ITEMID: 001-61962
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF SAN LEONARD BAND CLUB v. MALTA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1
JUDGES: Christos Rozakis
TEXT: 7. The applicant is a private company located in the town of Hal Kirkop, Malta.
8. On 30 December 1986 the Housing Secretary of Malta issued a requisition order in respect of a tenement in Hal Kirkop. The applicant company occupied the tenement in question. The requisition order had the effect of protecting its occupation.
9. On 16 October 1987 the owners of the tenement, the V. brothers, instituted civil proceedings before the First Hall of the Civil Court against the Housing Secretary and the applicant company. They requested that the requisition order of 30 December 1986 be declared null and void as being contrary to section 4 of the 1949 Housing Act, and sought to regain possession of the tenement. They also requested compensation for the damage allegedly sustained.
10. In a judgment of 9 October 1991, the First Hall of the Civil Court rejected the plaintiffs’ claim.
11. The V. brothers appealed against that decision.
12. In a judgment of 30 December 1993, the Court of Appeal declared that the requisition order was null and void and ordered that the appellants be given possession of the premises within six months. It sent the case back to the First Hall of the Civil Court regarding compensation for the damage allegedly sustained by the appellants.
13. On 21 March 1994 the applicant company lodged an application with the Court of Appeal for a new trial. It alleged that the judgment of 30 December 1993 had been based on a wrong application of the law, as the requisition order had been issued in the public interest and the powers of the Housing Secretary in this field could not be reviewed by the Court of Appeal.
14. The V. brothers intervened in the proceedings, requesting that the application be rejected. They argued that the law had in fact been duly applied and interpreted and that the applicant company was trying to lodge another appeal, inadmissible under Maltese law, against the judgment of 9 October 1991.
15. On 14 December 1994 the Court of Appeal invited the parties to file written submissions and adjourned the case to 6 February 1995.
16. The applicant company filed a note of submissions in which it requested, inter alia, that the judges of the Court of Appeal examining the request for a retrial withdraw from the case, as they were the same judges who had sat on the bench when the impugned judgment of 30 December 1993 had been delivered.
17. On 13 March 1995 the Court of Appeal rejected the applicant company’s plea challenging the judges. It also observed that, under Article 816 of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta – “the COCP”), where the ground for a judicial request was the wrong application of the law, the relevant party should make reference to the law which should have been applied. As the applicant company had failed to do so, its submissions were manifestly defective.
18. In a judgment of 17 January 1996, the Court of Appeal rejected the applicant company’s request for a new trial.
19. In the meantime, on 19 April 1995, the applicant company had initiated proceedings in the First Hall of the Civil Court sitting in its constitutional capacity. It alleged that the decision taken by the three judges composing the Court of Appeal rejecting the plea for their withdrawal had violated Article 6 § 1 of the Convention, as the court in question could not be considered an “impartial tribunal” within the meaning of that provision.
20. In a judgment of 22 April 1997, the Civil Court found for the applicant company and declared that the failure to withdraw by the judges composing the Court of Appeal had violated Article 6 of the Convention. It observed that the same judges had been called upon to rule twice on a case concerning the same facts and the same parties. Moreover, in a judgment given on 10 October 1991 in Frank Cachia v. the Honourable Prime Minister, the Constitutional Court had held that Article 814 of the COCP (in accordance with which the same judges may sit when the request for a new trial is based on an alleged wrong application of the law) was contrary to Article 6 of the Convention.
21. The V. brothers appealed to the Constitutional Court. They alleged, in particular, that the question dealt with by the Court of Appeal when examining the request for a retrial, namely whether there had been a wrong application of the law, was not in any way connected with the merits previously dealt with by the same court.
22. In a judgment of 31 July 2000, the Constitutional Court allowed the appeal, set aside the judgment of 22 April 1997 and rejected all the pleas raised by the applicant company.
23. The Constitutional Court observed that the possibility of a new trial provided the remedy of revision of a final judgment in order to rectify evident and gross errors leading to a miscarriage of justice. However, Maltese law restricted the application of this remedy to specific situations. As a retrial was an extraordinary remedy which entailed a derogation from the principle that res judicata decisions were legally binding between the parties, the relevant legal provisions had always been interpreted restrictively.
24. Under Maltese law, a new trial could be conducted by the same court that had pronounced the judgment complained of, and the same judges could sit. This meant that the judges were given the option of deciding whether to hear the case or not. In the Constitutional Court’s view, this rule was consistent with the Convention and justified by the fact that a retrial was not a third-instance procedure and that the court that had pronounced the judgment was in the best position to identify any mistake and to grant expeditiously an appropriate and fast remedy.
25. The Constitutional Court noted that, when a request for a new trial appeared unfounded and was accompanied by a dubious demand that the judges withdraw, it was likely that an abuse of the judicial system might occur. This would be prejudicial to the other party, who had the right to have his or her case heard within a reasonable time. After the delivery of its judgment in Frank Cachia (cited above), the Constitutional Court had observed a systematic abuse of the remedy of retrial. In particular, some parties had been attempting to obtain a third-instance appeal in cases in which a final decision had already been made.
26. In order to avoid such abuses, the Maltese courts had interpreted the judgment in Frank Cachia to mean that the judges who had previously adjudicated the case should examine the admissibility of the request for a retrial in order to determine whether it met the requirements laid down in domestic law. If it did, they should withdraw; if it did not, they should simply reject the request. The Constitutional Court considered that these principles were correct and in conformity with Article 6 § 1 of the Convention.
27before it, the Constitutional Court found that there were reasons to believe that the applicant company was trying to prolong the proceedings in order to delay vacating the premises for as long as possible and that its request for a retrial was procedurally inadmissible. In particular, the request did not correctly quote the section of law which, according to the applicant company, had been wrongly applied, it did not indicate which provision ought to have been applied, and it was essentially based on the assumption that the Court of Appeal had given a wrong interpretation of the notion of “public interest”. The admissibility examination by the three judges of the Court of Appeal had dealt merely with points of fact and had therefore been different in nature from the examination by the same judges previously.
28. Finally, there were no grounds to believe that the judges in question had some personal or real interest in the outcome of the case other than that of ensuring that justice was done.
29. Only two levels of jurisdiction are provided for in the Maltese legal system: first instance and appeal. There is no third level of jurisdiction such as a court of cassation. However, the Code of Organisation and Civil Procedure (“the COCP”) afforded the possibility of a retrial.
30. The grounds for a new trial are set out in an exhaustive list which appears in Article 811 of the COCP. The relevant part of this provision reads as follows:
“A new trial of a cause decided by a judgment given in second instance may be demanded by any of the parties concerned, such judgment being first set aside, in any of the following cases:
(a) where the judgment was obtained by fraud on the part of any of the parties to the prejudice of the other party;
(b) where the writ of summons was not served on the party cast, provided that, notwithstanding such omission, such party shall not have entered an appearance at the trial;
(c) where any of the parties to the suit was under legal disability to sue or be sued, provided no plea thereanent had been raised and determined;
(d) where the judgment was delivered by a court having no jurisdiction in terms of Article 741 (a), provided no plea thereanent had been raised and determined;
(e) where the judgment contains a wrong application of the law;
For the purposes of this paragraph there shall be deemed to be a wrong application of the law only where the decision, assuming the fact to be as established in the judgment which it is sought to set aside, is not in accordance with the law, provided the issue was not in reference to an interpretation of the law expressly dealt with in the judgment;
(f) where judgment was given on any matter not included in the demand;
(g) where judgment was given in excess of the demand;
(h) where the judgment is conflicting with a previous judgment given in a suit on the same subject matter and between the same parties, and constituting a res judicata, provided no plea of res judicata had been raised and determined;
(i) where the judgment contains contradictory dispositions;
(j) where the judgment was based on evidence which, in a subsequent judgment, was declared to be false or which was so declared in a previous judgment but the party cast was not aware of such fact;
(k) where, after the judgment, some conclusive document was obtained, of which the party producing it had no knowledge, or which, with the means provided by law, he could not have produced, before the judgment;
(l) where the judgment was the effect of an error resulting from the proceedings or documents of the cause.
For the purposes of this paragraph there shall be deemed to be such error only where the decision is based on the supposition of some fact the truth whereof is incontestably excluded, or on the supposition of the non-existence of some fact the truth whereof is positively established, provided that, in either case, the fact was not a disputed issue determined by the judgment.”
31. Under Article 814 of the COCP, a request for a new trial must be made to the court by which the judgment complained of was given, and the same judges “may” sit. Article 816 of the COCP sets out the contents of an application for a retrial. The plaintiff must, in particular, state the provisions of the judgment complained of, the grounds for a new trial and the facts giving rise to each ground. Where the ground is the wrong application of the law, as provided for in Article 811 (e), he or she must refer to the law that should have been applied.
32. Under Article 818 of the COCP,
“(1) The time for demanding a new trial is three months, which shall commence to run –
(a) in regard to the cases referred to in Article 811 (a) and (k), from the day on which the fraud was discovered, or the document obtained;
(b) in regard to the case referred to in paragraph (b), from the day on which the plaintiff became aware of the judgment;
(c) in regard to the cases referred to in paragraph (j), if the falsity was, at the suit or complaint of the plaintiff himself, declared subsequently to the judgment complained of, from the day of such declaration, and if it was declared subsequently to such judgment, but at the suit or complaint of other parties, or if it was declared previously, from the day on which the plaintiff became aware of such declaration;
(d) in regard to all other cases, from the date of the judgment complained of.
(2) A new trial may in no case be demanded after the lapse of five years from which the first judgment was given.”
33. In a decision given on 25 October 2002 in A v. B, the Court of Appeal held that the possibility of a retrial was an extraordinary remedy for the exceptional cases stated in the law. It also emphasised that the relevant legal provisions were to be strictly interpreted.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85276
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2008
DOCNAME: CASE OF SAADI v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Tunisia);Non-pecuniary damage - finding of violation sufficient
JUDGES: Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Françoise Tulkens;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Khanlar Hajiyev;Loukis Loucaides;Nicolas Bratza;Peer Lorenzen;Sverre Erik Jebens;Vladimiro Zagrebelsky
TEXT: 9. The applicant was born in 1974 and lives in Milan.
10. The applicant, who entered Italy at some unspecified time between 1996 and 1999, held a residence permit issued for “family reasons” by the Bologna police authority (questura) on 29 December 2001. This permit was due to expire on 11 October 2002.
11. On 9 October 2002 the applicant was arrested on suspicion of involvement in international terrorism (Article 270 bis of the Criminal Code), among other offences, and placed in pre-trial detention. He and five others were subsequently committed for trial in the Milan Assize Court.
12. The applicant faced four charges. The first of these was conspiracy to commit acts of violence (including attacks with explosive devices) in States other than Italy with the aim of spreading terror. It was alleged that between December 2001 and September 2002 the applicant had been one of the organisers and leaders of the conspiracy, had laid down its ideological doctrine and given the necessary orders for its objectives to be met. The second charge concerned falsification “of a large number of documents such as passports, driving licences and residence permits”. The applicant was also accused of receiving stolen goods and of attempting to aid and abet the entry into Italian territory of an unknown number of aliens in breach of the immigration legislation.
13. At his trial the prosecution called for the applicant to be sentenced to thirteen years’ imprisonment. The applicant’s lawyer asked the Assize Court to acquit his client of international terrorism and left determination of the other charges to the court’s discretion.
14. In a judgment of 9 May 2005, the Milan Assize Court altered the legal classification of the first offence charged. It took the view that the acts of which he stood accused did not constitute international terrorism but criminal conspiracy. It sentenced the applicant to four years and six months’ imprisonment for that offence, and for the forgery and receiving offences. It acquitted the applicant of aiding and abetting clandestine immigration, ruling that the acts he stood accused of had not been committed.
15. As a secondary penalty, the Assize Court banned the applicant from exercising public office for a period of five years and ordered that after serving his sentence he was to be deported.
16. In the reasons for its judgment, which ran to 331 pages, the Assize Court observed that the evidence against the applicant included intercepts of telephone and radio communications, witness statements and numerous false documents that had been seized. Taken together, this evidence proved that the applicant had been engaged in a conspiracy to receive and falsify stolen documents, an activity from which he derived his means of subsistence. On the other hand, it had not been established that the documents in question had been used by the persons in whose names they had been falsely made out to enter Italian territory illegally.
17. As regards the charge of international terrorism, the Assize Court firstly noted that a conspiracy was “terrorist” in nature where its aim was to commit violent acts against civilians or persons not actively participating in armed conflict with the intention of spreading terror or obliging a government or international organisation to perform or refrain from performing any act, or where the motive was political, ideological or religious in nature. In the present case it was not known whether the violent acts that the applicant and his accomplices were preparing to commit, according to the prosecution submissions, were to be part of an armed conflict or not.
18. In addition, the evidence taken during the investigation and trial was not capable of proving beyond a reasonable doubt that the accused had begun to put into practice their plan of committing acts of violence, or that they had provided logistical or financial support to other persons or organisations having terrorist aims. In particular, such evidence was not provided by the telephone and radio intercepts. These proved only that the applicant and his accomplices had links with persons and organisations belonging to Islamic fundamentalist circles, that they were hostile to “infidels” (and particularly those present in territories considered to be Muslim) and that their relational world was made up of “brothers” united by identical religious and ideological beliefs.
19. Using coded language the defendants and their correspondents had repeatedly mentioned a “football match”, intended to strengthen their faith in God. For the Assize Court it was quite obvious that this was not a reference to some sporting event but to an action applying the principles of the most radical form of Islam. However, it had not been possible to ascertain what particular “action” was meant or where it was intended to take place.
20. Moreover, the applicant had left Milan on 17 January 2002 and, after a stopover in Amsterdam, made his way to Iran, from where he had returned to Italy on 14 February 2002. He had also spoken of a “leader of the brothers” who was in Iran. Some members of the group to which the applicant belonged had travelled to “training camps” in Afghanistan and had procured weapons, explosives, and observation and video-recording equipment. In the applicant’s flat and those of his co-defendants, the police had seized propaganda about jihad – or holy war – on behalf of Islam. In addition, in telephone calls to members of his family in Tunisia made from the place where he was being detained in Italy, the applicant had referred to the “martyrdom” of his brother Fadhal Saadi; in other conversations he had mentioned his intention to take part in holy war.
21. However, no further evidence capable of proving the existence and aim of a terrorist organisation had been found. In particular, there was no evidence that the applicant and his accomplices had decided to channel their fundamentalist faith into violent action covered by the definition of a terrorist act. Their desire to join a jihad and eliminate the enemies of Islam could very well be satisfied through acts of war in the context of an armed conflict, that is, acts not covered by the concept of “terrorism”. It had not been established whether the applicant’s brother had really died in a suicide bombing or whether that event had been the “football match” which the defendants had repeatedly referred to.
22. The applicant and the prosecution appealed. The applicant asked to be acquitted of all the charges, while the prosecution wanted him to be convicted of international terrorism and aiding and abetting clandestine immigration as well.
23. In the prosecution’s appeal it was submitted that, according to the case-law of the Court of Cassation, the constituent elements of the crime of international terrorism were made out even where no act of violence had occurred, the existence of a plan to commit such an act being sufficient. In addition, an action could be terrorist in nature even if it was intended to be carried out in the context of an armed conflict, provided that the perpetrators were not members of the “armed forces of a State” or an “insurrectionary group”. In the present case, it was apparent from the documents in the file that the applicant and his associates had procured for themselves and others false documents, weapons, explosives and money in order to commit violent acts intended to affirm the ideological values of fundamentalist Islam. In addition, the accused had maintained contacts with persons and organisations belonging to the sphere of international terrorism and had planned a violent and unlawful action, due to be carried out in October 2002 as part of a “holy war” and in a country other than Italy. Only the defendants’ arrest had prevented the plan from being implemented. Furthermore, at that time the armed conflict in Afghanistan had ended and the one in Iraq had not yet started.
24. The prosecution further submitted that the applicant’s brother, Mr Fadhal Saadi, had been detained in Iran; the applicant had visited him there in either January or February 2002. After his release Mr Fadhal Saadi had settled in France and stayed in contact with the applicant. He had then died in a suicide bombing, a fact which was a source of pride for the applicant and the other members of his family. That was revealed by the content of the telephone conversations intercepted in the prison where the applicant was being held.
25. Lastly, the prosecution requested leave to produce new evidence, namely letters and statements from a person suspected of terrorist activities and recordings transmitted by radio microphone from inside a mosque in Milan.
26. On 13 March 2006 the Milan Assize Court of Appeal asked the Constitutional Court to rule on the constitutionality of Article 593 § 2 of the Code of Criminal Procedure. As amended by Law no. 46 of 20 February 2006, that provision permitted the defence and the prosecution to appeal against acquittals only where, after the close of the first-instance proceedings, new evidence had come to light or been discovered. The Assize Court of Appeal stayed the proceedings pending a ruling by the Constitutional Court.
27. In judgment no. 26 of 6 February 2007, the Constitutional Court declared the relevant provisions of Italian law unconstitutional in that they did not allow the prosecution to appeal against all acquittals and because they provided that appeals lodged by the prosecuting authorities before the entry into force of Law no. 46 of 20 February 2006 were inadmissible. The Constitutional Court observed in particular that Law no. 46 did not maintain the fair balance that should exist in a criminal trial between the rights of the defence and those of the prosecution.
28. The first hearing before the Milan Assize Court of Appeal was set down for 10 October 2007.
29. In the meantime, on 11 May 2005, two days after delivery of the Milan Assize Court’s judgment, a military court in Tunis had sentenced the applicant in his absence to twenty years’ imprisonment for membership of a terrorist organisation operating abroad in time of peace and for incitement to terrorism. He was also deprived of his civil rights and made subject to administrative supervision for a period of five years. The applicant asserted that he had not learned of his conviction until its operative part was served on his father on 2 July 2005, when the judgment had already become final.
30. The applicant alleged that his family and his lawyer were not able to obtain a copy of the judgment by which the applicant had been convicted by the Tunis military court. In a letter of 22 May 2007 to the President of Tunisia and the Tunisian Minister of Justice and Human Rights, his representatives before the Court asked to be sent a copy of the judgment in question. The result of their request is not known.
31. On 4 August 2006, after being imprisoned uninterruptedly since 9 October 2002, the applicant was released.
32. On 8 August 2006 the Minister of the Interior ordered him to be deported to Tunisia, applying the provisions of Legislative Decree no. 144 of 27 July 2005 (entitled “Urgent measures to combat international terrorism” and later converted to statute law in the form of Law no. 155 of 31 July 2005). He observed that “it was apparent from the documents in the file” that the applicant had played an “active role” in an organisation responsible for providing logistical and financial support to persons belonging to fundamentalist Islamist cells in Italy and abroad. Consequently, his conduct was disturbing public order and threatening national security.
33. The Minister made it clear that the applicant could not return to Italy except on the basis of an ad hoc ministerial authorisation.
34. The applicant was taken to a temporary holding centre (centro di permanenza temporanea) in Milan. On 11 August 2006 the deportation order was confirmed by the Milan justice of the peace.
35. On 11 August 2006 the applicant requested political asylum. He alleged that he had been sentenced in his absence in Tunisia for political reasons and that he feared he would be subjected to torture and “political and religious reprisals”. By a decision of 16 August 2006, the Head of the Milan police authority (questore) declared the request inadmissible on the ground that the applicant was a danger to national security.
36. On 6 September 2006 the Director of the non-governmental organisation World Organisation Against Torture (known by its French initials – OMCT) wrote to the Italian Prime Minister to tell him the OMCT was “extremely concerned” about the applicant’s situation, and that it feared that, if deported to Tunisia, he would be tried again for the same offences he stood accused of in Italy. The OMCT also pointed out that, under the terms of Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”.
37. On 12 September 2006 the President of the non-governmental organisation Collective of the Tunisian Community in Europe appealed to the Italian government to “end its policy of mass deportation of Tunisian immigrants [who were] practising adherents of religious faiths”. He alleged that the Italian authorities were using inhuman methods and had grounded a number of decisions against Tunisians on their religious convictions. He went on to say that it was “obvious” that on arrival in Tunisia the persons concerned would be “tortured and sentenced to lengthy terms of imprisonment, on account of the fact that the Italian authorities falsely suspect them of terrorism”. The applicant’s name appeared in a list of persons at imminent risk of expulsion to Tunisia which was appended to the letter of 12 September 2006.
38. The Chief Constable’s decision of 16 August 2006 (see paragraph 35 above) was served on the applicant on 14 September 2006. The applicant did not appeal. However, on 12 September 2006 he had produced documents, including the OMCT’s letter of 6 September 2006 and the reports on Tunisia by Amnesty International and the US Department of State, requesting that these be passed on to the local refugee status board. On 15 September 2006 the Milan police authority informed the applicant orally that as his asylum request had been refused the documents in question could not be taken into consideration.
39. On 14 September 2006, pleading Rule 39 of the Rules of Court, the applicant asked the Court to suspend or annul the decision to deport him to Tunisia. On 15 September 2006 the Court decided to ask the Government to provide it with information, covering in particular the question whether the applicant’s conviction by the Tunis military court was final and also whether in Tunisian law there was a remedy whereby it was possible to obtain the reopening of proceedings or a retrial.
40. The Government’s reply was received at the Registry on 2 October 2006. According to the Italian authorities, in the event of a conviction in the absence of the accused, Tunisian law gave the person convicted the right to have the proceedings reopened. The Government referred in particular to a fax of 29 September 2006 from the Italian ambassador in Tunis stating that, according to the information supplied by the Director of International Cooperation at the Tunisian Ministry of Justice, the applicant’s conviction was not final since a person convicted in his absence could appeal against the relevant judgment.
41. On 5 October 2006 the Court decided to apply Rule 39. It asked the Government to stay the applicant’s expulsion until further notice.
42. The maximum time allowed for the applicant’s detention with a view to expulsion expired on 7 October 2006 and he was released on that date. However, on 6 October 2006 a new deportation order had been issued against him. On 7 October 2006 this order was served on the applicant, who was then taken back to the Milan temporary holding centre. As the applicant had stated that he had entered Italy from France, the new deportation order named France as the receiving country, not Tunisia. On 10 October 2006 the new deportation order was confirmed by the Milan justice of the peace.
43. On 3 November 2006 the applicant was released because fresh information indicated that it was impossible to deport him to France. On the same day the Milan Assize Court of Appeal ordered precautionary measures, to take effect immediately after the applicant’s release: he was forbidden to leave Italian territory and required to report to a police station on Mondays, Wednesdays and Fridays.
44. In the meantime, on 27 September 2006, the applicant had applied for a residence permit. On 4 December 2006 the Milan police authority replied that this application could not be allowed. It was explained that a residence permit could be issued “in the interests of justice” only at the request of the judicial authorities, where the latter considered that the presence of an alien in Italy was necessary for the proper conduct of a criminal investigation. The applicant had in any case been forbidden to leave Italian territory and was therefore obliged to stay in Italy. Moreover, to obtain a residence permit it was necessary to produce a passport or similar document.
45. Before the Court the applicant alleged that the Tunisian authorities had refused to renew his passport, so that all his further attempts to regularise his situation had come to nothing.
46. On a date which has not been specified, the applicant also asked the Lombardy RAC (Regional Administrative Court) to set aside the deportation order of 6 October 2006 and stay its execution.
47. In a decision of 9 November 2006, the Lombardy RAC held that there was no cause to rule on the application for a stay of execution and ordered the file to be transmitted to the Lazio RAC, which had the appropriate territorial jurisdiction.
48. The Lombardy RAC pointed out among other observations that the European Court of Human Rights had already requested a stay of execution of the deportation order and had consequently provided redress for any prejudice the applicant might allege.
49. According to the information supplied by the applicant on 29 May 2007, the proceedings in the Lazio RAC were still pending on that date.
50. On 18 January 2007 the applicant sent a memorial to the Milan police authority pointing out that the European Court of Human Rights had requested a stay of execution of his deportation on account of a real risk that he would be subjected to treatment contrary to Article 3 of the Convention. He therefore asked for a hearing before the local refugee status board with a view to being granted political asylum. According to the information supplied by the applicant on 11 July 2007, there had been no reply to his memorial by that date. In a memorandum of 20 July 2007, the Italian Ministry of the Interior stated that the memorial of 18 January 2007 could not be regarded as a new asylum request or as an appeal against the refusal given by the Milan Chief Constable on 16 August 2006 (see paragraph 35 above).
51. On 29 May 2007 the Italian embassy in Tunis sent a note verbale to the Tunisian government, requesting diplomatic assurances that if the applicant were to be deported to Tunisia he would not be subjected to treatment contrary to Article 3 of the Convention and would not suffer a flagrant denial of justice.
52. The note in question, written in French, reads as follows:
“The Italian embassy presents its compliments to the Ministry of Foreign Affairs and, following the meeting between the Italian ambassador Mr Arturo Olivieri and his Excellency the Minister of Justice and Human Rights Mr Béchir Tekkari, on the occasion of the visit of the Italian Minister of Justice Mr Clemente Mastella, on 28 May 2007, has the honour to request the invaluable cooperation of the Tunisian authorities in reaching a positive development in the following case.
The Tunisian national Nassim Saadi, born in Haidra (Tunisia) on 30 November 1974, was served with an order for his deportation from Italy, issued by the Ministry of the Interior on 8 August 2006.
After the above order had been issued, Mr Saadi lodged an application with the European Court of Human Rights on 14 September 2006, requesting and obtaining the decision to stay execution of the deportation order.
His application is based on the argument that, after he had been tried in his absence, he was sentenced to twenty years’ imprisonment for terrorist-related offences, in a judgment given by the Tunis military court on 11 May 2005, served on Mr Saadi’s father on 2 July 2005. Because of his conviction, Mr Saadi contends that if the deportation order were to be enforced he would run the risk of being imprisoned in Tunisia on his arrival, on the basis of an unfair trial, and of being subjected to torture and inhuman and degrading treatment (please find enclosed a copy of the document by which the judgment was served supplied by Mr Saadi).
In order to gather all the information necessary to assess the case, the European Court of Human Rights has asked the Italian government to supply a copy of the judgment and wishes to ascertain whether the Italian government intends, before deporting Mr Saadi, to seek diplomatic guarantees from the Tunisian government.
In the light of the foregoing, the Italian embassy, counting on the sensitivity of the Tunisian authorities on the question, has the honour to formulate, subject to the judicial prerogatives of the Tunisian State, the following urgent request for guarantees, as an indispensable formal prerequisite for the solution of the case now pending:
– if the information given by Mr Saadi concerning the existence of a judgment of 11 May 2005 in which he was found guilty by the Tunis military court corresponds to the truth, please send a full copy of the judgment in question (before 11 July 2007, the date of the hearing before the Court) and confirm that he has the right to appeal, and to be judged by an independent and impartial tribunal, in accordance with a procedure which, taken as a whole, complies with the principles of a fair and public trial;
– please give assurances that the fears expressed by Mr Saadi of being subjected to torture and inhuman and degrading treatment on his return to Tunisia are unfounded;
– please give assurances that if he were to be committed to prison he would be able to receive visits from his lawyers and members of his family.
In addition, the Italian embassy would be grateful if the Tunisian authorities would keep it informed of the conditions of Mr Saadi’s detention if he were to be committed to prison.
The way this case is determined will have significant implications for future security policy.
The information mentioned above, which the European Court of Human Rights has requested from the Italian government, are indispensable if the deportation is to go ahead.
To a certain extent, this case forms a precedent (in relation to numerous other pending cases) and – we are convinced – a positive response by the Tunisian authorities will make it easier to carry out further expulsions in future.
While perfectly aware of the delicate nature of the subject, the Italian embassy counts on the understanding of the Tunisian authorities, hoping that their reply will be in the spirit of effective action against terrorism, as part of the friendly relations between our two countries.”
53. The Italian government observed that such assurances had never before been requested from the Tunisian authorities.
54. On 4 July 2007 the Tunisian Ministry of Foreign Affairs sent a note verbale to the Italian embassy in Tunis. Its content was as follows:
“The Minister for Foreign Affairs presents his compliments to the Italian ambassador in Tunis and, referring to the ambassador’s note verbale no. 2533 of 2 July 2007 concerning Nassim Saadi, currently imprisoned in Italy, has the honour to inform the ambassador that the Tunisian government confirms that it is prepared to accept the transfer to Tunisia of Tunisians imprisoned abroad once their identity has been confirmed, in strict conformity with the national legislation in force and under the sole safeguard of the relevant Tunisian statutes.
The Minister for Foreign Affairs would like once again to convey to the Italian ambassador in Tunis his sincere regards.”
55. A second note verbale, dated 10 July 2007, was worded as follows:
“The Minister for Foreign Affairs presents his compliments to the Italian ambassador in Tunis and, referring to his note verbale no. 2588 of 5 July 2007, has the honour to confirm to him the content of the Ministry’s note verbale no. 511 of 4 July 2007.
The Minister for Foreign Affairs hereby confirms that the Tunisian laws in force guarantee and protect the rights of prisoners in Tunisia and secure to them the right to a fair trial. The Minister would point out that Tunisia has voluntarily acceded to the relevant international treaties and conventions.
The Minister for Foreign Affairs would like once again to convey to the Italian ambassador in Tunis his sincere regards.”
56. According to the applicant, in Italy he lives with an Italian national, Mrs V., whom he married in a Muslim marriage ceremony. They have an eight-year-old child (born on 22 July 1999), an Italian national, who attends school in Italy. Mrs V. is unemployed and is not at present in receipt of any family allowance. She suffers from a type of ischaemia.
57. According to a memorandum of 10 July 2007 from the Ministry of the Interior, on 10 February 2007 the applicant married, in a Muslim marriage ceremony, a second wife, Mrs G. While officially resident in via Cefalonia, Milan, at the address occupied by Mrs V., the applicant is said to be separated de facto from both his wives. Since the end of 2006 he has been habitually resident in via Ulisse Dini, Milan, in a flat which he apparently shares with other Tunisians.
58. A deportation order is subject to appeal to the RAC, the court having jurisdiction to examine the lawfulness of any administrative decision and set it aside where it disregards an individual’s fundamental rights (see, for example, Sardinas Albo v. Italy (dec.), no. 56271/00, ECHR 2004-I). An appeal to the Consiglio di Stato lies against decisions of the RAC.
59. In proceedings before the RAC, a stay of execution of the administrative decision complained of is not automatic, but may be granted if requested (see Sardinas Albo, cited above). However, where – as in the applicant’s case – deportation has been ordered under the terms of Legislative Decree no. 144 of 2005, appeals to the RAC or the Consiglio di Stato cannot stay enforcement of the deportation order (Article 4 §§ 4 and 4 bis of the Legislative Decree).
60. In the French translation produced by the Government, the relevant provisions of the Tunisian Code of Criminal Procedure read as follows:
“Where a defendant fails to appear on the appointed date, having been personally informed of the obligation to do so, the court shall proceed to judgment, giving a decision which is deemed to follow adversarial proceedings. Where a defendant who fails to appear has been lawfully summoned, though not informed in person, judgment is given by default. Notification of judgment by default shall be given by the registrar of the court which gave judgment.
An appeal against a judgment by default must be lodged by the appellant in person, or his representative, with the registry of the court which has given judgment, within the ten days following service of the defendant’s copy.
If the appellant lives outside Tunisian territory, the time allowed for appeal shall be increased to thirty days.
An appeal shall be lodged either by means of a verbal declaration, which shall be formally recorded forthwith, or by means of a written declaration. The appellant must sign; if he refuses or is unable to sign, that circumstance shall be formally recorded.
The registrar shall immediately fix a date for the hearing and inform the appellant thereof; in all cases the hearing must be held within one month from the date of the appeal.
The appellant or his representative shall inform the interested parties, with the exception of State counsel, and have them summoned by an officer of the court, at least three days before the date of the hearing, failing which the appeal shall be dismissed.”
“Where judgment has not been served on the defendant in person or where it does not appear from the documents recording enforcement of the judgment that the defendant had knowledge of it, an appeal shall lie until expiry of the limitation period applicable to the penalty concerned.”
“On appeal, execution of a judgment shall be stayed. Where the sentence is capital punishment, the appellant shall be committed to prison and the sentence shall not be enforced before the judgment has become final.”
“An appeal shall no longer be admissible, save where the appellant has been prevented from appealing by circumstances beyond his or her control, unless lodged within ten days of the date of delivery of the judgment deemed to be adversarial within the meaning of the first paragraph of Article 175, or after expiry of the time allowed where judgment has been given by default, or after notification of the judgment likewise by default.
For State counsel and assistant State counsel at courts of appeal the time allowed for appeal shall be sixty days from the date of delivery of the judgment. In addition, on pain of inadmissibility, they must give notice of their appeal within that time to the defendant and any persons found liable towards civil parties.”
61. On 13 December 2003 the Italian and Tunisian governments signed in Tunis an agreement on crime prevention in which the Contracting Parties undertook to exchange information (particularly with regard to the activities of terrorist groups, migratory flows and the production and use of false documents) and to work towards harmonisation of their domestic legislation. Articles 10 and 16 of the agreement read as follows:
“The Contracting Parties, in accordance with their respective national legislation, agree that cooperation to prevent crime, as contemplated in the present agreement, will extend to searching for persons who have sought to evade justice and are responsible for criminal offences, and recourse to expulsion where circumstances so require and in so far as compatible with application of the provisions on extradition.”
“The present agreement is without prejudice to rights and obligations arising from other international, multilateral or bilateral agreements entered into by the Contracting Parties.”
62. Tunisia also signed in Brussels, on 17 July 1995, an association agreement with the European Union and its member States. The agreement mainly concerns cooperation in the commercial and economic sectors. Article 2 provides that relations between the Contracting Parties, like the provisions of the agreement itself, must be based on respect for human rights and democratic principles, which form an “essential element” of the agreement.
63. Italy is a party to the 1951 Convention on the Status of Refugees. Articles 1, 32 and 33 of this Convention read as follows.
“For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
“1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law ...”
“1. No Contracting State shall expel or return (‘refouler’) 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.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
64. On 11 July 2002, at the 804th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted guidelines on human rights and the fight against terrorism. Point IV of the guidelines, entitled “Absolute prohibition of torture”, reads as follows:
“The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited, in all circumstances, and in particular during the arrest, questioning and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted.”
According to point XII § 2 of this document,
“It is the duty of a State that has received a request for asylum to ensure that the possible return (‘refoulement’) of the applicant to his/her country of origin or to another country will not expose him/her to the death penalty, to torture or to inhuman or degrading treatment or punishment. The same applies to expulsion.”
65. In a report concerning the situation in Tunisia in 2006, Amnesty International noted that following a large number of unfair trials at least twelve persons facing terrorism charges had been sentenced to lengthy prison sentences. Cases of torture and ill-treatment continued to be reported. Hundreds of political prisoners sentenced after unfair trials remained in prison after more than ten years and their state of health was said to have deteriorated. A group of 135 prisoners had been released as a result of an amnesty; they had been imprisoned for more than fourteen years after being convicted in unfair trials of belonging to the banned Islamist organisation Ennahda. Some of these prisoners were in poor health as a result of harsh prison conditions and torture they had undergone before standing trial.
66. In December 2006 there had been exchanges of fire to the south of Tunis between the police and alleged members of the Salafist Group for Preaching and Combat. Dozens of people had been killed and police officers had been injured.
67. In June 2006 the European Parliament had called for a meeting of the European Union and Tunisia to discuss the human rights situation in the country. In October 2006 the European Union had criticised the Tunisian government for cancelling an international conference on employment and the right to work.
68. As regards the “war on terror”, Amnesty International noted that no answer had been given by the Tunisian authorities to a request to visit the country made by the United Nations Special Rapporteur on the promotion and protection of human rights. Persons suspected of terrorist activities had been arrested and tried under what was described as the “controversial” 2003 anti-terrorism law. This anti-terrorism law and the Code of Military Justice had been used against Tunisians repatriated against their will from Bosnia and Herzegovina, Bulgaria and Italy, who were accused of belonging to terrorist organisations operating abroad. In such cases, sometimes decided by the military courts, lawyers’ contact with their clients had been subjected to constantly increasing restrictions. The report mentioned cases of prisoners being held incommunicado or being tortured while in police custody; those referred to included Mr Hicham Saadi, Mr Badreddine Ferchichi (who had been deported from Bosnia and Herzegovina) and six members of the “Zarzis group”.
69. Amnesty International went on to criticise severe restrictions of the right to freedom of expression and a risk of harassment and violence against human rights defenders and their families, women wearing Islamic headscarves, and opponents and critics of the government.
70. On the question of the independence of the judiciary, Amnesty International noted that lawyers had publicly protested against a bill then before Parliament creating the “Higher Institute for Lawyers”, to be responsible for training future lawyers (which had previously been done by the Lawyers’ Association and the Association of Tunisian Judges). In October 2006 the Head of the European Commission delegation in Tunis had publicly criticised the slow pace of political reform and called for better training for judges and lawyers to consolidate the independence of the judiciary. Judges required the permission of the Secretary of State for Justice to leave the country.
71. On 19 June 2007 Amnesty International issued a statement concerning the applicant which reads as follows:
“Amnesty International is concerned that Nassim Saadi would be at risk of torture or other grave human rights violations, should he be removed to Tunisia by the Italian authorities. This concern is based upon our continuous monitoring of human rights violations in Tunisia, including violations committed against people forcibly returned from abroad within the context of the ‘war on terror’.
Nassim Saadi was sentenced in absentia by the Permanent Military Court in Tunis to twenty years’ imprisonment on charges of belonging to a terrorist organisation operating abroad at a time of peace and incitement to terrorism. Although he will be afforded a retrial before the same military court, military courts in Tunisia violate a number of guarantees for a fair trial. The military court is composed of a presiding judge and four counsellors. Only the president is a civilian judge. There are restrictions on the right to a public hearing. The location of the court in a military compound effectively limits access to the public. Individuals convicted before a military court can seek review only before the Military Court of Cassation. Civilian defendants have frequently reported that they had not been informed of their right to legal counsel or, particularly in the absence of a lawyer, have not realised that they were being questioned by an examining judge as he was in military uniform.
Defence lawyers have restrictions placed on access to their clients’ files and are obstructed by not being given information about the proceedings such as the dates of hearings. Unlike the ordinary criminal courts, military courts do not allow lawyers access to a register of pending cases. (For more information see Amnesty International report, Tunisia: the cycle of Injustice, AI Index MDE 30/001/2003.)
The Tunisian authorities also continue to use the controversial 2003 anti-terrorism law to arrest, detain and try alleged terrorist suspects. Those convicted have been sentenced to long prison terms. The anti-terrorism law and provisions of the Military Justice Code have also been used against Tunisian nationals who were returned to Tunisia against their will by authorities in other countries, including Bosnia and Herzegovina, Bulgaria and Italy. Those returned from abroad were arrested by the Tunisian authorities upon arrival and many of them were charged with links to ‘terrorist organisations’ operating outside the country. Some were referred to the military-justice system.
People who have been recently returned to Tunisia from abroad have been held in incommunicado detention, during which time they have been subjected to torture and other ill-treatment. They have also been sentenced to long prison sentences following unfair trials. In this connection, we provide the following case information for illustration:
– Houssine Tarkhani was forcibly returned from France to Tunisia on 3 June 2007 and detained on arrival. He was kept in secret detention in the State Security Department of the Ministry of Interior in Tunis for ten days, during which he was reportedly tortured or otherwise ill-treated. He is currently detained in Mornaguia prison awaiting further investigation. Houssine Tarkhani left Tunisia in 1999, and subsequently lived in Germany and, between 2000 and 2006, in Italy. He was arrested at the French-German border on 5 May 2007 as an irregular migrant, and held in a detention centre in the French city of Metz, pending the execution of an expulsion order. On 6 May he was brought before a judge, who authorised his detention for a further fifteen days, and informed him that he was being investigated by the French police on suspicion of ‘providing logistical support’ to a network which assists individuals to travel to Iraq to take part in the armed conflict with the US-led coalition forces there – an allegation which he denies. No charges were ever brought against him in France. On the same day, he made a claim for asylum and on 7 May 2007 was taken to the detention centre at Mesnil-Amelot to be detained while his asylum claim was processed. Houssine Tarkhani’s application for asylum had been assessed under an accelerated procedure (‘procèdure prioritaire’), and was rejected on 25 May. Although he appealed before the Commission des Recours des Réfugiés (CRR), Refugees Appeals Board, decisions taken under the accelerated procedure are not delayed while appeals to the CRR are considered, and people who have appealed may be forcibly returned before their appeal has been ruled on. Houssine Tarkhani also made appeals against the decision to the administrative court, but these have failed.
– In May 2004, Tunisian national Tarek Belkhirat was returned against his will to Tunisia from France after his request for asylum was rejected. He was arrested upon his return to Tunisia and charged under the 2003 anti-terrorism law. In February 2005, the Council of State (Conseil d’Etat), the highest administrative court in France, quashed the order to expel Tarek Belkhirat to Tunisia. In March 2005, he was sentenced in an unfair trial in Tunisia to ten years’ imprisonment for membership of the Tunisian Islamist Front, charges for which he had already served a thirty-six month prison sentence in France. The sentence was reduced to five years on appeal in October 2005. He remains in prison in Tunisia.
– Tunisian national Adil Rahali was deported to Tunisia from Ireland in April 2004 after his application for asylum was refused. He was arrested on arrival in Tunisia and taken to the State Security Department of the Ministry of the Interior, where he was held in secret detention for several days and reportedly beaten, suspended from the ceiling and threatened with death. Adil Rahali, who had worked in Europe for more than a decade, was charged under the 2003 anti-terrorism law with belonging to a terrorist organisation operating abroad. No investigation is known to have been conducted into Adil Rahali’s alleged torture despite the fact that his lawyer filed a complaint. In March 2005, Adil Rahali was convicted on the basis of ‘confessions’ extracted under torture and sentenced under anti-terrorism legislation to ten years’ imprisonment. This sentence was reduced to five years on appeal in September 2005. He remains in prison in Tunisia.
– In April 2004, seven young men were convicted, following an unfair trial, of membership of a terrorist organisation, possessing or manufacturing explosives, theft, using banned websites and holding unauthorised meetings. Two others were convicted in absentia. They were among dozens of people arrested in Zarzis, southern Tunisia, in February 2003, most of whom had been released the same month. The trial failed to respect international fair-trial standards. According to defence lawyers, most arrest dates in police reports were falsified, and in one case the place of arrest was falsified. There were no investigations into allegations that the defendants were beaten, suspended from the ceiling and threatened with rape. The convictions rested almost entirely on confessions extracted under duress. The defendants denied all charges brought against them in court. In July 2004 the Tunis Appeal Court reduced the sentences of six of them from nineteen years and three months to thirteen years’ imprisonment. Their appeal was rejected by the Court of Cassation in December 2004. Another defendant, who was a minor at the time of the arrest, had his sentence reduced to twenty-four months in prison. They were all released in March 2006 following a presidential pardon.
The human rights violations that were perpetrated in these cases are typical of the sort of violations that remain current in Tunisia and affect people arrested inside the country as well as those returned from abroad in connection with alleged security or political offences. We consider, therefore, that Nassim Saadi would be at serious risk of torture and unfair trial if he were to be transferred to the custody of the Tunisian authorities.”
72. A similar statement was issued by Amnesty International on 23 July 2007.
73. In its 2007 report on Tunisia, Human Rights Watch asserted that the Tunisian government used the threat of terrorism and religious extremism as a pretext for repression of their opponents. There were constant, credible allegations of the use of torture and ill-treatment against suspects in order to obtain confessions. It was also alleged that convicted persons were deliberately subjected to ill-treatment.
74. Although many members of the proscribed Islamist party Ennahda had been released from prison after an amnesty, there were more than 350 political prisoners. There had been mass arrests of young men, who had then been prosecuted under the 2003 anti-terrorism law. Released political prisoners were monitored very closely by the authorities, who refused to renew their passports and denied them access to most jobs.
75. According to Human Rights Watch, the judicial system lacked independence. Investigating judges questioned suspects without their lawyers being present, and the prosecution and judiciary turned a blind eye to allegations of torture, even when made through a lawyer. Defendants were frequently convicted on the basis of confessions made under duress or of statements by witnesses whom they had not been able to examine or have examined.
76. Although the International Committee of the Red Cross was continuing its programme of visits to Tunisian prisons, the authorities were refusing independent human rights defence organisations access to places of detention. The undertaking given in April 2005 to allow visits by Human Rights Watch had remained a dead letter.
77. The 2003 anti-terrorism law gave a very broad definition of “terrorism”, which could be used to prosecute persons merely for exercising their right to political dissent. Since 2005 more than 200 persons had been charged with planning to join jihadist movements abroad or organising terrorist activities. The arrests had been carried out by plain-clothes police and the families of those charged had been left without news of their relatives for days or sometimes weeks. During their trials these defendants had overwhelmingly claimed the police had extracted their statements under torture or threat of torture. These defendants had been sentenced to lengthy terms of imprisonment, but it had not been established that any of them had committed a specific act of violence or that they possessed weapons or explosives.
78. In February 2006, six persons accused of belonging to the “Zarzis” terrorist group had been granted a presidential amnesty after serving three years of their prison sentences They had been convicted on the basis of confessions which they alleged they had been forced into making, and of the fact that they had copied from the Internet instructions for making bombs. In 2005 Mr Ali Ramzi Bettibi had been sentenced to four years’ imprisonment for cutting and pasting on an online forum a statement by an obscure group threatening bomb attacks if the President of Tunisia agreed to host a visit by the Prime Minister of Israel.
79. Lastly, Human Rights Watch reported that on 15 June 2006 the European Parliament had adopted a resolution deploring the repression of human rights activists in Tunisia.
80. The International Committee of the Red Cross signed an agreement with the Tunisian authorities on 26 April 2005 giving them permission to visit prisons and assess conditions there. The agreement came one year after the authorities’ decision to permit prison visits by only the International Committee of the Red Cross, an organisation – described as “strictly humanitarian” – which was required to maintain confidentiality about its findings. The agreement between the Tunisian government and the International Committee of the Red Cross concerned all prison establishments in Tunisia, “including remand prisons and police cells”.
81. On 29 December 2005 Mr Bernard Pfefferlé, the regional delegate of the International Committee of the Red Cross for Tunisia/North Africa, said that the Committee had been able to visit “without hindrance” about a dozen prisons and meet prisoners in Tunisia. Mr Pfefferlé said that, since the beginning of the inspection in June 2005, a team from the International Committee of the Red Cross had travelled to nine prisons, two of them twice, and had met half of the prisoners scheduled to be visited. Refusing to give further details, “on account of the nature of [their] agreements”, he nevertheless commented that the agreements in question authorised the International Committee of the Red Cross to visit all prisons and meet prisoners “quite freely and according to [its own] free choice”.
82. In its report on human rights practices published on 8 March 2006, the US Department of State criticised violations of fundamental rights by the Tunisian government.
83. Although there had been no politically motivated killings attributable to the Tunisian authorities, the report commented critically on two cases: Mr Moncef Ben Ahmed Ouahichi had died while in police custody and Mr Bedreddine Rekeii after being released from police custody.
84. Referring to the information gathered by Amnesty International, the US Department of State described the various forms of torture and ill-treatment inflicted by the Tunisian authorities in order to secure confessions. These included: electric shocks; forcing the victim’s head under water; beatings with fists, sticks and police batons; hanging from the cell bars until loss of consciousness; and cigarette burns. In addition, police officers sexually assaulted the wives of Islamist prisoners as a means of obtaining information or imposing a punishment.
85. However, these acts of torture were very difficult to prove, because the authorities refused to allow the victims access to medical treatment until the traces of ill-treatment had faded. Moreover, the police and the judicial authorities regularly refused to follow up allegations of ill-treatment, and confessions extracted under torture were regularly admitted as evidence by the courts.
86. Political prisoners and religious fundamentalists were the main targets of torture, which was usually inflicted while the victims were in police custody, particularly inside the Ministry of the Interior. The report referred to a number of cases of torture complained of in 2005 by non-governmental organisations, including the Conseil national pour les libertés en Tunisie and the Association pour la lutte contre la torture en Tunisie. In spite of complaints by the victims, no investigation into these abuses had been conducted by the Tunisian authorities and no agent of the State had been prosecuted.
87. The conditions of incarceration in Tunisian prisons fell well below international standards. Prisoners were held in cramped conditions and had to share beds and toilets. The risk of catching contagious diseases was very high on account of the overcrowding and the unhygienic conditions. Prisoners did not have access to appropriate medical treatment.
88. Political prisoners were often transferred from one establishment to another, which made visits by their families difficult and discouraged any investigation of their conditions of detention.
89. In April 2005, after lengthy negotiations, the Tunisian government had signed an agreement permitting the International Committee of the Red Cross to visit prisons. These visits had begun in June. In December the Red Cross declared that the prison authorities had respected the agreement and had not placed obstacles in the way of the visits.
90. On the other hand, the same possibility was not extended to Human Rights Watch, despite a verbal undertaking given in April 2005 by the Tunisian government. The government had also undertaken to prohibit prolonged periods of solitary confinement.
91. Although explicitly forbidden by Tunisian law, arbitrary arrest and imprisonment occurred. By law, the maximum period allowed for detention in police custody was six days, during which time the prisoners’ families had to be informed. However, these rules were frequently ignored. Persons detained by the police were very often held incommunicado and the authorities extended the duration of police custody by recording a false date of arrest.
92. The Tunisian government denied that there were any political prisoners, so their exact number was impossible to determine. However, the Association internationale de soutien aux prisonniers politiques had drawn up a list of 542 political prisoners, nearly all of whom were said to be religious fundamentalists belonging to proscribed opposition movements who had been arrested for belonging to illegal organisations which endangered public order.
93. The report mentioned a wide range of infringements of the right to respect for the private and family life of political prisoners and their families, including censorship of correspondence and telephone calls and the confiscation of identity documents.
94. Before the Court, the applicant produced a document from the Association internationale de soutien aux prisonniers politiques concerning the case of a young man named Hichem Ben Said Ben Frej who was alleged to have leapt from the window of a police station on 10 October 2006 shortly before he was due to be interrogated. Mr Ben Frej’s lawyer asserted that his client had been savagely tortured and held in the cells of the Ministry of the Interior in Tunis for twenty-four days.
Similar allegations are to be found in statements by local organisations for the defence of prisoners’ and women’s rights and in numerous press cuttings.
VIOLATED_ARTICLES: 3


ITEMID: 001-108831
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GADZHIKHANOV AND SAUKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 6. The first applicant was born in 1927 and lives in Derbent, Republic of Dagestan. The second applicant was born in1977 and lives in Severodvinsk, Arkhangelsk Region.
7. By a judgment of 20 December 1999 the Derbent Town Court of the Republic of Dagestan granted in part the applicant’s claim against the town administration, recognized that the State had unlawfully confiscated the house owned by his father and awarded him compensation in the amount of 8,349 Russian roubles (RUB).
8. On 2 February 2000 the Supreme Court of the Republic of Dagestan upheld that judgment on appeal, and on the same day the trial court forwarded the applicant a writ of execution. The trial court specified in the writ of execution that the debtor was the Commission for Restoration of the Rights of the Rehabilitated Victims of Political Repressions at the town administration.
9. The applicant did not take any further steps to recover the judicial award. As a result, the judgment of 20 December 1999 remains unenforced.
10. By a judgment of 19 July 2005 the Arkhangelsk Regional Court convicted the applicant of various crimes and sentenced him to imprisonment. That judgment was quashed by way of supervisory review on 11 April 2007 by the Presidium of the Arkhangelsk Regional Court (“the Presidium”). Having found that the lower courts had incorrectly assessed evidence in the case, the Presidium decided to discontinue the criminal proceedings against the applicant.
11. The applicant sued the State for damages. By a judgment of 20 March 2008 the Severodvinsk Town Court of the Arkhangelsk Region awarded the applicant compensation for unlawful detention in the amount of RUB 1,000. On 19 June 2008 the trial court issued a writ of execution and sent it to the applicant. The above judgment was upheld on appeal by the Arkhangelsk Regional Court on 2 October 2008. By a letter of 23 December 2008 the Legal Department of the Ministry of Finance informed the applicant of the domestic procedure to follow in order to recover the judicial award in his favour.
12. Despite that information the applicant did not take any further steps to recover the judicial award. As a result, the judgment of 20 March 2008 remains unenforced.
13. Article 242.1 § 1 of the Budget Code of the Russian Federation provides that enforcement of judicial decisions recovering funds from the budgetary system of the Russian Federation is held on the basis of the enforcement documents (writ of execution, court order).
14. Article 242.1 § 2 of the same Code provides that along with the writ of execution the creditor or the court acting on his or her behalf should submit a duly certified copy of the judicial decision and a written request containing the creditor’s bank account details.
NON_VIOLATED_ARTICLES: 6
P1
NON_VIOLATED_PARAGRAPHS: 6-1
P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-98297
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: DRLJAN v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Željko Drljan, is a Croatian national who was born in 1960 and is currently serving a prison term in Lepoglava State Prison. He was represented before the Court by Ms S. Oluški Radaković, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On an unspecified date an indictment was brought against the applicant in the Sisak County Court (Županijski sud u Sisku) on charges of murder and attempted murder. The applicant was placed in pre-trial detention in Croatia and was legally represented by a lawyer from Croatia.
On an unspecified date Mrs G.B., a lawyer practising in Kragujevac, Serbia, was also appointed by the authorities to represent the applicant. All witnesses gave evidence before the Kragujevac County Court in Serbia (Okružni sud u Kragujevcu) in the presence of Mrs G.B.
In a judgment of the Sisak County Court of 6 November 2006 the applicant was found guilty of murder and attempted murder and sentenced to twenty-one years’ imprisonment.
In the proceedings the trial court heard evidence from medical and ballistic experts and read the statements of ten witnesses who had given evidence before the Kragujevac County Court. The relevant part of the judgment reads:
“Under Article 331 § 1(1) of the Code of Criminal Procedure this court has decided to read the evidence given before an investigating judge of the Kragujevac County Court, Serbia and Montenegro, by the witnesses D.G., R.G., G.P., R.M., O.M., D.K., D.G., R.M., J.S., R.P. and the injured party T.M., because these witnesses live in the territory of Serbia and Montenegro and, although properly summoned, failed to appear at the hearing, and because summonses for the witnesses D.K. , G.P. and R.P. could not be served on them.”
The first-instance judgment was upheld by the Supreme Court of Croatia (Vrhovni sud Republike Hrvatske) on 31 January and 24 April 2007. On 21 June 2007 the applicant lodged a constitutional complaint concerning the grounds for his detention, the quality of his legal representation and the assessment of the facts by the national courts. The applicant’s constitutional complaint was declared inadmissible on 29 November 2007 on the grounds that it was incomplete because the applicant had failed to cite the exact provisions of the Constitution which he deemed to have been violated in the criminal proceedings against him.
The relevant part of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows:
“In the determination of ... any criminal charge against him or her ... a suspect, defendant and accused person have the right to ... question ... prosecution witnesses ...”
The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which has determined his or her rights and obligations, or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...
2. If there is provision for another legal remedy in respect of a violation of the constitutional rights [complained of], a constitutional complaint may be lodged only after that remedy has been exhausted.
...”


ITEMID: 001-97498
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF CRABTREE v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1-c;Violation of Art. 5-5;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 6. On 6 February 2003 the applicant was arrested on suspicion of fraud. On the following day, the Prague 1 District Court (obvodní soud) ordered his pre-trial detention pursuant to Article 67 (a) of the Code of Criminal Procedure (hereinafter “the CCP”). The court held that, given the applicant’s British citizenship and lack of residence in the Czech Republic, and the fact that he was likely to be sentenced to a lengthy prison sentence, there was a risk that he would abscond to avoid the criminal proceedings.
7. On 29 April 2003 an indictment against the applicant on a charge of fraud was filed in the District Court.
8. On 6 May 2003, 1 July 2003 and 24 September 2003 the District Court dismissed requests for release from custody filed by the applicant. The court held that the reasons for the applicant’s detention continued to apply. Two appeals by the applicant directed against the second and third of the District Court’s decisions were dismissed by the Prague Municipal Court on 7 August 2003 and 29 October 2003, respectively.
9. On 22 September 2003 the applicant filed a constitutional appeal (ústavní stížnost) against the Municipal Court’s decision of 7 August 2003, alleging a violation of his right to personal liberty under Article 8 §§ 2 and 5 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod), of his freedom of movement under Article 14 of the Charter and of the right to judicial protection under Article 36 § 1 of the Charter, in that the reasoning of the court decisions was insufficient. He added that Article 5 § 3 of the Convention had also been violated.
10. On 9 December 2003 the District Court dismissed a request for release from custody filed by the applicant on 5 December 2003 and decided, under Article 71 §§ 4 and 6 of the CCP, that the applicant was to remain in detention. The court did not accept the applicant’s written pledge.
11. In a judgment of 17 December 2003 the District Court convicted the applicant of fraud, sentenced him to three and a half years’ imprisonment and ordered his expulsion from the Czech Republic.
12. On 12 January 2004 the applicant supplemented his constitutional appeal, alleging that despite his request the Municipal Court’s decision of 7 August 2003 had not been translated into English, in violation of Article 6 § 3 (e) of the Convention. He also complained that in the decision of 9 December 2003 the District Court had decided to renew the order for his detention for the first time since the pre-trial detention had been ordered on 7 February 2003. The applicant thus regarded the period of detention after 7 May 2003, that is after the expiry of an initial three months period covered by the first detention order, as unlawful. In this respect he relied, inter alia, on Article 5 § 1 of the Convention.
13. On 26 February 2004 the Municipal Court dismissed the applicant’s complaint against the District Court’s decision of 9 December 2003.
14. On 31 March 2004 the Municipal Court varied the District Court’s judgment of 17 December 2003 but the applicant’s prison sentence remained unchanged. In response to the applicant’s argument that the trial court had not given him the opportunity to question one of the witnesses, the appellate court held that this witness had been heard at trial in the applicant’s and his counsel’s presence and that they had used this opportunity to ask him questions.
15. In a decision of 25 November 2004 the Constitutional Court (Ústavní soud) held that the Municipal Court had violated the applicant’s rights guaranteed under Article 8 §§ 2 and 5 of the Charter in that it had not decided on extension of the applicant’s pre-trial detention or his release within the statutory time-limit. The court stated in particular:
“It appears from the case-file that the courts decided on the applicant’s requests for release and/or his complaints against the respective dismissals, but not on his remaining in custody or his release as provided for in Article 71 §§ 4 and 6 of the CCP. Such a decision complying with the requirements laid down in the CCP was adopted by the Prague 1 District Court on 9 December 2003, that is, more than ten months after the applicant’s pre-trial detention had been ordered. The Constitutional Court underlines that when deciding on a request for release filed by an accused, a court ‘merely’ examines, as in the present case, whether there are still reasons for his detention. The criteria specified in Article 71 § 4 of the CCP require stricter conditions to be fulfilled for a decision to continue the accused’s detention ”
16. The Constitutional Court did not grant the applicant’s request for the Municipal Court’s decision of 7 August 2003 to be quashed, the applicant having been sentenced to a term of imprisonment in the meantime.
17. The relevant domestic law and practice concerning pre-trial detention and the possibility of compensation for its unlawfulness are set out in the Court’s judgment Smatana v. the Czech Republic, no. 18642/04, §§ 49-76, 27 September 2007.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-5
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-59264
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF DALLOS v. HUNGARY
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (six months);No violation of Art. 6
JUDGES: Giovanni Bonello
TEXT: 9. The applicant is a Hungarian national, born in 1949 and resident in Vonyarcvashegy, Hungary.
10. On 25 November 1992 the Zala County public prosecutor’s office preferred a bill of indictment against the applicant, charging him with aggravated embezzlement. The public prosecutor’s office alleged that between July 1990 and May 1991 the applicant, then the managing director of a Hungarian limited liability company (“E. Kft”), had been involved in a foreign-trade commission-contract between a Dutch company and a Hungarian business partner. According to the public prosecutor’s office, the applicant had failed to transfer, on behalf of E. Kft, part of the amounts due under the contract to the Hungarian partner and had spent it for E. Kft’s own purposes, thus causing damage of some 1.4 million Hungarian forints.
11. On 30 June 1993 the Keszthely District Court convicted the applicant of aggravated embezzlement and sentenced him to one year and four months’ imprisonment and a fine, under Article 317 §§ 1 and 5 (a) of the Criminal Code.
The District Court found that, in the context of a commission-contract scheme valid between July 1990 and May 1991, the applicant, acting on behalf of E. Kft, had failed to transfer part of the amounts collected from the Dutch partner to the Hungarian partner, contrary to what he should have done under the contract; in fact, he had spent it for E. Kft’s own purposes.
The District Court noted the applicant’s defence that he had simply failed to pay the necessary attention to his contractual duty to transfer the amounts in question; that he had not been aware until April 1991 that the amounts in question had been available for transfer; that E. Kft’s subsequent failure to fulfil its contractual obligations had simply been due to its inability to recover some outstanding debts; and, finally, that he had entered into a verbal agreement with the Hungarian partner about the use of part of the amounts in question.
However, taking into consideration the testimony of a Mr S. and of two further witnesses, the District Court was convinced that the applicant had deliberately failed to transfer the amounts in question in order to finance the activities of E. Kft.
12. The applicant appealed against the District Court’s judgment, whereas the public prosecutor’s office accepted it.
In his appeal the applicant sought to be acquitted on the ground that the findings of fact in his case had been erroneous.
13. On 12 November 1993 the Zala County Regional Court upheld the applicant’s conviction and sentence, but reclassified his offence as aggravated fraud, under Article 318 §§ 1 and 5 (a) of the Criminal Code.
The Regional Court held that the facts of the case, as outlined in the bill of indictment and established by the District Court, did not constitute the offence of embezzlement. However, the Regional Court was satisfied that the applicant’s conduct, namely that in the context of the transaction in question he had, on several occasions, given the Hungarian partner false information about the payments actually made by the Dutch partner, had constituted the offence of aggravated fraud.
Completing the findings of fact with some further details, the Regional Court essentially relied on the contents of the case file as compiled at first instance, and in particular on the statements made by the applicant and the witness Mr S. during the first-instance hearings and on investigation documents.
The Regional Court’s decision was served on the applicant on 8 December 1993.
14. The applicant and his defence counsel lodged a petition for review with the Supreme Court. He maintained that he had been convicted erroneously. He also submitted that the reclassification of his offence at second instance had run counter to Article 9 § 2 of the Code of Criminal Procedure, and had thus constituted a serious breach of procedural rules.
In its observations in reply, the Attorney-General’s Office proposed that the decisions of the lower courts be upheld.
15. On 16 June 1994 the Supreme Court held a “public session” (nyilvános ülés) in the case. The Supreme Court heard addresses by defence counsel, who argued that the applicant’s liability was of a civil-law nature and requested the Supreme Court to quash, under Article 291 § 3 of the Code of Criminal Procedure, the first- and second-instance judgments and to acquit the applicant, and by the Attorney-General’s Office, proposing that the applicant’s conviction be upheld.
16. On 28 June 1994 the Supreme Court upheld the applicant’s conviction for aggravated fraud.
Concerning defence counsel’s arguments about a serious breach of procedural rules, the Supreme Court observed that, while it was true that courts were bound by the factual contents of the bill of indictment, this did not apply to the legal classification of the offences. It held that the elements of fact, which – in the second-instance proceedings – had warranted the reclassification of the offence, had already been contained in substance in the bill of indictment.
In reply to defence counsel’s arguments of a substantive-law character disputing the applicant’s conviction of fraud, the Supreme Court held that the applicant’s duty under the contract in question would have been to inform the Hungarian partner about his receipt of payments without delay. The decision concluded, inter alia, that the applicant, having failed to do so and, instead, having transferred the money into E. Kft’s own bank account,
“... committed the offence of fraud. ...
... In this manner, the defendant secured unlawful gains for E. Kft and, to that end, had maintained from the outset [the Hungarian partner’s] deception, as a consequence of which it suffered damage in the amount of 1,440,680 Hungarian forints. This conduct of his constituted the offence of fraud, prohibited by Article 318 § 1 of the Criminal Code.”
On that ground, the Supreme Court upheld the Regional Court’s decision, in accordance with Article 291 § 7 of the Code of Criminal Procedure.
The Supreme Court’s decision was served on the applicant on 18 August 1994.
17. Article 9 § 2 provides that proceedings before the criminal court may be initiated only upon lawful indictment. The court decides on the criminal responsibility of the indicted person exclusively by reference to facts contained in the bill of indictment.
18. Article 132 § 1 provides that where there is a strong suspicion, based on the available information, that a person has committed an offence, the authority must inform him of the substance of the suspicion against him and of the relevant laws.
19. Article 146 § 2 provides that the bill of indictment must contain a brief description of the facts on account of which the defendant is being prosecuted.
20. Article 203 § 1 requires that documents, the contents of which are regarded by the court as evidence, be read out at the hearing.
21. According to Article 239 § 1, the second-instance court must, when passing its decision, rely on the findings of fact reached by the first-instance court, unless the first-instance judgment lacks factual support.
22. Article 241 provides that a defendant acquitted at first instance may be convicted, or a convicted defendant’s sentence increased, only if an appeal has been lodged to his detriment. An appeal is to be regarded as being to the defendant’s detriment if aimed at having him convicted, or convicted of a more serious offence, or at increasing his sentence.
23. According to Article 258 § 1 (a), where the proper establishment of the facts of the case can be achieved on the basis of the case file, the second-instance court completes or rectifies the establishment of the facts and thereafter examines the first-instance judgment on this new factual basis.
24. According to Article 260, where the first-instance court has applied the law erroneously but its judgment need not be quashed, the second-instance court amends the judgment and passes a decision in accordance with the law.
25. Article 284 § 1 provides that a final decision is subject to review if:
(a) the defendant’s acquittal or conviction, or the discontinuation of the proceedings, has taken place in breach of the provisions of substantive criminal law; or
(b) an unlawful punishment or measure has been imposed on the defendant as a consequence of an incorrect classification of the offence or of another breach of the rules of substantive criminal law.
According to paragraph 2, in the latter case no review may take place if the punishment imposed is within the limits laid down for the offence that corresponds to the classification which is correct in law.
26. According to Article 284/A § 1 (I), a petition for review in favour of the defendant may be filed by, inter alios, the defendant, the public prosecutor or defence counsel.
Paragraph 2 provides a further ground for review where certain serious breaches of procedural criminal law have affected the taking of the decision in question.
27. Under Article 288 § 1, if a petition for review is not rejected on formal grounds, it must be sent to the Attorney-General’s Office for comments.
Article 288/A § 1 grants the petitioner the right to submit comments in reply.
28. According to Article 289/A § 1, the Supreme Court examines, as a general rule, the petition for review at a “session” (ülés). The attendance of defence counsel and the public prosecutor is required; the defendant must be notified of the session and, if detained, must be conveyed thereto.
29. Article 290 provides that, at the session, one of the judges sitting in the case must orally present the petition, the decision challenged and relevant details of the case file. After this introduction, the public prosecutor, defence counsel and the defendant, inter alios, address the court.
30. As a result of the review, the Supreme Court may, under Article 291 § 1, quash the decision reviewed and instruct the lower-instance court to resume its proceedings.
Under Article 291 § 3, where the second-instance decision has been taken in breach of the provisions of substantive criminal law within the meaning of Article 284 § 1, the Supreme Court may itself deliver a rectified decision, if this will result in the acquittal of the defendant, the discontinuance of the proceedings, or the imposition of a less severe punishment.
Paragraph 7 provides that if the Supreme Court dismisses the petition, it must uphold the decision challenged.
31. According to Article 317 § 1, a person who unlawfully appropriates for himself an asset in his charge, or disposes of such an asset as if it were his own, commits the offence of embezzlement. Paragraph 5 (a) provides that embezzlement committed with regard to assets of a substantial value is punishable by one to five years’ imprisonment.
32. According to Article 318 § 1, a person who deceives someone, or maintains someone’s deception, in order to make unlawful gains, commits the offence of fraud, provided that actual damage has occurred as a result of his conduct. Paragraph 5 (a) provides that fraud committed in respect of a substantial sum is punishable by one to five years’ imprisonment.
NON_VIOLATED_ARTICLES: 6