MAMATKULOV AND ASKAROV v. TURKEY JUDGMENT –
JOINT PARTLY DISSENTING OPINION
45
applicant on his return to the receiving country is not conclusive, the
essential question being whether it was foreseeable at the time of the
expulsion that the person would be subjected to ill-treatment reaching the
threshold of Article 3.
4. The two applicants were detained in Turkey on 3 and 5 March 1999
respectively. On 18 March the President of the Chamber applied Rule 39 of
the Rules of Court, indicating to the Turkish Government that it was
desirable in the interests of the parties and the proper conduct of the
proceedings before the Court that the applicants should not be extradited to
Uzbekistan until the Chamber had had an opportunity to examine the
application at its meeting on 23 March 1999. On 19 March the Turkish
Government issued a decree ordering the applicants' extradition. On
23 March the Chamber decided to extend until further notice the interim
measure indicated under Rule 39. On 27 March the applicants were handed
over to the Uzbek authorities. The question to be determined is accordingly
whether at the latter date there existed substantial grounds for believing that
the applicants faced a real risk of treatment proscribed by Article 3.
5. By applying Rule 39 the Chamber of the Court was necessarily
satisfied that there existed at least a prima facie case for the existence of
such a risk. There appears to us to have been a strong basis for such a view.
As noted in the judgment, the general human rights situation in Uzbekistan
at the relevant time was very poor, the contemporary reports of international
human rights organisations denouncing an administrative practice of torture
and other forms of ill-treatment of political dissidents in that country. In
particular, Amnesty International's briefing for the United Nations
Committee against Torture, which was made public in October 1999, found
a failure on the part of Uzbekistan fully to implement its obligations under
the Convention against Torture. The briefing recorded, inter alia, a growing
number of reports of ill-treatment and torture by law enforcement officials
of persons perceived to be members of Islamic congregations since 1997
and noted especially reports of the arrest, ill-treatment and torture of
suspected supporters of the banned political opposition parties and
movements (specifically Erk and Birlik) in the wake of bomb explosions in
the capital, Tashkent, in February 1999. The briefing further cited
independent and credible reports that 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 the
finding of guilt. The briefing also referred to public statements by Uzbek
officials, including the President of Uzbekistan himself, which, if not
directly sanctioning the use of violence by State agents, could be perceived
at the very least as condoning the use of torture and ill-treatment.
6. While accepting that the findings of the various reports of human
rights organisations accurately described the general situation in
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