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VII.    European Court of Human Rights

39.       The absolute prohibition against transferring a person, including by extradition, to a place where he or she is at risk of torture has been confirmed in the jurisprudence of the European Court of Human Rights (Chahal v. UK, et al.). The Chahal decision also cautions against reliance on diplomatic assurances against torture from a state where torture is endemic or persistent, or where the authorities in the state of return do not have effective control over those state actors who perpetrate acts of torture.

40.       The Grand Chamber in Mamatkulov and Askarov v. Turkey expressly linked the Article 34/Rule 39 violation—Turkey’s precipitous extradition of the men to Uzbekistan, despite an order from the Court for interim measures—to the fact that it did not have before it sufficient evidence to conclude that an Article 3 violation had occurred. The Court said that since the men were extradited in violation of Article 34, they had no meaningful opportunity to place before the Court evidence that could have substantiated an Article 3 violation:

In the present case, the applicants were extradited and thus, by reason of their having lost contact with their lawyers, 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. As a consequence, the Court was prevented from properly assessing whether the applicants were exposed to a real risk of ill-treatment and, if so, from ensuring in this respect a “practical and effective” implementation of the Convention's safeguards, as required by its object and purpose.⁵⁰

41.       The Court in Mamatkulov recognized that it was unable to conduct a proper assessment of the Article 3 issue.  The dissenting judges in Mamatkulov found a violation of Article 3, stating that “…an assurance, even one given in good faith, that an individual will not be subjected to ill-treatment is not of itself a sufficient safeguard where doubts exist as to its effective implementation.”⁵¹

42.       In Shamayev and Others v. Georgia and Russia the Court found that the evidence was insufficient to find a violation of Article 3 and instead found that the Georgian government had violated Article 34 by extraditing five individuals to Russia, in spite of the Court’s request for interim measures.⁵²  Where a person has already been extradited or otherwise transferred (as opposed to being threatened with extradition or transfer) and there is insufficient evidence to establish an Article 3 violation, the Court, therefore, has always chosen to censure the state by finding a violation of Article 34 for failure to comply with Rule 39 indications.  This procedural safeguard, however, is merely a legal mechanism and not a statement that diplomatic assurances can trump a real risk of torture. In fact, there has been no case in which a state has extradited or otherwise transferred a person based on, inter alia, diplomatic assurances against torture and ill-treatment where the Court has ruled that the transfer was in full compliance with the Convention.

43.       Finally, in Salah Sheekh v. Netherlands the Court held that there would be a violation of Article 3 if a Somali national seeking asylum in the Netherlands were forcibly returned to Somalia.⁵³ This violation was found in part because the Dutch government could not ensure the safety of the Somali national upon return, even though the areas to which the asylum seeker would be returned were “relatively safe.” While this case did not concern extradition or diplomatic assurances, the Court was unwilling to rely on the Dutch government’s assessment of the situation in Somalia, especially as the Dutch government had no way in which to monitor treatment post-return.⁵⁴ Therefore, in the Article 3 context the government’s pre-return assurances about the post-return safety of the returnee appeared to be deemed insufficient.