CYIL vol. 11 (2020)
MIROSLAV KUBÍČEK CYIL 11 (2020) refer the case to the Council of Europe’s Committee of Ministers for consideration of further measures (Article 46(5) of the ECHR). The ECtHR’s power to indicate interim measures to the state against which application is made under Rule 39 of the ECtHR’s Rules of the Court is a vital tool for effectiveness of the ECHR system. The ECtHR may indicate any interim measure it considers necessary in the interest of parties (to the dispute) or of the proper conduct of the proceedings. If the applicant alleges real risk that extradition would result in of violation of Articles 3 or 6 of the ECHR, interim measures typically include indication that the person sought is not to be physically surrendered to authorities of the requesting party until the ECtHR decides on the application and indicates that interim measure is no longer applicable. Interim measures are binding and states have obligation to immediately act upon them (failure to do so is considered by the ECtHR to violate Article 34 of the ECHR 82 ). Therefore, even if extradition was granted by the requested party and the person sought is about to be physically surrendered to authorities of the requesting party, the requested party must immediately stay such surrender. In this regard, the ECtHR’s case law is rather strict and puts emphasis on the requested party’s obligation to ensure necessary communication between its authorities (interim measures are indicated to governments’ agents for the ECtHR and, in practice, it can be sometimes difficult to communicate them to the appropriate authorities with sufficient promptness) 83 . Similar protection might be offered also in the Inter-American system of human rights through the Inter-American Commission on Human Rights and Inter-American Court of Human Rights. This court, like the ECtHR, may decide on petitions of persons containing denunciations or complaints of violation of the American Convention on Human Rights (American Convention) by a party to the American Convention and may also adopt provisional measures under Article 63(2) of the American Convention and Article 27 of the Rules of Procedure of the Inter-American Court of Human Rights. However, of the member states of the Organization of American States, only Canada and the USA have bilateral extradition agreements with Hong Kong and neither Canada nor the USA are parties to the American Convention 84 . Other international human rights institutions (e.g. the United Nations Human Rights Council) are much less effective than the above-mentioned courts. Even if these institutions can receive individual complaints from persons, they lack enforceable judicial powers and independence and often act too late. 3. Effects of Suspension of the Operation or Termination of Bilateral Extradition Agreements Political calls for suspension of the operation or termination of the bilateral extradition agreements with Hong Kong seem to be based on the assumption that following suspension of the operation or termination of these agreements, no extradition to Hong Kong would
82 See, for example, Mamatkulov and Askarov v. Turkey , judgment of 4 February 2005, applications No. 46827/99 and 46951/99, para. 102 and 128, available online at http://hudoc.echr.coe.int/eng?i=001-68183. 83 See, for example, S. S. and B. Z. v. Russia , judgment of 11 June 2019, applications No. 35332/17 and 79223/17, para. 46, 47 and 49, available online at http://hudoc.echr.coe.int/eng?i=001-193613. 84 http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights_sign.htm.
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