CASE OF OLAECHEA CAHUAS v. SPAIN [Extracts]
No violation of Art. 3;No violation of Art. 5;No violation of Art. 6;Violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
6. The applicant was born in 1944 and currently lives in Peru. 7. On 3 July 2003 the applicant, a suspected member of the Shining Path (Sendero Luminoso) organisation, a terrorist group founded in 1970 whose aim is to transform Peru’s political system by armed force into a communist proletarian regime, was arrested in Almería (Spain) under an international arrest warrant issued by the Peruvian authorities, following a routine police check of the lists of guests registered at hotels in that province. The applicant was taken into custody pending a ruling on his extradition. 8. In a decision of 3 July 2003 central investigating judge no. 6 of the Audiencia Nacional asked the applicant for his views on the extradition, in keeping with Article 17 of the bilateral extradition treaty of 28 June 1989 between the Republic of Peru and the Kingdom of Spain. 9. On 7 July 2003 the extradition hearing requested by central investigating judge no. 6 was held. The applicant agreed to the “simplified extradition” procedure (immediate return to the requesting country) and the application of the “special” rule (under which he could be tried only in respect of the offence for which extradition was requested). The extradition request was based on a terrorist offence. 10. At the hearing of 7 July 2003 the applicant declared that although he had agreed to simplified extradition, the Peruvian Government were required to guarantee his personal safety, his life, his health and his well-being, in conformity with the standards laid down in international conventions on detention conditions and a fair trial in a reasonable time, as he considered the charges against him unfounded. The Peruvian press having launched a campaign against him – which he considered warranted special protection measures – he also asked for guarantees that he would have access to the press. 11. The preliminary hearing provided for in Article 504 bis 2 of the Code of Criminal Procedure was also held on 7 July 2003, following which the applicant was detained with a view to his extradition. 12. In a decision of 9 July 2003 the examining judge, noting that the applicant had agreed to his extradition and that his requests had been granted at the hearing, called for the application of the measures provided for in Article 10 of the bilateral treaty between Peru and Spain and stated that in such cases it was for Spain, through its Ministry of Justice, to obtain the guarantees provided for in that provision from the Peruvian authorities. The extradition would be conditional on the official communication of those guarantees by the ministry, to enable the examining judge to reach a decision in the extradition proceedings. 13. On 10 July 2003 the applicant appealed against the decision of 7 July 2003 ordering his detention. The appeal was dismissed on 17 July 2003. On 23 July 2003 the applicant filed an appeal against that ruling. 14. In a decision of 18 July 2003 the Audiencia Nacional authorised the the applicant’s extradition for trial by the Peruvian judicial authorities on the charge of terrorism. It stressed the content of the diplomatic note from the Peruvian Embassy, which read as follows: “Concerning the guarantee that the accused will not be subjected to punishment causing physical harm, or to inhuman or degrading treatment, we would remind the Spanish authorities that as Peru is party to the American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture, and the International Covenant on Civil and Political Rights, the person concerned will enjoy sufficient guarantees under a treaty based on respect for human dignity, as well as the guarantees of physical, psychological and moral integrity enshrined in the main human rights protection instruments. ... 1. Article 140 of the Peruvian Constitution provides: “The death penalty may be applied only for the crime of treason to the country in time of war, and for acts of terrorism ... According to Legislative Decrees no. 25475 and no. 921, the acts of terrorism with which the accused, Adolfo Olaechea Cahuas, is charged are not punishable by death. 2. However, the crime of terrorism referred to in Article 3 (a) of Legislative Decree no. 25475 is punishable by life imprisonment. In order to facilitate the extradition in accordance with Article 10 § 2 of the extradition treaty, it is guaranteed that even if the accused is found guilty in a fair trial, he will not be sentenced to life imprisonment but to the sentence immediately below that. 3. A fair trial is likewise guaranteed under the judicial safeguards enshrined in the Constitution, international human rights instruments and domestic law.” 15. In the aforementioned decision of 18 July 2003 the examining judge requested that the Spanish Ministries of Justice and Foreign Affairs be informed of the extradition measure and stated that the agreement of the Council of Ministers was not needed for the extradition. 16. On 24 July 2003 the applicant lodged an appeal to have the decision of 18 July 2003 overturned and the ordinary extradition procedure applied, under which the Criminal Division of the Audiencia Nacional would decide on his extradition. 17. In an order of 4 August 2003 the investigating judge dismissed the appeal. He reminded the applicant that he had agreed to the simplified extradition procedure and that that decision was irrevocable. 18. On 6 August 2003 the applicant requested the application of the measures provided for in Rule 39 of the Rules of Court, to have his extradition to Peru suspended. He relied on Articles 3, 5 and 6 of the Convention. 19. On the same day the Vice-President of the Fourth Section of the Court decided to apply Rule 39 of the Rules of Court and invited the Spanish Government not to extradite the applicant before the Chamber had examined the case at its meeting of 26 August 2003. The Government’s Agent and the Permanent Delegation of Spain to the Council of Europe were informed of that decision by telephone at 7 p.m., with subsequent confirmation by fax. 20. On 7 August 2003 the Spanish Government sent the Court a decision of investigating judge no. 6 of the Audiencia Nacional, to whom the Court’s request concerning the temporary suspension of the extradition had been transmitted. In it the judge rejected the request for the application of Rule 39 for the following reasons: “The applicant agreed to the extradition of his own free will, being fully aware of the consequences. That being so, the decision ordering his extradition is final and no appeal lies against it. Furthermore, the Peruvian authorities have provided the guarantees requested by the Spanish courts. Finally, the applicant applied to the European Court of Human Rights without exhausting the remedies available to him in Spanish law.” 21. On 7 August 2003 the applicant was extradited to Peru, where he was incarcerated. 22. On 8 August 2003 the Court asked the Spanish Government, in accordance with Rule 39 § 3 of the Rules of Court, what steps had been taken to ensure the application of the interim measure indicated. 23. Having received no reply from the Spanish Government, on 2 September 2003 the Court communicated the application under Articles 3, 6 and 34 of the Convention. 24. In November 2003 the applicant was granted conditional release by the Peruvian anti-terrorism authorities for lack of sufficient evidence that he was a member of the Shining Path. The applicant’s freedom was restricted by an order prohibiting him from leaving Lima and Peru or changing his place of residence without the authorisation of a judge, and obliging him to report to the judge once a week. The decision of the anti-terrorism authorities also indicated that as the criminal charges against the applicant were maintained, the proceedings against him remained open pending new developments in the investigation. 25. In January 2004 the Peruvian authorities asked the Spanish authorities to extend the extradition charges so that the applicant could be tried in Peru for financing the Shining Path terrorist group from abroad. Following that request a hearing before the Audiencia Nacional was scheduled for 13 February 2004. 26. On 22 January 2004 the applicant once again asked the Court to apply Rule 39 and ask the Spanish Government to suspend the hearing until it had ruled on his application. 27. On 27 January 2004 the Fourth Section of the Court considered that the circumstances underlying the applicant’s request were not of the kind to which, in the Court’s practice, Rule 39 was applied. The request was accordingly dismissed. 28. The hearing went ahead as planned and, by a decision of 25 February 2004, the Audiencia Nacional allowed the requested extension. The applicant lodged an amparo appeal against that judgment which is still pending before the Constitutional Court. 29. Following the judgment handed down by the Grand Chamber on 4 February 2005 in the case of Mamatkulov and Askarov v. Turkey ([GC], nos. 46827/99 and 46951/99, ECHR 2005-I), the applicant requested permission to submit additional pleadings to the Court. The Court agreed and the Government were informed. In April 2005 the parties submitted their observations. ...