50 MAMATKULOV AND ASKAROV v. TURKEY JUDGMENT JOINT PARTLY DISSENTING OPINION OF JUDGES CAFLISCH, TÜRMEN AND KOVLER 1. Preliminary observations 140. The judgment from which we partly dissent is ambiguous about the binding effect of interim measures indicated by the Court. Although, without any doubt, this is an essential issue, there is no direct reference to the legal consequences of interim measures “indicated” under Rule 39 of the Court's Rules of Procedure. Nevertheless, it can be deduced from paragraph 128 of the judgment that the majority wishes to attribute binding effect to such measures. The judgment bases the mandatory nature of interim measures essentially on Article 34 of the Convention. Paragraph 128 of the judgment states that the 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, as impeding the effective exercise of his or her right and, accordingly, as a violation of Article 34 of the Convention (right of individual application). 141. We are of the view that Article 34 of the Convention cannot serve as a basis for holding that the Court's interim measures are binding on the States Parties to the Convention. But even if one were to admit – which we are not prepared to do – that non-compliance may occasionally amount to a violation of Article 34, one would have to determine in each case whether such non-compliance indeed prevents the Court from examining the applicant's complaint and hinders the effective exercise of the individual's right of application. There are certainly cases where the Court has all the elements to examine the applicant's complaint despite non-compliance; and there are also cases where the Court applies Rule 39 to the applicant (for instance, in cases of hunger strike) and not to the Government. 142. In the present case, the Court did have the necessary elements to examine the applicants' Article 3 complaint. The respondent State received official guarantees from the Uzbek authorities that the applicants would not be sentenced to death, that they would not be subjected to torture and that their property would not be confiscated. The medical reports submitted to the Court, after the applicants were sentenced and imprisoned, indicate that they had not been ill-treated and were in good health, both physically and psychologically. Furthermore, two members of the Turkish embassy in Tashkent visited the applicants in prison and reported their observations to the Court. According to their reports, the applicants were in good health, they had not been subjected to any kind of ill-treatment in detention either before or after trial and their families could visit them regularly.