Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms N. Milanova , a lawyer practising in GPE . The Government were represented by their agent PERSON , from ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant , who is a practising lawyer , initiated before ORG private criminal proceedings for defamation and aggravated insult , against PERSON , a former client of his . He alleged that because of certain statements of hers his reputation had been undermined and he had lost a large number of his clients . He joined a civil claim seeking CARDINAL old NORP levs in damages .

The applicant was legally represented throughout the proceedings .

On an unspecified date in DATE all the judges from ORG recused themselves and the case was transferred to ORG .

By a judgment of CARDINAL DATE ORG found PERSON guilty of defamation and sentenced DATE imprisonment , suspended for DATE . It also partly granted the applicant 's civil claim .

On appeal , on DATE ORG quashed the judgment and remitted the case for a fresh examination . It found that in violation of the relevant legislation the panel of ORG had not included lay judges throughout the entire proceedings .

On DATE ORG discontinued the proceedings as the statutory time limit for prosecuting the offence had expired .

On appeal by the applicant , by a decision of DATE ORG upheld the discontinuation .

Upon the applicant 's cassation appeal , on DATE ORG ( SCC ) upheld the discontinuation of the criminal proceedings and remitted the case for examination of the civil action .

By a judgment of DATE ORG found that PERSON had defamed the applicant and partly granted the civil claim awarding him CARDINAL new NORP levs , the equivalent of CARDINAL with interest . The judgment stated that it was subject to appeal before the SCC .

A notification that the judgment had been delivered was received by the applicant on DATE . On DATE he appealed .

On DATE the SCC held a hearing .

By a judgment of DATE the ORG rejected the appeal as inadmissible , finding that the judgment of DATE was not amenable to cassation appeal . This was so because under the relevant law judgments of the criminal courts in respect of privately prosecutable offences punishable with DATE imprisonment , as in the applicant 's case , were not amenable to cassation appeal and , consequently , the civil part of such judgments was likewise not amenable to cassation appeal .

LAW , as in force at the relevant time , listed exhaustively the judgments and decisions that were subject to cassation appeal .

Decisions of second instance courts discontinuing criminal proceedings were amenable to cassation appeal before the SCC irrespectively of their subject mater .

On the other hand , certain second instance judgments , such as those concerning privately prosecutable offences punishable with DATE imprisonment , were not amenable to cassation appeal .

The SCC has held that where a case falls into one of the categories of cases where second instance judgments are not amenable to cassation appeal , this is also valid in respect of the civil part of the case , where a civil claim has been admitted for examination in the criminal proceedings . Owing to their subsidiary character , civil claims in criminal proceedings fell to be processed under criminal procedure rules ( реш. № DATE от CARDINAL юни DATE г. по н. д. № CARDINAL г. , ORG , I ORG , реш. № CARDINAL от DATE г. по н. д. № CARDINAL г , ORG , III ORG ) .

In a judgment of DATE ( реш. № CARDINAL от CARDINAL февруари DATE г. по н. д. № CARDINAL г. , ORG , II н. ORG ) the SCC held that where the law did not provide for cassation appeal , the fact that a second instance court may have erroneously indicated in the text of its judgment that an appeal was possible was irrelevant . Cassation appeals submitted in such circumstances were inadmissible as the second instance court judgment was final .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

NORP The applicant is a NORP national who was born in DATE and is currently in GPE . He was represented before the ORG by Mr A .- PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

NORP The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant entered GPE and , on DATE , he applied to ORG ( Migrationsverket ) for asylum and a residence permit . A first interview was scheduled in order to establish the grounds for the applicant ’s request for asylum but he did not appear for this meeting . ORG then called him to a new interview on DATE which he attended . At the interview , the applicant claimed that he did not know where he had been born or raised and that he had never held a passport or an identification card . He did not know the whereabouts of his parents either but stated that he had been working as a shepherd in LOC ( a region under NORP authority ) . A friend , who had “ felt sorry for him ” and had wanted to give him the possibility of a better life , had helped him to leave his home country .

A language analysis , carried out in DATE , showed that the applicant had tried to conceal his real dialect but that it still appeared from the test that he came from GPE . He did not attend any further meetings with ORG or his legal representative , despite being called repeatedly .

NORP In DATE the Swedish Security Police ( Säkerhetspolisen ) , in a submission to ORG , stated that they had certain information about the applicant which indicated that he could become involved in activities that threatened the security of the nation .

On DATE ORG rejected the applicant ’s application , essentially because he had failed to participate in the asylum investigation and had not stated that he risked being persecuted or harassed in his home country . Thus , ORG concluded that the applicant himself did not feel that he was in need of protection in GPE . Since the applicant had disappeared , the decision could not be communicated to him .

In DATE the applicant was apprehended by the NORP police when he tried to enter the country with a fake NORP passport and holding an airplane ticket to GPE . He had tried to conceal his identity by giving CARDINAL other names , different from that given to the NORP authorities , to the NORP authorities but they had discovered this . Consequently , in accordance with LAW , the applicant was accepted back in GPE on DATE and placed in custody since he had absconded once before and thus there was a risk that he would try to evade enforcement of a decision on deportation . Moreover , he was informed of ORG negative decision in regard to his asylum request lodged in DATE .

On DATE he lodged a new application for asylum and a residence permit with ORG , alleging that since he was from LOC and had left the country illegally , the NORP authorities would automatically assume that he was part of ORG ( an armed , political organisation which fights for the independence of LOC from GPE ) and therefore arrest and torture him . However , he specified that he had never been politically active or supported ORG . Moreover , he claimed that he should be considered as a refugee sur place since ORG had accused him of being involved in security - threatening activities and the NORP authorities surely knew about it and would arrest him on this basis as well .

The applicant was interviewed by ORG on DATE at which point he added , essentially , the following . He had not been raised by his parents and he did not know from which country he hailed but he was a citizen of PERSON , which should be understood as LOC . He had no passport or identity documents . His foster father had wanted him to join ORG but he had not wanted this himself . He had not had any contact with the NORP authorities . While in GPE , he had had no choice but to live with people that ORG held under surveillance since he had had nowhere else to live . When he had been apprehended in GPE , he had been on his way to work in GPE . The fact that his ticket was to GPE was a mistake . If forced to return to GPE , he would risk being imprisoned because he was from LOC and because of the people he had socialised with while in GPE .

In a submission from the applicant ’s representative , dated DATE , he stressed that the applicant was not a member of ORG . However , since he had left LOC illegally without any travel documents , this was enough for the NORP authorities to consider him a member of ORG . Moreover , he refuted the NORP ORG allegations that he was a security threat to GPE as groundless .

On DATE ORG rejected the application . It first noted that the applicant had provided no evidence to support either his identity or any of his grounds for asylum but that the language analysis had shown that he came from GPE . It then noted that ORG had maintained their earlier submission to ORG and , in a new submission of DATE , had recommended that the applicant should not be allowed to remain in GPE because they considered that he posed a security risk to the nation . ORG then observed that the situation in LOC was unstable due to the conflict with the NORP authorities but that the situation in itself was not so serious that it could justify granting a person asylum in GPE . As concerned the applicant ’s situation , it found his allegations to be groundless . There was no indication that the NORP authorities would consider him a member of ORG or otherwise show any interest in him since there was nothing to suggest that the NORP authorities had knowledge of the NORP ORG concerns . Moreover , it noted that the applicant himself had stated that he was not involved in any activities of a political , or other , nature . Having regard to ORG submissions , which ORG did not question , and all the above considerations , ORG concluded that the applicant ’s request for asylum and a residence permit should be rejected .

NORP The applicant appealed against ORG decision . Since the case involved national security matters , ORG transferred the appeal to ORG ( Migrationsöverdomstolen ) in order for that court to give its opinion on whether there were any impediments to the enforcement of the deportation order before the case , together with the court ’s opinion , were passed on to the Government for examination ( see below under relevant domestic law and practice , § CARDINAL ) .

Before ORG , the applicant maintained his earlier claims and added that he believed that ORG had informed their NORP counterpart , in accordance with international obligations , about him and their suspicions about him . Moreover , in DATE , he and a friend had been arrested by the police in a mosque in GPE . He had been questioned but released DATE and no charges had been brought against him . However , he was convinced that the NORP security police had been in the mosque at the time of the arrest and therefore would immediately detain and question him if he were deported to GPE .

On DATE ORG held an oral hearing in the case and , on DATE , it submitted its opinion on the matter to the Government for them to examine the case and make a final decision . In its submission , the court recommended that the applicant should not be granted leave to remain in GPE and that he should , moreover , be prohibited from returning within DATE . It noted , inter alia , that there was nothing to suggest that the NORP authorities would show any interest in him and that the applicant himself had stated that he had never been politically active . It also considered that he was very unreliable and questioned the veracity of his accounts as his story had escalated over time . Thus , the court was of the opinion that the applicant was not in need of protection in GPE , either as a refugee or as a person otherwise in need of protection . Furthermore , it presumed that ORG had not , and would not , handle the case in such a way that it would render the enforcement of the deportation order impossible .

The applicant disputed ORG opinion and maintained his claims . He further added that court had not taken into consideration his connection to CARDINAL of the persons he had socialised with in GPE and that ORG and ORG could not guarantee his safety in GPE , if he were returned .

On DATE the ORG rejected the appeal and decided that he should be deported to GPE as soon as possible and with a prohibition on returning to GPE before DATE . They first noted that they did not question ORG information that the applicant could become involved in activities threatening the security of the nation . They then considered that he was not credible and that there was no indication that he would risk persecution or torture by the NORP authorities upon return . Therefore there were no grounds on which to consider him a refugee or otherwise in need of protection and no other reasons to grant him leave to remain in GPE had been established . Having regard to the submission made by ORG , the ORG also decided to prohibit the applicant from returning to GPE for DATE . This decision was final .

Subsequently , the applicant applied to ORG for a re - examination of his application for asylum and a residence permit on the grounds that new circumstances had come to light which rendered an enforcement of the deportation order impossible . However , on DATE , ORG found that no new circumstances had been presented and that the deportation order could be enforced . The applicant did not appeal against this decision .

In the meantime , on DATE , the applicant requested the ORG to indicate to ORG under Rule CARDINAL of ORG a suspension of his deportation to GPE . On DATE , CARDINAL DATE , the ORG decided to apply Rule CARDINAL and to suspend the deportation until DATE , on which date it was extended until further notice and the case communicated to ORG .

Following the request by ORG , ORG stayed the enforcement of the deportation order until further notice .

In a letter of CARDINAL DATE the Government informed the ORG that new information had come to light in the case which might constitute an impediment to the enforcement of the deportation order .

Consequently , in accordance with the relevant rules in LAW , on DATE , ORG handed the case over to the Government for examination since it considered that , due to certain new information presented in an internal note by a civil servant at ORG , there appeared to be an impediment to the enforcement of the deportation order in the applicant ’s case . In its view , there was now adequate reason ( skälig anledning ) to believe that the applicant would risk being tortured if returned to his home country . It noted that although the human rights situation in the country had improved and some police officers had been convicted for having committee torture , allegations of torture and impunity remained .

The Government requested ORG to submit its opinion on the case , which it did on DATE , after having held an oral hearing where the applicant and his representative were present as well as representatives for ORG and ORG . In its opinion , the court stated that there were no impediments to the enforcement of the deportation of the applicant since it was not probable that the NORP authorities had an interest in the applicant and he therefore did not risk torture or inhuman treatment .

The applicant submitted in reply that ORG opinion was incorrect and that ORG could not guarantee his safety in GPE . He further submitted a copy of a newspaper article about him in which his name was mentioned and there was a photo of him . The article had been published in the DATE newspaper ORG on DATE and included the following information . The applicant claimed that he had never been interested in politics and that he hoped that the NORP authorities would believe his assurances that he was not a terrorist . He had left LOC , where he had grown up , because ORG had wanted him to join as a soldier but he had refused . In the article is was further stated that the main reason that the applicant was regarded as a security risk in GPE , allegedly was that he had socialised with another person , X. , who was suspected of having ties to ORG in GPE and who had led a group of extremists from an apartment in GPE . The applicant claimed that he had needed a cheap place to sleep when he arrived in GPE and that X. had offered him a room in his apartment . However , they had never discussed politics and the applicant had moved out as soon as he had started working . However , while he was living in the apartment , he and X. had been awoken TIME by ORG who had detained and questioned them for DATE before they had been released . According to the applicant , ORG had focused on questioning him about X. He further stated that if he had seen anything suspicious , he would have told the police since he had come to GPE for protection and therefore also wanted to protect GPE .

On DATE the Government decided that there were no impediments to the enforcement of the deportation order . Although some new information had come to light , these circumstances were not such as to render the deportation of the applicant unenforceable . Moreover , the fact that the applicant himself had chosen to make public his name and photo in CARDINAL NORP media after ORG had submitted its opinion to the Government , did not alter the Government ’s conclusion in the matter . Finally , the Government reiterated that the enforcement of the deportation order was still suspended due to the ORG ’s request under LAW .

The basic provisions mainly applied in the present case , concerning the right of aliens to enter and to remain in GPE are laid down in the DATE LAW ( Utlänningslagen , DATE hereafter referred to as “ the DATE LAW ) which replaced , on DATE , the old LAW ( Utlänningslagen , DATE ) .

Chapter CARDINAL , LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group , and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , Section CARDINAL ) .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW ) .

Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , the ORG shall decide not to grant a re - examination ( LAW , LAW ) .

A refugee or an alien otherwise in need of protection may be refused a residence permit in certain cases . Such a decision may be taken if there are exceptional grounds for not granting a residence permit , either following an assessment of what is known about the alien ’s previous activities or with regard to national security ( LAW , LAW , paragraph CARDINAL , points CARDINAL and CARDINAL ) . However , it follows from LAW , LAW of the DATE Act that no person at risk of being tortured may be refused a residence permit .

NORP Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , LAW ) . However , in a so called security case ( defined in LAW , LAW , as a case in which ORG , for reasons relating to national security or otherwise bearing on public security , recommend that an alien be deported or expelled , or that his or her application for a residence permit should be rejected or that an alien ’s residence permit be withdrawn ) , a decision of ORG on deportation , expulsion , a residence permit or a work permit may not be appealed against to ORG , but may instead be appealed against to ORG ( LAW , LAW ) . ORG shall promptly turn over an appeal of such a decision to ORG . This court shall , if it is not clearly unnecessary , hold an oral hearing in the case and shall then pass on the case , along with its opinion , to the Government for examination The opinion shall specifically state whether there is an impediment to enforcement under LAW , LAW , CARDINAL DATE . If ORG finds that there is such an impediment , the Government may not diverge from the assessment of ORG in its examination ( LAW , LAW ) . If , during the enforcement of a deportation or expulsion order in a security case , information comes to light that might constitute an impediment to the enforcement of that order , ORG shall also promptly turn the case over to the Government , after which the above procedure applies ( LAW , LAW , paragraph CARDINAL ) .

The NORP Security Police may only recommend that an alien be deported or expelled , or that his or her application for a residence permit should be rejected for reasons relating to national security or otherwise bearing on public security . This recommendation is only decisive for defining the case as a security case . The decision to deport or to reject an application for a residence permit for reasons relating to national security or otherwise bearing on public security lies with ORG and , ultimately , with the Government .

NORP law prohibits torture and the Government denied its use . In DATE a specific anti - torture law was passed , which has clear classification of the crimes in line with relevant ORG conventions . Moreover , the penal code stipulates sentences of up to life imprisonment for public servants who use , or allow the use of , violence against others in the exercise of their official duties . Furthermore , by law , pre - trial investigating judges must refer a detainee to a forensic medicine expert if asked to do so or if judges notice suspicious physical marks on a detainee . Still , according to domestic and international human right organisations , prisoners and detainees , members of the security forces abused individuals in their custody . According to the NORP Minister of Justice , during DATE , authorities prosecuted CARDINAL members of the security forces for human rights violations , including torture , and CARDINAL officers were convicted and sentenced to CARDINAL years’ imprisonment for beating to death a LOC activist in DATE .

The law does not prohibit arbitrary arrest or detention . According to international sources , the police used both practices and the authorities denied defendants access to counsel or family members during DATE of detention , during which police interrogated detainees and abuse or torture was most likely to occur . Under the anti - terrorism law , enacted in the aftermath of the DATE GPE bombings , the authorities have the power to detain a person for DATE without notifying a lawyer or the detainee ’s family . Detention limits were exceeded when individuals were suspected of terrorism or were linked to terrorism .

The constitution provides for an independent judiciary . However , it appears from available sources that in practice the courts were not always independent and corruption remained prevalent . The law also stipulates that when a criminal penalty is DATE in prison , a court - appointed attorney must be provided , if a defendant can not afford private counsel . Furthermore , if a judge determines that a confession was obtained under duress , the law requires that it be excluded from evidence . However , human rights organisations claimed that judges often decided cases on the basis of forced confessions , especially in cases of NORP accused of terrorism or in the cases of some PERSON ( people from the region of LOC ) .

ORG permitted visits to prisons during DATE by independent human rights observers and , throughout DATE , they also permitted the NORP Observatory of Prisons ( an NGO that receives limited government funding ) to visit prisons and detention centres unhindered to observe conditions and hear complaints . Moreover , individuals could complain of human rights abuses to the Conseil ORG the ORG ) , which was also done without problems . The ORG presented regular reports on the country ’s human rights situation .

The Government provided increased human rights training to prison officials , military officers , police and medical personnel . The authorities did not hamper foreign human rights organisations visiting GPE and they generally tolerated the work of many national human rights organisations . ORG opened its first office in GPE in DATE and has since then opened several more offices in the country .

Several of the sources noted that despite the clear efforts to improve the human rights situation in GPE and strengthen the democratic process , the fight against terrorism risked having a negative impact on respect for human rights in GPE . Since DATE , police have arrested CARDINAL suspected NORP militants and , according to ORG , the intelligence agencies have continued to use an unacknowledged detention centre at GPE to interrogate some of those suspected of serious offences . Suspects continued to allege that they had been tortured while under interrogation , although there were fewer complaints of torture and excessive incommunicado pre - arraignment detention in DATE than in the immediate aftermath of the DATE GPE bombings . Moreover , during DATE , law enforcement efforts focused more narrowly on counter terrorism investigations and arrests than the previous broad dragnets used following the DATE GPE attacks . Still , according to ORG ( an NGO which advocates on behalf of jailed NORP ) CARDINAL individuals remained in custody without charge at DATE , as a result of terror - related dragnets . ORG has reported that CARDINAL suspected NORP militants were arrested , mostly by police , and that most of the detainees were charged and some were tried on terrorism offences and sentenced to DATE in prison .

The NORP authorities kept particularly tight control over the disputed LOC , resulting in many reports of police brutality , including torture . ORG - mediated talks concerning the region were held in DATE between ORG and ORG but without reaching an agreement . ORG reported that CARDINAL of GPE activists suspected of participating in demonstrations against NORP rule were arrested and CARDINAL of them alleged that they had been tortured during questioning by security forces . Some were tried on charges of violent conduct while others were released after questioning . The Government encouraged the return of PERSON as long as they acknowledged the ORG ’s claim to the LOC territory . There were no restrictions on travelling within the country .


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Tunisia);Non-pecuniary damage - finding of violation sufficient

Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Françoise Tulkens;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Khanlar Hajiyev;Loukis Loucaides;Nicolas Bratza;Peer Lorenzen;Sverre Erik Jebens;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

The applicant , who entered GPE at some unspecified time DATE , held a residence permit issued for “ family reasons ” by the GPE police authority ( questura ) on DATE . This permit was due to expire on DATE .

On DATE the applicant was arrested on suspicion of involvement in international terrorism ( Article CARDINAL bis of LAW ) , among other offences , and placed in pre - trial detention . He and CARDINAL others were subsequently committed for trial in ORG .

NORP The applicant faced CARDINAL charges . The first of these was conspiracy to commit acts of violence ( including attacks with explosive devices ) in GPE other than GPE with the aim of spreading terror . It was alleged that DATE the applicant had been CARDINAL of the organisers and leaders of the conspiracy , had laid down its ideological doctrine and given the necessary orders for its objectives to be met . The second charge concerned falsification “ of a large number of documents such as passports , driving licences and residence permits ” . The applicant was also accused of receiving stolen goods and of attempting to aid and abet the entry into NORP territory of an unknown number of aliens in breach of the immigration legislation .

At his trial the prosecution called for the applicant to be sentenced to DATE imprisonment . The applicant ’s lawyer asked ORG to acquit his client of international terrorism and left determination of the other charges to the court ’s discretion .

In a judgment of CARDINAL DATE , ORG altered the legal classification of the first offence charged . It took the view that the acts of which he stood accused did not constitute international terrorism but criminal conspiracy . It sentenced the applicant to DATE and CARDINAL months’ imprisonment for that offence , and for the forgery and receiving offences . It acquitted the applicant of aiding and abetting clandestine immigration , ruling that the acts he stood accused of had not been committed .

As a secondary penalty , ORG banned the applicant from exercising public office for DATE and ordered that after serving his sentence he was to be deported .

In the reasons for its judgment , which ran to CARDINAL pages , ORG observed that the evidence against the applicant included intercepts of telephone and radio communications , witness statements and numerous false documents that had been seized . Taken together , this evidence proved that the applicant had been engaged in a conspiracy to receive and falsify stolen documents , an activity from which he derived his means of subsistence . On the other hand , it had not been established that the documents in question had been used by the persons in whose names they had been falsely made out to enter NORP territory illegally .

As regards the charge of international terrorism , ORG firstly noted that a conspiracy was “ terrorist ” in nature where its aim was to commit violent acts against civilians or persons not actively participating in armed conflict with the intention of spreading terror or obliging a government or international organisation to perform or refrain from performing any act , or where the motive was political , ideological or religious in nature . In the present case it was not known whether the violent acts that the applicant and his accomplices were preparing to commit , according to the prosecution submissions , were to be part of an armed conflict or not .

In addition , the evidence taken during the investigation and trial was not capable of proving beyond a reasonable doubt that the accused had begun to put into practice their plan of committing acts of violence , or that they had provided logistical or financial support to other persons or organisations having terrorist aims . In particular , such evidence was not provided by the telephone and radio intercepts . These proved only that the applicant and his accomplices had links with persons and organisations belonging to NORP fundamentalist circles , that they were hostile to “ infidels ” ( and particularly those present in territories considered to be NORP ) and that their relational world was made up of “ brothers ” united by identical religious and ideological beliefs .

Using coded language the defendants and their correspondents had repeatedly mentioned a “ football match ” , intended to strengthen their faith in God . For ORG it was quite obvious that this was not a reference to some sporting event but to an action applying the principles of the most radical form of ORG . However , it had not been possible to ascertain what particular “ action ” was meant or where it was intended to take place .

NORP Moreover , the applicant had left GPE on DATE and , after a stopover in GPE , made his way to GPE , from where he had returned to GPE on DATE . He had also spoken of a “ leader of the brothers ” who was in GPE . Some members of the group to which the applicant belonged had travelled to “ training camps ” in GPE and had procured weapons , explosives , and observation and video - recording equipment . In the applicant ’s flat and those of his co - defendants , the police had seized propaganda about jihad DATE or holy war – on behalf of ORG . In addition , in telephone calls to members of his family in GPE made from the place where he was being detained in GPE , the applicant had referred to the “ martyrdom ” of his brother PERSON ; in other conversations he had mentioned his intention to take part in holy war .

NORP However , no further evidence capable of proving the existence and aim of a terrorist organisation had been found . In particular , there was no evidence that the applicant and his accomplices had decided to channel their fundamentalist faith into violent action covered by the definition of a terrorist act . Their desire to join a jihad and eliminate the enemies of NORP could very well be satisfied through acts of war in the context of an armed conflict , that is , acts not covered by the concept of “ terrorism ” . It had not been established whether the applicant ’s brother had really died in a suicide bombing or whether that event had been the “ football match ” which the defendants had repeatedly referred to .

The applicant and the prosecution appealed . The applicant asked to be acquitted of all the charges , while the prosecution wanted him to be convicted of international terrorism and aiding and abetting clandestine immigration as well .

In the prosecution ’s appeal it was submitted that , according to the case - law of ORG , the constituent elements of the crime of international terrorism were made out even where no act of violence had occurred , the existence of a plan to commit such an act being sufficient . In addition , an action could be terrorist in nature even if it was intended to be carried out in the context of an armed conflict , provided that the perpetrators were not members of the “ armed forces of a State ” or an “ insurrectionary group ” . In the present case , it was apparent from the documents in the file that the applicant and his associates had procured for themselves and others false documents , weapons , explosives and money in order to commit violent acts intended to affirm the ideological values of fundamentalist ORG . In addition , the accused had maintained contacts with persons and organisations belonging to the sphere of international terrorism and had planned a violent and unlawful action , due to be carried out in DATE as part of a “ holy war ” and in a country other than GPE . Only the GPE arrest had prevented the plan from being implemented . Furthermore , at that time the armed conflict in GPE had ended and the one in GPE had not yet started .

NORP The prosecution further submitted that the applicant ’s brother , Mr PERSON , had been detained in GPE ; the applicant had visited him there in either DATE or DATE . After his release Mr PERSON had settled in GPE and stayed in contact with the applicant . He had then died in a suicide bombing , a fact which was a source of pride for the applicant and the other members of his family . That was revealed by the content of the telephone conversations intercepted in the prison where the applicant was being held .

Lastly , the prosecution requested leave to produce new evidence , namely letters and statements from a person suspected of terrorist activities and recordings transmitted by radio microphone from inside a mosque in GPE .

On DATE ORG asked ORG to rule on the constitutionality of LAW . As amended by LAW . CARDINAL of DATE , that provision permitted the defence and the prosecution to appeal against acquittals only where , after the close of the first - instance proceedings , new evidence had come to light or been discovered . ORG stayed the proceedings pending a ruling by ORG .

In judgment no . CARDINAL of DATE , ORG declared the relevant provisions of NORP law unconstitutional in that they did not allow the prosecution to appeal against all acquittals and because they provided that appeals lodged by the prosecuting authorities before the entry into force of PERSON no . CARDINAL of DATE were inadmissible . ORG observed in particular that PERSON no . DATE did not maintain the fair balance that should exist in a criminal trial between the rights of the defence and those of the prosecution .

The first hearing before ORG was set down for DATE .

In the meantime , on DATE , DATE after delivery of ORG judgment , a military court in GPE had sentenced the applicant in his absence to CARDINAL years’ imprisonment for membership of a terrorist organisation operating abroad in time of peace and for incitement to terrorism . He was also deprived of his civil rights and made subject to administrative supervision for DATE . The applicant asserted that he had not learned of his conviction until its operative part was served on his father on DATE , when the judgment had already become final .

The applicant alleged that his family and his lawyer were not able to obtain a copy of the judgment by which the applicant had been convicted by the GPE military court . In a letter of CARDINAL DATE to the President of GPE and the NORP Minister of Justice and Human Rights , his representatives before the ORG asked to be sent a copy of the judgment in question . The result of their request is not known .

On DATE , after being imprisoned uninterruptedly since DATE , the applicant was released .

On DATE the Minister of the ORG ordered him to be deported to GPE , applying the provisions of Legislative Decree no . CARDINAL of DATE ( entitled “ Urgent measures to combat international terrorism ” and later converted to statute law in the form of PERSON no . CARDINAL of DATE ) . He observed that “ it was apparent from the documents in the file ” that the applicant had played an “ active role ” in an organisation responsible for providing logistical and financial support to persons belonging to fundamentalist NORP cells in GPE and abroad . Consequently , his conduct was disturbing public order and threatening national security .

NORP The Minister made it clear that the applicant could not return to GPE except on the basis of an ad hoc ministerial authorisation .

The applicant was taken to a temporary holding centre ( centro di permanenza temporanea ) in GPE . On DATE the deportation order was confirmed by ORG justice of the peace .

On DATE the applicant requested political asylum . He alleged that he had been sentenced in his absence in GPE for political reasons and that he feared he would be subjected to torture and “ political and religious reprisals ” . By a decision of QUANTITY DATE , the Head of the GPE police authority ( questore ) declared the request inadmissible on the ground that the applicant was a danger to national security .

On DATE the Director of the non - governmental organisation ORG ( known by its NORP initials – OMCT ) wrote to the NORP Prime Minister to tell him the ORG was “ extremely concerned ” about the applicant ’s situation , and that it feared that , if deported to GPE , he would be tried again for the same offences he stood accused of in GPE . The ORG also pointed out that , under the terms of LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment , “ ORG shall expel , return ( ‘ ORG ) or extradite a person to another ORG where there are substantial grounds for believing that he would be in danger of being subjected to torture ” .

On DATE the President of the non - governmental organisation Collective of ORG in LOC appealed to the NORP government to “ end its policy of mass deportation of NORP immigrants [ who were ] practising adherents of religious faiths ” . He alleged that the NORP authorities were using inhuman methods and had grounded a number of decisions against NORP on their religious convictions . He went on to say that it was “ obvious ” that on arrival in GPE the persons concerned would be “ tortured and sentenced to lengthy terms of imprisonment , on account of the fact that the NORP authorities falsely suspect them of terrorism ” . The applicant ’s name appeared in a list of persons at imminent risk of expulsion to GPE which was appended to the letter of DATE .

The Chief Constable ’s decision of DATE ( see paragraph CARDINAL above ) was served on the applicant on DATE . The applicant did not appeal . However , on DATE he had produced documents , including the ORG ’s letter of DATE and the reports on GPE by ORG and ORG , requesting that these be passed on to the local refugee status board . On DATE the GPE police authority informed the applicant orally that as his asylum request had been refused the documents in question could not be taken into consideration .

On DATE , pleading Rule CARDINAL of ORG , the applicant asked the ORG to suspend or annul the decision to deport him to GPE . On DATE the ORG decided to ask the Government to provide it with information , covering in particular the question whether the applicant ’s conviction by the GPE military court was final and also whether in NORP law there was a remedy whereby it was possible to obtain the reopening of proceedings or a retrial .

The Government ’s reply was received at ORG DATE . According to the NORP authorities , in the event of a conviction in the absence of the accused , NORP law gave the person convicted the right to have the proceedings reopened . The Government referred in particular to a fax of DATE from the NORP ambassador in GPE stating that , according to the information supplied by ORG at ORG , the applicant ’s conviction was not final since a person convicted in his absence could appeal against the relevant judgment .

On DATE the ORG decided to apply Rule CARDINAL . It asked the Government to stay the applicant ’s expulsion until further notice .

NORP The maximum time allowed for the applicant ’s detention with a view to expulsion expired on DATE and he was released on that date . However , on DATE a new deportation order had been issued against him . On DATE this order was served on the applicant , who was then taken back to the GPE temporary holding centre . As the applicant had stated that he had entered GPE from GPE , the new deportation order named GPE as the receiving country , not GPE . On DATE the new deportation order was confirmed by ORG justice of the peace .

On DATE the applicant was released because fresh information indicated that it was impossible to deport him to GPE . On DATE ORG ordered precautionary measures , to take effect immediately after the applicant ’s release : he was forbidden to leave NORP territory and required to report to a police station on DATE .

In the meantime , on DATE , the applicant had applied for a residence permit . On DATE the GPE police authority replied that this application could not be allowed . It was explained that a residence permit could be issued “ in the interests of justice ” only at the request of the judicial authorities , where the latter considered that the presence of an alien in GPE was necessary for the proper conduct of a criminal investigation . The applicant had in any case been forbidden to leave NORP territory and was therefore obliged to stay in GPE . Moreover , to obtain a residence permit it was necessary to produce a passport or similar document .

Before the ORG the applicant alleged that the NORP authorities had refused to renew his passport , so that all his further attempts to regularise his situation had come to nothing .

On a date which has not been specified , the applicant also asked ORG ) to set aside the deportation order of DATE and stay its execution .

In a decision of CARDINAL DATE , ORG held that there was no cause to rule on the application for a stay of execution and ordered the file to be transmitted to ORG , which had the appropriate territorial jurisdiction .

The Lombardy RAC pointed out among other observations that ORG had already requested a stay of execution of the deportation order and had consequently provided redress for any prejudice the applicant might allege .

According to the information supplied by the applicant on CARDINAL DATE , the proceedings in ORG were still pending on DATE .

On DATE the applicant sent a memorial to the GPE police authority pointing out that ORG had requested a stay of execution of his deportation on account of a real risk that he would be subjected to treatment contrary to LAW . He therefore asked for a hearing before the local refugee status board with a view to being granted political asylum . According to the information supplied by the applicant on DATE , there had been no reply to his memorial by that date . In a memorandum of DATE , ORG stated that the memorial of DATE could not be regarded as a new asylum request or as an appeal against the refusal given by ORG on DATE ( see paragraph CARDINAL above ) .

On DATE the NORP embassy in GPE sent a note verbale to the NORP government , requesting diplomatic assurances that if the applicant were to be deported to GPE he would not be subjected to treatment contrary to LAW and would not suffer a flagrant denial of justice .

The note in question , written in NORP , reads as follows :

“ The NORP embassy presents its compliments to ORG and , following the meeting between the NORP ambassador Mr PERSON and his Excellency the Minister of ORG and Human Rights Mr Béchir Tekkari , on the occasion of the visit of the NORP Minister of Justice Mr PERSON , on CARDINAL DATE , has the honour to request the invaluable cooperation of the NORP authorities in reaching a positive development in the following case .

The NORP national PERSON , born in GPE ) on DATE , was served with an order for his deportation from GPE , issued by ORG on DATE .

After the above order had been issued , Mr PERSON lodged an application with ORG DATE , requesting and obtaining the decision to stay execution of the deportation order .

His application is based on the argument that , after he had been tried in his absence , he was sentenced to DATE imprisonment for terrorist - related offences , in a judgment given by the GPE military court on DATE , served on PERSON father on DATE . Because of his conviction , Mr PERSON contends that if the deportation order were to be enforced he would run the risk of being imprisoned in GPE on his arrival , on the basis of an unfair trial , and of being subjected to torture and inhuman and degrading treatment ( please find enclosed a copy of the document by which the judgment was served supplied by PERSON ) .

In order to gather all the information necessary to assess the case , ORG has asked the NORP government to supply a copy of the judgment and wishes to ascertain whether the NORP government intends , before deporting PERSON , to seek diplomatic guarantees from the NORP government .

In the light of the foregoing , the NORP embassy , counting on the sensitivity of the NORP authorities on the question , has the honour to formulate , subject to the judicial prerogatives of ORG , the following urgent request for guarantees , as an indispensable formal prerequisite for the solution of the case now pending :

– if the information given by Mr PERSON concerning the existence of a judgment of CARDINAL DATE in which he was found guilty by the GPE military court corresponds to the truth , please send a full copy of the judgment in question ( before DATE , the date of the hearing before the ORG ) and confirm that he has the right to appeal , and to be judged by an independent and impartial tribunal , in accordance with a procedure which , taken as a whole , complies with the principles of a fair and public trial ;

– please give assurances that the fears expressed by Mr PERSON of being subjected to torture and inhuman and degrading treatment on his return to GPE are unfounded ;

– please give assurances that if he were to be committed to prison he would be able to receive visits from his lawyers and members of his family .

In addition , the NORP embassy would be grateful if the NORP authorities would keep it informed of the conditions of Mr PERSON ’s detention if he were to be committed to prison .

The way this case is determined will have significant implications for future security policy .

The information mentioned above , which ORG has requested from the NORP government , are indispensable if the deportation is to go ahead .

To a certain extent , this case forms a precedent ( in relation to numerous other pending cases ) and DATE we are convinced – a positive response by the NORP authorities will make it easier to carry out further expulsions in future .

While perfectly aware of the delicate nature of the subject , the NORP embassy counts on the understanding of the NORP authorities , hoping that their reply will be in the spirit of effective action against terrorism , as part of the friendly relations between our CARDINAL countries . ”

The NORP government observed that such assurances had never before been requested from the NORP authorities .

On DATE ORG sent a note verbale to the NORP embassy in GPE . Its content was as follows :

“ The Minister for ORG presents his compliments to the NORP ambassador in GPE and , referring to the ambassador ’s note verbale no . CARDINAL of DATE concerning PERSON , currently imprisoned in GPE , has the honour to inform the ambassador that the NORP government confirms that it is prepared to accept the transfer to GPE of NORP imprisoned abroad once their identity has been confirmed , in strict conformity with the national legislation in force and under the sole safeguard of the relevant NORP statutes .

The Minister for ORG would like once again to convey to the NORP ambassador in GPE his sincere regards . ”

A second note verbale , dated DATE , was worded as follows :

“ The Minister for ORG presents his compliments to the NORP ambassador in GPE and , referring to his note verbale no . CARDINAL of CARDINAL DATE , has the honour to confirm to him the content of the ORG ’s note verbale no . CARDINAL of DATE .

The Minister for ORG hereby confirms that the NORP laws in force guarantee and protect the rights of prisoners in GPE and secure to them the right to a fair trial . The Minister would point out that GPE has voluntarily acceded to the relevant international treaties and conventions .

According to the applicant , in GPE he lives with an NORP national , PERSON , whom he married in a NORP marriage ceremony . They have an DATE child ( born on DATE ) , an NORP national , who attends school in GPE . PERSON is unemployed and is not at present in receipt of any family allowance . She suffers from a type of ischaemia .

According to a memorandum of DATE from ORG , on DATE the applicant married , in a NORP marriage ceremony , a second wife , PERSON While officially resident in via ORG , at the address occupied by PERSON , the applicant is said to be separated de facto from both his wives . Since DATE he has been habitually resident in via ORG , GPE , in a flat which he apparently shares with other NORP .

A deportation order is subject to appeal to the ORG , the court having jurisdiction to examine the lawfulness of any administrative decision and set it aside where it disregards an individual ’s fundamental rights ( see , for example , PERSON v. GPE DATE . ) , no . CARDINAL , ECHR CARDINAL-I ) . An appeal to the PERSON lies against decisions of the ORG .

In proceedings before the ORG , a stay of execution of the administrative decision complained of is not automatic , but may be granted if requested ( see PERSON , cited above ) . However , where DATE as in the applicant ’s case – deportation has been ordered under the terms of Legislative Decree no . CARDINAL of DATE , appeals to the ORG or the PERSON can not stay enforcement of the deportation order ( LAW and CARDINAL bis of LAW ) .

In the NORP translation produced by the Government , the relevant provisions of LAW read as follows :

“ Where a defendant fails to appear on the appointed date , having been personally informed of the obligation to do so , the court shall proceed to judgment , giving a decision which is deemed to follow adversarial proceedings . Where a defendant who fails to appear has been lawfully summoned , though not informed in person , judgment is given by default . Notification of judgment by default shall be given by the registrar of the court which gave judgment .

An appeal against a judgment by default must be lodged by the appellant in person , or his representative , with the registry of the court which has given judgment , within DATE following service of the defendant ’s copy .

If the appellant lives outside NORP territory , the time allowed for appeal shall be increased to DATE .

An appeal shall be lodged either by means of a verbal declaration , which shall be formally recorded forthwith , or by means of a written declaration . The appellant must sign ; if he refuses or is unable to sign , that circumstance shall be formally recorded .

The registrar shall immediately fix a date for the hearing and inform the appellant thereof ; in all cases the hearing must be held within DATE from the date of the appeal .

The appellant or his representative shall inform the interested parties , with the exception of ORG counsel , and have them summoned by an officer of the court , DATE before the date of the hearing , failing which the appeal shall be dismissed . ”

“ Where judgment has not been served on the defendant in person or where it does not appear from the documents recording enforcement of the judgment that the defendant had knowledge of it , an appeal shall lie until expiry of the limitation period applicable to the penalty concerned . ”

“ On appeal , execution of a judgment shall be stayed . Where the sentence is capital punishment , the appellant shall be committed to prison and the sentence shall not be enforced before the judgment has become final . ”

“ An appeal shall no longer be admissible , save where the appellant has been prevented from appealing by circumstances beyond his or her control , unless lodged within DATE of the date of delivery of the judgment deemed to be adversarial within the meaning of the first paragraph of LAW , or after expiry of the time allowed where judgment has been given by default , or after notification of the judgment likewise by default .

For ORG counsel and assistant ORG counsel at courts of appeal the time allowed for appeal shall be DATE from the date of delivery of the judgment . In addition , on pain of inadmissibility , they must give notice of their appeal within that time to the defendant and any persons found liable towards civil parties . ”

On DATE the NORP and NORP governments signed in GPE an agreement on crime prevention in which the Contracting Parties undertook to exchange information ( particularly with regard to the activities of terrorist groups , migratory flows and the production and use of false documents ) and to work towards harmonisation of their domestic legislation . Articles CARDINAL and CARDINAL of the agreement read as follows :

“ The Contracting Parties , in accordance with their respective national legislation , agree that cooperation to prevent crime , as contemplated in the present agreement , will extend to searching for persons who have sought to evade justice and are responsible for criminal offences , and recourse to expulsion where circumstances so require and in so far as compatible with application of the provisions on extradition . ”

“ The present agreement is without prejudice to rights and obligations arising from other international , multilateral or bilateral agreements entered into by the Contracting Parties . ”

GPE also signed in GPE , on DATE , an association agreement with ORG and its member GPE . The agreement mainly concerns cooperation in the commercial and economic sectors . LAW provides that relations between the Contracting Parties , like the provisions of the agreement itself , must be based on respect for human rights and democratic principles , which form an “ essential element ” of the agreement .

GPE is a party to LAW Articles CARDINAL , CARDINAL and CARDINAL of this Convention read as follows .

“ For the purposes of the present Convention , the term ‘ ORG shall apply to any person who ... owing to well - founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion , is outside the country of his nationality and is unable , or owing to such fear , is unwilling to avail himself of the protection of that country ; or who , not having a nationality and being outside the country of his former habitual residence as a result of such events , is unable or , owing to such fear , is unwilling to return to it . ”

“ CARDINAL . The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order .

The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law ... ”

“ CARDINAL . No Contracting State shall expel or return ( ‘ ORG ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race , religion , nationality , membership of a particular social group or political opinion .

NORP The benefit of the present provision may not , however , be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is , or who , having been convicted by a final judgment of a particularly serious crime , constitutes a danger to the community of that country . ”

On DATE , at the ORG meeting of ORG , ORG adopted guidelines on human rights and the fight against terrorism . Point IV of the guidelines , entitled “ Absolute prohibition of torture ” , reads as follows :

“ The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited , in all circumstances , and in particular during the arrest , questioning and detention of a person suspected of or convicted of terrorist activities , irrespective of the nature of the acts that the person is suspected of or for which he / she was convicted . ”

According to point LAW of this document ,

“ It is the duty of a ORG that has received a request for asylum to ensure that the possible return ( ‘ refoulement’ ) of the applicant to his / her country of origin or to another country will not expose him / her to the death penalty , to torture or to inhuman or degrading treatment or punishment . The same applies to expulsion . ”

In a report concerning the situation in GPE in DATE , ORG noted that following a large number of unfair trials CARDINAL persons facing terrorism charges had been sentenced to lengthy prison sentences . Cases of torture and ill - treatment continued to be reported . CARDINAL of political prisoners sentenced after unfair trials remained in prison after DATE and their state of health was said to have deteriorated . A group of CARDINAL prisoners had been released as a result of an amnesty ; they had been imprisoned for DATE after being convicted in unfair trials of belonging to the banned NORP organisation ORG . Some of these prisoners were in poor health as a result of harsh prison conditions and torture they had undergone before standing trial .

In DATE there had been exchanges of fire to the south of GPE between the police and alleged members of ORG . CARDINAL of people had been killed and police officers had been injured .

In DATE ORG had called for a meeting of ORG and GPE to discuss the human rights situation in the country . In DATE ORG had criticised the NORP government for cancelling an international conference on employment and the right to work .

DATE . As regards the “ war on terror ” , ORG noted that no answer had been given by the NORP authorities to a request to visit the country made by ORG on the promotion and protection of human rights . Persons suspected of terrorist activities had been arrested and tried under what was described as the “ controversial ” DATE anti - terrorism law . This anti - terrorism law and the Code of Military ORG had been used against NORP repatriated against their will from GPE , GPE and GPE , who were accused of belonging to terrorist organisations operating abroad . In such cases , sometimes decided by the military courts , ORG contact with their clients had been subjected to constantly increasing restrictions . The report mentioned cases of prisoners being held incommunicado or being tortured while in police custody ; those referred to included Mr PERSON , Mr Badreddine PERSON ( who had been deported from GPE ) and CARDINAL members of the “ ORG group ” .

Amnesty International went on to criticise severe restrictions of the right to freedom of expression and a risk of harassment and violence against human rights defenders and their families , women wearing NORP headscarves , and opponents and critics of the government .

On the question of the independence of the judiciary , ORG noted that lawyers had publicly protested against a bill then before ORG creating the “ ORG , to be responsible for training future lawyers ( which had previously been done by ORG and ORG ) . In DATE the Head of ORG delegation in GPE had publicly criticised the slow pace of political reform and called for better training for judges and lawyers to consolidate the independence of the judiciary . Judges required the permission of the Secretary of ORG for ORG to leave the country .

On DATE ORG issued a statement concerning the applicant which reads as follows :

“ ORG is concerned that PERSON would be at risk of torture or other grave human rights violations , should he be removed to GPE by the NORP authorities . This concern is based upon our continuous monitoring of human rights violations in GPE , including violations committed against people forcibly returned from abroad within the context of the ‘ war on GPE .

PERSON was sentenced in absentia by ORG in GPE to DATE imprisonment on charges of belonging to a terrorist organisation operating abroad at a time of peace and incitement to terrorism . Although he will be afforded a retrial before the same military court , military courts in GPE violate a number of guarantees for a fair trial . The military court is composed of a presiding judge and CARDINAL counsellors . Only the president is a civilian judge . There are restrictions on the right to a public hearing . The location of the court in a military compound effectively limits access to the public . Individuals convicted before a military court can seek review only before ORG . Civilian defendants have frequently reported that they had not been informed of their right to legal counsel or , particularly in the absence of a lawyer , have not realised that they were being questioned by an examining judge as he was in military uniform .

Defence lawyers have restrictions placed on access to their clients’ files and are obstructed by not being given information about the proceedings such as the dates of hearings . Unlike the ordinary criminal courts , military courts do not allow lawyers access to a register of pending cases . ( For more information see ORG report , GPE : the cycle of Injustice , AI Index MDE CARDINAL/CARDINAL/CARDINAL . )

The NORP authorities also continue to use the controversial DATE anti - terrorism law to arrest , detain and try alleged terrorist suspects . Those convicted have been sentenced to long prison terms . The anti - terrorism law and provisions of the Military Justice Code have also been used against NORP nationals who were returned to GPE against their will by authorities in other countries , including GPE , GPE and GPE . Those returned from abroad were arrested by the NORP authorities upon arrival and many of them were charged with links to ‘ terrorist ORG operating outside the country . Some were referred to the military - justice system .

People who have been recently returned to GPE from abroad have been held in incommunicado detention , during which time they have been subjected to torture and other ill - treatment . They have also been sentenced to long prison sentences following unfair trials . In this connection , we provide the following case information for illustration :

– PERSON was forcibly returned from GPE to GPE on DATE and detained on arrival . He was kept in secret detention in ORG of ORG in GPE for DATE , during which he was reportedly tortured or otherwise ill - treated . He is currently detained in ORG prison awaiting further investigation . PERSON left GPE in DATE , and subsequently lived in GPE and , DATE , in GPE . He was arrested at the NORP - German border on CARDINAL DATE as an irregular migrant , and held in a detention centre in the NORP city of GPE , pending the execution of an expulsion order . On CARDINAL May he was brought before a judge , who authorised his detention for DATE , and informed him that he was being investigated by the NORP police on suspicion of ‘ providing logistical support’ to a network which assists individuals to travel to GPE to take part in the armed conflict with the GPE - led coalition forces there – an allegation which he denies . No charges were ever brought against him in GPE . On DATE , he made a claim for asylum and on DATE was taken to the detention centre at ORG to be detained while his asylum claim was processed . PERSON application for asylum had been assessed under an accelerated procedure ( ‘ procèdure prioritaire’ ) , and was rejected on DATE Although he appealed before ORG ( ORG ) , ORG , decisions taken under the accelerated procedure are not delayed while appeals to the ORG are considered , and people who have appealed may be forcibly returned before their appeal has been ruled on . PERSON also made appeals against the decision to the administrative court , but these have failed .

– In DATE , NORP national PERSON was returned against his will to GPE from GPE after his request for asylum was rejected . He was arrested upon his return to GPE and charged under the DATE anti - terrorism law . In DATE , ORG ( ORG d’Etat ) , the highest administrative court in GPE , quashed the order to expel PERSON to GPE . In DATE , he was sentenced in an unfair trial in GPE to CARDINAL years’ imprisonment for membership of ORG , charges for which he had already served a DATE prison sentence in GPE . The sentence was reduced to DATE on appeal in DATE . He remains in prison in GPE .

– NORP national PERSON was deported to GPE from GPE in DATE after his application for asylum was refused . He was arrested on arrival in GPE and taken to ORG of ORG , where he was held in secret detention for DATE and reportedly beaten , suspended from the ceiling and threatened with death . PERSON , who had worked in LOC for DATE , was charged under the DATE anti - terrorism law with belonging to a terrorist organisation operating abroad . No investigation is known to have been conducted into PERSON alleged torture despite the fact that his lawyer filed a complaint . In DATE , PERSON was convicted on the basis of ‘ ORG extracted under torture and sentenced under anti - terrorism legislation to CARDINAL years’ imprisonment . This sentence was reduced to DATE on appeal in DATE . He remains in prison in GPE .

– In DATE , CARDINAL young men were convicted , following an unfair trial , of membership of a terrorist organisation , possessing or manufacturing explosives , theft , using banned websites and holding unauthorised meetings . CARDINAL others were convicted in absentia . They were among CARDINAL of people arrested in GPE , southern GPE , in DATE , most of whom had been released DATE . The trial failed to respect international fair - trial standards . According to defence lawyers , most arrest dates in police reports were falsified , and in CARDINAL case the place of arrest was falsified . There were no investigations into allegations that the defendants were beaten , suspended from the ceiling and threatened with rape . The convictions rested almost entirely on confessions extracted under duress . The defendants denied all charges brought against them in court . In DATE ORG reduced the sentences of CARDINAL of them from DATE and DATE to CARDINAL years’ imprisonment . Their appeal was rejected by ORG in DATE . Another defendant , who was a minor at the time of the arrest , had his sentence reduced to DATE in prison . They were all released in DATE following a presidential pardon .

The human rights violations that were perpetrated in these cases are typical of the sort of violations that remain current in GPE and affect people arrested inside the country as well as those returned from abroad in connection with alleged security or political offences . We consider , therefore , that PERSON would be at serious risk of torture and unfair trial if he were to be transferred to the custody of the NORP authorities . ”

A similar statement was issued by ORG on DATE .

In its DATE report on GPE , ORG asserted that the NORP government used the threat of terrorism and religious extremism as a pretext for repression of their opponents . There were constant , credible allegations of the use of torture and ill - treatment against suspects in order to obtain confessions . It was also alleged that convicted persons were deliberately subjected to ill - treatment .

Although many members of the proscribed NORP party ORG had been released from prison after an amnesty , there were CARDINAL political prisoners . There had been mass arrests of young men , who had then been prosecuted under the DATE anti - terrorism law . Released political prisoners were monitored very closely by the authorities , who refused to renew their passports and denied them access to most jobs .

According to ORG , the judicial system lacked independence . Investigating judges questioned suspects without their lawyers being present , and the prosecution and judiciary turned a blind eye to allegations of torture , even when made through a lawyer . Defendants were frequently convicted on the basis of confessions made under duress or of statements by witnesses whom they had not been able to examine or have examined .

DATE . Although ORG was continuing its programme of visits to NORP prisons , the authorities were refusing independent human rights defence organisations access to places of detention . The undertaking given in DATE to allow visits by ORG had remained a dead letter .

The DATE anti - terrorism law gave a very broad definition of “ terrorism ” , which could be used to prosecute persons merely for exercising their right to political dissent . Since DATE CARDINAL persons had been charged with planning to join jihadist movements abroad or organising terrorist activities . The arrests had been carried out by plain - clothes police and the families of those charged had been left without news of their relatives for DATE or sometimes DATE . During their trials these defendants had overwhelmingly claimed the police had extracted their statements under torture or threat of torture . These defendants had been sentenced to lengthy terms of imprisonment , but it had not been established that any of them had committed a specific act of violence or that they possessed weapons or explosives .

In DATE , QUANTITY persons accused of belonging to the “ GPE ” terrorist group had been granted a presidential amnesty after serving DATE of their prison sentences They had been convicted on the basis of confessions which they alleged they had been forced into making , and of the fact that they had copied from the Internet instructions for making bombs . In DATE Mr PERSON had been sentenced to CARDINAL years’ imprisonment for cutting and pasting on an online forum a statement by an obscure group threatening bomb attacks if the President of GPE agreed to host a visit by the Prime Minister of GPE .

Lastly , ORG reported that on DATE ORG had adopted a resolution deploring the repression of human rights activists in GPE .

ORG signed an agreement with the NORP authorities on DATE giving them permission to visit prisons and assess conditions there . The agreement came DATE after the authorities’ decision to permit prison visits by only ORG , an organisation – described as “ strictly humanitarian ” – which was required to maintain confidentiality about its findings . The agreement between the NORP government and ORG concerned all prison establishments in GPE , “ including remand prisons and police cells ” .

On DATE Mr PERSON , the regional delegate of ORG for GPE / GPE , said that the ORG had been able to visit “ without hindrance ” CARDINAL prisons and meet prisoners in GPE . PERSON said that , since the beginning of the inspection in DATE , a team from ORG had travelled to CARDINAL prisons , CARDINAL of them twice , and had met CARDINAL of the prisoners scheduled to be visited . Refusing to give further details , “ on account of the nature of [ their ] agreements ” , he nevertheless commented that the agreements in question authorised ORG to visit all prisons and meet prisoners “ quite freely and according to [ its own ] free choice ” .

In its report on human rights practices published on DATE , ORG criticised violations of fundamental rights by the NORP government .

Although there had been no politically motivated killings attributable to the NORP authorities , the report commented critically on CARDINAL cases : PERSON PERSON had died while in police custody and PERSON PERSON after being released from police custody .

Referring to the information gathered by ORG , ORG described the various forms of torture and ill - treatment inflicted by the NORP authorities in order to secure confessions . These included : electric shocks ; forcing the victim ’s head under water ; beatings with fists , sticks and police batons ; hanging from the cell bars until loss of consciousness ; and cigarette burns . In addition , police officers sexually assaulted the wives of NORP prisoners as a means of obtaining information or imposing a punishment .

However , these acts of torture were very difficult to prove , because the authorities refused to allow the victims access to medical treatment until the traces of ill - treatment had faded . Moreover , the police and the judicial authorities regularly refused to follow up allegations of ill - treatment , and confessions extracted under torture were regularly admitted as evidence by the courts .

Political prisoners and religious fundamentalists were the main targets of torture , which was usually inflicted while the victims were in police custody , particularly inside ORG . The report referred to a number of cases of torture complained of in DATE by non - governmental organisations , including the NORP national pour les libertés en GPE and the ORG pour la lutte contre la torture en GPE . In spite of complaints by the victims , no investigation into these abuses had been conducted by the NORP authorities and no agent of the ORG had been prosecuted .

The conditions of incarceration in NORP prisons fell well below international standards . Prisoners were held in cramped conditions and had to share beds and toilets . The risk of catching contagious diseases was very high on account of the overcrowding and the unhygienic conditions . Prisoners did not have access to appropriate medical treatment .

Political prisoners were often transferred from CARDINAL establishment to another , which made visits by their families difficult and discouraged any investigation of their conditions of detention .

NORP In DATE , after lengthy negotiations , the NORP government had signed an agreement permitting ORG to visit prisons . These visits had begun in DATE . In DATE ORG declared that the prison authorities had respected the agreement and had not placed obstacles in the way of the visits .

On the other hand , the same possibility was not extended to ORG , despite a verbal undertaking given in DATE by the NORP government . The government had also undertaken to prohibit prolonged periods of solitary confinement .

Although explicitly forbidden by NORP law , arbitrary arrest and imprisonment occurred . By law , the maximum period allowed for detention in police custody was DATE , during which time the ORG families had to be informed . However , these rules were frequently ignored . Persons detained by the police were very often held incommunicado and the authorities extended the duration of police custody by recording a false date of arrest .

NORP The NORP government denied that there were any political prisoners , so their exact number was impossible to determine . However , ORG aux prisonniers politiques had drawn up a list of CARDINAL political prisoners , nearly all of whom were said to be religious fundamentalists belonging to proscribed opposition movements who had been arrested for belonging to illegal organisations which endangered public order .

The report mentioned a wide range of infringements of the right to respect for the private and family life of political prisoners and their families , including censorship of correspondence and telephone calls and the confiscation of identity documents .

Before the ORG , the applicant produced a document from ORG aux prisonniers politiques concerning the case of a young man named ORG PERSON who was alleged to have leapt from the window of a police station on DATE shortly before he was due to be interrogated . Mr PERSON ’s lawyer asserted that his client had been savagely tortured and held in the cells of ORG in GPE for DATE .

Similar allegations are to be found in statements by local organisations for the defence of ORG and women ’s rights and in numerous press cuttings .