Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Tajikistan);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE . He is currently in hiding in NORP .

The applicant lived in the village of ORG , which is located in LOC of GPE . He worked as a carpenter .

The events preceding the applicant ’s departure from GPE , as described by him , may be summarized as follows .

On DATE a police station in GPE , a neighbouring town , was burnt down . A number of witnesses stated that they had seen a car belonging to a resident of PERSON . The owner of the car was arrested . The police found out that he was a practising NORP and that he regularly went to the mosque .

The imam of the local mosque was arrested , tortured and forced to disclose the names of all those visiting the mosque . In particular , he named PERSON , who taught the Koran . PERSON was also arrested and tortured . He gave the police the names of his pupils , including the applicant ’s name .

The applicant was summoned to the local police station , where he was beaten with the aim of extracting a confession to his involvement in extremist activities . He was , however , released after his relatives had bribed the police . He was then fined for participating in unlawful religious gatherings and for praying outside the mosque .

According to the applicant , all those arrested after the events of CARDINAL DATE were convicted of anti - government activities and sentenced to imprisonment .

On DATE the applicant left for GPE . His family , including his parents , CARDINAL of his brothers , wife and CARDINAL minor children , remained in GPE .

On DATE the applicant ’s house in PERSON was searched and a religious book was found . He then received a telephone call from a local police officer , who insisted that he should return to GPE .

On DATE the applicant left GPE for GPE . He firstly went to the city of GPE where another of his brothers lived and then , on DATE , took a train to GPE . He intended to travel onward to GPE , where he wanted to apply for refugee status .

On DATE ORG charged the applicant with participating in an extremist organisation of a religious , separatist or fundamentalist nature ( LAW ) .

On DATE ORG ordered the applicant ’s arrest . On DATE his name was put on the list of wanted persons .

On DATE ORG amended the charges against the applicant . He was charged with participating in an extremist organisation of a religious , separatist or fundamentalist nature ; smuggling of extremist materials ; storing and distributing materials containing religious extremist , separatist and fundamentalist ideas ; using religion with the aim of disturbing the public peace and order ; disseminating slanderous and damaging insinuations and committing other acts against the established rules of conduct and national security ; and calling for the overthrow of the constitutional order of GPE , the usurpation of power and breach of the territorial integrity of GPE ( the offences contained in ORG CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL - CARDINAL § CARDINAL , CARDINAL § CARDINAL of LAW ) . In particular , he was accused of membership of a banned organisation , “ jamaat ” , which was allegedly disseminating “ the separatist , fundamentalist and extremist ideas of NORP ” . The members of that organisation were claimed to hold regular religious gatherings and to collect money . The applicant was also accused of smuggling religious books authored by PERSON and PERSON , which allegedly “ encouraged unconstitutional and anti - government sentiments ” and contained “ slanderous insinuations alien to traditional NORP ” . ORG concluded from the above that , by being a member of a banned religious organisation and by smuggling extremist religious books , the applicant had disseminated the ideas of Wahhabism , called for the establishment of an NORP Caliphate based on LAW , and “ slandered the democratic system established in GPE ” .

On DATE the ORG informed LOC that , according to their information , the applicant would arrive in GPE DATE . In reply , ORG confirmed that the applicant was wanted by the NORP authorities on the charge of membership of an extremist organisation of a religious , separatist or fundamentalist nature and that an arrest warrant had been issued in respect of him . It asked ORG to keep the applicant in custody pending an extradition request , which would be sent without delay .

On DATE , immediately after his arrival in GPE , the applicant was arrested .

On DATE ORG of GPE received a request for the applicant ’s extradition from ORG . The NORP prosecutor ’s office gave an assurance that the applicant would not be extradited to a third - party ORG , or prosecuted or punished for any offences committed before extradition and which were not mentioned in the extradition request , without GPE ’s consent . It also stated that after serving his sentence he would be free to leave GPE .

On DATE , DATE and DATE ORG , ORG and ORG informed ORG that the applicant did not hold NORP citizenship and there were no other obstacles to his extradition to GPE .

On CARDINAL DATE further assurances were given by a Deputy Prosecutor General of GPE . He gave an undertaking that the applicant would not be subjected to torture , violence or other forms of inhuman or degrading treatment and that the rights of the defence would be respected . He also gave an assurance that the NORP authorities had no intention of persecuting the applicant for political motives or on account of his race or religious beliefs .

On DATE ORG ordered the applicant ’s detention . He referred to the arrest warrant issued by ORG , to LAW and to LAW ( “ CCrP ” ) .

On DATE FAC again ordered the applicant ’s detention . He referred to the extradition request received from the NORP authorities and relied on Article CARDINAL § CARDINAL of the CCrP.

On DATE ORG of GPE extended the applicant ’s detention until DATE , referring to LAW upheld the decision on appeal .

On DATE ORG extended the applicant ’s detention until DATE , referring to LAW On DATE ORG upheld that decision on appeal . It found , in particular , that the applicant ’s detention was in conformity with LAW and Article CARDINAL § CARDINAL of the CCrP.

On DATE ORG ordered a further extension of the applicant ’s detention until DATE .

The applicant appealed on DATE . On DATE ORG rejected his appeal and upheld the decision of DATE .

On DATE ORG extended the applicant ’s detention until DATE on the grounds that the extradition proceedings against him were still pending .

On DATE the applicant lodged appeal submissions . On DATE ORG of GPE upheld the extension order on appeal .

On DATE ORG ordered the applicant ’s release subject to his lawyer providing a personal guarantee . Relying on Article CARDINAL of LAW ( see paragraph CARDINAL below ) , he found that the maximum detention period permitted under NORP law had expired and that it was not possible to extradite the applicant for the time being due to the indication of an interim measure by the ORG .

On DATE the applicant applied to ORG ( “ the ORG ” ) for refugee status . In particular , he submitted that he was being persecuted in GPE for his religious beliefs . He feared being tortured with the aim of obtaining a confession to offences he had not committed .

On DATE the GPE Town Department of the ORG rejected his application .

On DATE that decision was confirmed by a deputy head of the ORG . He found that , given that a majority of the population of GPE was NORP , the applicant ’s persecution for his adherence to ORG was unlikely . Although , according to the information provided by ORG , the NORP authorities exercised close control over the religious life of the population , that was justified by their legitimate intention to limit the influence of radical NORP organisations , such as ORG . The ORG had no competence to verify whether the charges brought against the applicant in GPE were well - founded . It therefore appeared that the application for refugee status had been motivated by the applicant ’s wish to avoid criminal liability . As regards the applicant ’s allegations of a risk of ill - treatment in GPE , they could not serve as a basis for granting refugee status . The existence of such a risk , if substantiated , might , however , serve as a basis for granting temporary asylum .

The applicant challenged that refusal before ORG of GPE . He complained that the ORG had presumed him guilty of the offences imputed to him and had disregarded his argument that he was being persecuted for his religious beliefs . He submitted that he had been tortured and fined for praying outside the mosque and that criminal proceedings had been opened against him after a religious book , which had never been declared extremist or banned by the authorities , had been found in his house . He also referred to the case - law of the ORG , in particular the cases of GPE v. GPE ( no . DATE , DATE ) , PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) , and GPE v. GPE ( no . CARDINAL/CARDINAL , DATE ) in which the ORG had found , in similar circumstances , that the ORG forced return to GPE would give rise to a violation of LAW .

On DATE ORG confirmed the decision of DATE . It found that the reasons for the refusal of refugee status advanced by the ORG had been convincing and that the applicant had failed to substantiate his allegation that he had been persecuted for his religious beliefs .

The applicant appealed . He repeated his arguments advanced before the ORG and ORG . He also referred to ORG reports describing persecution and ill - treatment of members of minority religious NORP groups .

On DATE ORG upheld the judgment of DATE on appeal , finding that it had been lawful , well - reasoned and justified .

On DATE the applicant applied to the ORG for temporary asylum , referring to the risks of his ill - treatment and persecution for his religious beliefs .

On DATE the GPE Town Department of the ORG rejected his application . It found that the applicant could not be persecuted for his religious beliefs because he belonged to the NORP branch of ORG , which was the religion followed by PERCENT of the population of GPE . The charges brought against him appeared to be well - founded . It was also relevant that the applicant had never applied for a residence or work permit in GPE . There were therefore no grounds for granting temporary asylum to him .

On an unspecified date in DATE a deputy head of the ORG quashed the decision of DATE and remitted the application for temporary asylum for fresh examination before ORG of the ORG .

It appears that the temporary asylum proceedings are still pending .

By letter of CARDINAL DATE , the office of the ORG High Commissioner for Refugees ( “ ORG ” ) informed counsel for the applicant that the applicant had been granted mandate refugee status . The ORG found that he had a well - founded fear of being persecuted and ill - treated in GPE for reasons of his religion and imputed political opinion .

On DATE a deputy Prosecutor General decided to extradite the applicant to GPE . The prosecutor enumerated the charges against the applicant and found that his actions were punishable under NORP criminal law . An extradition order was granted in respect of attempted overthrow of the constitutional order of GPE and dissemination of materials presenting a danger to national security and public order . The prosecutor found that the above offences corresponded to the offences of attempted violent overthrow of the government and constitutional order and public incitement to extremist activities , which were proscribed by NORP criminal law . However , the prosecutor refused to extradite the applicant for smuggling of extremist materials because this was not an offence under NORP criminal law and for membership of “ NORP ” because that organisation had never been declared extremist or terrorist in GPE .

The applicant challenged the extradition order before ORG . He submitted that the accusations against him were unfounded and he was in fact being persecuted by the NORP authorities on account of his religious beliefs . He faced torture and other forms of ill - treatment if extradited to GPE . It transpired from the reports by the ORG agencies and by respected international NGOs that torture was widespread in GPE and confessions were often extracted from defendants under duress . He also referred to the ORG ’s case - law , in particular the cases of PERSON and Others v. GPE ( no . CARDINAL , DATE ) and PERSON v. GPE ( no . CARDINAL , DATE ) concerning extradition to GPE .

During the hearing , PERSON , an expert in refugees from LOC , testified that charges under LAW ( attempted overthrow of the constitutional order of GPE , usurpation of power and breach of the territorial integrity of GPE ) were in most cases politically motivated . Charges under LAW were often brought against individuals criticising the authorities or following religious practices not approved by the ORG . Such individuals were at a substantially higher risk of ill - treatment . In her opinion , the applicant was being persecuted for his religious beliefs and practices . She had drawn that conclusion , in particular , from the fact that he was being prosecuted for possessing a religious book by PERSON , a respected imam whose followers were often targeted by the NORP authorities . It was significant that the books authored by him were not banned in GPE or any other country . She also referred to the ORG ’s case - law establishing that diplomatic assurances were not sufficient to ensure adequate protection against the risk of ill - treatment .

A witness for the applicant , Mr N. , a former investigator in GPE , testified that ill - treatment was wide - spread in GPE . Suspects were tortured to obtain confessions and those confessions were subsequently used against them at trial . He also confirmed PERSON statement that charges under LAW were often brought against believers who attended a mosque , prayed or wore a beard . All persons charged under LAW were tortured .

The applicant asked the court to examine the reports about the situation in GPE by the ORG agencies and human rights NGOs and the judgments of the ORG . His request was rejected .

During the hearing the applicant also disputed the prosecutor ’s finding that the actions imputable to him were punishable under NORP criminal law . He argued that under NORP law only the attempted violent overthrow of the government and the constitutional order was prosecutable , while he had never been accused of resorting to violence . Nor could possession of religious books be characterised as public incitement to extremist activities .

On DATE ORG upheld the extradition order . It held that the NORP and NORP authorities had followed the extradition procedure set out in applicable international and domestic law . The applicant was charged with offences punishable under NORP and NORP criminal law and there was no evidence that he was being persecuted for his political opinions or religious beliefs . ORG found that the international reports , expert opinions and the ORG ’s case - law relied upon by the applicant were irrelevant because they described the general situation in GPE rather than the applicant ’s personal circumstances . Mr ORG testimony was also irrelevant because it referred to the situation from DATE to DATE . The NORP authorities had given assurances that the applicant would not be tortured . There was no reason to question the validity of those assurances , which had been given by a competent ORG authority , ORG office of GPE . ORG therefore considered that the assurances were sufficient to exclude any risk of ill - treatment . It further held that the issue of the applicant ’s guilt or innocence was not within the scope of the review undertaken by the extraditing authorities .

The applicant appealed . He reiterated his arguments advanced before ORG and relied on LAW . He further submitted that the diplomatic assurances against ill - treatment were unreliable due to the absence of any mechanism of compliance monitoring or any accountability for a breach of such assurances .

On DATE ORG of GPE rejected his appeal and upheld the decision of DATE , finding that it had been lawful and justified . It endorsed ORG finding that the international reports on the situation in GPE were irrelevant because they were not based on “ real evidence ” . It also found that the diplomatic assurances given by the NORP authorities were sufficient to ensure adequate protection against eventual ill - treatment of the applicant because if the assurances in respect of the applicant were breached , GPE would refuse to extradite other people . Moreover , the applicant had not submitted any evidence that such assurances had been breached in previous cases .

According to the applicant , in TIME CARDINAL DATE he met CARDINAL acquaintances , PERSON , in the centre of GPE . They were stopped by a policeman who checked their identity documents .

NORP Immediately after that CARDINAL or QUANTITY people in plain clothes grabbed them by the arms and forced them into a van . The abductors put black plastic bags on their heads and laid them on the floor of the van .

By TIME they arrived at a forest outside GPE . They were then beaten and threatened with a gun . Their hands were burnt using a lighter .

At sunset they were handcuffed , forced into the van and brought to an airport by TIME on DATE . They drove directly into the airfield and parked near an airplane . They were then placed onboard the airplane , accompanied by CARDINAL guards . The passengers boarded afterwards . The airplane took off at TIME and landed in the city of GPE in GPE CARDINAL - and - a - half hours later .

At FAC the applicant , PERSON and A. were handed over to NORP policemen . Black plastic bags were again put on their heads and they were then separated and placed in different cars .

The applicant was taken to a police station in GPE , where he remained for DATE . He was ill - treated and required to give evidence against PERSON The police officers threatened to tie him up and throw him into a river , stating that nobody knew that he was in NORP because he had not been checked in for the flight .

On DATE the applicant was taken to GPE . He was taken to a police station , where he was questioned . On DATE he was placed in a temporary detention centre , where he remained until DATE .

On DATE the ORG ordered the applicant ’s detention pending extradition to GPE .

On DATE the applicant was transferred to remand centre no . CARDINAL in GPE .

On DATE the applicant was told that a court had ordered his release . He was released DATE .

A certificate issued by ORG of NORP states that the applicant had “ served his prison sentence ” from CARDINAL DATE to CARDINAL DATE .

The applicant has been in hiding ever since . Intending to return to GPE , he asked the ORG to assist him with recovering his national passport , which had been retained by the ORG in GPE .

On an unspecified date an investigator of ORG opened an inquiry into the circumstances of the applicant ’s abduction .

On DATE the investigator refused to open criminal proceedings into the incident .

DATE . On DATE the acting head of ORG quashed the decision of DATE and ordered an additional inquiry . He found that it was necessary to question counsel for the applicant and to obtain information about the applicant ’s crossing of the NORP border .

The inquiry was resumed . On unspecified dates DATE and DATE the investigator ordered that the local police should search for witnesses to the applicant ’s abduction . In the same period he also sent inquiries for information about the applicant to ORG , the local office of ORG of ORG , the ORG , ORG in FAC , and other state agencies .

It appears that the inquiry is pending .

Chapter CARDINAL of LAW ( “ CCrP ” ) of DATE governs the procedure to be followed in the event of extradition .

An extradition decision made by ORG may be challenged before a court ( LAW ) . In that case the extradition order should not be enforced until a final judgment is delivered ( LAW ) .

A court is to review the lawfulness and validity of a decision to extradite within DATE of receipt of a request for review . The decision should be taken in open court by a panel of CARDINAL judges in the presence of a prosecutor , the person whose extradition is sought and the latter ’s legal counsel ( LAW ) .

Issues of guilt or innocence are not within the scope of judicial review , which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in applicable international and domestic law ( LAW ) .

Article CARDINAL § CARDINAL lists the conditions under which extradition can not be authorised . Thus , the extradition of the following should be denied : a NORP citizen ( LAW ( CARDINAL ) ) or a person who has been granted asylum in GPE ( LAW ( CARDINAL ) ) ; a person in respect of whom a conviction has become effective or criminal proceedings have been terminated in GPE in connection with the same act for which he or she has been prosecuted in the requesting ORG ( LAW ( CARDINAL ) ) ; a person in respect of whom criminal proceedings can not be launched or a conviction can not become effective in view of the expiry of the statute of limitations or under another valid ground in NORP law ( LAW ( CARDINAL ) ) ; or a person in respect of whom extradition has been blocked by a NORP court in accordance with the legislation and international treaties of GPE ( LAW CARDINAL ( CARDINAL ) ) . Finally , extradition should be denied if the act that serves as the basis for the extradition request does not constitute a criminal offence under LAW ( LAW ( CARDINAL ) ) .

DATE . In the event that a foreign national whose extradition is being sought is being prosecuted or is serving a sentence for another criminal offence in GPE , his extradition may be postponed until the prosecution is terminated , the penalty is lifted on any valid ground or the sentence is served ( LAW ) .

In its ruling no . CARDINAL of DATE , the Plenary Session of ORG indicated , with reference to LAW , that extradition should be refused if there were serious reasons to believe that the person might be subjected to torture , inhuman or degrading treatment in the requesting country . Extradition could also be refused if exceptional circumstances disclosed that it might entail a danger to the person ’s life and health on account of , among other things , his or her age or physical condition . NORP authorities dealing with an extradition case should examine whether there were reasons to believe that the person concerned might be sentenced to the death penalty , subjected to ill - treatment or persecuted because of his or her race , religious beliefs , nationality , ethnic or social origin or political opinions . The courts should assess both the general situation in the requesting country and the personal circumstances of the person whose extradition was sought . They should take into account the testimony of the person concerned and that of any witnesses , any assurances given by the requesting country , and information about the country provided by ORG , by competent ORG institutions and by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment .

The LAW guarantees the right to liberty ( LAW ) :

“ CARDINAL . Everyone has the right to liberty and personal integrity .

Arrest , placement in custody and detention are only permitted on the basis of a judicial decision . Prior to a judicial decision , an individual may not be detained for longer than TIME . ”

The CIS Convention on legal assistance and legal relations in civil , family and criminal cases ( “ the Minsk Convention ” ) , to which both GPE and GPE are parties , provides that in executing a request for legal assistance , the requested party applies its domestic law ( LAW ) .

A request for extradition must be accompanied by a detention order ( LAW ) . Upon receipt of a request for extradition , measures should be taken immediately to find and arrest the person whose extradition is sought , except in cases where that person can not be extradited ( LAW ) .

A person whose extradition is sought may be arrested before receipt of a request for his or her extradition . In such cases a special request for arrest containing a reference to the detention order and indicating that a request for extradition will follow must be sent ( LAW ) . A person may also be arrested in the absence of such a request if there are reasons to suspect that he has committed , in the territory of the other ORG , an offence for which extradition may be requested . The other ORG must be immediately informed of the arrest ( LAW ) .

A person arrested pursuant to LAW must be released if no request for extradition is received within DATE of the arrest ( LAW ) .

DATE . The term “ court ” is defined by the ORG as “ any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by LAW ” ( LAW ) . The term “ judge ” is defined by the ORG as “ an official empowered to administer justice ” ( LAW ) .

LAW of the CCrP ( “ Measures of restraint ” ) governs the use of measures of restraint , or preventive measures ( меры пресечения ) , while criminal proceedings are pending . Such measures include placement in custody . Custody may be ordered by a court on an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of DATE imprisonment , provided that a less restrictive measure of restraint can not be used ( LAW ) . A period of detention pending investigation may not exceed DATE ( Article CARDINAL § CARDINAL ) . A judge may extend that period DATE ( LAW ) . Further extensions of DATE , or in exceptional circumstances , DATE , may only be granted if the person is charged with serious or particularly serious criminal offences ( LAW ) . No extension beyond DATE is permissible and the detainee must be released immediately ( LAW ) . If the grounds serving as the basis for a preventive measure have changed , the preventive measure must be cancelled or amended . A decision to cancel or amend a preventive measure may be taken by an investigator , a prosecutor or a court ( Article CARDINAL ) .

LAW ( “ Complaints about acts and decisions by courts and officials involved in criminal proceedings ” ) provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of the parties to criminal proceedings ( LAW ) . The competent court is the court with territorial jurisdiction over the location at which the preliminary investigation is conducted ( ibid . ) .

Chapter DATE ( “ Extradition of a person for criminal prosecution or execution of sentence ” ) regulates extradition procedures . Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , a prosecutor must decide on the measure of restraint in respect of the person whose extradition is sought . The measure must be applied in accordance with established procedure ( LAW ) . If a request for extradition is accompanied by an arrest warrant issued by a foreign court , a prosecutor may impose house arrest on the individual concerned or place him or her in detention “ without seeking confirmation of the validity of that order from a NORP court ” ( LAW ) .

On DATE ORG examined an application by Mr N. , who had submitted that the lack of any limitation in time on the detention of a person pending extradition was incompatible with the constitutional guarantee against arbitrary detention . In its decision no . CARDINAL-O of the same date , ORG declared the application inadmissible . In its view , the absence of any specific regulation of detention matters in LAW did not create a legal lacuna incompatible with LAW . LAW provided that , in executing a request for legal assistance , the requested party would apply its domestic law , which in the case of GPE was the procedure laid down in the FAC procedure comprised , in particular , LAW and the norms in its LAW ( “ Measures of restraint ” ) which , by virtue of their general character and position in Part I of the LAW ( “ General provisions ” ) , applied to all stages and forms of criminal proceedings , including proceedings for the examination of extradition requests . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without complying with the procedure established in the ORG or the time - limits fixed in the LAW . The ORG also refused to analyse LAW , finding that it had not been applied in Mr N. ’s case .

On DATE ORG in its decision no . CARDINAL-O - P held that LAW and CARDINAL of the Minsk Convention , governing a person ’s detention pending the receipt of an extradition request , did not determine the body or official competent to order such detention , the procedure to be followed or any time - limits . In accordance with LAW , the applicable procedures and time - limits were to be established by domestic legal provisions .

The Constitutional Court further reiterated its settled case - law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for NORP nationals . A foreign national or stateless person may not be detained in GPE for more than TIME without a judicial decision . That constitutional requirement served as a guarantee against excessively long detention beyond TIME , and also against arbitrary detention , in that it required a court to examine whether the arrest was lawful and justified . ORG held that LAW CCrP , read in conjunction with ORG , could not be construed as permitting the detention of an individual for DATE on the basis of a request for his or her extradition without a decision by a NORP court . A custodial measure could be applied only in accordance with the procedure and within the time - limits established in LAW of the CCrP.

On DATE ORG by its decision no . CARDINAL - O dismissed as inadmissible a request for a review of the constitutionality of LAW ORG , stating that this provision “ does not establish time - limits for custodial detention and does not establish the grounds and procedure for choosing a preventive measure , it merely confirms a prosecutor ’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused . Therefore the disputed norm can not be considered to violate the constitutional rights of [ the claimant ] ... ”

Article CARDINAL of ORG of DATE , which was ratified by GPE on DATE , provides as follows :

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

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

LAW ( Law no . GPE of DATE ) incorporated the definition of the term “ refugee ” contained in LAW , as amended by LAW relating to ORG . The LAW defines a refugee as a person who is not a NORP national and who , owing to a well - founded fear of being persecuted for reasons of race , religion , nationality , ethnic origin , membership of a particular social group or political opinion , is outside the country of his nationality and is unable or , owing to such fear , unwilling to avail himself of the protection of that country , or who , not having a nationality and being outside the country of his former habitual residence as a result of such events , is unable or , owing to such fear , unwilling to return to it ( section CARDINAL § CARDINAL ( CARDINAL ) ) .

The Act does not apply to anyone believed on reasonable grounds to have committed a crime against peace , a war crime , a crime against humanity , or a serious non - political crime outside the country of refuge prior to his admission to that country as a person seeking refugee status ( section CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL ) ) .

A person who has applied for refugee status or who has been granted refugee status can not be returned to a ORG where his life or freedom would be imperilled on account of his race , religion , nationality , membership of a particular social group or political opinion ( section QUANTITY ) .

If a person satisfies the criteria established in section CARDINAL § CARDINAL ( CARDINAL ) , or if he does not satisfy such criteria but can not be expelled or deported from GPE for humanitarian reasons , he may be granted temporary asylum ( section CARDINAL § CARDINAL ) . A person who has been granted temporary asylum can not be returned against his will to the country of his nationality or to the country of his former habitual residence ( section CARDINAL § CARDINAL ) .

In his report of CARDINAL DATE submitted in accordance with ORG on Human Rights resolution PERSON ( E / PERSON ) , the Special Rapporteur on the question of torture , PERSON , described the situation in GPE as follows :

“ CARDINAL . The combination of a lack of respect for the principle of presumption of innocence despite being guaranteed by the LAW ( article CARDINAL ) and [ the ORG ] ( LAW ) , the discretionary powers of the investigators and procurators with respect to access to detainees by legal counsel and relatives , as well as the lack of independence of the judiciary and allegedly rampant corruption in the judiciary and law enforcement agencies , are believed to be conducive to the use of illegal methods of investigation . The excessive powers in the overall criminal proceedings of procurators , who are supposed at the same time to conduct and supervise preliminary criminal investigations , to bring charges and to monitor respect for existing legal safeguards against torture during criminal investigations and in places of detention , make investigations into complaints overly dependent on their goodwill ...

DATE . The Special Rapporteur believes , on the basis of the numerous testimonies ( including on a number of deaths in custody ) he received during the mission , not least from those whose evident fear led them to request anonymity and who thus had nothing to gain personally from making their allegations , that torture or similar ill - treatment is systematic as defined by ORG . Even though only a small number of torture cases can be proved with absolute certainty , the copious testimonies gathered are so consistent in their description of torture techniques and the places and circumstances in which torture is perpetrated that the pervasive and persistent nature of torture throughout the investigative process can not be denied . The Special Rapporteur also observes that torture and other forms of ill - treatment appear to be used indiscriminately against persons charged for activities qualified as serious crimes such as acts against ORG interests , as well as petty criminals and others . ”

Subsequently , ORG on Torture stated to the CARDINALnd Session of the UN Human Rights Council on DATE :

“ The practice of torture in GPE is systematic , as indicated in the report of my predecessor PERSON visit to the country in DATE . Lending support to this finding , my mandate continues to receive serious allegations of torture by NORP law enforcement officials ... Against such significant , serious and credible evidence of systematic torture by law enforcement officials in GPE , I continue to find myself appealing to ORG to refrain from transferring persons to GPE . The prohibition of torture is absolute , and GPE risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture . I reiterate that diplomatic assurances are not legally binding , undermine existing obligations of GPE to prohibit torture , are ineffective and unreliable in ensuring the protection of returned persons , and therefore shall not be resorted to by GPE . ”

Further referring to the situation regarding torture in GPE , the UN Special Rapporteur on Torture stated to the CARDINALrd Session of ORG on DATE :

“ CARDINAL . The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by NORP law enforcement officials ...

In light of the foregoing , there is little evidence available , including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in DATE ... ”

NORP In its DATE report ( CCPR / C / UZB / CO/CARDINAL ) ORG , stated , in so far as relevant , as follows :

“ CARDINAL . The ORG notes with concern the continued reported occurrence of torture and ill - treatment , the limited number of convictions of those responsible , and the low sanctions generally imposed , including simple disciplinary measures , as well as indications that individuals responsible for such acts were amnestied and , in general , the inadequate or insufficient nature of investigations on torture / ill - treatment allegations . It is also concerned about reports on the use , by courts , of evidence obtained under coercion , despite the DATE ruling of ORG on the inadmissibility of evidence obtained unlawfully ...

ORG is concerned regarding the limitations and restrictions on freedom of religion and belief , including for members of non - registered religious groups . It is concerned about persistent reports on charges and imprisonment of such individuals . It is also concerned about the criminalization , under article CARDINAL of LAW , of “ conversion of believers from one religion to another ( proselytism ) and other missionary activities ” ( ORG UZB/CARDINAL , para . FAC ) . ( article CARDINAL ) ... ”

In its report of CARDINAL March CARDINAL , “ Creating Enemies of the State : Religious Persecution in GPE ” , ORG remarked :

“ For DATE , with increasing intensity , the government of GPE has persecuted independent NORP . This campaign of religious persecution has resulted in the arrest , torture , public degradation , and incarceration in grossly inhumane conditions of CARDINAL people .

The campaign targets nonviolent believers who preach or study ORG outside the official institutions and guidelines . They include independent imams and their followers , so - called ORG - a term used incorrectly by the government to defame people as “ fundamentalists . ” The most numerous targets were adherents of the nonviolent group ORG ut - GPE ( ORG ) , whose teachings in favor of an NORP state the government finds seditious ...

International human rights law guarantees individuals the right to have and to express religion or beliefs . The NORP government ’s policy and practices directly contravene these standards , as they punish certain religious believers for the content of their belief , for expressing their beliefs , exchanging information with others , or engaging in nonviolent association . In their treatment of independent NORP , the NORP authorities’ systematic torture , ill - treatment , public degradation , and denial of due process also violate the country ’s obligations under international law .

This report documents these violations . It explains how the state criminalized legitimate religious practice and belief and how it casts ORG exercise of their rights to freedom of conscience , expression , and association as attempts to overthrow the government . It details the ordeal independent NORP have endured from their arrest through to their incarceration , in some cases serving up to twenty years . Most of the people whose stories are documented in this report remain incarcerated . They were tortured and suffered other forms of mistreatment by police trying to obtain confessions . They endured incommunicado detention , denial of defense counsel , denial of a fair trial , and convictions based on fabricated evidence . They continue to suffer torture and ill - treatment as they serve their sentences in NORP prisons . We also document the arrest , harassment , and intimidation of their families , including NORP - style public denunciations that local officials stage against perceived NORP “ fundamentalists . ” ...

Finally , the report describes the obstacles independent NORP face in seeking redress through state agencies , including the courts , the ombudsperson ’s office , and the procuracy . It also recounts the harassment they sometimes face in retribution for appealing to international organizations ...

... Since DATE , arrests and convictions of independent NORP - members of ORG ut - GPE mostly , but also people accused of “ Wahhabism ” - have continued apace and have outstripped the number of people returned to liberty following implementation of presidential amnesty decrees in DATE and DATE . As of DATE , ORG had analyzed and entered the cases of CARDINAL independent NORP into its database of religious prisoners in GPE . The cases of CARDINAL additional individuals convicted on charges related to religious activity , belief , or affiliation remained to be examined and entered into the database . Researchers from the NORP rights group ORG have documented the cases of CARDINAL independent NORP .

While the campaign was carried out by law enforcement agents nationwide , it appeared that the arrests of independent NORP occurred on a most massive scale in the capital city GPE and certain cities in LOC . The overwhelming majority of cases documented by ORG and PERSON involved the arrest of people from these regions .

As detailed in this report , the government ’s actions were intended to eliminate a perceived threat of NORP “ fundamentalism ” and “ extremism ” by silencing and punishing NORP who rejected government control of religion . The policy was designed and carried out to remove charismatic PERSON from the political equation , to prevent any potential contest between the GPE government and independent - minded NORP leaders for authority and the loyalty of the people . Fear of religion as a competitor for the hearts and minds of the people is part of the NORP legacy , but the ORG government made this project its own , incorporating inherited methods of control and instituting new tactics to prevent religious faith from ever challenging the government ’s power .

Among the first targets of the government ’s campaign were NORP spiritual leaders who declined to limit their sermons and teachings to that which was dictated by state authorities . Other acts of “ insubordination ” varied from their opposition to the government ’s ban on loudspeakers to call people to prayer , failure to praise President PERSON during religious services , and open discussion of the benefits of an NORP state or the application of NORP law , to their refusal to inform on congregation members and fellow religious leaders for security services . Government authorities inappropriately labeled these spiritual leaders “ GPE ” and harassed or arrested people with close or only casual connection to them : members of their congregations , including those who had occasionally attended their services before their leaders fell out of favor , the PERSON students , mosque employees , and even their relatives ...

For the purpose of this report , the term “ independent NORP ” refers to NORP who do not defer to government policy in their religious practices , expression , or beliefs . Those in danger of being cast as “ fundamentalists ” do not share an identical set of beliefs and practices . The NORP government judges all NORP who express their religious beliefs in any way that is outside the parameters it has set as suspect . GPE in this context does not necessarily mean breaking with traditional religious practice nor does it presume that independent NORP make an active decision to challenge the will of the state . GPE ’s campaign against independent ORG has targeted NORP who exhibited no objective independence from the state , but who were simply deemed “ too pious ” by state agents .

Members of PERSON , like NORP labeled “ NORP ” by the state , are overwhelmingly self - defined PERSON , as are most NORP in GPE , and not adherents of Wahabbism as it is understood in the NORP context . Some so - called Wahhabis were thus labeled because they prayed CARDINAL times a day - deemed by some local authorities in GPE ’s provinces as evidence of excessive or suspicious piety - or overtly manifested their religious belief by growing a beard or wearing a headscarf that covered the face . ”

In ORG DATE Report on GPE , published in DATE , that organisation stated that it continued to receive persistent allegations of widespread torture and ill - treatment , stemming from persons suspected of being members of banned NORP groups or having committed terrorist offences . The report stressed that the NORP authorities continued to actively seek the extradition of those persons from neighbouring countries , including GPE , and that most of those returned to GPE were held incommunicado , which increased their risk of being tortured or ill - treated .

On DATE ORG issued a document entitled “ GPE : A Briefing on Current Human Rights Concerns ” , stating the following :

“ ORG believes that there has been a serious deterioration in the human rights situation in GPE since the so - called PERSON events in DATE . ...

Particularly worrying in the light of GPE ’s stated efforts to address impunity and curtail the use of cruel , inhuman and degrading treatment have been the continuing persistent allegations of torture or other ill - treatment by law enforcement officials and prison guards , including reports of the rape of women in detention . ...

Despite assertions by GPE that the practice of torture has significantly decreased , ORG continues to receive reports of widespread torture or other ill - treatment of detainees and prisoners .

According to these reports , in most cases the authorities failed to conduct prompt , thorough and impartial investigations into the allegations of torture or other ill - treatment . ORG is concerned that impunity prevails as prosecution of individuals suspected of being responsible for torture or other ill - treatment remains the exception rather than the rule . ...

Allegations have also been made that individuals returned to GPE from other countries pursuant to extradition requests have been held in incommunicado detention , thereby increasing their risk of being tortured or otherwise ill - treated and have been subjected to unfair trial . In CARDINAL case in DATE , for example , a man who was returned to GPE from GPE was sentenced to CARDINAL years’ imprisonment after an unfair trial . His relatives reported that , upon his return to GPE , he was held incommunicado for DATE during which time he was subjected to torture and other ill - treatment in pre - trial detention . He did not have access to a lawyer of his own choice and the trial judge ruled evidence reportedly adduced as a result of torture admissible . ”

In DATE ORG released its DATE World Report DATE . The chapter entitled “ GPE ” , in so far as relevant , states :

“ GPE ’s human rights record remains abysmal , with no substantive improvement in DATE . Authorities continue to crackdown on civil society activists , opposition members , and independent journalists , and to persecute religious believers who worship outside strict state controls ...

Torture remains rampant in GPE . Detainees’ rights are violated at each stage of investigations and trials , despite habeas corpus amendments that went into effect in DATE . The NORP government has failed to meaningfully implement recommendations to combat torture that the ORG special rapporteur made in DATE .

Suspects are not permitted access to lawyers , a critical safeguard against torture in pre - trial detention . Police use torture and other illegal means to coerce statements and confessions from detainees . Authorities routinely refuse to investigate defendants’ allegations of abuse ...

Although GPE ’s constitution ensures freedom of religion , NORP authorities continued their unrelenting , multi - DATE campaign of arbitrary detention , arrest , and torture of NORP who practice their faith outside state controls or belong to unregistered religious organizations . CARDINAL were arrested or convicted in DATE on charges related to religious extremism .

The NORP government ’s cooperation with international institutions remains poor . It continues to deny access to all CARDINAL ORG special procedures that have requested invitations , including those on torture and human rights defenders ... ”

The chapter on GPE in the ORG DATE report , released in DATE of DATE , states , in so far as relevant , as follows :

“ Reports of torture or other ill - treatment continued unabated . CARDINAL of members of minority religious and NORP groups were given long prison terms after unfair trials ...

Torture and other ill - treatment

Despite assertions by the authorities that the practice of torture had significantly decreased , reports of torture or other ill - treatment of detainees and prisoners continued unabated . In most cases , the authorities failed to conduct prompt , thorough and impartial investigations into these allegations .

CARDINAL people convicted of involvement with NORP parties or NORP movements banned in GPE , as well as government critics and political opponents , continued to serve long prison terms under conditions that amounted to cruel , inhuman and degrading treatment .

GPE again refused to allow ORG on torture to visit the country despite renewed requests .

Counter - terror and security

Freedom of religion

The government continued its strict control over religious communities , compromising the enjoyment of their right to freedom of religion . Those most affected were members of unregistered groups such as ORG congregations and NORP worshipping in QUANTITY outside state control . ”

ORG report of CARDINAL DATE , entitled “ GPE : A Briefing on Current Human Rights Concerns ” , states as follows :

“ ... ORG is concerned about reports of human rights violations carried out in the context of the stated aim of protecting national security and the fight against terrorism , following a number of reported attacks and killings throughout the country in DATE ...

ORG is concerned that the authorities’ response to attacks which occurred in DATE and DATE has been inconsistent with the obligations to respect the prohibitions against arbitrary detention and torture or other ill - treatment and the right to fair trial as enshrined in the ORG .

There were reported attacks in LOC and the capital GPE in DATE and DATE respectively ; and a pro - government imam and a high - ranking police officer were killed in GPE in DATE . ORG ( ORG ) claimed responsibility for the attacks in the PERSON valley : attacks on a police station , a border checkpoint and a government office in GPE on DATE , as well as a suicide bombing at a police station in GPE DATE ...

These crimes were followed by reports of new waves of arbitrary detentions . Among the scores detained as suspected members or sympathizers of the CARDINAL above - named organizations were men and women who attended unregistered FAC , studied under independent imams , had travelled or studied abroad , or had relatives who lived abroad or were suspected of affiliation to banned NORP groups . Many are believed to have been detained without charge or trial for lengthy periods , allegedly subjected to torture and/ or sentenced after unfair trials .

In DATE , at the start of the first trial of individuals charged in connection with the DATE attacks in LOC , human rights activists reported that the proceedings were closed to the public , despite earlier assurances by the President and ORG that the trial would be both open and fair . However , independent observers were not given access to the court room . Relatives of some of the defendants told human rights activists that defence lawyers retained by them were not given access to the case materials and were denied access to the court room ... ”

In its DATE report released in DATE of DATE , ORG states as follows :

“ Counter - terror and security

Closed trials started in DATE of CARDINAL defendants charged in relation to attacks in LOC and the capital , GPE , in DATE and DATE and the killings of a pro - government imam and a high - ranking police officer in GPE in DATE . The authorities blamed ORG ( IMU ) , ORG ( ORG ) and the NORP PERSON - ut - GPE party , all banned in GPE , for the attacks and killings . Among the scores detained as suspected members or sympathizers of the IMU , the ORG and ORG - ut - GPE in DATE were people who attended unregistered mosques , studied under independent imams , had travelled abroad , or were suspected of affiliation to banned NORP groups . Many were believed to have been detained without charge or trial for lengthy periods . There were reports of torture and unfair trials ... ”

International Religious Freedom Report DATE , released in DATE by ORG , in its chapter on GPE reads , in so far as relevant , as follows :

“ In DATE two high - profile murders , CARDINAL murder attempt , and CARDINAL shoot - out took place in GPE that were alleged by the government to have religious links ( for example , CARDINAL target was the chief imam for the city of GPE ) . In DATE that followed , CARDINAL persons were arrested allegedly in connection with these incidents ; many were charged with membership in extremist religious organizations and attempting to overturn the constitutional order . DATE various courts in closed trials convicted CARDINAL persons and imposed sentences ranging from suspended sentences DATE in prison . There were unconfirmed reports that CARDINAL individuals were convicted in related trials . During the same time period , authorities opened CARDINAL more cases against alleged extremists ( particularly those labeled " Wahhabists " and " jihadists " ) on charges unrelated to the killings . Human rights activists report that the families of several defendants accused authorities of using torture and coercion to obtain confessions , and many questioned whether due process guarantees were followed . ... ”

The decision of ORG ( CM / Del / Dec(CARDINAL)CARDINAL/CARDINAL ) adopted on DATE at the CARDINALth meeting of the Ministers’ Deputies states as follows :

“ The Deputies ,

as regards the PERSON case , recalled that the violations of the LAW in this case were due to the applicant ’s kidnapping by unknown persons , whom the ORG found to be NORP ORG agents , and his forcible transfer to NORP after his extradition had been refused by the NORP authorities ;

noted with profound concern the indication by the ORG that repeated incidents of this kind have recently taken place in respect of CARDINAL other applicants whose cases are pending before the ORG where it applied interim measures to prevent their extradition on account of the imminent risk of grave violations of the LAW faced by them ;

took note of the NORP authorities’ position that this situation constitutes a source of great concern for them ;

noted further that the NORP authorities are currently addressing these incidents and are committed to present the results of the follow - up given to them in GPE to ORG in the framework of its examination of the cases concerned and to the ORG with regard to the PERSON case ;

NORP urged the NORP authorities to continue to take all necessary steps to shade light on the circumstances of Mr. PERSON ’s kidnapping and to ensure that similar incidents are not likely to occur in the future and to inform ORG thereof ... ”

NORP In its decision ( ORG ) adopted on DATE at the FAC meeting of ORG , ORG reiterated its concerns about repeated incidents of disappearance of applicants in respect of whom interim measures had been indicated by the ORG and continued as follows :

“ The Deputies

NORP deplored the fact that , notwithstanding the serious concerns expressed in respect of such incidents by the President of the Court , ORG and by the NORP authorities themselves , they were informed that yet another applicant disappeared on DATE in GPE and shortly after found himself in custody in NORP ;

took note of the NORP authorities’ position according to which the investigation in the PERSON case is still ongoing and had not at present established the involvement of GPE into the applicant ’s kidnapping ;

NORP regretted however that up to now , neither in the PERSON case nor in any other case of that type have the authorities been able to make tangible progress with the domestic investigations concerning the applicants’ kidnappings and their transfer , nor to establish the responsibility of any state agent ... ”


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque

The applicant , Mr PERSON , was a NORP national and lived in GPE .

On DATE the ORG was informed of his death on DATE and that his successors , PERSON , PERSON , PERSON GPE and Mr Erdinç PERSON stated their wish to pursue the application .

For practical reasons , Mr PERSON will continue to be called “ the applicant ” , although his successors are now to be regarded as such ( see ORG v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § CARDINAL , ORG CARDINAL-VI , and also PERSON v. GPE , DATE , § CARDINAL , Reports of Judgments and Decisions CARDINAL ) .

On DATE the applicant underwent a hernia repair operation at ORG .

On DATE the applicant initiated legal proceedings against the doctor in charge and the hospital administration , claiming MONEY ( GPE ) in compensation . He alleged that he had lost CARDINAL of his earning capacity as a result of the medical negligence of the doctor . In particular , he contended that , following the surgery , a disc had become infected due to the doctor ’s malpractice .

On DATE Law No . DATE , according to which the jurisdictional limits imposed in appeals and rectification requests were increased , entered into force .

On DATE the ORG dismissed the case , relying on expert reports provided by ORG and ORG . It held that disc infection was a foreseeable complication of hernia operations , which had been treated appropriately in the applicant ’s case by his doctor . It concluded that the applicant ’s current health problems had not arisen from the surgery in question and therefore determined that no fault could be attributed to the doctor or the hospital .

On DATE ORG rejected the applicant ’s request for leave to appeal on the grounds that the amount in dispute was less than the minimum amount ( TRL CARDINAL ) required under the recently amended legislation for an appeal to be lodged with ORG . That being so , the applicant ’s request for leave to appeal had to be declared inadmissible in accordance with LAW as amended by LAW . DATE .

On DATE ORG rejected a request for rectification brought by the applicant , as the sum in dispute in the matter also did not exceed the required threshold ( TRL CARDINAL,CARDINAL,CARDINAL,CARDINAL,CARDINAL ) for rectification pursuant to the aforementioned law .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE .

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

Following administrative proceedings in which he complained about fees ( MONEY ) imposed by the local chimney sweep for measuring the amount of waste gas in his house , the applicant filed a complaint before ORG on DATE . He also requested an interim measure so that he would not have to pay these fees in the future .

Starting DATE , the applicant sent several letters to ORG demanding that a public hearing be held as soon as possible . In its answers , ORG stated that , due to its workload , such a hearing would not take place before DATE or DATE , while denying that his case was not being dealt with in a reasonable time .

The correspondence between the court and the applicant continued until DATE , when the court postponed a public hearing until DATE .

On DATE , ORG refused to entertain the applicant ’s constitutional complaint , in which he objected to the length of the proceedings before ORG .

On DATE , ORG rejected a motion by the applicant alleging bias on its part .

On DATE , a hearing was held before ORG , which the applicant did not attend . Following this hearing , his application was rejected on the ground that the fees imposed by the chimney sweep were justified .

On DATE , ORG refused to entertain the applicant ’s appeal .


Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON .

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

NORP By letter of CARDINAL DATE the applicant requested PERSON local council to provide him with accommodation in PERSON . The local council failed to reply to the applicant ’s letter .

On DATE the applicant instituted administrative proceedings against the PERSON local council seeking a court order obliging the latter to reply to his letter and to pay him CARDINAL NORP lei ( ORG ) in non - pecuniary damage .

On DATE ORG upheld the applicant ’s claims . It ordered the local council to reply to the applicant ’s letter and to pay the applicant LAW ( CARDINAL ( ORG ) at the time ) in compensation for non - pecuniary damage .

By a final judgment of DATE , ORG upheld the judgment of DATE .

According to the applicant , the monetary award has not been enforced to date . It is not apparent from the case file whether the local council complied with the judgment in the part concerning the reply to the applicant ’s complaint , and , if so , when they did so .

The relevant domestic law has been set out in GPE v. GPE ( no . CARDINAL , ECHR CARDINALIII ( extracts ) ) .


Preliminary objection joined to merits and dismissed (victim);Reminder inadmissible;Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in PERSON . He works for “ ORG ” , an organisation which provides legal help to persons in detention .

On DATE the applicant underwent an operation to drain fluid from his liver . He was released from hospital on DATE .

On DATE he was arrested by ORG on suspicion of fraud and was placed in detention at the LOC police station . He alleged that he was suspended from an iron bar and beaten with machine guns and rubber truncheons and that the beating re - opened his surgical wound . He was placed in a small cell in the police station , without a bed , mattress or blankets and without access to a toilet or washing facilities , where he had to sleep on the concrete floor . He was seen by a doctor on DATE , who observed that the applicant 's surgical wound had reopened and recommended that he be admitted to hospital immediately . However , police officer ORG refused a transfer to the hospital .

On DATE the applicant was transferred to prison no . CARDINAL , where he was placed into the medical treatment unit with the diagnosis “ post - surgery state ” ( see further GPE v. GPE , no . CARDINAL , DATE ) . According to medical reports , on DATE the applicant swallowed a nail and was hospitalised in order to extract it . According to medical evidence , during DATE the applicant underwent CARDINAL operations made necessary by acts of self - harm , such as swallowing sharp objects and cutting himself ( see Ciorap v. GPE ( dec . ) , no . CARDINAL , CARDINAL DATE ) .

The applicant made a number of complaints in respect of his alleged ill - treatment by the police , the failure to give him medical treatment and the inhuman conditions of detention . The prosecutor opened a criminal investigation and interviewed the applicant , the police officers involved and their colleagues , as well as the medical personnel who had examined the applicant during his arrest . The doctors confirmed that they had been called twice to attend the applicant on TIME of his arrest but that this had been in connection with a post - surgery problem . The prosecutor found that the applicant had made no complaint of ill - treatment when examined by the doctors or by the superior police officers ( see GPE v. GPE ( dec . ) , no . CARDINAL , CARDINAL DATE ) . All the applicant 's complaints were dismissed as unfounded . This decision was confirmed by the investigating judge on DATE and DATE .

In a final judgment of DATE ORG found that on DATE and DATE the applicant had been informed of the prosecutor 's decision to reject his request for the initiation of a criminal investigation into his alleged torture in DATE . He was also informed of his right to challenge that decision in court within DATE of the date on which he was informed of it . However , the applicant did not challenge that decision until DATE , without having asked for an extension of the time - limit . The court therefore rejected his complaint for failure to challenge the prosecutor 's decision within the time - limit provided for by law .

On an unspecified date , the applicant initiated new court proceedings against the LOC police station , ORG and ORG , claiming compensation for the damage caused to him through his ill - treatment upon his arrest on DATE , the failure to give him medical treatment while in detention and the inhuman conditions of detention .

On DATE the ORG rejected his claims as unfounded . On DATE ORG quashed that judgment and partly accepted the applicant 's claims . The court found that the documents in the file established that police officer PERSON had refused to allow the applicant to be treated in hospital even though an urgent examination by a surgeon had been recommended by the doctor who saw the applicant on DATE . The court also found that the applicant had been detained at LOC police station in conditions that breached the requirements of domestic law . In particular , the PERSON on preventive arrest ( no . CARDINAL-XIII , DATE ) required that individuals detained pre - trial had a minimum of QUANTITY of cell space , access to daylight and fresh air , access to a toilet in sanitary conditions not degrading human dignity , access to a shower once DATE and access to a bed with bed linen . The court referred to a letter from ORG which acknowledged that at the time of the applicant 's detention LOC police station had been insufficiently equipped to offer appropriate conditions of detention , including proper ventilation . The court awarded the applicant CARDINAL NORP lei ( MDL ) ( QUANTITY ( ORG ) at the time ) for non - pecuniary damage caused . The applicant appealed .

On DATE ORG accepted the applicant 's appeal in cassation and partly quashed the lower court 's judgment . The court confirmed the findings of ORG concerning the failure to give the applicant required medical treatment and to provide the applicant with adequate conditions of detention . In reaching this conclusion , the court referred to LAW judgments such as GPE v. GPE [ ORG ] ( no . CARDINAL/CARDINAL , ORG CARDINALXI ) , ORG v. GPE ( no . CARDINAL , CARDINAL DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) . The court added that while there was no domestic legislation giving the applicant a right to compensation , the ORG should be applied directly as it was part of the domestic legal system and had precedence over domestic legislation by virtue of the express provisions of LAW . The same conclusion had been reached by ORG in a judgment of DATE . The court also relied on the findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment made during its visits in DATE and DATE concerning the substandard conditions of detention in the LOC police station . The court held that the denial of medical treatment combined with the conditions of detention , which had aggravated the applicant 's medical condition , had amounted to inhuman treatment in breach of LAW . The court increased the award made to the applicant in compensation for non - pecuniary damage to MDL CARDINAL ( EUR CARDINAL at the time ) and awarded him MDL CARDINAL ( ORG CARDINAL.CARDINAL ) in compensation for pecuniary damage .

The applicant again requested ORG to open a criminal investigation into his alleged ill - treatment by the police , but the prosecutor rejected the request . The applicant challenged this decision before the LOC investigating judge and subsequently ORG , which dismissed his appeal on DATE .


George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and currently detained at FAC . He was represented before the ORG by PERSON , a lawyer practising in GPE with PERSON and ORG , assisted by Mr J. Wood FAC and Mr PERSON , counsel .

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

On TIME CARDINAL DATE PERSON and PERSON were shot and killed with shotguns in the course of a robbery at their house near GPE , GPE . Forensic evidence of footwear patterns , and the fact that CARDINAL windows had been smashed on different sides of the house , suggested CARDINAL robbers . The evidence also suggested that they had been killed after CARDINAL . The house was adjacent to a petrol station which the couple had run .

NORP That evening the applicant and his brother , PERSON , had visited relatives in GPE and GPE , GPE , QUANTITY south of the murder scene . On their own admission , they had carried out a series of crimes in the south - west of GPE shortly following the murder . This included the armed robbery of a petrol station which lay between PERSON and the Fishers’ garage , which the applicant admitted to having committed . A shotgun had been fired in the course of that robbery . The brothers also admitted to robbing a B & Q store in the area . There were also CARDINAL incidents of serious assaults by the brothers , during the last of which a shotgun had also been produced . After the Fishers’ murder , CARDINAL shotguns were found where the brothers had buried them on a beach . Both admitted possession of them , though no specific connection with the murders was established .

NORP The brothers were charged with the Fishers’ murder . Their defence was they had travelled together to visit their relatives , had tried to obtain cannabis via CARDINAL relative , and had then gone to a public house while the relative sought unsuccessfully to obtain the cannabis . They had not been anywhere near the Fishers’ home or garage . However , evidence was called by the prosecution as to the use of a mobile telephone which the brothers had been carrying that TIME . From records of which telephone masts had serviced the mobile telephone that TIME , the prosecution sought to determine when telephone calls had been made and from where . The evidence showed that the telephone had been used up to CARDINAL that evening and was then silent until CARDINAL when a TIME call was received from PERSON ’s girlfriend . The prosecution submitted that the telephone mast evidence , particularly that relating to the CARDINAL call , was consistent with it being received in a car moving away from the murder scene and that it was impossible for it to have been received at the public house , as the brothers maintained . Moreover , the evidence of the girlfriend at trial was that PERSON had been in a tearful and emotional state during the call , though he denied this .

In addition to this evidence , and the telephone evidence above , the prosecution relied on what it considered to be the improbability of the ORG account of travelling so far as they did to buy a few pounds’ worth of cannabis . It also relied on the fact that the brothers claimed to have left the public house without finding out if their relative had successfully obtained the cannabis . The prosecution further relied on the evidence of CARDINAL other witnesses who had heard conversations between the brothers : CARDINAL testified that PERSON had said to PERSON “ what are we going to do about this PERSON thing ? ” ; the other testified that PERSON had spoken about PERSON . Finally , the prosecution were allowed to rely on the other robberies and CARDINAL of the assaults which the applicant and his brother had committed as evidence of their propensity to commit robbery and to use sudden and exceptional violence .

At trial , against PERSON only , the prosecution led additional evidence from CARDINAL prisoners who alleged that , while in prison on remand before the trial , PERSON had either admitted or had made incriminating remarks regarding the shootings . The most significant of the CARDINAL witnesses was a police informant , Z , who testified that PERSON had admitted the shootings . The second of the CARDINAL witnesses testified inter alia that PERSON had returned to his cell , after being interviewed by the police , worried about the telephone evidence . The third testified that he had overhead PERSON tell someone that PERSON was going to take the blame for the shootings and that he , PERSON , had done them .

At the close of the defence case , the prosecution conceded that the evidence which had been led against the applicant was insufficient to permit a jury to return a guilty verdict against him . However , it maintained that a guilty verdict could be returned by way of the PERSON approach ( see relevant domestic law and practice below ) . This would allow the jury to consider first the case against PERSON ( including the additional evidence against him which had been given by the CARDINAL prisoners ) and then , if they found PERSON guilty , to apply that conclusion in determining whether the applicant was also guilty . The jury were accordingly directed by the trial judge as follows :

“ ... you must consider the case against each defendant separately . The evidence against each defendant is different , and therefore your verdicts need not be the same . It is a matter for you how you set about your task and in which order you consider the cases against the defendants , but I suggest that you approach your deliberations first by considering the case against and for PERSON . Much of the evidence in the case has relevance both to PERSON and to PERSON , but the evidence of [ the CARDINAL witnesses ] about the confessions , or incriminating remarks , that PERSON allegedly made is evidence only in the case against PERSON , and is not evidence in the separate case against PERSON . The reason is simply that an admission of guilt by CARDINAL defendant , even if it includes an assertion of the guilt of another defendant , can not be evidence against that other defendant . It would make no difference whether the alleged admission was to a fellow prisoner or to the police in interview ; it is only evidence against the defendant who says it , and not against the other defendant who is not present when it is said .

So here , if you find that PERSON made all , or any , of the alleged confessions or incriminating remarks , PERSON was not present , had no chance to hear and dispute the truth of the admissions , and such admissions and assertions are not evidence against him . Thus , in the case of PERSON there is additional evidence , should you accept it , of [ the CARDINAL prison witnesses ] which is not evidence against PERSON . That is why , as I have already said , the evidence against each defendant is different , and therefore your verdicts need not be the same .

However , there is a further and crucial consideration which is relevant when you go on to consider the case against and for PERSON , and it is this . If , as a result of considering the evidence of [ the CARDINAL witnesses ] , together with the other evidence in the case against PERSON , you are sure that PERSON was guilty of the murders of PERSON and PERSON , you could properly use that finding of guilt in your consideration of the case against PERSON . You would not then be treating the evidence of [ the CARDINAL prison witnesses ] as evidence against PERSON ; what you would be doing - and it is a matter for you whether , and to what extent , you do - what you would be doing would be using the fact that you had found PERSON guilty as a fact in the case against PERSON .

If you think about it , that is perfectly logical . While certain evidence – [ the CARDINAL witnesses ] – can not be evidence against PERSON for the reasons that I have explained , it would be odd , would it not , if , having considered all the evidence against PERSON and found him guilty , the fact of his guilt could not be taken into account , together with all the evidence , as a fact in the case against PERSON .

But you could only take it into account in the case of PERSON if you were sure of the following matters - ( CARDINAL ) as I have said , that PERSON is guilty ; ( CARDINAL ) that the CARDINAL defendants were together at all material times on TIME , and therefore they were together at the murder scene . There is of course no dispute that they were together at all material times . ( CARDINAL ) that the murders involved CARDINAL people acting together in what the law calls a joint enterprise , of which more in a moment ; and ( CARDINAL ) that the deaths of Mr. and Mrs. PERSON resulted from the carrying into effect of that joint enterprise . ”

Having directed the jury on the applicable law of joint enterprise , the trial judge continued :

“ Should you choose to adopt my suggestion first to consider the case against PERSON , then your approach should be as follows . If you have found PERSON guilty , then , when looking at the case of PERSON , if you are sure that , with the intention to commit the offences of murder , he took some part in committing them with PERSON , then , he , PERSON , is also guilty . As I have said , if you found PERSON guilty you could use the fact of his guilt in your consideration of PERSON case .

However , I emphasise you must not take into account in the case against PERSON any of the evidence of [ the CARDINAL prison witnesses ] as to what PERSON may have said to them , or have been overhead to say , either about his own involvement or his brother ’s involvement . That evidence remains inadmissible in the case against PERSON .

It is for these reasons that I strongly advise you , as a matter of logic and good sense , to consider first the case of PERSON . If you find him guilty , you may use the fact of his guilt in the way I have just described , together with all the other evidence , both against and for PERSON , in your consideration of the case of PERSON .

If , in following that advice , you found PERSON not guilty , you would be compelled to find PERSON not guilty , because the evidence against PERSON , without using the conviction of PERSON as evidence against him , is , I direct you , insufficient to find PERSON guilty . ”

The jury were also warned that they should treat the evidence given by the CARDINAL witnesses as to what PERSON had said in prison with caution , given the potential risks associated with such “ cell confession evidence ” .

On DATE , the applicant and his brother were convicted of both counts of murder by the jury . They appealed against their convictions to ORG . The appeals were dismissed on DATE . In respect of the applicant ’s contention that the PERSON approach had been unfairly applied in his case , ORG observed :

“ The ORG had made it clear before the trial began that it would contend that the PERSON approach was likely to apply in this case , so that if on the evidence admissible against him PERSON were to be convicted , and the jury was sure that he was with PERSON at all material times that TIME , PERSON ’s conviction could properly follow . The Judge was invited to refuse to leave the case to the jury on that basis ; it was submitted that PERSON should be confined to the case where the conviction of A is a legal pre - condition to the possible conviction of B , and that the effect of leaving the PERSON approach to the jury would be to make the confession of PERSON in effect admissible against PERSON although in law it was not . The first argument is not pursued here : PERSON was not so limited . The second is also not pursued and is precisely the submission which was rejected by the Lordships in PERSON .

Mr Wood [ counsel for the applicant ] ’s argument here is that the Judge should have refused to leave the PERSON approach to the jury because it put the conduct of PERSON ’s defence in an impossible position . He had , he suggests , no locus standi to challenge the evidence of ‘ Z’ and others and could not for example apply under s CARDINAL Criminal Justice Act DATE to put in bad character material against them . We are very doubtful about that . If , via PERSON , there was evidence which was potentially damaging to PERSON , it seems to us that PERSON must be able to challenge it . The wording of s CARDINAL does not seem to us to shut him out from contending that there is a matter of substantial importance in issue in the proceedings . But this question of law does not arise , and we have not heard full argument about it . That is because Mr Wood conceded with proper frankness that for tactical reasons ( doubtless sound ) PERSON had decided not to challenge the evidence of ‘ Z’ but to rely on the challenge mounted by PERSON . Thus the Judge was never called upon to rule what steps PERSON could or could not take .

We agree that there is a judgment to be made by the Judge in any case in which the PERSON line of approach is advanced , and that if the reasoning from the conviction of A to the conviction of B would be unsafe , he should not leave it to the jury . But in the present case it was not unsafe . If PERSON had committed this offence , and PERSON and PERSON were , as they both insisted and the other evidence strongly suggested , together throughout the TIME , then so had PERSON . The Judge set out with absolute precision the conditions under which this line of reasoning could be applied . .... Like other aspects of his direction , this had been submitted in draft to counsel for their consideration .

Mr Wood submitted that the Judge should have warned the jury of the possibility that PERSON and PERSON might be lying about being together , perhaps because PERSON was sheltering PERSON . No one suggested that when the directions were under consideration , and we are unable in any event to see why the Judge should have been under any such duty when not CARDINAL of the CARDINAL parties in the trial had ever suggested any such thing to the jury . ”

Defendants who are charged with joint offences are normally tried jointly , unless , in the interests of justice , an order is made for them to be tried separately .

Where defendants are tried separately , section ORG ) of ORG allows the prosecution to adduce the fact that a person other than the accused has been convicted of an offence , for the purpose of proving that that person committed the offence .

Under section DATE of the same Act , a confession made by an accused person may be given in evidence against him . At common law , such a confession is not normally admissible against any other person implicated in it .

In NORP v. PERSON [ DATE ] CARDINAL WLR CARDINAL , the defendant PERSON stood trial for murder with CARDINAL co - accused , PERSON and PERSON . The deceased was PERSON ’s husband . The prosecution ’s case was that PERSON had arranged a contract killing of her husband : PERSON was the man who actually shot and killed the deceased and PERSON was the middleman between PERSON and PERSON . The evidence against PERSON was a confession he had made to his girlfriend . The trial judge directed the jury that , if they were satisfied that PERSON and PERSON were guilty of murder , it would be open to them to take account of those findings of guilt in deciding whether to convict PERSON . All CARDINAL defendants were convicted . In PERSON ’s appeal against conviction , a majority of ORG ( Lord PERSON , Lord PERSON and Lord PERSON ) found that the trial judge had directed the jury not to take into account PERSON ’s confession in the case against PERSON . Thus , there was no infringement of the common law rule prohibiting the admissibility of CARDINAL accused ’s conviction against another accused . There was no good reason why PERSON ’s guilt could not be used by the jury as a fact against PERSON . It was of no significance that PERSON ’s guilt had been established by his own out of court confession .

Lord PERSON and Lord PERSON dissented . Lord PERSON observed that the effect of this approach was to give the jury the power to turn inadmissible evidence into admissible evidence . Lord PERSON observed that the majority ’s conclusion impermissibly breached the principle that , in determining whether there was a case to answer against each defendant , the trial judge had to consider the evidence against each defendant as it then stood . In doing so , only the evidence admissible against each defendant could be taken into account . At that stage , the only evidence admissible against PERSON was insufficient to prove his guilt .