Mensenrechtenhof veroordeelt Spanje wegens uitlevering Peruvaanse terrorismeverdachte zonder hoger beroep (en)
Press release issued by the Registrar
Chamber judgment
Olaechea Cahuas v. Spain
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Olaechea Cahuas v. Spain (application no. 24668/03).
The Court held unanimously that there had been:
· a violation of Article 34 (right of individual application) of the European Convention on Human Rights on account of Spain’s failure to comply with the interim measure indicated by the Court, namely, not to extradite the applicant;
· no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention on account of the applicant’s extradition to Peru;
· no violation of Article 5 (right to liberty and security);
· no violation of Article 6 § 1 (right to a fair trial).
Under Article 41 (just satisfaction), the Court awarded the applicant 5,000 euros (EUR) for non-pecuniary damage and EUR 3,000 for costs and expenses. (The judgment is available only in French.)
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1.Principal facts
The applicant, Adolfo Héctor Olaechea Cahuas, is a Peruvian national, aged 62, living in Peru.
On 3 July 2003 the applicant, against whom an international warrant had been issued on the grounds of his presumed membership of the “Shining Path2” (Sendero Luminoso), was arrested in Almeria (Spain) during a routine check. Peru requested his extradition on the basis of a terrorist offence.
The applicant was taken into custody pending a ruling on his extradition. He voiced his opinion about his extradition, in accordance with the Treaty concerning Extradition of 28 June 1989 between Peru and Spain, and agreed to “simplified extradition” (to be returned immediately to the requesting country) and the benefit of the speciality rule (to be tried only in respect of the offence for which extradition is requested).
Noting that the Peruvian Government was bound by international standards in the field of the protection of fundamental rights, such as the American Convention on Human Rights, and that it undertook not to sentence the applicant to the death penalty or life imprisonment, the Audiencia Nacional granted the applicant’s extradition on 18 July 2003. The applicant lodged an appeal against that decision, which was dismissed by the investigating judge on 4 August 2003.
The applicant lodged an application with the European Court of Human Rights, which indicated to the Spanish Government on 6 August 2003, under Rule 39 (interim measures) of the Rules of Court, not to extradite him to Peru before the examination of the case on 26 August 2003.
The following day, however – on 7 August 2003 – the applicant was extradited to Peru. He was conditionally released in November 2003 on account of the lack of sufficient evidence that he was a member of the “Shining Path” organisation. In February 2004 the Audiencia Nacional allowed the Peruvian authorities to extend the extradition charges so that the applicant could be tried in Peru on the charge of funding the “Shining Path” terrorist group from abroad. An amparo appeal lodged by the applicant against that decision is pending before the Constitutional Court.
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2.Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 6 August 2003.
Judgment was given by a Chamber of seven judges, composed as follows:
Peer Lorenzen (Danish), President,
Snejana Botoucharova (Bulgarian),
Karel Jungwiert (Czech),
Volodymyr Butkevych (Ukrainian),
Rait Maruste (Estonian),
Javier Borrego Borrego (Spanish),
Renate Jaeger (German), judges,
and also Claudia Westerdiek, Section Registrar.
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3.Summary of the judgment3
Complaints
The applicant submitted that his extradition to Peru, where he ran the risk of being subjected to ill-treatment, had resulted in a violation of Article 3. He also alleged that his arrest with a view to his extradition had been contrary to Articles 5 and 6. Lastly, he alleged a breach of Article 34 on account of the failure to comply with the interim measure indicated by the Court.
Decision of the Court
Article 3
The Court noted that the applicant had been extradited after guarantees had been obtained from the Peruvian Government that he would not be sentenced to death or life imprisonment. Moreover, it had been specified that the guarantees provided by the Peruvian Government reflected the fact that they were bound by international standards in the field of the protection of fundamental rights, one of which was the scrutiny of the Inter-American Court of Human Rights.
In the light of the material in its possession, including in particular the information following the date of extradition to Peru, the Court concluded that there was insufficient evidence to make out the existence of treatment contrary to Article 3 in the applicant’s case. Spain’s failure to comply with the indication given under Rule 39 of the Rules of Court, which had prevented the Court from assessing whether there existed an actual risk in the manner it considered appropriate in the circumstances of the case, had to be examined under Article 34.
Accordingly, the Court held that there had been no violation of Article 3.
Article 5 § 1
It was indisputable that extradition proceedings had been under way against the applicant when he was taken into custody pending a ruling on his extradition. Moreover, both the central investigating judge and the Audiencia Nacional had reviewed and established the lawfulness of the proceedings in question under Spanish law. Finding that the entire period of the applicant’s detention had been covered by the exception provided for in Article 5 § 1 (f), the Court held that there had not been a violation of Article 5.
Article 6 § 1
Although, in the light of the available information, there might at the time of the applicant’s extradition have been some doubts about the fairness of the trial that he would face in Peru, there was insufficient evidence that the possible flaws in the trial would amount to a “flagrant denial of justice”. The Court therefore held that there had been no violation of Article 6 § 1.
Article 34
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 concerned complied with the decision to apply the interim measure, the risk was averted and any future hindrance of the right of application eliminated. If it did not comply with the interim measure, however, the risk of hindering the effective exercise of the right of application continued and it was the facts occurring after the Court’s decision and the Government’s non-compliance which determined whether the risk had materialised or not. Even if it did not, the force of the interim measure had to be regarded as binding.
A State’s 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.
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The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).
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