46
MAMATKULOV AND ASKAROV v. TURKEY JUDGMENT –
JOINT PARTLY DISSENTING OPINION
Uzbekistan, the majority of the Court consider that those findings did not
support the specific allegations made by the applicants in the instant case
and required corroboration by other evidence (see paragraph 73 of the
judgment). It is their view that insufficient corroborative evidence has been
adduced to enable the Court to conclude that substantial grounds existed at
the date of the applicants' extradition to believe that they faced a real risk of
treatment proscribed by Article 3 (see paragraph 77 of the judgment).
7. We cannot agree that the undisputed findings concerning the general
situation in Uzbekistan afford no support for the specific allegations of the
applicants that they ran a real risk of ill-treatment if returned to that country.
We consider that, on the contrary, the findings provide strong grounds for
believing that the applicants were at particular risk of such treatment. Not
only were both applicants members of Erk but both were arrested in March
1999 (shortly after the reported terrorist bomb attacks in Tashkent) on
suspicion of homicide, causing injuries by explosions and an attempted
terrorist attack on the President of Uzbekistan himself.
8. It is unclear to us what further corroborative evidence could
reasonably be expected of the applicants, particularly in a case such as the
present, where it was Turkey's failure to comply with the interim measures
indicated by the Court which has prevented the Court from carrying out a
full and effective examination of the application in accordance with its
normal procedures. In such a situation, we consider that the Court should be
slow to reject a complaint under Article 3 in the absence of compelling
evidence to dispel the fears which formed the basis of the application of
Rule 39.
9. In concluding that the required level of risk had not been sufficiently
shown, the majority of the Court place reliance on three particular features
of the case – the assurances given by the Uzbek government; the statement
by the Public Prosecutor of the Republic of Uzbekistan, which accompanied
those assurances, to the effect that Uzbekistan was a party to the United
Nations Convention against Torture and accepted and reaffirmed its
obligation to comply with the requirements of that convention; and the
medical reports from the doctors of the Uzbek prisons in which the two
applicants were being held.
10. We do not consider any of these factors to be compelling or to be
sufficient, either individually or collectively, to allay the serious concerns
concerning the treatment which was liable to await the applicants on their
return. As to the assurances, we find it striking that the only assurance
which was received prior to the applicants' surrender (namely, that of 9
March 1999) was not even communicated to the Court until 19 April 1999,
well after the application of Rule 39 and after the extradition had been
effected in disregard of the Court's interim measures. Moreover, an
assurance, even one given in good faith, that an individual will not be
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