interim measures “... could ... nullify the end result of the proceedings before the Committee” (§ 15.6).
49. Provision is made for provisional measures to be ordered under the judicial settlement procedure in cases in which the Inter-American Court of Human Rights has jurisdiction and for precautionary measures under the procedure of individual petition to the Inter-American Commission of Human Rights. The Inter-American Court's power to order provisional measures is derived from the American Convention on Human Rights and the Commission's power to adopt precautionary measures from its Rules of Procedure (see paragraphs 42-43 above). The Inter-American Court has stated on several occasions that compliance with provisional measures is necessary to ensure the effectiveness of its decisions on the merits (see, among other authorities, the following orders: 1 August 1991, Chumină v. Peru; 2 July 1996, 13 September 1996, 11 November 1997, 3 February 2001, Loayza Tamayo v. Peru ; 25 May and 25 September 1999, 16 August and 24 November 2000, 3 September 2002, James and Others v. Trinidad and Tobago; 7 and 18 August 2000, 26 May 2001, Haitians and Dominican nationals of Haitian Origin in the Dominican Republic v. Dominican Republic; 10 August 2000, 12 November 2000, 30 May 2001, Alvarez et al v. Colombia; judgment of 21 June 2002, Hilaire, Constantine, Benjamin and Others v. Trinidad and Tobago).
As regards the scope of its precautionary measures, the Inter-American Commission on Human Rights is bound by the recommendations it has adopted on individual petition. In its judgment of 17 September 1997 in the case of Loayza Tamayo v. Peru, (Inter-Am. Ct. H.R. (Ser. C) No. 33 (1997)) the Inter-American Court of Human Rights considered that the State “ha[d] the obligation to make every effort to apply the recommendations of a protection organ such as the Inter-American Commission, which [was], indeed, one of the principal organs of the Organization of American States, whose function [was] 'to promote the observance and defense of human rights'...”.
In two orders requiring provisional measures, the Inter-American Court of Human Rights ruled that the States Parties to the American Convention on Human Rights “must fully comply in good faith (pacta sunt servanda) with all of the provisions of the Convention, including those relative to the operation of the two supervisory organs of the American Convention [the Court and the Commission]; and, that in view of the Convention's fundamental objective of guaranteeing the effective protection of human rights (Articles 1(1), 2, 51 and 63(2)), States Parties must refrain from taking actions that may frustrate the restitutio in integrum of the rights of the alleged victims” (see the Orders of 25 May and 25 September 1999, in the case of James et al. v. Trinidad and Tobago).
50. Article 41 the Statute of the International Court of Justice provides for the adoption of provisional measures (see paragraph 41 above).
The International Court of Justice has pointed out in a number of cases that the purpose of provisional measures is to preserve the respective rights of the parties to the dispute (see, among other authorities, the judgment of 27 June 1986, in the case of Nicaragua v. United States of America). In an order of 13 September 1993 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), the International Court of Justice said (§ 35) that the power of the Court to indicate provisional measures:
“... has as its object to preserve the respective rights of the parties pending the decision of the Court, and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings; and ... the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent.”
51. In its judgment of 27 June 2001 in the LaGrand case (Germany v. United States of America), the International Court of Justice noted:
“102. ... The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article.
103. A related reason which points to the binding character of orders made under Article 41 and to which the Court attaches importance, is the existence of a principle which has already been recognized by the Permanent Court of International Justice when it spoke of 'the principle universally accepted by international tribunals and likewise laid down in many conventions ... to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute' (Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J, Series A/B, No. 79, p. 199).
52. Article 31 of the Vienna Convention of 1969, which is headed “General rule of interpretation”, provides:
“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.”
53. In a briefing for the United Nations Committee against Torture that was made public in October 1999, Amnesty International stated:
“... Amnesty International remains concerned that Uzbekistan has failed to implement its treaty obligations fully despite numerous, wide-ranging and officially endorsed national initiatives in the fields of human rights education and democratization and judicial and legislative reforms aimed at bringing national legislation into line with international standards.
Since December 1997, when several murders of law enforcement officials in the Namangan region sparked a wave of mass detentions and arrests , the organization has received a growing number of reports of ill-treatment and torture by law enforcement officials of people perceived to be members of independent Islamic congregations or followers of independent imams (Islamic leaders). Hundreds of these so-called 'Wahhabists' were sentenced to long terms of imprisonment in trials that fell far short of international fair trial standards. The organization's concern was heightened in February 1999 when hundreds of people, men and women, were detained following a reported six bomb explosions in the capital Tashkent. This time the list of those reported to have been arrested, ill-treated and tortured included suspected supporters of the banned political opposition parties and movements Erk and Birlik, including family members and independent human rights monitors, as well as alleged supporters of banned Islamic opposition parties and movements, such as Hizb-ut-Tahrir. In the majority of these cases, if not all, that have come to the attention of Amnesty International, those detained were denied prompt access to a lawyer of their choice, to their families and to medical assistance. The responsible authorities, from procurators to courts at all levels and the parliamentary ombudsman, persistently failed to launch timely, full and independent investigations into widespread allegations of torture and ill-treatment. According to independent and credible sources, self-incriminating evidence reportedly extracted by torture was routinely included in trial proceedings and served in many of the cases reviewed by Amnesty International as the basis for a guilty verdict. Amnesty International was disturbed by public statements by Uzbek officials, including the President of Uzbekistan, in the wake of both the Namangan murders and the Tashkent bombings, which, if not directly sanctioning the use of violence by state agents against certain sections of the population, could be perceived at the very least to condone the use of unlawful methods such as torture and ill-treatment. In April 1999, for example, President Karimov, portrayed as the guarantor of democracy and human rights, stated publicly that he was prepared to tear off the heads of two hundred people in order to protect Uzbekistan's freedom and stability... Amnesty International is concerned that such statements together with the authorities' persistent failure to initiate impartial and thorough investigations into allegations of torture and ill-treatment, may create an impression that torture and ill-treatment by law enforcement officials is acceptable, and even necessary conduct, and that they can engage in such conduct with impunity.
This briefing does not attempt to be a comprehensive study of torture and ill-treatment in Uzbekistan. Instead it concentrates on those articles of the Convention which are most relevant to Amnesty International's current and most pressing concerns.
Failure to ensure that all acts of torture are offences under the criminal law (Article 4)
Uzbekistan fails to fully meet the requirements under Article 4 of the Convention to ensure that all acts of torture are offences under its criminal law and that such offences are punishable by appropriate penalties which take into account their grave nature.
Neither the constitution nor the criminal code, although respectively prohibiting and punishing acts of torture, contain a definition of torture as set out in Article 1 of the Convention. Article 26 of the Uzbek Constitution guarantees under point 2 that no one may be subject to torture, force, or other treatment which is cruel or demeaning to the dignity of the person.
Article 235 of the criminal code criminalizes obtaining a confession by coercion. Although explicit in its description of prohibited methods of coercion (beatings, inflicting grievous or less grievous bodily harm, torture) and specific in naming the perpetrators (investigating and interrogating officers, procurators) the article is still far more narrow in its definition of torture than Article 1 of the Convention. The maximum penalty prescribed under this article is five to eight years' imprisonment.
Other articles, including Article 110 of the Uzbek Criminal Code, punish various assaults but do not relate specifically to agents of the state... The Uzbek press has reported that law enforcement officers have been prosecuted for using unlawful methods in detaining and interrogating suspects. However, to Amnesty International's knowledge, in the period under review, none of the law enforcement officials identified as perpetrators of acts of torture by victims of human rights violations whose cases the organization has taken up has been charged under the above articles of the criminal code...
Time and again Amnesty International has received credible reports that suspects were denied access to a lawyer of their choice. Often the lawyers are only given access by law enforcement officials after the suspect has been held in custody for several days, which is when the risk of torture or ill-treatment is the greatest. In many cases law enforcement officials will only grant access to the lawyer after the suspect has signed a confession. Meetings between lawyers and clients, when they are granted, are generally infrequent, because unlimited access to a client as prescribed by the law is difficult for lawyers to obtain. Defence lawyers are rarely allowed to be present at all stages of the investigation...
Article 17 of the Code of Criminal Procedure explicitly prohibits the use of torture and obliges judges, procurators, investigators and interrogators to respect a person's honour and dignity at every stage of legal proceedings. Nevertheless, Amnesty International has received countless reports from different sources – former prisoners, relatives of prisoners, defence lawyers, human rights monitors, international human rights organizations, diplomats, copies of court documents – that law enforcement officials continue to routinely violate legal obligations not to subject any person to torture or cruel, inhuman or degrading treatment.
...
Prison conditions
Conditions under which detainees are held pre-trial are reportedly so poor as to amount to cruel, inhuman and degrading treatment. In 1997 the Uzbek authorities admitted that conditions of detention fall far short of the UN basic minimum standards for the treatment of prisoners. Overcrowding is the norm, with at least two inmates to a bunk bed, sleeping in turns. Inadequate sanitation, shortages of food and basic medication exacerbate the risk of disease, such as tuberculosis. Former prisoners have described punishment cells as underground 'holes', one square metre with standing room only near the door. The rest of the cell is said to be only 1.5 metres in height, allowing the prisoner only to crouch or sit. Cells are also said to be overrun with vermin. As with the conditions on death row, these allegations are difficult to verify independently given the Uzbek authorities' refusal to allow access to independent monitors.”
54. In its Annual Report of 28 May 2002, Amnesty International noted with respect to the Republic of Uzbekistan:
“Reports of ill-treatment and torture by law enforcement officials of alleged supporters of banned Islamist opposition parties and movements, such as Hizb-ut-Tahrir, continued unabated. Thousands of devout Muslims and dozens of members or supporters of the banned secular political opposition parties and movements Erk and Birlik were serving long prison sentences, convicted after unfair trials of membership of an illegal party, distribution of illegal religious literature and anti-state activities. Reports continued to be received that devout Muslim prisoners were singled out for particularly cruel, inhuman and degrading treatment in places of detention, particularly prison camps. Several prisoners, among them a prominent human rights defender, died in custody, allegedly as a result of torture. There were at least 22 death sentences, reportedly imposed after unfair trials, and at least four executions were carried out.
...
In November Muhammad Salih, the exiled leader of the banned opposition Erk Democratic Party, was detained by Czech police at Prague airport, Czech Republic. He was remanded in custody while an extradition request from Uzbekistan was being examined. In December he was released and returned to Norway, where he had received refugee status in 1999, after Prague City Court ruled against extradition to Uzbekistan.
In September President Karimov publicly stated that around 100 people were executed each year. In October the number of offences punishable by death was reduced to four.
Allegations of torture and ill-treatment
Reports of ill-treatment and torture by law enforcement officials of alleged supporters of banned Islamist opposition parties and movements, including women, continued unabated. Thousands of devout Muslims and dozens of members or supporters of the banned secular political opposition parties and movements Erk and Birlik were serving long prison sentences, convicted after unfair trials of membership of an illegal party, distribution of illegal religious literature and anti-state activities. The courts were reported to have systematically failed to investigate or take into account the defendants' allegations of torture. Defendants accused of non-political criminal activities were also reported to have been tortured and ill-treated in detention in attempts to coerce confessions.
Reports continued to be received that devout Muslim prisoners were singled out for particularly cruel, inhuman and degrading treatment in places of detention, especially in strict regime prison camps...
...
In June, 73 ethnic Tajik mountain villagers were found guilty of collaborating with the IMU during their incursion into Uzbekistan in August 2000 and sentenced to between three and 18 years' imprisonment in four separate closed trials. This was despite earlier government assurances to the UN Human Rights Committee that the action to evacuate the villagers was taken in order to improve the living conditions of the people concerned and that no criminal cases would be opened against these forcibly displaced villagers. The group trials, which opened simultaneously and without prior notice at the end of May in Tashkent, were held in separate court buildings cordoned off by armed police. Relatives trying to gain access to the court proceedings were reportedly intimidated and attempts were made to force them to leave the city.
Only one foreign observer, representing the non-governmental organization Human Rights Watch, obtained access to one of the trials. All others, including foreign diplomats, local human rights monitors and the media, were barred.
According to the Human Rights Watch observer, the prosecution failed to provide any substantive evidence to prove the defendants' guilt. All the defendants had allegedly been held incommunicado until their trial and had not been granted the right to be represented by a lawyer of their own choice. In court the defendants reportedly withdrew their confessions and alleged that they had been tortured in order to force them to confess to fabricated charges. They alleged that they had been forced to memorize and recite prepared confessions on film. Some of the men showed the court marks on their bodies allegedly caused by torture. The court, however, failed to take any of these allegations into consideration.
...”
55. Rule 39 of the Rules of Court empowers a Chamber or, where appropriate, its President, to indicate interim measures which it considers should be adopted. Past practice shows that in principle requests for interim measures under Rule 39 are made in cases in which there is an imminent danger to the applicant's life or of torture, or inhuman or degrading treatment or punishment. Such requests generally refer to Articles 2 and 3 of the Convention and concern a person's deportation, extradition or repatriation to his or her country of origin (whether it be the Contracting Party or another State) by the State against which the complaint has been lodged.
56. Rule 36 of the European Commission of Human Rights Rules of Procedure provided:
“The Commission, or when it is not in session, the President may indicate to the parties any interim measure the adoption of which seems desirable in the interest of the parties or the proper conduct of the proceedings before it.”
VIOLATED_ARTICLES: 34
NON_VIOLATED_ARTICLES: 3
6


ITEMID: 001-95071
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BUZHINAYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1974 and lives in Barguzin, Republic of Buryatiya.
7. On 1 April 1998 the applicant was arrested on suspicion of robbery. On 3 April 1998 the Prosecutor's Office of the Oktyabrskiy District of Ulan-Ude authorised his pre-trial detention. The applicant remained in custody pending investigation and trial.
8. Upon completion of the investigation in December 1998, the prosecutor's office forwarded the case file in respect of the applicant and six other defendants to the Supreme Court of the Republic of Buryatiya. The Supreme Court found, however, that the case should be remitted to the prosecutor's office in view of the incomplete investigation. The relevant decision was issued on 26 January 1999. Subsequently the Supreme Court remitted the matter for additional investigation on 15 June 1999 and 31 March and 4 July 2000.
9. The opening of the trial was scheduled by the Supreme Court on 8 December 2000.
10. On 8 and 14 December 2000 the hearing was adjourned due to the absence of the interpreter.
11. Between 19 January and 17 April 2001 the Supreme Court scheduled and adjourned seventeen hearings. The Government submitted the information concerning the reasons for the adjournment as follows. On one occasion the applicant's lawyer failed to appear. On four occasions the court could not proceed due to the absence of one of the legal counsel representing other defendants. Three times the interpreter failed to appear due to his illness or business trips. Once the hearing was adjourned pending the completion of an additional forensic medical examination. The court also went into recess for two days on one occasion to prepare its ruling in response to the submissions made by the parties.
12. On 18 May 2001 the Supreme Court found the applicant guilty as charged and sentenced him to eight years' imprisonment.
13. On 5 December 2002 the Supreme Court of Russia upheld the applicant's conviction on appeal. The applicant's representative was present; the applicant participated in the hearing by video link.
14. From 6 April 1998 to 16 May 2002 the applicant was detained at remand prison IZ-4/1 in Ulan-Ude. According to the Government, from 6 April 1998 to 3 April 2001 the applicant was held in cell no. 170, which measured 45.6 sq. m and housed 14-16 inmates. From 3 April to 28 November 2001 the applicant was held in cell no. 117, which measured 46.02 sq. m and housed 7-9 inmates. From 28 November 2001 to 16 May 2002 the applicant was held in cell no. 44, which measured 57.76 sq. m and housed 16-19 inmates.
15. On 16 May 2002 the applicant was taken to Moscow and placed in remand prison no. IZ-77/3 where he was detained pending an appeal hearing until 21 December. According to the Government, the applicant was held in cell no. 212, which measured 28.5 sq. m and housed seven inmates.
16. On 23 January 2003 the applicant was returned to remand prison IZ-4/1, where he was placed in cell no. 48 which, according to the Government, measured 74.86 sq. m and housed 23-26 inmates. On 28 January 2003 the applicant was transferred to a penitentiary facility to serve his prison sentence.
17. Without disputing the information submitted by the Government concerning the size of the cells, the applicant claimed that all of them had been overcrowded. The number of bunk beds was insufficient and the inmates had to take turns to sleep. The cells did not have any ventilation and were stiflingly hot in summer. The cells were infested with cockroaches. The light was never switched off. There was little access to fresh air. The toilet offered no privacy. The meals were of poor quality. The inmates were allowed to take a shower once or twice a month. As a result of the poor hygiene the applicant contracted scabies and fungus infection.
18. According to the Government the conditions of the applicant's detention were satisfactory. The cells were ventilated and had central heating, water supply, sewage, natural and electric lighting and sanitary equipment. The toilet was separated by a partition from the living area of the cell. In remand prison IZ-1/4 that partition was 1.8 m high. In remand prison IZ-77/3 it was 1 m high. The average temperature in the cells was 220C in the winter and 18-260C in the summer. The electric lighting was constantly on for surveillance and safety reasons. At night lower-voltage bulbs were used. The cells were disinfected at least once a month. The applicant was provided with an individual bed, mattress, pillow and bed linen. No parasitic insects had ever been detected in the cells.
19. On 2 April 2001 the applicant was diagnosed with tuberculosis and transferred to a medical unit at the remand centre. He underwent medical treatment and was released from the medical unit on 31 August 2001. Upon discharge, his condition was described as “clinically curable tuberculosis pertaining to the third group for preventive monitoring” (“клинически излечимый туберкулез, III группа диспансерного учета»). According to the Government, the applicant received necessary and proper medical assistance.
VIOLATED_ARTICLES: 13
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ITEMID: 001-23445
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: DJURICIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Strahinja Djuričić, a Croatian citizen, who was born in 1924, died on 24 October 2002. His wife, Ms Zorka Djuričić expressed a wish to pursue the application. The Respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 April 1995 the applicant instituted civil proceedings before the Bjelovar Municipal Court (Općinski sud u Bjelovaru) seeking damages from the Republic of Croatia.
Before 5 November 1997, when the Convention entered into force in respect of Croatia, the first instance court adopted a judgment which was quashed upon the applicant’s appeal . The first instance court then adopted a new judgment which was upheld upon the applicant’s appeal by the Bjelovar County Court (Županijski sud u Bjelovaru) on 12 November 1996.
On 25 November 1996 the applicant filed a request for revision on points of law.
On 17 December 1997 the Supreme Court rejected the applicant’s request. On 7 April 1998 the decision to that effect was forwarded to the Supreme Court’s Case-Law Study Department (Služba evidencije, praćenja i proučavanja sudske prakse) in order to secure its conformity with the Supreme Court’s case-law.
On 4 May 1998 the above-mentioned Department forwarded the decision to the Supreme Court’s Civil Department Registry.
On 12 May 1998 the decision was forwarded to the Bjelovar County Court and from there, on 28 May 1998, to the Bjelovar Municipal Court. The latter served the decision on the applicant on 8 June 1998.
On 17 June 1998 the applicant filed a constitutional complaint.
On 22 July 1998 the Constitutional Court invited the applicant to file additional submissions. The applicant did so on 31 August 1998.
On 7 October 1998 the Bjelovar Municipal Court sent the case-file to the Constitutional Court.
On 21 October 1998 the Constitutional Court forwarded the applicant’s complaint to the State Attorney’s Office (Državno odvjetništvo Republike Hrvatske).
On 10 May 2001 the Constitutional Court rejected the applicant’s complaint.