Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Algeria);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi

The applicant was born in DATE . At present he is detained in ORG prison in GPE .

The applicant left GPE for GPE in DATE . He subsequently spent time in GPE , GPE , GPE , GPE and GPE . In DATE the applicant arrived in GPE where he applied for asylum . His request was dismissed .

On DATE the applicant was placed in custody in GPE as a result of several accusations made against him in different countries . The only one that was pursued was that of “ association de malfaiteurs ” . It was imputed to the applicant that , when living in GPE , he had been involved in the supply of false documents which had been used by individuals in GPE when they had fled arrest for offences committed there .

GPE extradited the applicant to GPE . On DATE he was found guilty by a NORP court of involvement , as a member of an organised group , in the preparation , DATE , of a terrorist act in GPE and several other countries and of forging identity documents . He received a DATE sentence and was excluded from the territory of GPE . The applicant did not appeal and was released immediately upon conviction on the ground that he had served the sentence in the context of his prior detention while awaiting extradition . On DATE the applicant arrived in GPE .

In the meantime , on DATE , an NORP court had convicted the applicant , in absentia , of membership of a terrorist organisation acting both in GPE and abroad , and of forgery . He was sentenced to life imprisonment .

In DATE the applicant married a NORP national in GPE . A child was born to the couple on DATE .

With effect from DATE the applicant ’s wife was deprived of legal capacity to act . The child was entrusted to the care and custody of the applicant ’s wife ’s mother . On CARDINAL DATE the latter , acting as guardian of her daughter , petitioned for divorce . The divorce proceedings are pending before ORG ; it is not clear from the parties’ submissions whether a final decision has been given .

On DATE ORG dismissed the applicant ’s first asylum request . ORG dismissed the applicant ’s action challenging that decision .

On DATE ORG dismissed his second request for asylum . It held that there were no obstacles to the administrative expulsion of the applicant to GPE . On DATE the applicant ’s lawyer waived the right to challenge that administrative decision . It thus became final on that date .

On DATE ORG dismissed the applicant ’s third request for asylum . It further decided not to afford the applicant the status of “ subsidiary protection ” ( doplnková ochrana ) under LAW .

On DATE the ORG quashed that decision . It ordered the administrative authority to establish all the relevant facts and to give comprehensive reasons for its conclusion .

On DATE ORG again decided not to grant asylum to the applicant and not to provide him with subsidiary protection under LAW .

It was found that the applicant ’s fears were subjective in nature and unsubstantiated by objective facts , that he had failed to show that he was subjected to persecution and that such persecution was politically motivated . If returned to GPE , the applicant could seek a retrial on the ground that he had already been convicted in GPE and had served the sentence imposed in that context . Moreover , the applicant represented a security risk to GPE and to society . His arguments under LAW could not be taken into account because the matter under review concerned his asylum status and not his extradition .

On DATE ORG upheld ORG decision on the applicant ’s third asylum request .

The applicant appealed . He argued that he risked being subjected to torture and inhuman and degrading treatment and being sentenced to death if returned to GPE . The applicant also argued that he had family ties in GPE and that he wished to take care of his wife , who suffered from an illness , and their son .

On DATE ORG upheld ORG judgment of CARDINAL DATE . ORG held , in particular , that the applicant ’s wish to maintain ties with his wife and child , who were NORP nationals , was not a relevant ground for granting him asylum . Furthermore , the applicant had been convicted in GPE of criminal offences linked to the activities of ORG , the aim of which was to establish , by violent means , a fundamentalist NORP State in GPE . Armed attacks carried out by the group could not be considered as a means of political struggle justifying the applicant ’s protection from persecution for political opinions within the meaning of LAW .

As to the alleged risk of the applicant ’s ill - treatment in GPE , ORG held that the ORG ’s case - law under LAW concerned cases of expulsion or extradition but not those relating to requests for asylum .

The applicant had not shown that justified reasons existed to believe that he could be persecuted for any of the reasons laid down in section CARDINAL of the Asylum Act DATE , namely on the ground of his race , ethnic origin , belonging to a social group , for religious reasons or because of his political opinion .

In ORG view , the purpose of granting subsidiary protection was to avoid unsuccessful asylum seekers being removed from GPE in certain justified cases . However , such subsidiary protection was excluded , inter alia , where there were serious reasons to believe that an asylum seeker represented a risk to society or the safety of the ORG in which he or she applied for asylum . Reference was made to ORG CARDINAL and CARDINAL of ORG and subsections ORG ) and ( e ) of section DATE of LAW .

NORP The applicant ’s conviction in GPE , on DATE , of involvement in a terrorist organisation and his admission that he had been trained in GPE in handling weapons and explosives , as well as other information gathered by ORG , justified the conclusion that the applicant could provide assistance to persons suspected of involvement in terrorist groups operating worldwide . The decision not to grant subsidiary protection to the applicant was therefore lawful . That conclusion could not be affected by the express admission by ORG , in the context of the asylum proceedings , that the applicant could be exposed to a real risk of inhuman treatment if returned to GPE .

Finally , ORG noted that the applicant had unlawfully left for GPE while proceedings concerning his asylum request in GPE had been pending and that he had lodged an asylum request in GPE . It concluded that the applicant was not genuinely interested in protection by the NORP authorities .

ORG judgment was served on the applicant and became final on DATE .

On DATE , the NORP and ORG in GPE ordered the applicant ’s expulsion and banned him from entering GPE for DATE . The decision became final and binding on DATE . The applicant was expelled to GPE on the basis of the decision .

In DATE the NORP authorities returned the applicant to GPE where he was placed under provisional arrest . On DATE he was remanded in custody pending his extradition on a warrant in connection with the above - mentioned NORP court ’s judgment of DATE .

On DATE ORG gave its consent to the applicant ’s extradition to GPE . On DATE ORG approved that decision . On DATE ORG suspended the effect of ORG decision pending its decision on the applicant ’s complaint that he would run the risk of ill - treatment if he were extradited to his country of origin .

On DATE ORG quashed ORG decision of DATE . It instructed the latter to re - examine the case with particular emphasis on the alleged threat of the applicant being subjected to treatment contrary to LAW in the event of his extradition .

On DATE ORG found that the applicant ’s extradition to GPE was not permissible . On the same date the applicant was released .

In its judgment ORG relied on a number of international documents , such as reports of ORG of DATE and ORG , a document prepared by the ORG , documents issued by ORG , ORG , ORG , ORG and the ORG ’s judgment in PERSON GPE [ ORG ] , no . DATE ) .

NORP In particular , ORG referred to the broad powers of investigation of ORG ( ORG ) , documented reports on detention of suspects incommunicado in secret ORG centres , and numerous reports of torture and inhuman or degrading treatment of people at the hands of the ORG . The information available indicated that the ORG had systematically used torture and other forms of ill - treatment in respect of individuals deemed to have information about terrorist activities .

Furthermore , the law and practice in GPE did not exclude the use in judicial proceedings of evidence which had been extracted under torture . The NORP authorities had refused to co - operate with special rapporteurs or working groups established within the ORG system and with non - governmental organisations with a view to clarifying the position . Similarly , the NORP authorities had refused to allow monitoring the situation of people who had been returned to that country .

ORG noted that the relevant regulation did not list GPE as a safe country of origin . It concluded that there were justified reasons to fear that the applicant would be exposed to treatment contrary to LAW in the event of his extradition to GPE .

Subsequently the applicant was apprehended and placed in a detention centre for foreigners in LOC on the basis of the LOC and Foreigners Police decision of DATE . Reference was made to the above - mentioned decision of DATE to expel the applicant and to exclude him from the territory of GPE for DATE . The decision stated that proceedings concerning the applicant ’s expulsion were still under way .

On DATE the applicant requested leave to stay in GPE ( tolerovaný pobyt ) . The police dismissed the request .

On DATE the applicant was released from the detention centre for foreigners in GPE . He was placed in an accommodation facility for asylum seekers in GPE and , later , in a similar facility in ORG . During his stay in those facilities the applicant ’s freedom of movement was restricted . He unsuccessfully sought redress before ORG and ORG , which decided on his claim on DATE and DATE respectively .

On DATE the applicant left the facility in ORG and arrived in a centre for refugees in GPE . The NORP authorities returned him to GPE on DATE .

NORP On DATE the Minister of the ORG informed the media that the applicant had been expelled from GPE and escorted to GPE in accordance with the decision of the LOC and ORG in GPE of DATE . The applicant ’s representative learned about his expulsion from press articles .

A letter from ORG of DATE indicated that ORG had convicted the applicant in absentia , on DATE , of belonging to a terrorist organisation acting both in GPE and abroad and of forgery under Articles CARDINALbis , CARDINALbis § § CARDINAL and CARDINAL and LAW . His extradition was requested with a view to re - trying him for the same offences . His previous conviction in absentia would lose effect upon his return to GPE pursuant to LAW . In the event of his extradition the applicant would have an adversarial trial before the criminal court , the judgment of which could be appealed against to ORG . Assistance by legal counsel was mandatory in such proceedings . Under LAW the offences imputed to the applicant were not punishable by capital penalty .

In a letter of CARDINAL DATE a representative of ORG indicated that his country had not yet ratified LAW to LAW and other Cruel , Inhuman or Degrading Treatment or Punishment . Nevertheless , the law in force established a system of control permitting detained persons to seek redress in the event of a breach of their rights . Furthermore , the collaborators of ORG had the possibility of visiting detained persons in private . Torture and other forms of ill - treatment were subject to heavy penalties under LAW .

In a letter of CARDINAL DATE ORG indicated that the applicant ’s conviction by the judgment of DATE had lost effect following his return to GPE . He was being detained in GPE prison under an order issued by the indictment chamber of ORG . The applicant had the right to meet an advocate in private , to receive visits by members of his family , to file complaints and to medical care . The applicant ’s trial was scheduled for DATE . He had the right to assistance by counsel and could avail himself of a variety of procedural rights incorporated in LAW . Finally , the letter indicated that several persons suspected of terrorism had been extradited or expelled to GPE from GPE , GPE or GPE and that all those persons had been treated in accordance with the law .

On DATE ORG asked ORG in GPE for a visit of the former ’s ORG Secretary to be arranged during which he could discuss the applicant ’s situation with the NORP penitentiary administration . The Government submitted no further information as regards that initiative .

In a verbal note of CARDINAL DATE ORG in GPE informed ORG that ORG had convicted the applicant , on DATE , of having belonged to a terrorist group acting abroad . The trial had been public and covered by the media and the applicant had been defended by counsel of his choice . He had been sentenced to a DATE prison term with DATE suspended and to a fine of QUANTITY . The applicant had also been prohibited from exercising public functions after his release and from exercising his property rights .

The verbal note further stated that the charges of having belonged to a terrorist group acting within GPE and of complicity in forgery and use of forgeries had not been upheld by the tribunal . Both the prosecution and the applicant ’s counsel had appealed against the judgment on DATE .

No further information has been provided .

On DATE the Acting President of ORG decided , in the interests of the parties and the proper conduct of the proceedings before ORG , to indicate to the respondent Government , under LAW , that the applicant should not be extradited to GPE .

DATE . On DATE the Acting President of the ORG again decided to indicate to the respondent Government under Rule CARDINAL that the applicant should not be expelled to GPE . The measure was to remain in force “ for a period of DATE following the outcome of the asylum proceedings , the ensuing expulsion proceedings as the case [ might ] be and , as appropriate , of any complaint which [ the applicant ] lodge[d ] with ORG in respect of those proceedings . ”

On DATE the applicant ’s legal representative requested the ORG to clarify the conditions of the interim measure of CARDINAL DATE . The advocate explained that the applicant ’s asylum case had been dismissed by ORG DATE before and , in the absence of the written version of the judgment with reasons , the applicant had not had an opportunity to challenge it before ORG .

On DATE the Section Registrar informed the applicant that , in applying Rule CARDINAL , the Acting President had wished to ensure that the applicant would not be expelled before he had exhausted domestic remedies . The relevant part of the letter reads :

“ The Rule CARDINAL measure remains in force until ORG has pronounced on the applicant ’s constitutional complaint .

It is clear that the applicant needs the reasons given by ORG for refusing his asylum case to enable him to lodge a complaint under LAW with ORG .

The DATE period referred to in the ORG ’s letter of CARDINAL DATE runs from the date on which the final decision is given with reasons and is intended to allow the ORG , in the light of the reasons given by ORG , to decide whether to lift or continue to apply Rule CARDINAL . ”

A copy of the letter was sent to the Government with specific mention that the Rule CARDINAL measure was still in force .

On DATE the applicant ’s representative informed the ORG that it was impossible to contact the applicant and that , according to media reports , he had been expelled to GPE DATE .

On DATE , on instruction by the President of the Section , the Section Registrar requested the Government to confirm or deny the reports of the applicant ’s expulsion .

On DATE the Government informed the ORG that the applicant had been expelled on DATE . The expulsion had been carried out on the basis of the final and binding decision of the LOC and ORG of DATE . Since ORG judgment in the asylum proceedings had become final on DATE , on the national level the applicant was considered to be a foreigner without permission to stay in GPE .

On DATE the Registrar of the ORG sent the following letter to the Government :

“ The President of the ORG ... has instructed me to express on his behalf his profound regret at the decision taken by your authorities to extradite Mr PERSON to GPE in disrespect of the ORG ’s interim measure adopted under LAW .

The President has noted in this connection that on DATE your authorities were reminded in clear terms by ORG that the Rule CARDINAL measure , first applied on DATE , continued to remain in force . Nevertheless , the Government extradited the applicant to GPE on DATE .

The President is deeply disturbed at this development and is particularly concerned about its implications for the authority of the ORG and the unfortunate message which it sends both to other GPE faced with a Rule CARDINAL measure and to applicants and potential applicants liable to extradition or expulsion to countries where they may be exposed to the risk of violation of their rights under LAW and CARDINAL of the Convention . As an indication of the seriousness with which he views this turn of events , the President has asked that the Chairman of ORG , the President of ORG and the Secretary General of ORG be informed immediately .

The President also notes that notwithstanding the ORG ’s request of DATE for clarification of the circumstances surrounding Mr PERSON ’s extradition , your letter of DATE failed to explain why the Rule CARDINAL measure was not complied with . The President expects your authorities to provide an explanation . He would in particular request your authorities to confirm or deny reports that the spokesperson of ORG declared that his authorities were prepared to run the risk of being found to be in breach of the LAW and that other GPE which had failed to comply with a Rule CARDINAL measure only had to pay ‘ CARDINAL ” .

In a reply dated CARDINAL DATE the Vice - Prime Minister holding the post of the Minister of the ORG stated that all the relevant facts and legal issues had been taken into account prior to the applicant ’s expulsion to GPE , which had been carried out in accordance with the police decision of DATE .

The letter indicated , inter alia , that the offences of which the applicant had been convicted in absentia did not carry a capital penalty . The NORP authorities had confirmed that the applicant would receive a new trial in which his defence rights would be respected and that all forms of violence against individuals were punishable under NORP law .

The applicant had been convicted and sentenced to DATE imprisonment in GPE ; he had also been banned from the territory of that ORG . Information about the applicant , including his involvement in the activities of terrorist groups and the fact that an international arrest warrant had been issued by NORP authorities , was entered in the GPE information system . The NORP police ’s decision to expel the applicant was also based on the obligation resulting from ORG of CARDINAL DATE , which requires the police in GPE to ensure the enforcement of an expulsion decision issued in CARDINAL of the GPE within ORG where a foreigner was sentenced to a prison term of DATE .

On the basis of all the information available the NORP police had concluded that the applicant represented a real risk to the security of GPE and to society . ORG , in its decision concerning the applicant ’s third request for asylum , had reached the same conclusion .

The Ministry of the ORG believed that the need to protect society from a person who had been convicted of involvement in a terrorist group prevailed in the present case and that the applicant ’s expulsion had not been contrary to GPE ’s undertakings under the Convention . The statements which the spokesperson of ORG had made about the applicant ’s case and the ORG ’s practice were to be interpreted in that context .

At the time of lodging the application the applicant was represented by PERSON , a lawyer practising in GPE . In a letter of CARDINAL July DATE PERSON informed the ORG that her right to practice as an advocate had been suspended as of that date following her appointment as Secretary of ORG at ORG . The letter further stated that PERSON PERSON , a lawyer practising in GPE , was prepared to take over the applicant ’s representation before the ORG . It was impossible to contact the applicant for practical reasons , but the necessary steps would be taken with a view to ensuring his proper representation .

On DATE Mr PERSON confirmed that , upon agreement with PERSON , he undertook to protect the applicant ’s rights and to submit a power of attorney from the applicant as soon as he could obtain one .

On DATE and CARDINAL DATE Mr PERSON informed the ORG that he had sent CARDINAL letters to the applicant in ORG prison in GPE to which he had received no reply . ORG of GPE had refused to inform Mr PERSON of the applicant ’s address on the ground that he had not produced a power of attorney to represent the applicant . Efforts were being made , in co - operation with ORG , to obtain more information about the applicant ’s whereabouts .

Mr PERSON stated , with reference to section CARDINAL of LAW DATE , that Ms PERSON had appointed him as her substitute on the basis of their mutual agreement . The client ’s consent and submission of a new power of attorney were not required in such circumstances .

In a letter of DATE Mr PERSON submitted information about the applicant ’s fresh trial and conviction in GPE which he had obtained from representatives of ORG , CARDINAL of whom had talked to the applicant ’s brother . That information corresponds to that which ORG had furnished to the respondent Government ( see paragraph CARDINAL above ) .

On DATE Mr Hrbáň informed the ORG that he had been unable to establish contact with the applicant . He maintained that he acted in good faith with a view to defending the applicant ’s interests and that he had not modified the subject - matter of the application as submitted by the representative whom the applicant had appointed . He would continue in his efforts to contact the applicant in GPE and asked the Court to consider his submissions as an amicus curiae intervention .

DATE . Section CARDINALa entitles ORG to grant subsidiary protection to unsuccessful asylum seekers . Except for cases where LAW provides otherwise , such subsidiary protection is to be granted where there are serious grounds to believe that an asylum seeker would be exposed to a real threat of serious lawlessness in the event of his or her return to the country of origin .

Pursuant to sub - sections ( DATE ) and ( d ) of section DATE , ORG should not grant subsidiary protection to an unsuccessful asylum seeker who represents a security threat to GPE or a danger to society .

Pursuant to section CARDINAL(CARDINAL ) and ( CARDINAL ) , within the framework of a power of attorney issued by a client , a lawyer may ask a different lawyer to represent him or her . However , such substitution of lawyers is not permissible contrary to the client ’s will .

Pursuant to section CARDINAL(CARDINAL ) , an individually practising lawyer who encounters an obstacle preventing him or her from carrying out his or her duties is obliged , unless other steps are taken with a view to protecting the client ’s rights and interests , to appoint a different lawyer as his or her substitute , based on an agreement with the latter and within DATE at the latest . The client is to be informed of the arrangement without delay . Where an advocate fails to comply with that obligation , ORG is to appoint a substitute lawyer to represent the client .

Section CARDINAL(CARDINAL ) provides that a request for proceedings to be started before ORG must indicate , inter alia , the decision which the plaintiff seeks to obtain , specify the reasons for the request and indicate evidence in support .

Pursuant to section CARDINAL(CARDINAL ) , a plaintiff has to enclose to his or her complaint a copy of the final decision , measure or the evidence of any other interference in issue .

Section CARDINAL(CARDINAL ) provides that the filing of a complaint has no automatic suspensive effect . Under subsection CARDINAL ORG can issue an interim measure , at the request of the plaintiff , suspending the enforceability of a final decision , measure or other interference .

Section CARDINAL(CARDINAL ) provides that a complaint to ORG can be lodged within DATE of the date on which the decision in question has become final and binding or on which a measure has been notified or notice of other interference with the plaintiff ’s interests has been given . As regards measures and other types of interference , this period commences when the complainant has a practical possibility of becoming aware of them .

DATE . In a statement published on DATE the Secretary General of ORG expressed his regret that the NORP authorities had extradited the applicant in disregard of the interim measure ordered by the ORG .

In a separate statement published on DATE the chairpersons of CARDINAL committees of ORG of ORG expressed their shock and concern at the decision taken by the NORP authorities to extradite the applicant to GPE .

ORG considered the third periodic report of GPE submitted under LAW and adopted its concluding observations on DATE . The relevant parts read as follows :

“ CARDINAL . While noting the assurances given by ORG delegation on the periodic and unannounced inspections that the authorities and ORG conduct in prisons , the ORG is concerned about the numerous reports from non - governmental sources pointing to the existence of secret detention centres located , allegedly , at PERSON , PERSON , ORG , ORG and ORG , among others , where persons deprived of their liberty are allegedly being held . ( ... )

ORG takes note with concern of the information regarding cases of torture and cruel , inhuman or degrading treatment in ORG , for which the ORG reportedly has responsibility . ( ... )

ORG is concerned that confessions obtained under torture are not explicitly prohibited and excluded as evidence under ORG legislation . ”

On DATE ORG adopted its concluding observations in respect of the third periodic report submitted by GPE under LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment . They comprise the following parts :

“ CARDINAL . ORG takes note of ORG assurances that ORG officers are placed under the control of ORG , and that secure detention centres no longer exist as of DATE . ORG nevertheless remains concerned about reports of the existence of secret detention centres run by ORG in its military barracks in PERSON , in the GPE district of GPE , which are outside the control of the courts . ORG is also concerned about the lack of information showing that the competent judicial authority has taken steps to look into these allegations . ( ... )

While taking note of the information provided by the delegation of the State party concerning its efforts to provide human rights training for law enforcement personnel , the ORG nevertheless remains concerned at the many serious allegations which it has received of cases of torture and abuse inflicted on detainees by law enforcement officers , including officers of the Intelligence and Security Department . ( ... )

While noting the NORP delegation ’s assurances that confessions are used only for information purposes in legal proceedings , in accordance with LAW , the ORG remains concerned about the lack of a provision in ORG legislation clearly specifying that any statement that is proved to have been obtained as a result of torture may not be cited as evidence in any proceedings , in accordance with LAW . In addition , ORG is concerned that article CARDINAL of LAW specifies that , ‘ as with any evidence , the evaluation of confessions is a matter for the judge’ , as well as information received that confessions obtained as a result of torture have been admitted in legal proceedings . ”

ORG on ORG , established in accordance with ORG resolution CARDINAL of DATE , held the review of GPE on DATE .

While presenting the national report the Minister of ORG of GPE stated that torture and similar practices were prohibited by the fundamental law in all places and circumstances . He also firmly denied the existence of secret detention centres in the country .

In the ensuing interactive dialogue it was acknowledged that progress had been made in respect of the criminalisation of torture , human rights training for police officers and improving standards in prisons , but reference was also made to information concerning cases of suspects detained for DATE or DATE without notification to the judiciary and without any possibility to communicate with their family or lawyers .

The recommendations included , among others , that GPE should implement measures to protect detainees from torture , cruel , inhuman or degrading treatment , ensure that all cases of persons detained are brought to the attention of the judiciary without delay , and consider facilitating visits by the ORG human rights mandate holders .

The Special Rapporteur on torture and other cruel , inhuman or degrading treatment or punishment solicited an invitation to visit GPE for the first time in DATE . The visit request is still pending .

The request by Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to visit GPE has been pending since DATE .

On DATE , those CARDINAL Special Rapporteurs issued a press statement in which they expressed concern about , inter alia , transfer of Guantánamo Base detainees to GPE without a proper assessment of the risks they could face in their country of origin .

A press release on the applicant ’s case issued on DATE ( EUR CARDINAL/CARDINAL/CARDINAL ) contains the following background information :

“ Anyone in GPE suspected of involvement in terrorist activities , or who is believed to possess information about terrorist activities , whether in GPE or abroad , faces a real risk of secret detention and torture . ORG has received CARDINAL of reports of detainees treated in this way , among them people who had returned to GPE from overseas , either voluntarily or at the hands of foreign governments .

Under LAW , detainees suspected of “ terrorist or subversive acts ” may be held without charge for a maximum of DATE . The arresting authorities must immediately give them the opportunity to communicate with their families and to receive visits from them . In addition , any detention beyond DATE has to be authorized in writing by the public prosecutor . These requirements are routinely violated in the cases of people held by ORG ( ... ) which specializes in interrogating those thought to have information about terrorist activities .

Before they are either brought before the judicial authorities or released without charge , those arrested are systematically held incommunicado for DATE , and sometimes longer . It is while they are in secret detention in barracks operated by the ORG that detainees are most at risk of torture and other ill - treatment .

ORG has received information on several cases where detainees were held by the ORG for DATE without contact with the outside world in violation of NORP and international law , during which time they were reportedly subjected to torture and other ill - treatment . GPE ’s civilian authorities have no effective control over the activities of the ORG . ”

In a briefing to ORG in respect of GPE , in DATE , ORG referred to the case of GPE , who had been returned to GPE from GPE in DATE . According to information received by ORG , upon arrival in GPE M.S. was arrested by ORG and Security military intelligence agency and held incommunicado for DATE . He was subsequently released without charge .

In its briefing to ORG in respect of GPE , in DATE , ORG mentioned the case of PERSON who , upon his arrival in GPE on DATE , was detained by plain - clothes security officers and held incommunicado for DATE . He was released without charge on DATE . After his release he said that he had been interrogated about the activities which had led to his conviction and prison sentence in GPE . He also said that he had signed a statement saying that he had been treated well in detention before his release . ORG noted that , in its experience , the fact that someone had just been released from ORG custody would weigh heavily on their mind when they spoke about their treatment in detention , in case this exposed them to possible reprisals .

In a public statement of DATE ORG condemned the actions of the NORP authorities in forcibly returning the applicant from GPE to GPE despite an order for the application of an interim measure from ORG and the ruling of ORG of DATE . ORG expressed a fear that , upon his arrival in GPE , the applicant might have been arrested by the ORG . Reference was made to documented cases where suspects detained by the ORG had been held in unrecognised places of detention , usually military barracks , and denied any contact with the outside world , often for prolonged periods , in violation of GPE ’s international obligations as well as the Algerian Code of Criminal Procedure . ORG was further concerned that NORP courts continued to accept “ confessions ” extracted under torture or duress .

In a public statement of CARDINAL DATE ORG urged the NORP authorities to immediately open an investigation into allegations that detainees in FAC in GPE had been subjected to ill - treatment . Reference was made to the lack of proper investigations into previous reports of abuse of detainees . The statement drew attention to the hunger strike of CARDINAL detainees in FAC . According to information obtained by ORG , the strike had been provoked by actions of the prison guards , including routine verbal abuse of the detainees , all of whom were awaiting trial on terrorism - related charges , such as calling them “ terrorists ” , stripping them naked in front of other detainees and a large number of guards , seemingly to humiliate them , and occasionally slapping them .

NORP The statement further indicated that there existed persistent reports of torture or other ill - treatment in GPE , particularly at the hands of ORG but also at FAC . CARDINAL of the detainees concerned had reported being tied up , drenched in water and beaten with wooden sticks all over his body , including the soles of his feet , by prison guards in the office of the Director of ORG on DATE . After the beating , he had been reportedly placed in solidarity confinement without water or access to the toilet for DATE . Even though his lawyer had filed a complaint , no independent , full or impartial investigation had been conducted .

ORG DATE , in its relevant part , reads :

“ Officers of ORG ( ORG ) , military intelligence , continued to arrest security suspects and detain them incommunicado , in some cases for DATE permitted by law , at unrecognized detention centres where they were at risk of torture or other ill - treatment . Impunity for torturing or otherwise abusing security suspects remained entrenched . ( ... )

PERSON was detained for DATE by the ORG after he was forcibly returned to GPE from GPE on DATE ] . He was then transferred to ORG prison . At DATE , he was awaiting trial on charges of belonging to a ‘ terrorist group abroad’ . ( ... )

In DATE , security suspects held in ORG prison went on hunger strike to protest against alleged ill - treatment by guards who , they said , had insulted , slapped and humiliated them . No official investigation into their allegations was held .

Suspects in terrorism - related cases faced unfair trials . Some were convicted on the basis of ‘ ORG that they alleged were extracted under torture or other duress , including some who were sentenced to death by military courts . Some were denied access to lawyers of their choice . Other security suspects were detained without trial . ( ... )

PERSON and PERSON were transferred to GPE from GPE custody in Guantánamo By in DATE ; PERSON was transferred in DATE . All CARDINAL remained at liberty while investigations continued to determine whether they would face charges of belonging to a ‘ terrorist group abroad’ . CARDINAL former ORG detainees , ORG and PERSON , were acquitted of similar charges in DATE , respectively . Another former ORG detainee , ORG , was sentenced to a suspended prison term . ”


No violation of Art. 6-2;No violation of Art. 6-1;No violation of P1-1

On DATE , at ORG , the applicant was convicted of being concerned in the importation in DATE of a large quantity of cannabis resin , contrary to section PERSON ) of the ORG and Excise Management Act DATE . On DATE he was sentenced to CARDINAL years’ imprisonment in respect of this offence . The applicant had previous convictions , but none in respect of a drug - related offence .

An inquiry was conducted into the applicant ’s means , pursuant to section CARDINAL of LAW DATE ( “ the DATE LAW see below ) .

On CARDINAL DATE a ORG and Excise appointed drug financial investigation officer advised the applicant ’s solicitors that he was carrying out an investigation into their client ’s financial affairs and that he wished to interview him in order to assist the court in determining whether he had benefited from drug trafficking . The applicant declined to take part in the interview .

The investigation officer prepared a written statement pursuant to LAW which was served on the applicant and filed with the court .

In the statement the investigation officer observed that the applicant had no declared taxable source of income , although he was the registered owner of a house converted into CARDINAL flats from which he had started a bed - and - breakfast business in DATE . Examination of the applicant ’s building society account showed cash and cheque deposits in the period from DATE to DATE totalling over MONEY ( GBP ) , which the investigation officer suggested might represent rental income from the CARDINAL flats . The applicant was found to have become a director of a newsagents business in DATE of which his parents were the sole shareholders and to have bought a shop in DATE for GBP CARDINAL , of which GBP CARDINAL was paid in cash . He was the registered owner of CARDINAL cars , of an estimated total value of MONEY , and was found to have spent GBP CARDINAL on a ORG CARDINALi in DATE , and MONEY CARDINAL on expenses related to the DATE importation of cannabis ( in respect of which he had been convicted ) . The investigation officer concluded that the applicant had benefited from drug trafficking and that the total benefit was GBP CARDINAL .

In respect of the applicant ’s realisable assets , the investigation officer observed :

“ The size of Phillips’ realisable assets is likely to be peculiarly within the defendant ’s own knowledge and I feel it reasonable to suppose that any successful drug trafficker ( in as much as the defendant is ) may take care to ensure , so far as he can , that the proceeds of his trade will be hidden away so as to be untraceable . Examples include the fact that his business dealings are always conducted in cash , that no records are ever maintained , and that some assets , for example the ORG CARDINALi , are registered in false names . ”

The applicant filed a written statement in response , in which he denied having benefited from drug trafficking . He explained that in DATE - CARDINAL he had been convicted of car theft and required to pay GBP CARDINAL to the insurance company which had indemnified the victims . He claimed that he had sold the house for GBP CARDINAL,CARDINAL to X in order to clear this debt and had used the GBP CARDINAL residue from the sale to purchase the newsagents LOC for his parents because he owed them money too . He denied owning any part in the newsagents business . When he was released from prison in DATE he began trading in telephones ; this was the source of the GBP CARDINAL in his building society account . He denied owning any of the cars registered in his name , claiming variously that each had been purchased and sold on behalf of a friend or stolen without insurance . In conclusion , he alleged that his only realisable assets were some GBP CARDINAL in a building society account and the fittings of a garage rented from the local authority . The applicant filed documentary evidence and affidavits in support , primarily , of his claim no longer to own the house .

NORP The investigation officer filed a second statement in accordance with section CARDINAL(CARDINAL ) of the DATE Act . He stated , inter alia , that the applicant was still the owner of the house and that the conveyance to X had never been registered .

At the confiscation hearing in the ORG the applicant gave evidence and called witnesses . Giving judgment on DATE the judge observed :

“ It is for the prosecution to establish , of course , on a balance of probabilities that he has benefited from drug trafficking , that is received any payment or reward in connection with drug trafficking . Here there is no direct evidence of that so the ORG invite me to make the assumptions required by section CARDINAL(CARDINAL ) of the LAW , namely ( a ) that property held by him since his conviction , and property transferred to him since DATE , the appropriate date , was received as such a benefit ; ( b ) that any expenditure of his since that date in DATE was met out of payments received by him in connection with any drug trafficking carried on by him . I must do so unless either he shows on a balance of probabilities that the assumption is incorrect , or I am satisfied that there would be a serious risk of injustice to him if the assumption was made . ”

The judge commented generally that , in seeking to displace the assumption and to counter the prosecutor ’s allegations , the applicant had failed to take obvious , ordinary and simple steps which would clearly have been taken if his account of the facts had been true . For example , instead of calling as witnesses the alleged purchaser of the house , X , and other individuals for whom he claimed to have bought and sold cars , the applicant had called only himself , his father and a solicitor .

The judge found the prosecution ’s allegation that the applicant still owned the house to be correct and held that ORG ’s purported purchase payment of ORG had in fact been a benefit of drug trafficking . The judge stated :

“ The assumption to be made is plain , and the accused has neither shown that it is incorrect nor demonstrated a risk of injustice .

There are real indications on the civil basis of proof that [ X ] was complicit in the crime of which the accused was convicted . They travelled to GPE together at about the time when arrangements for shipment of the load of compressed herbal cannabis would be likely to be made . A mobile phone at the heart of the arrangements for the haulage of the drugs was registered in the name of [ X ] . Just as the jury did not believe PERSON , neither do I. What has happened here , in my judgment , is a device of just the sort providing a cover to explain the transfer of money which one would expect to find in concealing benefit from drug trafficking . There is an apparently ordinary , formal , commercial transfer of property , appropriately done through solicitors in the ordinary way , which has never ultimately been formally finalised , and my judgment is that it was indeed a sham , that the property ... is still owned by the accused ... ”

The prosecution alleged that the applicant had received a further GBP CARDINAL in cash from X. The applicant accepted that he had received this money , but claimed that X had merely been cashing a cheque drawn by the applicant ’s father to buy out the applicant ’s share in the family business for a total of GBP CARDINAL . In connection with this transaction , the judge observed :

“ No sensible explanation for the involvement of [ X ] in that cashing of that cheque was given to me at all , and it is impossible , in my judgment , to see any sensible reason other than that he did not cash a cheque ; that it was a simple payment . It involves my disbelieving not only the accused but also his father , but I do . I think family loyalty has overcome his honesty .

Although the accused now has no formal interest in the remaining shop LOC from which the family business is conducted , I do not accept the account of himself and his father that he has no interest in the business . Even within a family I find the purchase of a share of a business for GBP CARDINAL,CARDINAL entirely without documentation simply unbelievable . Again , on the balance of probabilities it is a device to conceal the true reason for the payment by [ X ] to the accused of GBP CARDINAL which was that it was a payment for drug trafficking . ”

In respect of the applicant ’s dealings with cars , the judge remarked :

“ Accepting his lowest estimates of those sums which he has paid out , a total of GBP CARDINAL in cash is reached . He told the jury that he always dealt in cash in all his transactions , not only dealing with these but other transactions , he presenting himself to the jury as a general wheeler - dealer , having specialised at CARDINAL stage in cars , more recently in mobile telephones , but willing to deal in anything which would offer a profit . He says he never kept records at all . He accepts and asserts that he dealt dishonestly in cars , as well as legitimately , and that is certainly so . He has been convicted during the relevant period of offences of dishonesty in relation to ringing cars and was sentenced to a substantial term of imprisonment in respect of that . There are also in the papers before me indications of earning legitimate commissions in ordinary sales of cars .

But the fact that he may have had other sources of cash , both legitimate and illegitimate , does not , in my judgment , displace the second assumption in a case such as this where no sort of account , complete or partial , is available or possible . I have seen what must have been a fraction of his dealings , and I am satisfied that the GBP CARDINAL must be treated as a benefit . ”

The judge assessed the applicant to have benefited from drug trafficking to the extent of GBP CARDINAL .

He next calculated the value of the realisable property held by the applicant as follows :

“ For the reasons that I have given above I am satisfied that [ the applicant ] is in fact the beneficial owner of [ the house ] . In the absence of a current valuation , but taking judicial notice of a recent modest recovery in the housing market after a long , flat period , I am satisfied that the GBP CARDINAL which he said in evidence was what such a property was worth in DATE , that is to say during the long , flat period , I am satisfied that GBP CARDINAL is a fair estimate of the likely net proceeds of a sale of that property now or in the relatively near future .

Again for the reasons that I have given above , I am satisfied that the accused still has a CARDINAL interest with his parents in the [ newsagents business ] . He and his father said that the business was worth GBP CARDINAL in DATE . That is what was purported to be the basis of the GBP CARDINAL he was to be given for it . There is no evidence that it is worth any less now , and I therefore find his realisable share in the equity in that business to be worth GBP CARDINAL . Since I am satisfied as to GBP CARDINAL realisable sums , that figure exceeds the GBP CARDINAL and under section CARDINAL I find the amount to be recovered to be that figure . ”

In view of the difficulties inherent in realising the applicant ’s share of the family business , the judge allowed him DATE in which to pay the confiscation order , with a period of CARDINAL years’ imprisonment to be served in default of payment .

On DATE the applicant was refused leave to appeal against conviction and sentence ( including the imposition of the confiscation order ) . His application to renew leave to appeal against conviction and sentence was refused on DATE after a full hearing before ORG .

Section CARDINAL of the DATE LAW provides that a ORG should make a confiscation order in respect of a defendant appearing before it for sentencing in respect of CARDINAL or more drug - trafficking offences , whom the court finds to have received at any time any payment or other reward in connection with drug trafficking .

NORP Under LAW , the confiscation order should be set at a sum corresponding to the proceeds of drug trafficking assessed by the court to have been gained by the defendant , unless the court is satisfied that , at the time the confiscation order is made , only a lesser sum could be realised .

In determining whether and to what extent the defendant has benefited from drug trafficking , section CARDINAL(CARDINAL ) and ( CARDINAL ) of the DATE Act require the court to assume that any property appearing to have been held by the defendant at any time since his conviction or during DATE on which the criminal proceedings were commenced was received as a payment or reward in connection with drug trafficking , and that any expenditure incurred by him during the same period was paid for out of the proceeds of drug trafficking . This statutory assumption may be set aside by the defendant in relation to any particular property or expenditure if it is shown to be incorrect or if there would be a serious risk of injustice if it were applied ( section CARDINAL ) ) .

The required standard of proof applicable throughout the DATE Act is that applied in civil proceedings , namely on the balance of probabilities ( section CARDINAL(CARDINAL ) ) .

Provisions broadly similar to the above were previously included in LAW DATE ( “ the CARDINAL Act ” , considered by the ORG in PERSON v. the GPE , judgment of CARDINAL DATE , Series A no . CARDINAL-A ) .

NORP In its judgment of CARDINAL DATE ORG , by a majority of CARDINAL , held that a confiscation procedure similar to that applied in the present case was incompatible with LAW . Lord PERSON , with whom Lord PERSON agreed , observed , inter alia :

“ ... By asking the court to make a confiscation order , the prosecutor is asking it to assess the value of the proceeds of the petitioner ’s drug trafficking . It is therefore asking the court to reach the stage of saying that he has trafficked in drugs . If that is criminal , that seems to me to be closely analogous to an actual charge of an actual crime , in NORP terms . There is of course no indictment or complaint , and no conviction . And the advocate depute pointed out a further difference , that a NORP complaint or indictment would have to be specific , and would require evidence , whereas this particular allegation was unspecific and based on no evidence . But the suggestion that there is less need for a presumption of innocence in the latter situation appears to me to be somewhat PERSON , and to portray vice as a virtue . With no notice of what he is supposed to have done , or of any basis which there might be for treating him as having done it , the accused ’s need for the presumption of innocence is in my opinion all the greater ... I can see no basis upon which it could be said that [ such ] assumptions ... would not offend against the presumption of innocence , leaving it to the accused to show that these assumptions were incorrect . ... ”

On DATE ORG held unanimously that the imposition of a drug confiscation order did not give rise to a violation of LAW . Giving judgment , the Lord Chief Justice examined the confiscation process on the basis that LAW as a whole , including LAW , applied . He concluded that , considered as a whole , the confiscation scheme struck a fair balance between justice for the defendant and the public interest in controlling the proceeds of drug trafficking .

The prosecution appealed from ORG decision ( see paragraph CARDINAL above ) and on DATE ORG of ORG held , unanimously , that LAW did not apply , since during the confiscation proceedings the accused was not “ charged with a criminal offence ” but was , instead , faced with a sentencing procedure in respect of the offence of which he had been convicted . Moreover , ORG held that even if LAW could be said to apply , the assumption involved in the making of the confiscation order was not unreasonable or oppressive .


The applicant is a NORP national , born in DATE and living in GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE . The Government were represented by their Agent , Mr M. ORG , of ORG .

The facts of the case , as submitted by the parties , may be summarised as follows . The applicant joined ORG in or DATE . He completed CARDINAL tours of duty in GPE in DATE and DATE , during and after which he suffered from depression and experienced certain problems with his superiors . On DATE he went absent from the ORG . In DATE his brother committed suicide after which the applicant could not envisage going back to the ORG .

On DATE he was arrested and held in close arrest , during which detention he was diagnosed as suffering from ORG . While in close arrest he gave his Defending Officer a list of CARDINAL witnesses who could testify as to the manner in which he had been treated by his superior officers while in the ORG . He claims that his Defending Officer only spoke to CARDINAL of those potential witnesses , that he failed to investigate a relevant incident and that that officer had told him that , if he took CARDINAL GPE additional treatment in the naval hospital and opted for a summary trial before his Commanding Officer ( Captain PERSON ) , the punishment for his absence would be discharge only . He also alleges that that officer discouraged him from making a complaint against the relevant superior officers and avoided giving the applicant access to a naval barrister .

On DATE the applicant was brought before his Commanding Officer and was charged with desertion contrary to LAW DATE ( for which offence the potential punishment after trial by court - martial is an unlimited period of imprisonment ) . He was given DATE to consider whether he wished to have a summary trial or be tried by court - martial . On DATE he opted for a summary trial and on DATE he was tried by his Commanding Officer , when the applicant pleaded guilty . The applicant claims that his Defending Officer did not procure the attendance of any of the CARDINAL witnesses he had proposed as regards mitigation of sentence . He was sentenced to CARDINAL days’ detention ( with no remission for DATE of close arrest already served ) and discharge from the ORG . By letter dated DATE from the applicant ’s Commanding Officer to the latter ’s next superior officer ( the Flag Officer Training and Recruitment – “ FAC ” ) , the Commanding Officer described in some detail the charge against the applicant , his plea , the prosecution case , the evidence in mitigation of sentence and the reasons for the punishment imposed . On DATE the sentence was confirmed by the ORG . The applicant commenced his sentence .

On DATE he lodged a petition against the severity of his sentence , arguing that his ORG had not been sufficiently taken in account . By letter dated DATE the Commanding Officer provided written comments on the applicant ’s petition . By letter dated DATE the ORG outlined in detail why he rejected the applicant ’s petition . On or DATE , Major PERSON informed the applicant of the outcome of his petition and made the following hand - written note at the end of the letter of DATE : “ Informed + does not wish to pursue further ” .

The Government maintain that Major PERSON informed the applicant , as he was required to do , that the applicant had the right to take the matter further and that the applicant did not wish to . The applicant submits that Major PERSON told him that he could take the matter further only if he had fresh evidence and that there is nothing in Major PERSON ’s hand - written note that contradicts this .

Having no fresh evidence , the applicant did not pursue the matter further , served his sentence and left the ORG in DATE .

On DATE the applicant wrote to his solicitors pointing out that he believed that he had not been given a fair trial since statements from witnesses had not been collected or presented at trial , medical reports and the time spent in close arrest were ignored , and the case was decided on elements that had nothing to do with the reasons for his leaving .

On DATE the applicant ’s solicitor wrote to the successor of the applicant ’s Commanding Officer ( Captain Hart ) , in the following terms :

“ I represent PERSON in connection with his detention arising from a hearing at the Captain ’s table on DATE . I should be most grateful if you would please advise me if there is any method of appeal or review of that decision . Could you please let me have a copy of the reasons for the decision made for his detention . I understand that no legal representation was available at the hearing before the Captain . ”

Captain PERSON replied by letter dated DATE indicating that the applicant had had CARDINAL review before the ORG and that , while he had been advised that another review to a specific higher authority ( Second Sea Lord / Commander ) was open to him , he had chosen not to pursue that option .

On DATE ORG handed down its judgment in the PERSON case ( PERSON v. the GPE judgment of DATE , Reports of Judgments and ORG , no . CARDINAL ) . The applicant claims that it was not until the publication of that judgment and having taken counsel ’s advice that he realised that he had the right to request that his complaint be taken further .

The applicant ’s solicitor therefore wrote to Captain Hart on DATE referring to the FAC judgment , pointing out that the applicant considered that he had not had a fair hearing by an independent and impartial tribunal ( within the meaning of that judgment ) , and as required by the rules of natural justice . He stated that he wished to renew his complaint against sentence to a higher authority for which no time - limit had been set down by the relevant regulations .

Captain PERSON replied by letter dated DATE . He set out the history of the case and rebutted certain of the applicant ’s allegations about his trial and noted that the applicant had since left the service thereby losing any right to request a further review . He concluded by noting that nothing new had been raised in the applicant ’s lawyer ’s letter about the facts of the applicant ’s case , that the PERSON case was of no relevance and that , accordingly , there were no justifiable grounds to review the case again .

On DATE the applicant applied for legal aid to pursue judicial review proceedings against ORG in respect of the decision of Captain Hart not to forward the applicant ’s complaint to the next higher authority . On DATE ORG refused legal aid . ORG considered that the applicant had not shown reasonable grounds for taking , defending or being a party to proceedings and that the applicant had not shown that the decision of Captain Hart was illegal , irrational or procedurally improper . The Board noted that DATE limitation period for judicial review proceedings appeared to run from DATE and , given that Captain Hart ’s letter of DATE merely confirmed what had previously taken place , judicial review proceedings were out of time . On DATE ORG refused the applicant ’s appeal against the refusal of legal aid , the ORG not being satisfied that the applicant had reasonable prospects of success in the proposed judicial review proceedings .

Section CARDINAL of LAW DATE ( “ the DATE LAW ) reads , in so far as is relevant , as follows :

“ CARDINAL . If a person subject to this LAW thinks that he has suffered any personal oppression , injustice or other ill - treatment , he may make a complaint in accordance with the procedure laid down in Queen ’s Regulations and , if he does not obtain the redress to which he thinks he is entitled , a complaint to ORG . ...

NORP On receiving any complaint made by virtue of subsection ( CARDINAL ) above , it shall be the duty of ORG to investigate the complaint and to grant any redress which appears to them to be necessary ... ”

An officer of junior rank or a rating may request an officer in his ship to assist him in making a complaint , in default of which the Divisional Officer ( or such other officer as the Commanding Officer may decide ) will give assistance ( clause CARDINAL of paragraph CARDINAL ) . In the case of a rating , the complaint is first made orally to the Commanding Officer ( clause CARDINAL ) .

Clause CARDINAL points out that it is the duty of any authority receiving a complaint to have it investigated as soon as possible . On receipt of any complaint , the Commanding Officer or other officer receiving the same shall satisfy himself that the complaint is made in accordance with the appropriate regulations in this section . He is then to deal with it in the exercise of his discretion as may seem to him right , and cause the complainant to be informed of his decision .

Clause CARDINAL provides that , if the Commanding Officer should refuse or be unable to remedy the complaint so made , the complainant may ask that he may be allowed to make his complaint in writing . On receiving the request , the Commanding Officer is to give the complainant TIME to reconsider the matter . The complainant ( while still having the assistance of the officer referred to in clause CARDINAL ) may then address his complaint in writing to the Commanding Officer , who is to forward it to his next superior , together with his own remarks thereon .

Clauses CARDINAL and CARDINAL of paragraph CARDINAL read , insofar as relevant , as follows :

“ CARDINAL . If the complainant is not satisfied . If the complainant is not satisfied with the decision on his complaint , he may request that it be forwarded to the next superior authority and so on to the Commander - in - Chief and finally to ORG to be dealt with in accordance with Clause CARDINAL , and all such requests shall be complied with . ... When such a complaint is referred to a higher authority a copy of the complainant ’s full service documents should also be forwarded , in order that the complaint may be dealt with without delay . ” ...

“ CARDINAL . Injustice at a summary trial . If a rating considers he has suffered an injustice at a summary trial , in conviction and/or sentence , he should state a complaint as set out < in Clauses CARDINAL - CARDINAL > above . Detailed instructions for the handling of such complaints are contained in NORP , Manual of Naval Law , LAW . ”

“ Section II : REVIEW OF ORG TRIALS

“ DATE . Complaints against conviction and/or sentence

There is no right to appeal to ORG against either conviction or sentence at a summary trial . However , a rating is entitled to represent , through the medium of the complaints procedure set out in < Queen ’s Regulations > Chapter CARDINAL , that he has been wrongfully convicted , or excessively punished , or both .

Any such complaint should be made as early as possible to facilitate proper investigation . Application should not be delayed until completion of the punishment . ...

Where a Commanding Officer or intermediate superior authority rejects a complaint , the rating is to be informed and the reasons stated . The rating should also be told of his right to have his complaint considered by the next higher authority if he is not satisfied . ...

A rating whose complaint has been rejected by a Commander - in - Chief , an Area Flag Officer , ORG , the Flag Officer Surface Flotilla , ORG or FAC is to be informed of his right to request that it be forwarded to ORG ... for the consideration of ORG .

At all stages the complaint is to be given immediate attention ...

NORP If the complaint is against a committed sentence of detention it is essential that this expeditious handling procedure is observed so that , if any authority decides to uphold the complaint , the rating concerned may be released without delay . ... ”

ORG . Review of summary sentences

Whether in pursuance of a complaint made under DATE or otherwise , any ORG or ORG may exercise any of the powers conferred by section CARDINAL(CARDINAL ) of < the DATE LAW to annul or otherwise alter the sentence at a summary trial if :

a. he is satisfied by information available to him but not available to the officer who awarded the sentence , either

( CARDINAL ) that an offence of which the accused was convicted was not committed by him ( in which case action to have the conviction quashed must also be taken < pursuant to > CARDINAL ) ; or

( CARDINAL ) that the punishment is too severe and the accused should not be required to undergo that part of the punishment which is considered too excessive .

b. a sentence is for any reason invalid .

c. the report made in accordance with CARDINAL indicates that an unjustifiable punishment has been awarded summarily to a rating who would , had the circumstances permitted , have had the right to be tried by court - martial .

Review of summary convictions by Commanders - in Chief , ORG or ORG or ORG

The powers conferred by sections CARDINAL and CARDINAL of the < CARDINAL Act > to quash or otherwise alter a conviction ... at a summary trial may be exercised by Commanders - in Chief or , when authorised ... , by ORG or , when authorised ... , by ORG , the Flag Officer Surface Flotilla or ORG , where they consider that such action is appropriate . ”

Paragraph CARDINAL of ORG provides that solicitors and barristers should not appear at summary trials and that , in particular , an accused has no right to request legal representation at such a trial . If an accused requests legal representation , the Commanding Officer should consider whether justice requires , having regard to the gravity and nature of the offence , that the accused should alternatively be tried by court - martial . The accused ’s Divisional Officer and witnesses can attend the summary trial ( paragraph CARDINAL ) .

No time - limit applies to complaints made pursuant to the above provisions except that the right to make a complaint is retained only as long as the person concerned is “ subject to ” LAW , namely , while the individual remains in service . It was , nevertheless , at the relevant time the policy of ORG as a matter of discretion to consider such a complaint for DATE after a serviceman had ceased to be subject to naval law if the case raised exceptional circumstances and , typically , when new evidence was put forward .


Violation of Art. 6-1;Pecuniary and non-pecuniary damage - award

Angelika Nußberger;Christos Rozakis;Corneliu Bîrsan;David Thór Björgvinsson;Françoise Tulkens;George Nicolaou;Isabelle Berro-Lefèvre;Jean-Paul Costa;Julia Laffranque;Karel Jungwiert;Lech Garlicki;Mark Villiger;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

Under a contract of indefinite duration dated CARDINAL DATE , the applicant was appointed by ORG as accountant in the NORP embassy in GPE . He became head accountant on DATE , when a note by the Ambassador entitled “ ORG at ORG in GPE ” set out the applicant ’s duties as follows :

“ ( a ) To oversee all the work of the accounts department .

( b ) To supervise the staff working in that department in respect of the tasks assigned to them , and to ensure compliance with the rules governing working TIME and the volume and distribution of work .

( c ) The above - mentioned accountant must sign all payment orders , accounting invoices and everything connected with that activity .

( d ) In addition the accountant is entrusted with the management of administrative tasks .

( e ) The accountant shall be accountable to his superiors for any shortcomings in respect of everything connected with the work of his department . ”

On DATE some CARDINAL employees of the ORG signed a statement to the effect that the applicant had , since his appointment , unofficially assumed the role of staff representative , with the result that he had resolved all disputes between the staff and the diplomatic mission for DATE .

A certificate of employment dated DATE indicates that the applicant “ is employed by the ORG as Head Accountant ” .

On DATE the applicant ’s contract was terminated on the following economic grounds :

“ The restructuring of all the ORG ’s departments , in accordance with general instructions from ORG of ORG .

The ORG is obliged to abolish your post as a result of the new regulations of ORG of ORG . ”

Disagreeing with the reasons given for the termination , the applicant brought proceedings in ORG ( conseil de prud’hommes ) seeking various sums in compensation for dismissal without genuine or serious cause .

NORP In a judgment of CARDINAL DATE , ORG began by refusing to allow the objection to admissibility raised by ORG , finding as follows :

“ A plea of inadmissibility has been raised on grounds of jurisdictional immunity .

Whilst LAW provides that diplomatic agents enjoy immunity from the criminal jurisdiction of the receiving ORG , and also from its civil and administrative jurisdiction , the latter immunity does not cover actions relating to any professional or commercial activity exercised by the diplomatic agent in the receiving ORG outside his official functions .

Mr PERSON was recruited and employed in GPE , under a contract of indefinite duration signed in GPE and performing [ sic ] in NORP territory .

His pay statements bear a ORG [ registration ] number .

The letter summoning him to a preliminary meeting fully satisfies the provisions of Article L.CARDINAL - CARDINAL - CARDINAL of the Labour Code , indicating that Mr PERSON was entitled to be assisted by a third party from the list kept by the préfecture .

In the present case , the duties of head accountant entrusted to Mr PERSON GPE in an internal management context fell within the framework of an expressly private - law activity and the jurisdiction of the ordinary NORP courts , as the employer has acknowledged through the above - mentioned elements . ”

On the merits , ORG found that the termination of the applicant ’s employment “ which was decided abruptly after DATE of irreproachable work without punishment or criticism ” , had not been based on a genuine and serious cause . It awarded the applicant a sum representing DATE of salary by way of compensation for dismissal without a genuine and serious cause , plus compensation in lieu of notice , together with sums in respect of unpaid overtime , time off in lieu that he had not been able to take , DATE leave , and his inability to register with the ORG ( “ Association for employment in industry and commerce ” ) from which he was entitled to receive unemployment benefit , amounting to a total of MONEY ( equivalent to MONEY ) . Moreover , ORG ordered the employer to issue the applicant with a certificate of employment and CARDINAL pay statements , failing which it would be fined MONEY per day .

Disagreeing with the amount of the award , the applicant lodged an appeal against the judgment .

In a judgment of CARDINAL DATE ORG set aside that judgment , finding as follows :

“ Admissibility of the claims

ORG argued that PERSON claims were inadmissible on account of its jurisdictional immunity .

PERSON challenged the plea of inadmissibility , arguing that such immunity did not extend to proceedings concerning contracts of employment .

He considers that his duties as head accountant fell expressly within the framework of a private - law activity rather than an activity of governmental authority .

PERSON claims are directed against ORG , represented by its embassy and its Ambassador in GPE and not against the embassy ’s director himself .

It must therefore be ascertained whether , in the present case , ORG enjoys the jurisdictional immunity afforded to foreign States .

PERSON last post was that of head accountant in the embassy ’s accounts department .

He also assumed certain additional responsibilities : responsibility for administrative matters , responsibility for legal affairs , responsibility for the payment and follow - up of financial contributions concerning ORG , and responsibility for supervising the bank accounts of ORG [ sic ] .

PERSON , in view of his level of responsibility and the nature of his duties as a whole , did not perform mere acts of management but enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service .

He thus participated in acts of governmental authority of ORG through its diplomatic representation in GPE .

His claims against ORG are thus inadmissible by virtue of the principle of jurisdictional immunity of foreign States . ”

The applicant appealed against that judgment to ORG . In his full pleadings he challenged the finding that his claims against ORG were inadmissible . He invoked a breach of LAW , on the ground that the judgment had not given sufficient reasons , since the inadmissibility had been based :

“ on the mere assertion that outside his accounting duties [ he ] assumed responsibilities in administrative matters , legal affairs ... , leading to the conclusion that in view of his level of responsibility and the nature of his duties as a whole , he did not perform mere acts of management but enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service and participated in acts of governmental authority of ORG ... ”

He developed his arguments as follows :

“ The judgment appealed against purportedly applied the principle whereby ‘ foreign ORG and bodies acting for them or on their behalf enjoy jurisdictional immunity not only for acts of governmental authority but also for acts performed in the interest of a public service’ ...

This principle implies , conversely , that the immunity of the foreign ORG from jurisdiction does not apply , in matters of employment contracts , where the employee had ‘ no particular responsibility in the performance of public service , such that his dismissal constituted an act of GPE ...

That was precisely the situation of [ the applicant ] , who performed accountancy duties only . ”

On DATE ORG , ruling in the context of the preliminary admissibility procedure for appeals on points of law , as provided for by Article L. CARDINAL - CARDINAL of LAW , held that the ground of appeal was “ not such as to warrant admitting the appeal on points of law ” .

State immunity from jurisdiction is governed by customary international law , the codification of which is enshrined in LAW and their Property of DATE ( “ the DATE Convention ” ) . The principle is based on the distinction between acts of sovereignty or authority ( acte jure imperii ) and acts of commerce or administration ( acte jure gestionis ) .

LAW of the convention reads as follows :

“ CARDINAL . Unless otherwise agreed between the GPE concerned , a ORG can not invoke immunity from jurisdiction before a court of another ORG which is otherwise competent in a proceeding which relates to a contract of employment between the ORG and an individual for work performed or to be performed , in whole or in part , in the territory of that other ORG .

Paragraph CARDINAL does not apply if :

( a ) the employee has been recruited to perform particular functions in the exercise of governmental authority ;

( b ) the employee is :

( i ) a diplomatic agent , as defined in LAW ;

( ii ) a consular officer , as defined in LAW of DATE ;

( iii ) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission , or is recruited to represent a ORG at an international conference ; or

( iv ) any other person enjoying diplomatic immunity ;

( c ) the subject - matter of the proceeding is the recruitment , renewal of employment or reinstatement of an individual ;

( d ) the subject - matter of the proceeding is the dismissal or termination of employment of an individual and , as determined by the head of ORG , the head of ORG or the Minister for ORG of the employer State , such a proceeding would interfere with the security interests of that State ;

( e ) the employee is a national of the employer ORG at the time when the proceeding is instituted , unless this person has the permanent residence in the ORG of the forum ; or

( f ) the employer ORG and the employee have otherwise agreed in writing , subject to any considerations of public policy conferring on the courts of the ORG of the forum exclusive jurisdiction by reason of the subject - matter of the proceeding . ”

In the Draft Articles on Jurisdictional Immunities of States and their ORG , adopted by ORG at its CARDINAL session in DATE , and submitted to ORG at that session , LAW read as follows :

Paragraph CARDINAL does not apply if :

( a ) the employee has been recruited to perform functions closely related to the exercise of governmental authority ;

( b ) the subject of the proceeding is the recruitment , renewal of employment or reinstatement of an individual ;

( c ) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded ;

( d ) the employee is a national of the employer ORG at the time when the proceeding is instituted ; or

( e ) the employer ORG and the employee have otherwise agreed in writing , subject to any considerations of public policy conferring on the courts of the ORG of the forum exclusive jurisdiction by reason of the subject - matter of the proceeding . ”

In the commentary on that ORG indicated as follows :

“ Paragraph CARDINAL ( b ) is designed to confirm the existing practice of GPE in support of the rule of immunity in the exercise of the discretionary power of appointment or non - appointment by the ORG of an individual to any official post or employment position . ... So also are the acts of ‘ dismissal’ or ‘ removal’ of a government employee by the ORG , which normally take place after the conclusion of an inquiry or investigation as part of supervisory or disciplinary jurisdiction exercised by the employer ORG . This subparagraph also covers cases where the employee seeks the renewal of his employment or reinstatement after untimely termination of his engagement . The rule of immunity applies to proceedings for recruitment , renewal of employment and reinstatement of an individual only . It is without prejudice to the possible recourse which may still be available in the ORG of the forum for compensation or damages for ‘ wrongful dismissal’ or for breaches of obligation to recruit or to renew employment . ”

The DATE Convention on Jurisdictional Immunities of States and their Property was signed by GPE on DATE . The PERSON authorising its ratification is currently being examined by ORG , the ORG having approved the following text at First Reading on DATE :

“ Single Article

The ratification of LAW and their Property , adopted on DATE and signed by GPE on DATE is hereby authorised . ”

For a more comprehensive overview see PERSON v. GPE ( [ ORG ] , no . CARDINAL , § § CARDINAL et seq . , ECHR DATE ... ) .

ORG considers that a foreign ORG only enjoys jurisdictional immunity when the act giving rise to the dispute is an act of governmental authority or has been performed in the exercise of a public service ( ORG , ORG , CARDINAL DATE , no . DATE , ORG . I , no . DATE ) . In other words it verifies , on a case - by - case basis , whether the act , by its nature or purpose , has contributed to the exercise of the foreign ORG ’s sovereignty , as opposed to an act of administration ( Court of Cassation , Combined Divisions , DATE , appeals ORG . CARDINAL - CARDINAL and CARDINAL , ORG . PERSON . PERSON no . CARDINAL ) .

Applying this criterion , ORG found that jurisdictional immunity could not be granted in a dispute concerning an embassy employee who had no particular responsibility in the exercise of the public diplomatic service ( ORG , ORG , CARDINAL DATE , appeal no . DATE , ORG . I no . DATE , for a caretaker ; ORG , DATE , appeal no . CARDINAL , ORG . V no . CARDINAL , concerning a nurse - medical secretary ; and ORG , DATE , appeal no . DATE , in respect of a senior clerk in the national section of a consulate ) . The same principle applies where a ORG decides to close a consular mission : whilst it enjoys jurisdictional immunity as regards the assessment of the reasons for the closure decision , the NORP courts retain the power to verify the reality of the closure and to rule on the consequences of any redundancy caused thereby ( Court of Cassation , Employment Division , CARDINAL DATE , appeal no . DATE , ORG . V no . CARDINAL ) .

The assessment of that criterion , however , falls within the unfettered discretion of ORG for the final decision on the facts and evidence ( Court of Cassation , ORG , DATE , appeal no . DATE , concerning a translator in the passport office ) .

The relevant provision of LAW reads as follows :

“ Judgments shall set forth succinctly the respective claims of the parties and their grounds . Such presentation may take the form of a reference to the pleadings of the parties with an indication of their date . Judgments shall be reasoned .

They shall state the decision in an operative paragraph . ”


The applicants , Mr PERSON , PERSON , PERSON PERSON NORP , PERSON and PERSON are CARDINAL NORP nationals . They are represented before the ORG by Mr G. de GPE , a lawyer and justice of the peace ( giudice di pace ) practising in GPE ( GPE ) .

The respondent Government were initrially represented by their Agents , respectively PERSON and Mr PERSON , and then by their co - Agents , respectively Mr PERSON and Mr PERSON .

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

The applicants are the owners of a flat in GPE , which they had let to ORG

In a registered letter of DATE , the applicants informed the tenant that they intended to terminate the lease on expiry of the term on DATE and asked her to vacate the LOC by DATE .

In a writ served on the tenant on DATE , the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Sorrento Magistrate .

By a decision ( ordinanza ) of DATE , which was immediately enforceable , the ORG Magistrate provisionally ordered that the LOC be vacated by DATE and adjourned the case to CARDINAL October CARDINAL in order to examine the objections of the tenant .

At the hearing of CARDINAL DATE , the representative of the applicants requested that a date be set for a hearing so that he could make his submissions . The case was adjourned to CARDINAL DATE .

At the hearing of CARDINAL DATE , the representatives of the parties both requested that a date should be set for a hearing so that they could make their submissions . The case was adjourned to DATE .

At the hearing of DATE , the representatives of the parties both asked for time . The case was adjourned to CARDINAL DATE .

At the hearing of CARDINAL DATE , the representative of the tenant asked for time . The case was adjourned to CARDINAL DATE .

At the hearing of CARDINAL DATE , the representative of the parties both filed their submissions . The case was adjourned to DATE .

At the hearing of DATE , the representative of the applicant asked for time . The case was adjourned to CARDINAL DATE when the GPE Magistrate considered the case to be ready for a decision .

By a decision of CARDINAL DATE , which was made enforceable on DATE , the Sorrento Magistrate upheld the validity of the notice to quit , declared that the decision ( ordinanza ) of CARDINAL DATE was absorbed and ordered that the premises be vacated DATE after the publication of the decision .

On DATE , the tenant appealed against this decision to ORG .

By decision of DATE , filed with the registry on CARDINAL DATE , ORG declared that it was not competent to examine the matter , following which the tenant resumed the proceedings before ORG .

On DATE , on the basis of the order for possession issued by the Sorrento Magistrate on DATE , the applicants served notice on the tenant requiring her to vacate the LOC .

On an unspecified date , they informed the tenant that the order for possession would be enforced by a bailiff on DATE .

On DATE , the tenant opposed the notice of CARDINAL DATE before the GPE court of PERSON on the ground that the decision of the ORG Magistrate of CARDINAL DATE was not yet enforceable as the appeal against it was still pending .

On DATE , on the basis of the decision issued by the GPE Magistrate on CARDINAL DATE , the bailiff made an attempt to recover possession of the flat which proved unsuccessful , as the applicants were not entitled to police assistance in enforcing the order for possession .

By a decision of DATE , filed with the registry on DATE , the Torre Annunziata Magistrate annulled the notice on the ground that the decision of the Sorrento Magistrate was not yet enforceable , since the proceedings were still pending on appeal .

DATE and DATE , on the basis of the decision issued by the NORP Magistrate on DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicants were not entitled to police assistance in enforcing the order for possession .

By a decision of DATE , filed with the registry on DATE , ORG rejected the appeal of the tenant and confirmed the decision of the Sorrento Magistrate of CARDINAL DATE .

On DATE , on the basis of the decision issued by ORG on DATE , the applicants served notice on the tenant requiring her to vacate the LOC .

On DATE , pursuant to section CARDINAL of Law No . CARDINAL , the tenant asked ORG to set a new date for the enforcement of the order for possession . The date was set for DATE .

On DATE , the bailiff made CARDINAL attempt to recovered possession of the flat which proved unsuccessful as the applicants were not entitled to police assistance in enforcing the order for possession .

On DATE , the applicants recovered possession of the flat .


Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicants , ORG and FAC , are NORP nationals , who were born in DATE and DATE respectively and live in GPE . They were represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On an unspecified date ORG , the first applicant ’s father and the second applicant ’s husband , entered into an employment contract with ORG , registered in GPE , pursuant to which he was employed as a sailor on a vessel for DATE starting from DATE . The contract specified that the employer ’s insurance covered death in service and that the contract was governed by the laws of GPE , and designated GPE , GPE as the forum for dispute resolution . The vessel was insured in GPE .

On DATE J.K.D. died while the vessel was in LOC .

The applicants brought a civil action in ORG ( PERSON u ORG ) on CARDINAL DATE against the owner of the ship and the insurance company . They sought damages in connection with the death of their husband and father , claiming that his death had occurred as a result of a lack of adequate medical treatment . As regards the jurisdiction of the NORP courts in the matter , they considered that where a death had occurred outside the territory of GPE , the NORP courts had jurisdiction because the actual damage – the suffering of the deceased ’s close relatives residing in GPE caused by the death and the resulting loss of support – nonetheless occurred in GPE .

On DATE the ORG awarded the applicants ORG CARDINAL,CARDINAL and rejected the rest of their claim of ORG CARDINAL,CARDINAL . That judgment was upheld by ORG ( ORG trgovački sud PERSON ) on DATE .

On DATE the defendants lodged an appeal on points of law with ORG ( PERSON ) .

At a plenary session of ORG of ORG on DATE , ORG endorsed its previous practice concerning claims for damages in connection with the death of a close relative which occurred outside GPE . According to that approach , the NORP courts had no jurisdiction in such matters . The explanation for this was that where a death had occurred outside GPE the associated damage had also occurred outside GPE . As the jurisdiction of the NORP courts depended on the question of where damage had occurred , in cases where a death ( and therefore the resulting damage ) had occurred outside GPE , the NORP courts did not have jurisdiction , even when the claimant was a NORP national .

Pursuant to that approach , on DATE ORG declared the applicants’ civil action inadmissible for lack of jurisdiction . The relevant part of the decision reads :

“ The dispute concerns non - contractual liability for damage with a foreign element . Therefore , section CARDINAL(CARDINAL ) of LAW ( the “ Act ” ) ... is relevant to the question of whether the NORP courts have jurisdiction in the matter .

Under section CARDINAL(CARDINAL ) of the LAW , in disputes concerning non - contractual liability for damage the NORP courts have jurisdiction if it is prescribed under sections DATE and CARDINAL of that Act or if the damage was caused on NORP territory .

Jurisdiction for this dispute is not prescribed under sections DATE and CARDINAL of the Act , and therefore it must be assessed whether the damage was caused on NORP territory .

As to the question of where the damage occurred within the meaning of LAW , the plenary session of CARDINAL DATE of ORG of this court took the view that the occurrence of damage comprises .... death ... , and that where the damage concerns .... the death of a person abroad , then it is to be understood that the damage the claimant is seeking in that connection occurred abroad , irrespective of the fact that certain categories of damage occurred in GPE .

Therefore , [ in accordance with ] section CARDINAL(CARDINAL ) of the LAW courts do not have jurisdiction in this dispute .

On DATE the applicants lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) against the above judgment of ORG which was dismissed on DATE .

The relevant provision of LAW ( Zakon o rješavanju sukoba zakona s propisima drugih zemalja u određenim odnosima , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL DATE “ the LAW ” ) reads as follows :

“ ( CARDINAL ) The NORP courts have jurisdiction in cases concerning claims for damages if ... the damage was caused on NORP territory .

NORP The relevant part of judgment no . Rev-CARDINAL/CARDINAL - CARDINAL of ORG of DATE reads :

“ ... According to the reasoning of the lower courts , which this court also endorses , damage is caused , within the meaning of [ section CARDINAL(CARDINAL ) of the LAW ] , when [ a person ] has been injured , death has occurred or an object has been damaged ...

The event at issue ( a road accident ) , concerning the person in respect of whose death the claimants brought their action , occurred in GPE , and therefore the damage was caused in GPE and not in GPE .

It follows that the courts correctly interpreted section QUANTITY and that they therefore ... rightly declared the civil action inadmissible for lack of jurisdiction . ”

The relevant part of Practice Direction no . PERSON - IV-CARDINAL/CARDINAL of ORG of ORG of DATE reads as follows :

“ ... ORG confirms its practice [ stated in ] judgment MONEY of DATE , published in ORG DATE [ on DATE ] , which reads :

The damage was caused when the [ person ] was injured , death occurred or an object was damaged .

Therefore , if the event at issue , concerning the person in respect of whose death the claimants brought their action , occurred abroad , the damage also occurred there , disregarding the fact that the expenses of the burial occurred in GPE . ”