MAMATKULOV AND ASKAROV v. TURKEY JUDGMENT
37
Indications of interim measures given by the Court, as in the present
case, permit it not only to carry out an effective examination of the
application but also to ensure that the protection afforded to the applicant by
the Convention is effective; such indications also subsequently allow the
Committee of Ministers to supervise execution of the final judgment. Such
measures thus enable the State concerned to discharge its obligation to
comply with the final judgment of the Court, which is legally binding by
virtue of Article 46 of the Convention.
126. Consequently, the effects of the indication of an interim measure to
a Contracting State – in this instance the respondent State – must be
examined in the light of the obligations which are imposed on the
Contracting States by Articles 1, 34 and 46 of the Convention.
127. The facts of the case, as set out above, clearly show that the Court
was prevented by the applicants' extradition to Uzbekistan from conducting
a proper examination of their complaints in accordance with its settled
practice in similar cases and ultimately from protecting them, if need be,
against potential violations of the Convention as alleged. As a result, the
applicants were hindered in the effective exercise of their right of individual
application guaranteed by Article 34 of the Convention, which the
applicants' extradition rendered nugatory.
3. Conclusion
128. The Court reiterates that by virtue of Article 34 of the Convention
Contracting States undertake to refrain from any act or omission that may
hinder the effective exercise of an individual applicant's right of application.
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.
129. Having regard to the material before it, the Court concludes that, by
failing to comply with the interim measures indicated under Rule 39 of the
Rules of Court, Turkey is in breach of its obligations under Article 34 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
130. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
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