The human rights conventions include various measures aimed at ensuring effective remedies for persons whose human rights have been violated. The remedies have partly been included in the provision on fair trial, partly in separate provision. For instance, the European Convention stipulates the right to access to court, which is an important element in remedying violations, in Article 6, the right to an effective remedy in Article 13 and actual reparations in Article 41. The ICCPR  includes compensation in the article on fair trial (Article 14), whichalso includes a condition with regard to access to court. In addition, Article 2 ICCPR stipulates the existence of effective remedies. Article 1 of the American Convention  contains a general legal obligation to respect the Convention and Article 25 contains the right to judicial protection.

Under the rule of law, effective remedies, effectiveness of justice, notably in providing effective recourse to anyone who alleges that her or his rights have been violated, is essential. Without such recourse, justice is of little use. While the American Convention stipulates in Article 25 ‘effective recourse to a competent court or tribunal’, the ICCPR contains a broader general provision requiring states to respect and ensure to all individuals within their territory the rights recognised in the Covenant. States must ensure that individuals have accessible, effective and enforceable remedies and obtain reparations where violations have occurred:

General Comment No. 31 - Nature of the General Legal Obligation Imposed on States Parties to the Covenant

Human Rights Committee

Adopted on 29 March 2004

Keywords: effective remedy - access to court

[?]

15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights. Such remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories of person, including in particular children. The Committee attaches importance to States Parties’ establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law. The Committee notes that the enjoyment of the rights recognised under the Covenant can be effectively assured by the judiciary in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretative effect of the Covenant in the application of national law. Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions, endowed with appropriate powers, can contribute to this end. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy.

16. Article 2, paragraph 3, requires that States Parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by articles 9, paragraph 5, and 14, paragraph 6, the Committee considers that the Covenant generally entails appropriate compensation. The Committee notes that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.

17. In general, the purposes of the Covenant would be defeated without an obligation integral to article 2 to take measures to prevent a recurrence of a violation of the Covenant. Accordingly, it has been a frequent practice of the Committee in cases under the Optional Protocol to include in its Views the need for measures, beyond a victim-specific remedy, to be taken to avoid recurrence of the type of violation in question. Such measures may require changes in the State Party’s laws or practices.

The various conventions deal with the requirement of effective remedies in their own way. In this section we discuss the questions of recourse to justice under three headings:

• effective remedy
• access to court
• actual reparations and/or just satisfactions

The case below is informative as it shows clearly the close relationship in the European Convention between Article 6 on fair trial and Article 13 with regard to effective remedies. The applicant faced endless delays in decisions on his liberty and had no remedy to address these delays.

Kudla v. Poland

European Court of Human Rights

Application No. 30210/96

Judgement of 26 October 2000

Keywords: reasonable time - effective remedy

[?]

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The applicant’s detention and the proceedings against him

10. On 8 August 1991 the applicant was brought before the Cracow Regional Prosecutor (Prokurator Wojewódzki), charged with fraud and forgery and detained on remand. Since the applicant reported to the prosecutor that he was suffering from various ailments – in particular, depression – the authorities ordered that he be examined by a doctor. After the examination, which was carried out a few days later, the applicant was found fit to be detained in prison. He was placed in Cracow Remand Centre (Areszt Zledczy). [. . .]

12. From August 1991 to the end of July 1992 the applicant filed some thirty applications for release and appeals against decisions refusing to release him. [?]

18. On 27 July 1992 the Cracow Regional Court quashed the detention order. [?]

20. [He was redetained as from by 4 October 1993, when the applicant was arrested by the police in connection with a traffic offence. He was placed in Cracow Remand Centre. [ . . .]

26. [Hearings] took place on 11 July 1994. The hearings listed for 12 and 14 July 1994 were cancelled because the applicant had withdrawn the power of attorney granted to his defence counsel. The trial continued on 20, 21 and 22 September, 25 and 26 October, and 14 and 15 November 1994. The hearings listed for 20, 21 and 22 December 1994 were cancelled because one of the applicant’s co-defendants was admitted to hospital at that time.

27. In the meantime, on 17 November 1994, the applicant had complained to the President of the Cracow Regional Court about the length of his detention and the conduct of the proceedings in his case. He complained, in particular, that all of his nine co-defendants had been released, whereas he was still being detained despite the fact that the overall length of his detention had now exceeded two years. He asserted that the minutes of the hearings had not reflected witnesses’ testimony, that the court had failed to enter in the record his and his lawyer’s submissions and had not allowed him to express his version of the facts of the case freely. The criminal proceedings against him, which had to date lasted more than four years, were, to use his term, a “nightmare”.

28. On 7 December 1994 the applicant complained to the court about his psychiatric treatment in prison. The presiding judge asked the prison authorities for explanations. They informed him of the number of medical examinations undergone by the applicant, gave details of them and produced copies of the relevant medical records.

29. At about the same time, the applicant again requested the court to release him on health grounds. He also referred to his family situation, maintaining that his lengthy detention was putting a severe strain on his family. On 8 December 1994 the Cracow Regional Court dismissed the application.

30. On 4 January 1995, on an appeal by the applicant, the Cracow Court of Appeal (Sd Apelacyjny) upheld the Regional Court’s decision and held that his detention should continue in view of the reasonable suspicion that he had committed the offences in question and the fact that he had been detained on the ground of the risk that he would abscond. The court also found that the situation of the applicant’s family, although difficult, was not a circumstance that could militate in favour of his release.

31. On 25 January 1995 the applicant’s lawyer applied to the Cracow Regional Court to have the detention order quashed and the applicant released under police supervision. [?]

33.On 25 February 1995 the applicant’s lawyer appealed against the Regional Court’s decision, submitting that the applicant’s mental health had significantly deteriorated and that he was constantly suffering from depression.

34. On 2 March 1995 the Cracow Court of Appeal dismissed the appeal. The court considered that it was not necessary to call medical experts and that the applicant’s detention should continue in order to ensure the proper conduct of the proceedings. Later, between 8 March and 1 June 1995, the applicant made four further unsuccessful applications for release and lodged similarly ineffective appeals against decisions to keep him in detention.

35. On 13, 14 and 15 March, 3, 4 and 5 April, and 4, 5, 30 and 31 May 1995 the Regional Court held hearings and heard evidence from witnesses. Certain witnesses, who had previously failed to appear, were brought to the court by the police.

36. On 1 June 1995 the Cracow Regional Court convicted the applicant of fraud and forgery and sentenced him to six years’ imprisonment and a fine of 5,000 zlotys (PLN). On 2 June 1995 both the applicant and his lawyer filed a notice of appeal.

37. On 1 August 1995 the applicant complained to the Minister of Justice that the trial court had not prepared the statement of reasons for its judgement within the statutory time-limit of seven days. He submitted that the delay had already amounted to two months.

38. At some later date the applicant requested to be released, arguing that his prolonged detention had had very harmful effects on his health and on the well-being of his family. [ . . ]

40. On 27 September 1995, at the Regional Court’s request, the applicant was examined by forensic psychiatrists[. . ]

41. On 6 October 1995 the applicant received the statement of the reasons for the judgement and, at some date thereafter, lodged an appeal. The case file was transferred to the Cracow Court of Appeal on 14 November 1995.

42. On 22 February 1996 the Court of Appeal quashed the conviction and ordered a retrial on the ground that the trial court had been incorrectly constituted and that there had been numerous breaches of procedural provisions. During the appellate hearing the applicant’s lawyer had asked the court to quash the detention order, but without success.

43. On 11 April 1996 the case file was sent to the Regional Court. The Regional Court subsequently made a severance order and thereafter the applicant was tried separately from several other defendants.

44. On 30 April 1996 the applicant requested that the preventive measure imposed on him be lifted or varied. On 28 May 1996 the Cracow Regional Court gave a decision in which it stated, inter alia:

“? At the present stage of the case, proper conduct of the proceedings can be ensured by imposing preventive measures other than detention. ? The Court therefore quashes the detention order on condition that the applicant puts up bail of PLN 10,000 within one month from the date on which this decision is served on him. ?”

45. The applicant appealed against that decision and requested that the bail be reduced and set in the light of his financial circumstances or, alternatively, that the court secure proper conduct of the trial by ordering him to submit to police supervision.

48. Shortly afterwards, the applicant complained to the Ombudsman (Rzecznik Praw Obywatelskich) that the overall length of his detention had now exceeded three years. The complaint was referred to the President of the Cracow Court of Appeal, who on 12 July 1996 sent a letter to the applicant.

49. Meanwhile, the applicant had again applied to the Cracow Regional Court to release him under police supervision or to reduce the bail set by the court on 28 May 1996. On 2 July 1996 the court refused the application.

51. On 31 July 1996 the applicant again requested the Regional Court to reduce the amount of security or to release him under police supervision. He submitted that he did not have sufficient financial resources to pay such a substantial sum of money. On 19 August 1996 the court dismissed his application as manifestly ill-founded. It observed that the applicant’s arguments concerning the question of bail had been an “unjustified dispute with the institutions of justice” and that bail could be put up not only by the applicant himself but also by third parties.

52. Later, the applicant requested the Regional Court to release him so that he could provide the required security. On 10 September 1996 the court dismissed this request, holding, inter alia: [ . . ]

53. The retrial was to start on 10 October 1996 but was postponed because one of the applicant’s co-defendants had meanwhile been detained in connection with other criminal proceedings against him.

54. On 29 October 1996 the Cracow Regional Court quashed the detention order after the applicant’s family had paid bail of PLN 10,000 to the court.

55. [. . ] On 4 December 1998 the court gave judgement. The applicant was convicted as charged and sentenced to six years’ imprisonment.

56. He appealed on 19 April 1999. On 27 October 1999 the Cracow Court of Appeal varied the trial court’s judgement and reduced the applicant’s sentence to five years’ imprisonment.

57. Subsequently the applicant lodged a cassation appeal (kasacja). On 24 February 2000 the Cracow Court of Appeal, having found that the applicant had complied with the relevant formal requirements for such appeals, forwarded his appeal to the Supreme Court. The proceedings in the Supreme Court are still pending.

B. Medical treatment received by the applicant during his detention [?]

58. The applicant was held at Cracow Remand Centre from 4 October 1993 to 29 October 1996, with only one interruption: on 9 March 1994 he was transferred to WrocBaw Prison Hospital where, until 26 May 1994, he underwent psychiatric observation ordered in other criminal proceedings against him.

60. In November 1993 the applicant was examined by prison doctors eight times. It was recorded that he was suffering from chronic insomnia and lack of appetite and, subsequently, from recurring headaches, dizziness and difficulty in concentrating.

74. In the period from the beginning of January to the end of August 1996 the applicant was examined by doctors on thirty-two occasions; twelve examinations were carried out by psychiatrists.

THE LAW

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

[?]

100. Accordingly, there has been no violation of that Article in the present case.

II. ALLEGED VIOLATION OF ARTICLE 5§ 3 OF THE CONVENTION

101. The applicant complained, secondly, that his detention on remand had been excessive and he alleged a violation of Article 5§ 3 of the Convention [?]

A. Period to be taken into consideration

102. In the proceedings in question the applicant was twice detained on remand. He was detained for the first time on 8 August 1991 and remained in custody for nearly a year, that is to say, until 27 July 1992. Then, he was arrested on 4 October 1993 and thereafter spent some three years in detention before being released on bail on 29 October 1996 (see paragraphs 10, 18-20 and 54 above).

103. However, as Poland’s declaration recognising the right of individual petition for the purposes of former Article 25 of the Convention took effect on 1 May 1993, the period of the applicant’s detention before that date lies outside the Court’s jurisdiction ratione temporis.

104. Furthermore, the Court reiterates that, in view of the essential link between Article 5§ 3 of the Convention and paragraph 1 (c) of that Article, a person convicted at first instance cannot be regarded as being detained “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, as specified in the latter provision, but is in the position provided for by Article 5§ 1 (a), which authorises deprivation of liberty “after conviction by a competent court” (see, for example, the B. v. Austria judgement of 28 March 1990, Series A no. 175, pp. 14-16, § 36-39). Accordingly, the applicant’s detention from 1 June 1995, the date of his original first-instance conviction, to 22 February 1996, the date on which that conviction was quashed and his case remitted, cannot be taken into account for the purposes of Article 5§ 3.

105. The Court consequently finds that the period to be taken into consideration consisted of two separate terms, the first lasting from 4 October 1993 to 1 June 1995 and the second from 22 February to 29 October 1996, and amounted to two years, four months and three days.

B. Reasonableness of the length of detention

110. The Court reiterates that the question of whether or not a period of detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Labita, cited above, § 152 et seq.).

It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the above-mentioned requirement of public interest justifying a departure from the rule in Article 5 and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5§ 3 (see the Muller v. France judgement of 17 March 1997, Reports 1997-II, p. 388,§ 35).

111. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings (ibid.).

112. The Court observes that in the instant case it does not appear to be contested that the principal reason why the authorities ordered that a “wanted” notice be issued and the applicant again be detained on remand was his failure to comply with the time-limit for submitting a medical certificate and to indicate an address at which summonses could be served on him during his treatment in Zwinouj[cie (see paragraph 19 above). On those two facts the Cracow Regional Court and the Cracow Court of Appeal based their opinion that there was a risk that the applicant would abscond, a risk which justified his being detained to ensure the proper conduct of the proceedings. The courts reiterated that opinion in nearly all their decisions dismissing the numerous applications for release he made in the years following his arrest on 4 October 1993 (see paragraphs 29-34 above).

113. Again, the risk of his absconding was one of the main factors that the Regional Court took into account when determining the amount of bail required from the applicant (see paragraphs 44-47 above). That risk warranted his detention pending a decision on the value of the security (see paragraphs 49-54 above) and, apart from the reasonable suspicion that the applicant had committed the offences of fraud and forgery, was indeed the main reason why he was held in detention for the period in issue.

114. The Court agrees that that basis, in addition to the suspicion that the applicant had committed the criminal offences in question, could initially suffice to warrant his detention. However, with the passage of time that ground inevitably became less relevant and, given that before being redetained on 4 October 1993 the applicant had already spent nearly a year in detention (see paragraphs 10-18 and 102-03 above), only very compelling reasons would persuade the Court that his further detention for two years and four months was justified under Article 5§ 3.

115. In the instant case the Court has not found any such reasons, especially as the courts, despite repeatedly referring to the two aforementioned instances of the applicant’s failure to comply with a court order, did not mention any other circumstance capable of showing that the risk relied on actually persisted during the entire relevant period.

116. The Court accordingly concludes that the reasons relied on by the courts in their decisions were not sufficient to justify the applicant’s being held in detention for the period in question.

117. There has, therefore, been a violation of Article 5§ 3 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6§ 1 OF THE CONVENTION

118. The applicant further maintained that his right to a trial “within a reasonable time” had not been respected [in violation of Art.6§1]

A. Period to be taken into consideration

119. There was no dispute over when the proceedings started; it was common ground that the relevant date was 8 August 1991, when the applicant was charged. The parties did, however, disagree over whether the proceedings could be regarded as still pending for the purposes of Article 6§ 1.

122. The Court reiterates that Article 6§ 1 does not compel the States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before them the fundamental guarantees contained in Article 6 (see, among other authorities, the Delcourt v. Belgium  judgement of 17 January 1970, Series A no. 11 pp. 13-15,§ 25, and the Brualla Gómez de la Torre v. Spain judgement of 19 December 1997, Reports 1997-VIII, p. 2956,§ 37).

While the manner in which Article 6 is to be applied in relation to courts of appeal or of cassation depends on the special features of the proceedings in question, there can be no doubt that appellate or cassation proceedings come within the scope of Article 6 (see, mutatis mutandis, the Twalib v. Greece judgement of 9 June 1998, Reports 1998-IV, pp. 1427-28,§ 46). Accordingly, the length of such proceedings should be taken into account in order to establish whether the overall length of the proceedings was reasonable.

123. Consequently, and in the absence of any evidence to show that the Supreme Court has already given a ruling in the applicant’s case, the Court finds that the proceedings have so far lasted for more than nine years. However, given its jurisdiction ratione temporis (see paragraph 103 above), the Court can only consider the period of seven years and some five months which have elapsed since 1 May 1993, although it will have regard to the stage reached in the proceedings on that date (see, for instance, Humen v. Poland [GC], no. 26614/95, § 58-59, 15 October 1999, unreported).

B. Reasonableness of the length of the period in issue

124. The Court will assess the reasonableness of the length of the proceedings in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. On the latter point, what is at stake for the applicant has also to be taken into account (see, among many other authorities, the Philis v. Greece (no. 2) judgement of 27 June 1997, Reports 1997-IV, p. 1083,§ 35, and the Portington v. Greece judgement of 23 September 1998, Reports 1998-VI, p. 2630,§ 21).

130. The Court considers that, even though the case was of some complexity, it cannot be said that this in itself justified the entire length of the proceedings.

It is true that in February and March 1993 the applicant failed to appear before the court and that, as a result, the trial was adjourned to October 1993 (see paragraphs 19-21 above). However, the Court finds no evidence to demonstrate that at any subsequent stage of the proceedings the applicant showed dilatory conduct or otherwise upset the proper conduct of the trial. In view of that, the Court considers that his conduct did not contribute substantially to the length of the proceedings.

The Government maintained that the courts, although responsible for some delays, had not on the whole failed to determine the case within a reasonable time. The Court observes, however, that the duty to administer justice expeditiously was incumbent in the first place on them, especially as during the substantial part of his trial the applicant had been in custody and had suffered from serious depression. This required particular diligence of them in dealing with his case.

In this connection the Court notes that after the applicant’s original first-instance conviction was quashed on 22 February 1996, the retrial was scheduled for 10 October 1996 but began only on 18 March 1997, that is to say, after a lapse of more than a year. It was then postponed to October 1997 (see paragraphs 42 and 53-55 above). Admittedly, the postponement was – at least in some part – caused by events attributable to the applicant’s co-defendants (see paragraphs 53 and 55 above). Nevertheless, that lack of progress in the proceedings resulted in a total delay of nearly one year and eight months, a delay for which the Court does not find a sufficient justification and which it considers incompatible with the diligence required under Art. 6§ 1.

131. Accordingly, the Court cannot regard the period of time that elapsed in the instant case as reasonable. There has, therefore, been a violation of Article 6§ 1 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

132. The applicant submitted, lastly, that he had had no effective remedy whereby to raise the issue of the excessive length of the proceedings in his case before a national authority. In his view, there had, accordingly, been a violation of Article 13 of the Convention [?]

133. In the present case the Court has been invited to determine the scope of the Contracting States’ obligation under Article 13 to provide a person with an “effective remedy before a national authority” if the Convention right asserted by the applicant is the right to a “hearing within a reasonable time” guaranteed by Article 6§ 1. The applicant argued that Article 13 should be interpreted as requiring such an “effective remedy”; the Government disputed that. The Commission did not find it necessary to determine this issue.

[?]

B. The Court’s assessment

1. Whether it is necessary to examine the complaint under Article 13

146. In many previous cases in which the Court has found a violation of Article 6§ 1 it did not consider it necessary also to rule on an accompanying complaint made under Article 13. More often than not this was because in the circumstances Article 6§ 1 was deemed to constitute a lex specialis in relation to Article 13.

Thus, where the Convention right asserted by the individual is a “civil right” recognised under domestic law– such as the right of property – the protection afforded by Article 6§ 1 will also be available (see, for example, the Sporrong and Lönnroth v. Sweden  judgement of 23 September 1982, Series A no. 52, pp. 31-32,§ 88). In such circumstances the safeguards of Article 6§ 1, implying the full panoply of a judicial procedure, are stricter than, and absorb, those of Article 13 (see, for example, the Brualla Gómez de la Torre judgement cited above, p. 2957,§ 41).

The Court has applied a similar logic in cases where the applicant’s grievance has been directed at the adequacy of an existing appellate or cassation procedure coming within the ambit of both Article 6§ 1 under its “criminal” head and Article 13 (see the Kamasinski v. Austria judgement of 19 December 1989, Series A no. 168, pp. 45-46,§ 110 – in relation to nullity proceedings before the Supreme Court).

In such cases there is no legal interest in re-examining the same subject matter of complaint under the less stringent requirements of Article 13.

147. There is, however, no overlap and hence no absorption where, as in the present case, the alleged Convention violation that the individual wishes to bring before a “national authority” is a violation of the right to trial within a reasonable time, contrary to Article 6§ 1. The question of whether the applicant in a given case did benefit from trial within a reasonable time in the determination of civil rights and obligations or a criminal charge is a separate legal issue from that of whether there was available to the applicant under domestic law an effective remedy to ventilate a complaint on that ground. In the present case the issue to be determined before the Article 6§ 1“tribunals” was the criminal charges brought against the applicant, whereas the complaint that he wanted to have examined by a “national authority” for the purposes of Article 13 was the separate one of the unreasonable length of the proceedings.

In comparable cases in the past, the Court has nonetheless declined to rule on an accompanying complaint of the absence of an effective remedy as guaranteed by Article 13, considering it unnecessary in view of its prior finding of a breach of the “reasonable time” requirement laid down in Article 6§ 1 (see, among other examples, the judgements cited above: Pizzetti, p. 37,§ 21; Bouilly,§ 27; and Giuseppe Tripodi,§ 15).

148. In the Court’s view, the time has come to review its case-law in the light of the continuing accumulation of applications before it in which the only, or principal, allegation is that of a failure to ensure a hearing within a reasonable time in breach of Article 6§ 1.

The growing frequency with which violations in this regard are being found has recently led the Court to draw attention to “the important danger” that exists for the rule of law within national legal orders when “excessive delays in the administration of justice” occur “in respect of which litigants have no domestic remedy” (see, for example, Bottazzi v. Italy [GC], no. 34884/97,§ 22, ECHR   1999-V; Di Mauro v. Italy [GC], no. 34256/96,§ 23, ECHR 1999-V; A.P. v. Italy [GC], no. 35265/97,§ 18, 28 July 1999, unreported; and Ferrari v. Italy [GC], no. 33440/96,§ 21, 28 July 1999, unreported).

149. Against this background, the Court now perceives the need to examine the applicant’s complaint under Article 13 taken separately, notwithstanding its earlier finding of a violation of Article 6§ 1 for failure to try him within a reasonable time.

2. Applicability of Article 13 to complaints alleging a violation of the right to a hearing within a reasonable time

150. The Government argued that Article 13 did not apply to cases in which the applicant’s complaint about the length of proceedings was examined under Article 6§ 1. They also referred to the Commission’s opinion in the Pizzetti case that Article 13 was not applicable where the alleged violation had taken place in the context of judicial proceedings (see paragraphs 139-44 above).

151. The Court finds nothing in the letter of Article 13 to ground a principle whereby there is no scope for its application in relation to any of the aspects of the “right to a court” embodied in Article 6§ 1. Nor can any suggestion of such a limitation on the operation of Article 13 be found in its drafting history.

Admittedly, the protection afforded by Article 13 is not absolute. The context in which an alleged violation – or category of violations – occurs may entail inherent limitations on the conceivable remedy. In such circumstances Article 13 is not treated as being inapplicable but its requirement of an “effective remedy” is to be read as meaning “a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in [the particular context]” (see the Klass and Others v. Germany judgement of 6 September 1978, Series A no. 28, p. 31,§ 69). Furthermore, “Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s laws to be challenged before a national authority on the ground of being contrary to the Convention” (see the James and Others v. the United Kingdom judgement of 21 February 1986, Series A no. 98, p. 47,§ 85). Thus, Article 13 cannot be read as requiring the provision of an effective remedy that would enable the individual to complain about the absence in domestic law of access to a court as secured by Article 6§ 1.

As regards an alleged failure to ensure trial within a reasonable time, however, no such inherent qualification on the scope of Article 13 can be discerned.

152. On the contrary, the place of Article 13 in the scheme of human rights protection set up by the Convention would argue in favour of implied restrictions of Article 13 being kept to a minimum.

By virtue of Article 1 (which provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”), the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Articles 13 and 35§ 1 of the Convention.

The purpose of Article 35§ 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, as a recent authority,Selmouni v. France    [GC], no. 25803/94,§ 74, ECHR 1999-V). The rule in Article 35§ 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (ibid.).

In that way, Article 13, giving direct expression to the States’ obligation to protect human rights first and foremost within their own legal system, establishes an additional guarantee for an individual in order to ensure that he or she effectively enjoys those rights. The object of Article 13, as emerges from the travaux préparatoires (see the Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights, vol. II, pp. 485 and 490, and vol. III, p. 651), is to provide a means whereby individuals can obtain relief at national level for violations of their Convention rights before having to set in motion the international machinery of complaint before the Court. From this perspective, the right of an individual to trial within a reasonable time will be less effective if there exists no opportunity to submit the Convention claim first to a national authority; and the requirements of Article 13 are to be seen as reinforcing those of Article 6§ 1, rather than being absorbed by the general obligation imposed by that Article not to subject individuals to inordinate delays in legal proceedings.

153. The Government, however, argued that requiring a remedy for inordinate length of proceedings under Article 13 is tantamount to imposing on States a new obligation to establish a “right of appeal”, in particular a right to appeal on the merits, which, as such, is guaranteed only in criminal matters under Article 2 of Protocol No. 7 to the Convention; and that in practice the exercise of such a remedy could only prolong proceedings in domestic courts (see paragraphs 142-43 above).

154. The Court does not accept the Government’s submissions.

A remedy for complaining about unreasonable length of proceedings does not as such involve an appeal against the “determination” of any criminal charge or of civil rights and obligations. In any event, subject to compliance with the requirements of the Convention, the Contracting States – as the Court has held on many previous occasions – are afforded some discretion as to the manner in which they provide the relief required by Article 13 and conform to their Convention obligation under that provision (see, for example, the Kaya v. Turkey  judgement of 19 February 1998, Reports 1998-I, pp. 329-30,§ 106).

As to the suggestion that requiring yet a further remedy would result in domestic proceedings being made even more cumbersome, the Court would observe that even though at present there is no prevailing pattern in the legal orders of the Contracting States in respect of remedies for excessive length of proceedings, there are examples emerging from the Court’s own case-law on the rule on exhaustion of domestic remedies which demonstrate that it is not impossible to create such remedies and operate them effectively (see, for instance, Gonzalez Marin v. Spain (dec.), no. 39521/98, ECHR 1999-VII, and Tomé Mota v. Portugal (dec.), no. 32082/96, ECHR 1999-IX).

155. If Article 13 is, as the Government argued, to be interpreted as having no application to the right to a hearing within a reasonable time as safeguarded by Article 6§ 1, individuals will systematically be forced to refer to the Court in Strasbourg complaints that would otherwise, and in the Court’s opinion more appropriately, have to be addressed in the first place within the national legal system. In the long term the effective functioning, on both the national and international level, of the scheme of human rights protection set up by the Convention is liable to be weakened.

156. In view of the foregoing considerations, the Court considers that the correct interpretation of Article 13 is that that provision guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6§ 1 to hear a case within a reasonable time.

3. Compliance with the requirements of Article 13

157. As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among many other authorities, the Kaya judgement cited above).

The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law (see, for example, 0lhan v. Turkey [GC], no. 22277/93,§ 97, ECHR 2000-VII).

The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, the Silver and Others v. the United Kingdom judgement of 25 March 1983, Series A no. 61, p. 42,§ 113, and the Chahal v. the United Kingdom  judgement of 15 November 1996, Reports 1996-V, pp. 1869-70,§ 145).

158. It remains for the Court to determine whether the means available to the applicant in Polish law for raising a complaint about the length of the proceedings in his case would have been “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred.

159. The Court notes at the outset that the Government did not claim that there was any specific legal avenue whereby the applicant could complain of the length of the proceedings but submitted that the aggregate of several remedies satisfied the Article 13 requirements. They did not, however, indicate whether and, if so, how the applicant could obtain relief – either preventive or compensatory – by having recourse to those remedies (see paragraph 145 above). It was not suggested that any of the single remedies referred to, or a combination of them, could have expedited the determination of the charges against the applicant or provided him with adequate redress for delays that had already occurred. Nor did the Government supply any example from domestic practice showing that, by using the means in question, it was possible for the applicant to obtain such a relief.

That would in itself demonstrate that the means referred to do not meet the standard of “effectiveness” for the purposes of Article 13 because, as the Court has already said (see paragraph 157 above), the required remedy must be effective both in law and in practice.

160. Accordingly, the Court holds that in the present case there has been a violation of Article 13 of the Convention in that the applicant had no domestic remedy whereby he could enforce his right to a “hearing within a reasonable time” as guaranteed by Article 6§ 1 of the Convention.

Comment

The present case implied a change in the case-law of the European Court. In the past, it was usual for the Court to rule on a violation of Article 6 with regard to reasonable time and to rule subsequently that there was no separate issue under Article 13 (effective remedies). Article 13 was considered a lex specialis of Article 6(1). Now the Court concludes that there must be a separate and specific legal avenue available whereby the applicant can complain about the (unreasonable) length of proceedings.

In addition to Article 6 ECHR, which stipulates the requirement of a trial within a reasonable time, Article 5(3) ECHR stipulates that no one can be held beyond a reasonable time. In the present case (§ 101-117), the issue is discussed and examined along the same lines: the period to be taken into consideration and the reasonableness of that period.

Other supervisory mechanisms have not gone into such detail as to the effectiveness of the remedy with regard to reasonable time requirements. However, they have regularly dealt with the effectiveness of justice. The Human Rights Committee once included not only the time of the trial, but also the time of compliance by the authorities with the court’s judgement. In  Muñoz Hermoza v. Peru (Communication No. 203/1986, Views of 4 November 1988) a police officer complained about the fact that he had spent 10 years going through the various domestic administrative and judicial instances to get reinstated as officer after a summary suspension. The Human Rights Committee found as follows:

11.3 With respect to the requirement of a fair hearing as stipulated in article 14. paragraph 1, of the Covenant, the Committee notes that the concept of a fair hearing necessarily entails that justice be rendered without undue delay. In this connection the Committee observes that the administrative review in the Muñoz case was kept pending for seven years and that it ended with a decision against the author based on the ground that he had started judicial proceedings. A delay of seven years constitutes an unreasonable delay. Furthermore, with respect to the judicial review, the Committee notes that the Tribunal of Constitutional Guarantee decided in favour of the author in 1986 and that the State party has informed the Committee that judicial remedies were exhausted with that decision. However, the delays in implementation have continued and two and a half years after the judgement of the Tribunal of Constitutional Guarantees, the author has still not been reinstated in his post. This delay, which the State party has not explained, constitutes a further aggravation of the violation of the principle of a fair hearing. The Committee further notes that on 24 September 1987 the Cuzco Civil Chamber, in pursuance of the decision of the Tribunal of Constitutional Guarantees, ordered that the author be reinstated; subsequently, in a written opinion dated 7 March 1988, the Public Prosecutor declared that the decision of the Cuzco Civil Chamber was valid and that the author’s action of amparo was well rounded. But even after these clear decisions, the Government of Peru has failed to reinstate the author. [?] Such seemingly endless sequence of instances and the repeated failure to implement decisions are incompatible with the principle of a fair hearing.

One important element of effective remedies is the existence of effective interim measures. The international supervision mechanisms regularly institute interim measures, inter alia, where the violations have a continuing character or violations are imminent. The case below demonstrates the vital importance of interim measures and provides a good overview of interim measures of the various supervision mechanisms. The two applicants, who were Uzbek nationals, were arrested in Turkey. They were wanted in their country of origin and the Uzbek authorities requested their extradition. The representative of one of the applicants argued that his client risked being subjected to torture in prison. The Turkish authorities ordered the applicants’ extradition one day after the European Court had adopted an interim measure indicating that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court for the applicants not to be extradited pending the Court’s decision. The Supreme Court of the Republic of Uzbekistan found the applicants guilty of the charges and sentenced them to long terms of imprisonment.

Mamatkulov and Abdurasulovic v. Turkey

European Court of Human Rights

Application Nos. 46827/99 and 46951/99

Judgement of 6 February 2003

Keywords: interim measures - effective remedies

[?]

III. RELEVANT INTERNATIONAL LAW INSTRUMENTS AND CASE-LAW ON INTERIM MEASURES

United Nations Human Rights Committee

39. Rule 86 of the Rules of Procedure provides:

“The Committee may, prior to forwarding its views on the communication to the State party concerned, inform that State of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation. In doing so, the Committee shall inform the State party concerned that such expression of its views on interim measures does not imply a determination on the merits of the communication.”

United Nations Committee against Torture

40. Rule 108§ 9 of the Rules of Procedure of the Committee against Torture enables interim measures to be adopted in proceedings brought by individuals alleging a violation of theConvention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  . It reads as follows:

“In the course of the consideration of the question of the admissibility of a communication, the Committee or the working group or a special rapporteur designated under rule 106, paragraph 3, may request the State party to take steps to avoid possible irreparable damage to the person or persons who claim to be victim(s) of the alleged violation. Such a request addressed to the State party does not imply that any decision has been reached on the question of the admissibility of the communication.”

The Statute of the International Court of Justice

41. Article 41 provides:

“1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.

2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.”

The American Convention on Human Rights

42 Article 63§ 2 of the Convention states:

“In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission.”

Rules of Procedure of the Inter-American Court of Human Rights

43. Rule 25 provides:

“1. At any stage of the proceedings involving cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court may, at the request of a party or on its own motion, order such provisional measures as it deems pertinent, pursuant to Article 63(2) of the Convention.

2. With respect to matters not yet submitted to it, the Court may act at the request of the Commission.

3. The request may be made to the President, to any judge of the Court, or to the Secretariat, by any means of communication. In every case, the recipient of the request shall immediately bring it to the President’s attention.

4. If the Court is not sitting, the President, in consultation with the Permanent Commission and, if possible, with the other judges, shall call upon the government concerned to adopt such urgent measures as may be necessary to ensure the effectiveness of any provisional measures that may be ordered by the Court at its next session.

5. The Court, or its President if the Court is not sitting, may convoke the parties to a public hearing on provisional measures.

6. In its Annual Report to the General Assembly, the Court shall include a statement concerning the provisional measures ordered during the period covered by the report. If those measures have not been duly implemented, the Court shall make such recommendations as it deems appropriate.”

Rules of Procedure of the Inter-American Commission on Human Rights

44. Rule 25 provides:

1. In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons.

2. If the Commission is not in session, the President, or, in his or her absence, one of the Vice-Presidents, shall consult with the other members, through the Executive Secretariat, on the application of the provision in the previous paragraph. If it is not possible to consult within a reasonable period of time under the circumstances, the President or, where appropriate, one of the Vice-Presidents shall take the decision on behalf of the Commission and shall so inform its members.

3. The Commission may request information from the interested parties on any matter related to the adoption and observance of the precautionary measures.

4. The granting of such measures and their adoption by the State shall not constitute a prejudgment on the merits of a case.”

Interim measures and decisions of the Human Rights Committee of the United Nations

45. In its decision of 26 July 1994 (Glen Ashby v. Trinidad and Tobago), the Committee dealt with the first case of a refusal by a State to comply with interim measures requesting it to stay execution of the death penalty. It pointed out that by ratifying the Optional Protocol, the State Party had undertaken to cooperate with the Committee in proceedings under the Protocol, and that it had not discharged its obligations under the Optional Protocol and the Covenant (Report of the Human Rights Committee, Volume I).

46. In its decision of 19 October 2000 (Piandiong et al v. The Philippines, Communication No. 869/1999 (15 June 1999), U.N. Doc. CCPR/C/70/D/869/1999), the Committee said:

“5.1 By adhering to the Optional Protocol, a State party to the Covenant recognizes the competence of the Human Rights Committee to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant (Preamble and Article 1). Implicit in a State’s adherence to the Protocol is an undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications, and after examination to forward its views to the State party and to the individual (Article 5 (1), (4)). It is incompatible with these obligations for a State party to take any action that would prevent or frustrate the Committee in its consideration and examination of the communication, and in the expression of its Views.

5.2 Quite apart, then, from any violation of the Covenant charged to a State party in a communication, a State party commits grave breaches of its obligations under the Optional Protocol if it acts to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its Views nugatory and futile?

5.4 Interim measures pursuant to rule 86 of the Committee’s rules adopted in conformity with article 39 of the Covenant, are essential to the Committee’s role under the Protocol. Flouting of the Rule, especially by irreversible measures such as the execution of the alleged victim or his/her deportation from the country, undermines the protection of Covenant rights through the Optional Protocol.”

Interim measures and decisions of the United Nations Committee against Torture

47. In the case of a Peruvian citizen resident in Venezuela who was extradited to Peru despite the fact that interim measures had been indicated requesting a stay of extradition (Cecilia Rosana Nu´ñez Chipana v. Venezuela, 10 November 1998, Committee against Torture, Communication No. 110/1998,§ 8), the Committee against Torture expressed the view that the State had failed to “comply with the spirit of the Convention”. It noted:

“? the State party, in ratifying the Convention and voluntarily accepting the Committee’s competence under article 22, undertook to cooperate with it in good faith in applying the procedure. Compliance with the provisional measures called for by the Committee in cases it considers reasonable is essential in order to protect the person in question from irreparable harm, which could, moreover, nullify the end result of the proceedings before the Committee.”

48. In another decision that concerned the extradition to India of an Indian National resident in Canada (decision of 16 May 2000, T.P.S. v. Canada, Communication No. 99/1997) despite the indication of interim measures requesting Canada to stay the extradition, the Committee against Torture reiterated that failure to comply with the requested interim measures “? could ? nullify the end result of the proceedings before the Committee” (§ 15.6).

The system of the Inter-American Court and Commission of Human Rights

49. Provision is made for provisional measures to be ordered under the judicial settlement procedure in cases in which the Inter-American Court of Human Rights has jurisdiction and for precautionary measures under the procedure of individual petition to the Inter-American Commission of Human Rights. The Inter-American Court’s power to order provisional measures is derived from the American Convention on Human Rights and the Commission’s power to adopt precautionary measures from its Rules of Procedure (see paragraphs 42-43 above). The Inter-American Court has stated on several occasions that compliance with provisional measures is necessary to ensure the effectiveness of its decisions on the merits (see, among other authorities, the following orders: 1 August 1991, Chumin v. Peru; 2 July 1996, 13 September 1996, 11 November 1997, 3 February 2001, Loayza Tamayo v. Peru  ; 25 May and 25 September 1999, 16 August and 24 November 2000, 3 September 2002, James and Others v. Trinidad and Tobago; 7 and 18 August 2000, 26 May 2001, Haitians and Dominican nationals of Haitian Origin in the Dominican Republic v. Dominican Republic; 10 August 2000, 12 November 2000, 30 May 2001, Alvarez et al v. Colombia; judgment of 21 June 2002, Hilaire, Constantine, Benjamin and Others v. Trinidad and Tobago).

As regards the scope of its precautionary measures, the Inter-American Commission on Human Rights is bound by the recommendations it has adopted on individual petition. In its judgment of 17 September 1997 in the case of Loayza Tamayo v. Peru, (Inter-Am. Ct. H.R. (Ser. C) No. 33 (1997)) the Inter-American Court of Human Rights considered that the State “ha[d] the obligation to make every effort to apply the recommendations of a protection organ such as the Inter-American Commission, which [was], indeed, one of the principal organs of the Organization of American States, whose function [was] ‘to promote the observance and defense of human rights’?”.

In two orders requiring provisional measures, the Inter-American Court of Human Rights ruled that the States Parties to the American Convention on Human Rights “must fully comply in good faith (pacta sunt servanda) with all of the provisions of the Convention, including those relative to the operation of the two supervisory organs of the American Convention [the Court and the Commission]; and, that in view of the Convention’s fundamental objective of guaranteeing the effective protection of human rights (Articles 1(1), 2, 51 and 63(2)), States Parties must refrain from taking actions that may frustrate the restitutio in integrum of the rights of the alleged victims” (see the Orders of 25 May and 25 September 1999, in the case of James et al. v. Trinidad and Tobago).

Provisional measures and the International Court of Justice

50. Article 41 the Statute of the International Court of Justice provides for the adoption of provisional measures (see paragraph 41 above).

The International Court of Justice has pointed out in a number of cases that the purpose of provisional measures is to preserve the respective rights of the parties to the dispute (see, among other authorities, the judgment of 27 June 1986, in the case of Nicaragua v. United States of America). In an order of 13 September 1993 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide  (Bosnia and Herzegovina v. Yugoslavia), the International Court of Justice said (§ 35) that the power of the Court to indicate provisional measures:

“? has as its object to preserve the respective rights of the parties pending the decision of the Court, and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings; and ? the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent.”

51. In its judgment of 27 June 2001 in the LaGrand case (Germany v. United States of America), the International Court of Justice noted:

“102. ? The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article.

103. A related reason which points to the binding character of orders made under Article 41 and to which the Court attaches importance, is the existence of a principle which has already been recognized by the Permanent Court of International Justice when it spoke of ‘the principle universally accepted by international tribunals and likewise laid down in many conventions ? to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute’ (Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J, Series A/B, No. 79, p. 199).

The Vienna Convention on the Law of Treaties  1969 (Vienna Convention of 1969)

52. Article 31 of the Vienna Convention of 1969, which is headed “General rule of interpretation”, provides:

“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.”

[?]

III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

[?]

B. The Court’s assessment

1. General considerations

92. The Court has previously stated that former Articles 25 and 46 of the Convention are essential to the effectiveness of the Convention system, since they delineate the responsibility of the Commission and Court “to ensure the observance of the engagements undertaken by the High Contracting Parties” (Article 19), by determining their competence to examine complaints concerning alleged violations of the rights and freedoms set out in the Convention. In interpreting these key provisions the Court must have regard to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms (see, mutatis mutandis, Loizidou v. Turkey(preliminary objections), 23 March 1995, Series A no. 310,§ 70).

93. The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective, as part of the system of individual applications. In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with “the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society” (Soering cited above,§ 87; mutatis mutandis, Klass and Others v. Germany, 6 September 1978, Series A no. 28, p. 18,§ 34).

94. The principle that the Convention is a living instrument which must be interpreted in the light of present-day conditions is firmly rooted in the Court’s case-law. The Court has applied that principle not only to the substantive rules of the Convention (see, among other authorities, Soering cited above,§ 102;Dudgeon v. the United Kingdom  , 22 October 1981, Series A no. 45; X, Y and Z v. the United Kingdom , 22 April 1997, Reports 1997–II; V. v. the United Kingdom  [GC] no. 24888/94,§ 72, ECHR 1999–IX; and Matthews v. the United Kingdom [GC], no. 24833/94,§ 39, ECHR 1999–I), but also when interpreting former Articles 25 and 46 of the Convention with regard to a Contracting State’s acceptance of the jurisdiction of the Convention institutions (Loizidou (preliminary objections) cited above,§ 71). The Court said in the latter judgment that former Articles 25 and 46 of the Convention could not be interpreted solely in accordance with the intentions of their authors as expressed more than forty years ago. Thus, even if it had been established that the restrictions concerned were considered permissible under those provisions at the material time when a minority of the Contracting Parties adopted the Convention, such evidence could not be “decisive”.

95. Further, the undertaking not to hinder the effective exercise of the right of individual application precludes any interference with the individual’s right to present and pursue his complaint before the Court effectively. That issue has been considered by the Court in previous judgments. It is of the utmost importance for the effective operation of the system of individual application instituted under Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. “Pressure” includes not only direct coercion and flagrant acts of intimidation against actual or potential applicants, members of their family or their legal representatives, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see, among other authorities and mutatis mutandis, Akdivar and Others v. Turkey, 16 September 1996, Reports 1996-IV, p. 1219,§ 105; Kurt v. Turkey  , 25 May 1998, Reports 1998-III, p. 1192,§ 159; Tanrikulu v. Turkey  [GC], no. 23763/94, ECHR 1999-IV; Sarli v. Turkey, no. 24490/94, § 85-86, 22 May 2001; and Orhan v. Turkey, no. 25656/94, 18 June 2002).

2. Did the applicants’ extradition actually hinder the effective exercise of the right of individual application

96. The Court notes that the fact that the respondent Government extradited the applicants without complying with the measures indicated under Rule 39 of the Rules of Court raises the issue whether, in view of the special nature of the alleged violation of Article 3 of the Convention, there has been a violation of Article 34. In the present case, once they had been extradited the applicants were unable to remain in contact with their representatives. The Court reiterates in that connection that it is implicit in the notion of the effective exercise of the right of individual application that for the duration of the proceedings in Strasbourg the principle of equality of arms should be observed and an applicant’s right to sufficient time and necessary facilities in which to prepare his or her case respected. In the present case, the applicants’ representatives were not able to contact the applicants, despite their requests to the Turkish and Uzbek authorities for permission to do so. The applicants were thus denied an opportunity to have further inquiries made in order for evidence in support of their allegations under Article 3 of the Convention to be obtained.

97. The Court has previously considered whether, in the absence of an express clause in the Convention, its organs could derive from Article 34 (former Article 25), taken alone or together with Rule 39 (former Rule 36) or from any other source, the power to order interim measures (Cruz Varas and Others cited above; Conka and Others v. Belgium, no. 51564/99, decision of 13 March 2001). In those cases, it concluded that the power to order binding interim measures could not be inferred from either Article 34 in fine, or from other sources, but that a decision not to comply with an indication given under Rule 39 would have to be seen as aggravating any subsequent breach of Article 3 found by the Court (Cruz Varas and Others cited above, pp. 36-37, § 102 and 103).

In the aforementioned Conka and Others case, the Court also found: “As regards the difficulties encountered by the applicants following their expulsion to Slovakia, it does not appear that they attained a level such that they were hindered in the exercise of their right under Article 34 of the Convention”.

98. The Court will also examine the present case by reference to general principles of international law, in particular those concerning the binding force of interim measures indicated by other international courts.

99. The Court reiterates in that connection that the Convention must be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, Article 31§ 3 (c) of which states that there shall be taken into account “any relevant rules of international law applicable in the relations between the parties”. The Court must determine the responsibility of the States in accordance with the principles of international law governing this sphere, while taking into account the special nature of the Convention as an instrument of human-rights protection (Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18,§ 29). Thus, the Convention must be interpreted so far as possible consistently with the other principles of international law of which it forms a part (Al-Adsani v. the United Kingdom [GC], no. 35763/97,§ 60, ECHR 2001-XI).

100. The Court notes that different rules apply to interim, provisional or precautionary measures, depending on whether the complaint is made under the individual-petition procedures of the United Nations organs, or the Inter-American Court and Commission, or under the procedure for the judicial settlement of disputes of the International Court of Justice. In some instances provision is made for such measures in the treaty itself and in others in the rules of procedure (see paragraphs 39 to 44 above).

101. The Court notes that in a number of recent decisions and orders, international courts have stressed the importance and purpose of interim measures and pointed out that compliance with such measures was necessary to ensure the effectiveness of their decisions on the merits. In proceedings concerning international disputes, the purpose of interim measures is to preserve the parties’ rights, thus enabling the body hearing the dispute to give effect to the consequences which a finding of responsibility following adversarial process will entail.

102. Under the jurisprudence of the Human Rights Committee of the United Nations, a failure to comply with interim measures constitutes a breach by the State concerned of its legal obligations under the International Covenant on Civil and Political Rights   and the Optional Protocol thereto, and of its duty to cooperate with the Committee under the individual-communications procedure (see paragraphs 45-46 above).

The United Nations Committee against Torture has considered the issue of a State Party’s failure to comply with interim measures on a number of occasions. It has ruled: “[c]ompliance with interim measures which the Committee considers reasonable is essential in order to protect the person in question from irreparable harm, which could, moreover, nullify the end result of the proceedings before the Committee” (see paragraphs 47-48 above).

In various orders concerning provisional measures, the Inter-American Court of Human rights has stated that in view of the fundamental objective of the American Convention on Human Rights, namely guaranteeing the effective protection of human rights, “States Parties [had to] refrain from taking actions that may frustrate the restitutio in integrum of the rights of the alleged victims” (see, among other authorities, the orders of 25 May and 25 September 1999 in the case of James et al. v. Trinidad and Tobago).

103. In its judgment of 27 June 2001 in the case of LaGrand (Germany v. United States of America), the International Court of Justice said: “The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The [purpose of] Article 41 ? is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article”.

Furthermore, in that judgment, the International Court of Justice brought to an end the debate over the strictly linguistic interpretation of the words “power to indicate” (“pouvoir indiquer” in the French text) in the first paragraph of Article 41 and “suggested” (“indication” in the French text) in the second paragraph. Referring to Article 31 of the Vienna Convention on the Law of Treaties, which provides that treaties shall be interpreted in the light of their object and purpose, the International Court of Justice held that provisional measures were legally binding.

104. The Court points out that in the aforementioned case of Cruz Varas and Others, in which it had to decide whether the Commission had power under former Article 25§ 1 to order interim measures, it noted that that Article applied only to proceedings brought before the Commission and imposed an obligation not to interfere with the right of the individual to present his or her complaint to the Commission and to pursue it. Article 25 conferred upon an applicant a right of a procedural nature distinguishable from the substantive rights set out under Section I of the Convention or its Protocols. It may thus be seen that in that case the Court did not consider its own power to order interim measures but confined itself to examining the Commission’s power. It considered the indication that had been given in the light of the nature of the proceedings before the Commission and of the Commission’s role and concluded: “Where the State has had its attention drawn in this way to the dangers of prejudicing the outcome of the issue then pending before the Commission any subsequent breach of Article 3 ? would have to be seen as aggravated by the failure to comply with the indication” (Cruz Varas and Others cited above,§ 103).

The Court emphasises in that connection that the Commission was not empowered to issue a binding decision that a Contracting State had violated the Convention, whereas the Court and the Committee of Ministers were. The Commission’s task with regard to the merits was of a preliminary nature and its opinion on whether or not there had been a violation of the Convention was not binding.

105. While the Court is not formally bound to follow its previous judgments, in the interests of legal certainty and foreseeability it should not depart, without good reason, from its own precedents (see, among other authorities, mutatis mutandis,Chapman v. the United Kingdom   [GC], no. 27238/95,§ 70, ECHR 2001-I; and Christine Goodwin v. the United Kingdom [GC], no. 28957/95,§ 74, 11 July 2002). It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement (Stafford v. the United Kingdom [GC], no. 46295/99,§ 68, 28 May 2002). In the circumstances of the present case, the Court notes that in the light of the general principles of international law, the law of treaties and international case-law, the interpretation of the scope of interim measures cannot be dissociated from the proceedings to which they relate or the decision on the merits they seek to protect.

106. The Court will now re-examine this problem. It would stress that although the Convention right to individual application was intended as an optional part of the system of protection, it has over the years become of the highest importance and is now a key component of the machinery for protecting the rights and freedoms set out in the Convention. Under the system in force until 1 November 1998, the Commission only had jurisdiction to hear individual applications if the Contracting Party issued a formal declaration recognising its competence, which it could do for a fixed period. The system of protection as it now operates has, in that regard, been modified by Protocol No. 11, so that the right of individual application is no longer dependent on a declaration by the Contracting States. Thus, individuals now enjoy at the supranational level a real right of action to assert the rights and freedoms to which they are directly entitled under the Convention.

107. In the light of the foregoing considerations, it follows from Article 34 that, firstly, applicants are entitled to exercise their right to individual application effectively, within the meaning of Article 34 in fine - that is to say, Contracting States must not prevent the Court from carrying out an effective examination of the application – and, secondly, applicants who allege a violation of Article 3 are entitled to an effective examination of the issue whether a proposed extradition or expulsion will entail a violation of Article 3. Indications given by the Court, as in the present case, under Rule 39 of the Rules of Court, permit it to carry out an effective examination of the application and to ensure that the protection afforded by the Convention is effective; such indications also subsequently allow the Committee of Ministers to supervise execution of the final judgment. Such measures thus enable the State concerned to discharge its obligation to comply with the final judgement of the Court, which is legally binding by virtue of Article 46 of the Convention.

Consequently, the terms of an indication given by the Court under Rule 39 must be interpreted against that background.

108. In the instant case, compliance with the indication given by the Court would undoubtedly have helped the applicants to argue their case before the Court. The material in the case file shows that the fact that Mr Mamatkulov and Mr Abdurasulovic were unable to take part in the proceedings before the Court or to speak to their lawyers hindered them in contesting the Government’s arguments on the factual issues and in obtaining evidence.

109. In view of the duty of State Parties to the Convention to refrain from any act or omission that might undermine the authority and effectiveness of the final judgment (see Article 46), and in the light of the foregoing considerations, the Court finds that the extradition of Mr Mamatkulov and Mr Abdurasulovic, in disregard of the indications that had been given under Rule 39, rendered nugatory the applicants’ right to individual application.

The Court reiterates in that connection that the provisions of treaties must be interpreted in good faith in the light of the object and purpose of the treaty and in accordance with the principle of effectiveness. That rule applies also to regulatory provisions which must be interpreted in the light of the provisions of the treaty to which they relate.

110. The Court accordingly concludes that any State Party to the Convention to which interim measures have been indicated in order to avoid irreparable harm being caused to the victim of an alleged violation must comply with those measures and refrain from any act or omission that will undermine the authority and effectiveness of the final judgement.

111. Consequently, by failing to comply with the interim measures indicated by the Court under Rule 39 of the Rules of Court, Turkey is in breach of its obligations under Article 34 of the Convention.

Comment

The case is of interest for a variety of reasons. One is the fact that the European Court did not follow its earlier case-law, notably as laid down in the case of  Cruz Varas et al. v. Sweden  (Application No. 15576/89, Judgement of 20 March 1991). The European Court explains in detail that, for reasons of foreseeability and legal certainty, it should not easily depart from its own precedents. That departure is justified here by reference to other international supervision mechanisms and the circumstances of the case. One of the particular and important circumstances is the risk of torture. The Court is especially outspoken with regard to preventive measures in the case of the right to life and the prohibition of torture, such as the interim measures discussed here.

Selected additional cases: IACHR: Lacayo v. Nicaragua , Judgement 29 January 1997, Series C No. 30. HRC: Hererra Rubio v. Colombia, Communication no. 161/1983, Views of 2 November 1987; LaVende v. Trinidad and Tobago , Communication No. 554/1993, Views of 29 October 1997. ECHR: Mehemi v. France , Application No. 25017/94, Judgement of 26 September 1997.