MAMATKULOV AND ASKAROV v. TURKEY JUDGMENT –
JOINT PARTLY DISSENTING OPINION
49
defence lawyers rarely being allowed to be present at all stages of the
investigation.
18. So, far from the fears of an unfair trial being allayed in the case of
the two applicants, the information coming to light after their extradition
serves only to confirm in our view the well-foundedness of those fears. We
note at the outset that, while the Turkish Government received assurances
concerning the property rights and treatment of the applicants in
Uzbekistan, no assurances appear to have been sought by the Turkish
Government or obtained from the Uzbek authorities as to the fairness of the
criminal proceedings to which the applicants were to be subjected. More
particularly, despite the gravity of the charges faced by the applicants, no
attempt appears to have been made to safeguard the applicant's continued
contact with their legal representatives or to ensure that, once returned to
Uzbekistan, they would have access to legal advice and assistance from
independent lawyers of their own choosing. In fact, according to the
undisputed evidence of their legal representatives, once the extradition had
taken place, they were unable to have any contact with either applicant, by
letter or by telephone, prior to their trial or thereafter. The Uzbek authorities
have asserted that the self-incriminating statements on which their
convictions were principally based were made of the applicants' own free
will, that their trial was held in public and that the trial was attended by,
among others, “representatives of human rights organisations”. However,
these assertions must be viewed in the light of the other material before the
Court, notably the evidence of the third-party interveners – Human Rights
Watch – which was the only human rights organisation in fact permitted to
be represented at the applicants' trial. According to that evidence, the
applicants were denied the right to be represented by counsel of their own
choice, defending counsel being appointed by the public prosecutor; the
applicants were held incommunicado until the commencement of their trial
in June 1999; the trial was closed to the general public, to all family
members of the applicants and to attorneys hired on behalf of the defence;
and the self-incriminating statements used to convict the applicants included
those signed during the pre-trial police investigation, while the applicants
were in custody and without access to their own lawyers.
19. In our view, the evidence before the Court in the present case is
sufficient to establish the existence at the date of extradition of a real risk
that the applicants would suffer a flagrant denial of justice. In these
circumstances, the surrender of the applicants was also in violation of
Article 6
of
the
Convention.
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