48
MAMATKULOV AND ASKAROV v. TURKEY JUDGMENT –
JOINT PARTLY DISSENTING OPINION
and Spain, judgment of 26 June 1992, Series A no. 240, pp. 34-35, § 110;
Einhorn v. France (dec.), no. 71555/01, § 32, ECHR 2001-XI; Razaghi v.
Sweden (dec.), no. 64599/01, 11 March 2003; and Tomic v. the United
Kingdom (dec.), no. 17837/03, 14 October 2003). What constitutes a
“flagrant” denial of justice has not been fully explained in the Court's
jurisprudence, but the use of the adjective is clearly intended to impose a
stringent test of unfairness going beyond mere irregularities or lack of
safeguards in the trial procedures such as might result in a breach of
Article 6 if occurring within the Contracting State itself. As the Court has
emphasised, Article 1 cannot be read as justifying a general principle to the
effect that a Contracting State may not surrender an individual unless
satisfied that the conditions awaiting him in the country of destination are in
full accord with each of the safeguards of the Convention (see Soering, cited
above, pp. 33-34, § 86). In our view, what the word “flagrant” is intended to
convey is a breach of the principles of fair trial guaranteed by Article 6
which is so fundamental as to amount to a nullification, or destruction of the
very essence, of the right guaranteed by that Article.
15. As in the case of the risk of treatment proscribed by Article 3 of the
Convention, the risk of a flagrant denial of justice in the receiving State for
the purposes of Article 6 must be assessed primarily by reference to the
facts which were known or should have been known by the respondent State
at the time of the extradition.
16. The majority of the Court acknowledge that, in the light of the
information available, there “may have been reasons for doubting at the
time” that the applicants would receive a fair trial in Uzbekistan (see
paragraph 91 of the judgment). However, they conclude that there is
insufficient evidence to show that any possible irregularities in the trial were
liable to constitute a flagrant denial of justice within the meaning of
Soering.
17. We consider, on the contrary, that on the material available at the
relevant time there were substantial grounds not only for doubting that the
applicants would receive a fair trial but also for concluding that they ran a
real risk of suffering a flagrant denial of justice. The Amnesty International
briefing document afforded, in our view, credible grounds for believing that
self-incriminating evidence extracted by torture was routinely used to secure
guilty verdicts and that suspects were very frequently denied access to a
lawyer of their choice, lawyers often being given access to their client by
law enforcement officials after the suspect had been held in custody for
several days, when the risk of torture was at its greatest. In addition, it was
found that in many cases law enforcement officials would only grant access
to a lawyer after the suspect had signed a confession, and that meetings
between lawyers and clients, once granted, were generally infrequent,
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