32
MAMATKULOV AND ASKAROV v. TURKEY JUDGMENT
Party's Convention obligations and its obligations under an extradition
treaty with a third-party State by giving precedence to the former.
2. Did the applicants' extradition hinder the effective exercise of the
right of application?
108. In cases such as the present one where there is plausibly asserted to
be a risk of irreparable damage to the enjoyment by the applicant of one of
the core rights under the Convention, the object of an interim measure is to
maintain the status quo pending the Court's determination of the
justification for the measure. As such, being intended to ensure the
continued existence of the matter that is the subject of the application, the
interim measure goes to the substance of the Convention complaint. As far
as the applicant is concerned, the result that he or she wishes to achieve
through the application is the preservation of the asserted Convention right
before irreparable damage is done to it. Consequently, the interim measure
is sought by the applicant, and granted by the Court, in order to facilitate the
“effective exercise” of the right of individual petition under Article 34 of the
Convention in the sense of preserving the subject matter of the application
when that is judged to be at risk of irreparable damage through the acts or
omissions of the respondent State.
In the present case, because of the extradition of the applicants to
Uzbekistan, the level of protection which the Court was able to afford the
rights which they were asserting under Articles 2 and 3 of the Convention
was irreversibly reduced.
In addition, the Court considers that it is implicit in the notion of the
effective exercise of the right of application that for the duration of the
proceedings in Strasbourg the Court should remain able to examine the
application under its normal procedure. In the present case, the applicants
were extradited and thus, by reason of their having lost contact with their
lawyers, denied an opportunity to have further inquiries made in order for
evidence in support of their allegations under Article 3 of the Convention to
be obtained. As a consequence, the Court was prevented from properly
assessing whether the applicants were exposed to a real risk of ill-treatment
and, if so, from ensuring in this respect a “practical and effective”
implementation of the Convention's safeguards, as required by its object and
purpose (see paragraph 101 above).
109. The Court has previously considered whether, in the absence of an
express clause in the Convention, its organs could derive from Article 34
(former Article 25), taken alone or in conjunction with Rule 39 (former
Rule 36), or from any other source, the power to order interim measures that
were binding (see Cruz Varas and Others, cited above, and Čonka v.
Belgium (dec.), no. 51564/99, 13 March 2001). In those cases it concluded
that such a power could not be inferred from either Article 34, in fine, or
from other sources (see Cruz Varas and Others, pp. 36-37, §§ 102-03).
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