CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 septembre 2012

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BELGIUM   (Application no. 649/08)               JUDGMENT [Extracts]       STRASBOURG   25 September 2012           This judgment is final but it may be subject to editorial revision.   In the case of El Haski v. Belgium, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Danutė Jočienė, President,   Françoise Tulkens,   Dragoljub Popović,   Isabelle Berro-Lefèvre,   András Sajó,   Işıl Karakaş,   Guido Raimondi, judges, and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 4 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 649/08) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moroccan national, Mr Lahoucine El Haski (“the applicant”), on 27 December 2007. 2.     The applicant, who had been granted legal aid, was represented by Mr   C. Marchand, a lawyer practising in Brussels. The Belgian Government (“the Government”) were represented by their Agent, Mr M. Tysebaert, General Counsel, Federal Public Department of Justice. 3.     On 12 January 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). The United Kingdom Government and the non-governmental organisations European Centre for Constitutional and Human Rights and Redress Trust were granted leave to submit written comments (Article   36   §   2 of the Convention and Rule 44 § 3 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1975 and is detained in Andenne prison. 5.     After studying the Koran and Sharia law, the applicant left his country of birth, Morocco, for Syria. He stayed there from 1993 to 2002 and studied Islamic theology and Arabic. During that period he travelled on several occasions to Morocco, Turkey and Saudi Arabia. He also visited Afghanistan twice, in 1994 and 1995, for a few months each time. He carried out military training there and – according to his application – took part in “a training programme for the military leader Hekmatyar”. 6.     The applicant returned to Morocco in 2002. Under the surveillance of the Moroccan authorities, he left the country for Saudi Arabia, arriving there in October 2002. He only remained there until 2003 because – he alleged – he was “wanted by both Moroccan and Saudi intelligence services”. 7.     The applicant reached Belgium via Turkey in early 2004, with false identity papers. He settled there with his Belgian wife and their son. He lodged an asylum application on 16 June 2004. 8.     The applicant was arrested in Belgium on 1 July 2004. He was charged with participating, between 7 January and 2 July 2004, as a leader, in the activity of a terrorist group (the Moroccan Islamic Fighting Group, referred to hereinafter as “GICM” after its French name Groupe Islamique Combattant Marocain ), and with forgery, conspiring in a leading capacity to commit an offence, handling of stolen goods, use of a false name and illegal entry and residence. A.     The context of the applicant’s arrest 9.     It can be seen from the report on the facts submitted on 26 April 2006 by the Federal Prosecutor before the Brussels Court of Appeal (see paragraph 27 below) and that court’s judgment of 19 January 2007 (see paragraphs 29-41 below) that, on 25 November 2002, the administrator-general of the State security service transmitted to the Federal Prosecutor’s office a report noting the presence in Belgium of a group of North African nationals with links to the GICM, made up of individuals who had undergone military training in Afghanistan in camps connected to Al-Qaeda and led by a certain “Shihab”, alias “Abdellah”. A second report dated 24   December 2002 indicated that B. was part of that group. 10.     A judicial investigation was opened on 9 January 2003 against persons unknown on a charge of criminal conspiracy. 11.     In a third report, dated 28 March 2003, the State security service informed the public prosecutor’s office that a certain O. was the individual known as “Shihab”, and that he had spent time in Afghanistan in 2001, where he had followed paramilitary training. 12.     In connection with the investigation into the Casablanca bombings of 16 May 2003, which left about fifty people dead, the Moroccan authorities arrested a number of Islamist militants. During an interview on 8   August 2003, one of them, N., alias Abu Muad, who acknowledged that he was one of the leaders of the GICM and that he had contributed to organising the movement in 2001 in Afghanistan, stated that a certain H. and the applicant had been given responsibilities within the group. He added that after the Western intervention in Afghanistan in 2001 the movement had been split up into small units based in Morocco, France, Belgium, Italy, the United Kingdom and Canada, and that the Belgian unit included H., B. and O. in particular. In view of those statements, and others made by another suspect on 9   August 2003, Morocco issued, on 3 October 2003, an international arrest and extradition warrant in respect of a number of individuals, including the applicant, H.   and B., for, in particular, “conspiring to prepare and commit acts of terrorism, and collecting funds to support terrorist action”. 13.     On 9 October 2003 the State security service transmitted a fourth report to the investigating judge concerning a certain I., who, on 17   November 2003 reported the loss of his passport to the Moroccan Consulate in Antwerp and applied for a new one. He subsequently stated that he had done so in order to obtain a passport for the applicant to be able to enter Belgium. 14.     On 15 March 2004 the State security service issued a fifth report, indicating in particular that B.’s home had been placed under surveillance in the second half of January 2004 and that it was frequented by the applicant, his brother Hassan, O. and H. 15.     On 16 March 2004 the Federal Prosecutor’s Office filed additional submissions against persons unknown on a charge of participating in terrorist activity. 16.     On 19 March 2004 the federal police arrested H., O. and two other persons, after carrying out searches during which forged passports and Belgian identity cards for foreign residents, among other items, had been seized. 17.     In the same period in France, in connection with a judicial investigation against persons unknown, opened on 19 May 2003 on a charge of conspiring to commit acts of terrorism, six individuals suspected of taking part in the GICM were arrested on 4 and 5 April 2004 (three of whom had been named in the Moroccan extradition warrant of 3 October 2003). While they were in police custody, and again before the French investigating judges, the suspects made statements in particular about the international structure of GICM, the military training carried out by some of them in Afghanistan, their meeting in that country with those implicated in the Belgian proceedings, the role played by the latter in the GICM’s international structure and their activities in Belgium. 18.     In a report of 1 June 2004, the State security service referred to its surveillance on 12 March 2004 of a snack bar (“Le Village”) in a suburb of Brussels. 19.     A second wave of searches took place on 8 June 2004 and four individuals were arrested. 20.     On 26 June 2004, B., who had been arrested in the Netherlands on 27   January   2004 on the basis of a Moroccan warrant of October 2003, was extradited to Belgium. 21.     I. was arrested on 16 September 2004. Individuals with links to the applicant or to some of his co-defendants were also arrested in Spain in connection with the investigation into the Madrid bombings of 11   March 2004. 22.     The last report of the State security service, dated 6 January 2005, indicated that a certain R. might also be linked to the suspects in the case. B.     The criminal proceedings 23.     In a decision of 29 August 2005 the Committals Division ( chambre du conseil ) of the Brussels Court of First Instance committed the applicant and twelve others to stand trial before the Brussels Criminal Court for, in particular, participation in a terrorist group. On the same day, finding that the applicant had provided evidence of low income, it granted him legal aid so that he could receive a free copy of the entire case file. 24.     Documents transmitted by the Moroccan authorities in response to an international letter of request were added to the file after the finalising of the pre-trial proceedings. They were reports of interviews with four of the suspects who were held in Morocco. One of the reports concerned an interview on 14 January 2004 with a certain A., who had been arrested in Saudi Arabia and extradited on that date to Morocco. According to the indications in the Federal Prosecutor’s report on the facts (see paragraph 9 above), A. had stated, in particular, that he had met the applicant, who was a childhood friend of his, in Afghanistan in 1998, and then in 2000 had met the defendant H., while the latter was on a training course in the use of explosives and remote-controlled bombs. A. had added that, in early 2000, the GICM had been re-organised around committees, with the applicant chairing the religious affairs committee and H. being a member of the security committee. He had also explained that he had shared accommodation with the applicant for four months in Kabul in early 2001, in a “GICM guest house” where the group’s leaders would incite them to “go and carry out jihadist operations in Morocco”, and that after the Western intervention in 2001, he had travelled to Morocco, where he had taken part in GICM meetings accompanied, in particular, by the applicant; he had then met up with the applicant again in 2003 in Saudi Arabia. A. had also confirmed the existence of GICM units in France and Belgium, and the fact that B. and O., who he had seen in Afghanistan in 2000 and 2001 respectively, were involved in the Belgian unit. 1.     Proceedings before the Brussels Criminal Court 25.     The public prosecutor’s office set the case down for hearing on 3   November 2005 and then on 16   November   2005. The Criminal Court held a total of twenty-five hearings, which lasted from 3   November 2005 to 16   February 2006, when it sentenced the applicant to seven years’ imprisonment and a fine of 2,500 euros (EUR). It also handed down prison sentences and fines against eight of his co-defendants and acquitted the four others. 26.     Five of the co-defendants – including the applicant – lodged an appeal, as did the Federal Prosecutor’s Office. 2.     Proceedings before the Brussels Court of Appeal (a)     Judgment in absentia of 15 September 2006 27.     The first hearing before the Brussels Court of Appeal was scheduled for 26 April 2006. After briefly questioning the applicant about his identity and the reason for his appeal, the President asked the Federal Prosecutor to give a report on the case. The latter proceeded to read out a report on the facts, extending to several dozen pages, which had been prepared by the Federal Prosecutor’s office (even though, the applicant claimed, the usual practice in Belgian criminal courts was for the report on the facts to be presented by a judge of the Court of Appeal). The Court of Appeal subsequently requested the public prosecutor to give his submissions, without there having been any further examination of the applicant or of witnesses. In view of the voluminous nature of the case file (about a hundred binders containing thousands of pages), the co-defendants submitted in writing that the case should be adjourned until 1 September 2006. As the Court of Appeal denied that request, four of them, including the applicant, decided not to appear. 28.     On 15 September 2006, ruling in absentia in respect of the four defendants, the Court of Appeal varied the judgment of 16   February 2006 and sentenced the applicant to eight years’ imprisonment and a fine of EUR   2,500. The applicant and two of his co-defendants applied to have the judgment set aside. (b)     Judgment of 19 January 2007 29.     Some ten hearings were held between 6 October and 10   November 2006 and on 19 January 2007 the Brussels Court of Appeal confirmed the applicant’s guilt and his original sentence of seven years’ imprisonment and a EUR 2,500 fine. (i)     Criminal procedure issues ... 34.     The defendants further protested against the addition to the case file of interview reports from France and Morocco. They argued that the statements had been obtained using treatment in breach of Article 3 of the Convention, adding that, in respect of the interviews conducted in Morocco, they were unlawful under Moroccan law. Invoking their right to a fair trial, they requested the Court of Appeal to remove them from the criminal case file. ... 36.     As to the interviews conducted in Morocco, the Court of Appeal first noted that the defendants had not adduced any concrete evidence giving rise to reasonable doubt as to a possible breach of Moroccan law by the police or judicial authorities of that country in the proceedings from which the interview reports in question had emanated. The court found, in particular, that the interview reports recorded the statements in a detailed manner, mentioning the identity of the police officer by whom they were drawn up, the precise duration of the judicial custody periods and the fact that they had been authorised by the relevant public prosecutor. It further found as follows: “... Moreover, the fact of citing in general terms various reports of human rights organisations – admittedly respectable ones – does not adduce any concrete evidence that would be capable of giving rise in the present case to the above-mentioned reasonable doubt as to the violence, torture or inhuman or degrading treatment that was allegedly inflicted on the individuals interviewed in Morocco ... Lastly, it cannot be surmised from those interviews or from the Moroccan court decisions added to the file that ... the above-mentioned persons were questioned or sentenced after an expedited trial for participating in the Casablanca bombings, on the basis of a Moroccan Law of 28 May 2003 on the combating of terrorism that had been applied retroactively in breach both of Article 4 of the Moroccan Criminal Code and of the general principle that criminal legislation cannot have retrospective effect. An examination of the Moroccan court decisions – and more specifically the judgment of the Rabat Assize Court – reveals, on the contrary, that the eight Moroccan defendants had initially been charged with setting up a criminal association for the preparation and commission of acts of terrorism, forgery of passports, and the collection of funds in aid of terrorist actions, on the basis of legislation that was unconnected with the above-mentioned Law of 28 May 2003. It can be seen from the foregoing findings that the interview reports and Moroccan court decisions that were added to the file, with the possibility of being freely challenged by the parties, should not be excluded. In addition, the contradictions allegedly contained in those statements, according to defence counsel’s argument, are not capable of justifying the claim that the individuals who were interviewed and/or tried in Morocco were subjected to any inhuman and degrading treatment or torture. Lastly, the Belgian trial courts are by no means bound by those statements and remain free to decide on their relevance and accuracy.” ... (ii)     Examination on the merits 39.     In its judgment, the Court of Appeal began by showing that the GICM was a terrorist group within the meaning of Article 139 § 1 of the Criminal Code, explaining that it was an organised association of more than two people, established on a lasting basis, which engaged in concerted action for the purpose of committing terrorist offences covered by Article   137 of the Criminal Code. It observed in particular that the group had set up a coordination committee in Morocco and a number of cells in Europe, which had acted in a concerted manner to commit terrorist offences (in particular, homicide and widespread destruction or damage) with the aim of destroying by violence the fundamental structures of Morocco, so that the caliphate could be restored in that country, and of engaging in a holy war that would spread to other countries. 40.     As regards, more specifically, the guilt of the applicant himself, the Court of Appeal first noted that “it [could] be seen with certainty from certain elements of the procedure” that he had taken part in the activity of a terrorist group, within the meaning of Article 140 § 1 of the Criminal Code, by taking a number of initiatives to facilitate transfers of funds that were necessary for the financing of the GICM’s unlawful activities, by circulating information about them and acting as a coordinator between the members of the Belgian and French cells, and that he was aware that such participation would contribute to the commission of a criminal offence. It thus concluded that there were a “number of sufficiently strong presumptions of fact”, with reference to the following evidence: - statements made by individuals interviewed in Morocco and information from the Moroccan authorities; - statements made by individuals interviewed in France; - statements made by the applicant, from which it transpired that he had participated in GICM meetings in Europe; - the fact that the applicant had made “a number of journeys in countries known for radical Islamist opinions developed by certain influential groups”, had “followed paramilitary training in Jalalabad” and had had “numerous contacts with individuals known for their close relations with extremist Islamist cells or active participation therein”; - the applicant’s participation in the extremist activities of Islamist groups that were active on an international scale, based on an international arrest warrant issued against him by the Moroccan authorities in connection with an investigation into terrorist activities, and on the fact that he had fled Saudi Arabia, where he was suspected of taking part in the Riyadh bombings of 12 May 2003, for which an arrest warrant had also been delivered against him; - his participation in training specifically given to Islamist terrorist groups, as inferred from his own statements and those of individuals held in Morocco; - the applicant’s links with other members of the GICM’s Belgian cell. The Court of Appeal then noted that the applicant was one of the GICM’s leaders, a fact that could be sufficiently inferred from the statements taken in Morocco and France and from his role as coordinator for the GICM members in Belgium. 41.     Lastly, the Court of Appeal found that “the acts committed by the defendants fell clearly within the context of a movement whose aim was to further, by violence and intolerance, the cause of a radical form of Islam, directly threatening the religious and philosophical pluralism that existed in democratic societies and the fundamental rights of their citizens, such as freedom of thought and freedom of expression”, and that the sanction should be “commensurate with this very serious breach of public safety and democratic order”. In sentencing the applicant, the court added as follows: “... It should be pointed out that the defendant played a major role within the GICM’s religious committee; that he was subsequently responsible for the Belgian and French cells of the GICM, together with the defendant [O]. As has already been mentioned, his duties in the Belgian cell mainly consisted in: directing the collection of funds that would serve to finance the group’s activities after the arrest of [N.]; playing a coordinating role between the members of the Belgian cell and those of the Belgian and French cells; and maintaining contact with numerous members of cells based in other countries. The acts committed by the defendant are clearly of a serious nature because they were committed: by an individual who, in particular, travelled on numerous occasions to Afghanistan, Chechnya, Turkey, Mauritania, Saudi Arabia and Syria to establish international relations between the members of the various cells of the terrorist group; by a professional who followed military training in Afghanistan and training in group leadership and who dispensed religious training as part of the responsibilities entrusted to him within the GICM; by an extremist who has no respect for the physical integrity of others and who is prepared to undermine international public safety, by making possible the use of violent methods to ensure that his opinions prevail. The features of the defendant’s personality, as can be seen from the case file, are a matter of concern. It should be pointed out in this connection that the defendant: has already been known for many years at an international level for his terrorist activities and is also wanted by the Moroccan judicial authorities under an international arrest warrant; resided illegally in Belgium for several months and did not lodge an asylum request with the aliens office until June 2004; cannot prove any means of subsistence and seems to survive only with the support of other members of the terrorist group. ..” 42.     The applicant and some of his co-defendants appealed on points of law. (c)     Proceedings before the Court of Cassation 43.     The Court of Cassation dismissed the appeal by a judgment of 27   June   2007. ... 44.     As to the argument concerning treatment in breach of Article   3 that had allegedly been sustained by individuals whose statements had been taken in foreign countries, the Court of Cassation took the view that its examination would entail criticism of the factual assessment of the evidence in the case by the trial judge, or a request for verification of such evidence, and that it did not have jurisdiction in respect of such matters. 45.     The court further found ... that, as a whole, the applicant had been given a fair trial within the meaning of Article 6 of the Convention. II.     RELEVANT DOMESTIC LAW AND PRACTICE 46.     Articles 139 and 440 of the Belgian Criminal Code read as follows: Article 139 “A terrorist group shall be defined as an organised association of more than two people, established on a lasting basis and engaged in concerted action with a view to the commission of terrorist offences covered by Article 137. An organisation whose real purpose is solely of a political, trade union or philanthropic, philosophical or religious nature, or which solely pursues any other legitimate aim, cannot, as such, be considered a terrorist group within the meaning of paragraph 1.” Article 140 “1. Anyone who participates in an activity of a terrorist group, including by providing information or material resources to that group or through any form of financing of a terrorist group’s activity, in the knowledge that such participation aids the commission of an offence by the terrorist group, shall be liable to a prison sentence of between five and ten years and to a fine of between one hundred euros and five thousand euros. 2. Leaders of terrorist groups shall be liable to a prison sentence of between fifteen and twenty years and to a fine of between one thousand euros and two hundred thousand euros.” 47.     Section 13 of the Law of 9 December 2004 on international mutual legal assistance in criminal matters provides that: It shall be prohibited to use in Belgian criminal proceedings any evidence: 1 o that has been illegally obtained in a foreign country, where the illegality: – arises, under the law of the State in which the evidence has been gathered, from the breach of a procedural requirement prescribed on pain of nullity; – vitiates the reliability of the evidence; 2 o or of which the use violates the right to a fair trial.” ... III.     MATERIAL ON THE HUMAN RIGHTS SITUATION IN MOROCCO A.     Findings and recommendations of the United Nations Committee against Torture and Human Rights Committee 50.     In its conclusions and recommendations following the third periodic report of Morocco (CAT/C/CR/31/2; 5 February 2004), the United Nations Committee against Torture expressed its concern about, in particular, the increase in the number of allegations of torture and cruel, inhuman or degrading treatment or punishment, implicating the National Surveillance Directorate (DST) (§ 5.d) and the non-existence of a provision of criminal law prohibiting any statement obtained under torture from being invoked as evidence in any proceedings (§ 5.g). It recommended in particular: that the Criminal Code be amended such as to clearly prohibit any act of torture, even if perpetrated in exceptional circumstances or in response to an order received from a superior officer or public authority (§   6.b), and to incorporate a provision prohibiting any statement obtained under torture from being invoked as evidence in any proceedings (§ 6.h); that all necessary measures be taken to eliminate impunity for public officials responsible for torture and cruel, inhuman or degrading treatment (§ 6.e); that all allegations of torture or cruel, inhuman or degrading treatment be immediately investigated impartially and thoroughly, especially allegations relating to cases and situations verified by the Independent Arbitration Commission and allegations implicating the DST in acts of torture, and that appropriate penalties be imposed on those responsible, with equitable compensation being granted to the victims. 51.     The concluding observations of the United Nations Committee against Torture, having considered the fourth periodic report of Morocco (CAT/C/MAR/CO/4; 21   December 2011), read as follows: “... Use of torture in cases involving security concerns 10. The Committee is concerned by numerous allegations regarding torture and ill-treatment committed by police officers, prison staff and, in particular, agents of the National Surveillance Directorate (DST) who are acting as members of the criminal investigation police force when people are deprived of basic legal safeguards, such as access to legal counsel, particularly in the case of people who are suspected of belonging to terrorist networks or of being supporters of independence for Western Sahara and in the course of interrogations carried out in order to extract confessions from persons suspected of terrorism (arts. 2, 4, 11 and 15). The State party should immediately take substantive steps to investigate acts of torture and to prosecute and punish those who have committed such acts. The State party should ensure that law enforcement officers do not engage in torture through, inter alia, an unambiguous reaffirmation of the absolute prohibition of torture and a public condemnation of that practice by, in particular, the police, prison personnel and members of DST. It should also be made very clear that anyone who commits such acts or is complicit or otherwise participates in such acts will be held personally responsible before the law and will be subject to criminal prosecution and the appropriate penalties. ... Secret arrests and detention in cases involving security concerns 14. The Committee is concerned by reports that, in cases involving terrorism, legal procedures for arresting, questioning and holding suspects in custody are not always followed in practice. The Committee is also concerned by information pointing to a consistent pattern whereby suspects are arrested by plain-clothes officers who do not clearly identify themselves, taken in for questioning and then held in secret detention facilities, which in practice amounts to incommunicado detention. The suspects are not officially registered and are subjected to torture and other cruel, inhuman or degrading treatment or punishment. They are held in these conditions for weeks at a time without being brought before a judge and without judicial supervision. Their families are not notified of their arrest, of their movements or of their whereabouts until such time as they are transferred to police custody in order to sign confessions that they have made under torture. It is only then that they are officially registered and their cases are processed through the regular justice system on the basis of falsified dates and information (arts. 2, 11, 12, 15 and 16). ... The State party should ensure that the proper legal procedures are followed in the case of all persons who are arrested and taken into custody and that the basic safeguards provided for by law are applied, such as access for detained persons to legal counsel and to an independent physician, notification of their family of the arrest and of the location where they are being held and their appearance before a judge. The State party should take steps to ensure that all register entries, transcripts and statements, and all other official records concerning a person’s arrest and detention are kept in the most rigorous manner possible and that all information regarding a person’s arrest and remand custody is recorded and confirmed by both the investigative police officers and the person concerned. The State party should ensure that prompt, thorough, impartial and effective investigations are conducted into all allegations of arbitrary arrest and detention and should bring those responsible to justice. The State party should ensure that no one is held in a secret detention facility under its de facto effective control. As often emphasized by the Committee, detaining persons under such conditions constitutes a violation of the Convention. The State party should open a credible, impartial, effective investigation in order to determine if such places of detention exist. All places of detention should be subject to regular monitoring and supervision. Prosecution of perpetrators of acts of torture and ill-treatment 16. The Committee is particularly concerned that it has received no reports to date of any person being convicted under article 231.1 of the Criminal Code of having committed acts of torture. It notes with concern that police officers are, at the most, prosecuted for assault or assault and battery, but not for torture, and that the information provided by the State party indicates that the administrative and disciplinary penalties imposed on officers for such acts do not seem to be commensurate with their seriousness. The Committee observes with concern that allegations of torture, despite their number and frequency, rarely give rise to investigations and prosecution and that a climate of impunity appears to have taken hold, given the failure to impose genuine disciplinary measures or to bring any significant number of criminal cases against State officials accused of committing acts specified in the Convention, including the gross, large-scale human rights violations that took place between 1956 and 1999 (arts. 2, 4 and 12). The State party should ensure that any and all allegations of torture and of ill-treatment are promptly, effectively and impartially investigated and that the persons who have committed such acts are prosecuted and are given sentences that are commensurate with the grave nature of their acts, as provided for in article 4 of the Convention. The State party should also amend its laws in order to explicitly stipulate that an order from a superior officer or a public authority may not be invoked as a justification of torture. The State party should also take steps to ensure that complainants and witnesses are effectively protected from any ill-treatment or act of intimidation related to their complaint or testimony. Coerced confessions 17. The Committee is concerned by the fact that, under the State party’s current system of investigation, confessions are commonly used as evidence for purposes of prosecution and conviction. The Committee notes with concern that convictions in numerous criminal cases, including terrorism cases, are based on confessions, thus creating conditions that may provide more scope for the torture and ill-treatment of suspects (arts. 2 and 15). The State party should take all steps necessary to ensure that criminal convictions are based on evidence other than the confession of the persons charged, especially when such persons retract their confessions during the trial, and to make certain that, except in cases involving charges of torture, statements made under torture are not invoked as evidence in any proceedings, in accordance with the Convention. The State party is requested to review criminal convictions that have been based solely on confessions in order to identify cases in which the conviction was based on confessions obtained under torture or ill-treatment. The State party is also invited to take the appropriate remedial measures and to inform the Committee of its findings. ...” 52.     In its final observations (CCPR/CO/82/MAR; 1 December 2004) on the fifth periodic report of Morocco, the United Nations Human Rights Committee was concerned, in particular, about “the numerous allegations of torture and ill ‑ treatment of detainees” and “the fact that the officials who [were] guilty of such acts [were] generally liable to disciplinary action only, where any sanction exist[ed]”. It further “note[d] with concern that no independent inquiries [were] conducted in police stations and other places of detention in order to guarantee that no torture or ill-treatment [took] place” (§ 14). The Committee also observed with concern that the independence of the judiciary was not fully guaranteed (§ 19) and that, according to numerous reports, the Terrorism Act of 28 May 2003 was being applied retroactively. B.     Reports by non-governmental organisations (“NGOs”) 53.     In its report of 28 November 2005 entitled “Morocco’s Truth Commission: Honoring Past Victims during an Uncertain Present”, which was referred to by the applicant before the Court, as previously before the domestic courts, Human Rights Watch examined the consequences of the Casablanca bombings of 16 May 2003. It made the following points: “...   The fragility of Morocco’s human rights progress was laid bare by the state’s response to Morocco’s first-ever mass terrorist attack. On the night of May 16, 2003, suicide bombers struck several locations in Casablanca, killing forty-five persons, including twelve attackers. Less than one week later, parliament unanimously adopted an anti-terrorist law (Law 3/2003), which had been under debate since autumn 2002 and which raised numerous human rights concerns. The law extended the maximum duration of pre-arraignment detention from eight to twelve days in cases considered to involve terrorism. It also defined the term in a very broad manner. The law considers an act as terrorist if its ‘main objective is to disrupt public order by intimidation, force, violence, fear or terror’ and is composed of one or more acts listed in the article. These include, in addition to physical attacks on other persons, ‘the involvement in organized groups or congregations with the intent of committing an act of terrorism,’ and ‘the promulgation and dissemination of propaganda or advertisement in support of the above-mentioned acts.’ In the months following the Casablanca attacks, the government used this broad definition to convict hundreds of suspected members of terrorist cells, as well as several journalists accused of being apologists for terror. Various human rights organizations documented widespread abuses of the rights of the more than 2,000 suspected Islamists detained by the security forces and the Moroccan courts in the weeks following the attacks in Casablanca. [Human Rights Watch referred to the following reports: Moroccan Human Rights Organization, ‘ Muhakamat ikhtal fiha mizan al-`adalah ’ (Trials in which the scales of justice have been tipped), Rabat, November 2003; Human Rights Watch, ‘Morocco: Human Rights at a Crossroads’, A Human Rights Watch Report , New York, October 2004; Amnesty International, Morocco/Western Sahara: ‘Briefing to the Committee against Torture’ (London, November 2003); Amnesty International, ‘Morocco/Western Sahara: Torture in the ‘anti-terrorism’ campaign - the case of Témara detention centre’; International Human Rights Federation, ‘ Les autorités marocaines à l’épreuve de terrorisme: la tentation de l’arbitraire ’, (Paris: FIDH, February 2004), no. 379.] Many were held for days or weeks in secret detention, where the police subjected them to various forms of illtreatment and in some cases to torture in order to extract confessions. The courts denied them their right to a fair hearing. They routinely refused defense motions to call witnesses, and refused to order medical examinations of those who claimed to have been tortured. Many were tried in haste and convicted before October 2003, when legal reforms took place giving defendants the right to appeal their conviction on the basis of the facts ...” Human Rights Watch, commenting that the “crackdown on suspected [Islamist] militants after the Casablanca bombings constituted an alarming deterioration in rights conditions” and that, more generally, the “authorities instrumentalize[d] the courts to serve political ends”, also observed as follows: “... The mistreatment and unfair trials of suspected militants who were rounded up after the suicide bombings of May 16, 2003, recalled in some ways the grave violations of the past ... ... while some of the suspects arrested in 2003 went missing in police custody for up to several months, they were all accounted for eventually. However, many were subjected to torture or mistreatment while under interrogation. Some were held in an unacknowledged detention center in Temara, a facility under the auspices of the National Surveillance Directorate ( Direction de la Surveillance du Territoire , DST). Some 900 of the suspects were sentenced to prison terms, many in hasty proceedings that did not provide defendants their basic due process rights. Seventeen were sentenced to death, sentences that have not been carried out yet. ... Authorities have responded to reports of present-day abuses by characterizing them as isolated phenemona. [footnote: For example, [the] Justice Minister ... said abuses in the context of the round-up of terror suspects were ‘rare’ and ‘isolated,’ but vowed, ‘We will respond to reports of violations.’ ...] Mohamed VI, in an interview published in the Spanish daily El País on January 16, 2005, acknowledged the existence of ‘twenty cases of abuse’ that he said were being handled by the courts. No details of these twenty cases have been disclosed, to Human Rights Watch’s knowledge, making it difficult to verify whether and for what offenses officials were being held accountable. Overall, the pattern of continuing abuses, criticized by various human rights organizations as well as by the U.N. Human Rights Committee, [footnote: See the Concluding Observations of the Human Rights Committee on Morocco, November 5, 2004, CCPR/CO/82/MAR] shows that security forces continue to operate in a climate of impunity and disrespect for the law, and that the executive branch continues to exercise considerable influence over the courts. ...” 54.     In the above-mentioned report, published in February 2004 and entitled “ mission internationale d’enquête – les autorités marocaines à l’épreuve du terrorisme   : la tentation de l’arbitraire – violations flagrantes des droits de l’Homme dans la lutte anti-terroriste ” (international fact-finding mission – the Moroccan authorities’ response to terrorism: the temptation to act arbitrarily – flagrant human rights violations in the counter-terrorism context”, the International Human Rights Federation (FIDH) analysed the human rights situation in Morocco in the context of the crackdown on terrorism after the bombings of 16 May 2003. It reported that there had been thousands of arrests, many of which were illegal, followed by numerous cases of arbitrary deprivations of liberty in secret centres. Chapter 2-4, entitled “torture and cruel, inhuman and degrading treatment”, reads as follows [translation by the Registry]: “In such centres, interrogations are carried out in breach of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the United Nations in 1975, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, ratified by Morocco. At the Témara centre, where most prisoners are taken after their arrest, ill-treatment, violence and torture is, by all accounts, common practice. The cells, situated in the basement, are lit day and night. When they move around, as well as during interrogation, the prisoners are blindfolded. Interrogations are often very long, 16 hours a day, we have been told, with police officers taking it in turns to interrogate. Insults and blows are commonplace, with prisoners sometimes being stripped naked. A number of cases of electrical torture have been reported. 22 defendants from the Fikri group wrote in March 2003 to the AMDH to testify. ‘The cell at Témara where I was held had a high ceiling and a small window at the top with thick bars. There was a hole for a toilet and a bucket of water’. Having being assaulted during his arrest, and still having a sprained knee, the witness continued ‘I was in agony and was asking for treatment, as my knee had become very swollen and blue. A warder then answered me “I’ll saw off your bloody knee, then”‘. Abderrazek Fawzi had been held since his arrest on 18 September 2002 in a single cell with no windows. There was only a foam mattress and a dilapidated blanket lying on the floor. Blindfolded and handcuffed, he was ‘grilled’. ‘During that interrogation in Temara’, he wrote, ‘I was punched and kicked, humiliated and insulted and left with cigarette burns on my hands. These twice-daily practices resulted in physical and mental suffering, of which I still have obvious signs, not to mention the nightmares and lack of sleep’. ‘... They took me in secret to Tamara, where I underwent a number of interrogations using terrible methods because I would never see the sun again, according to them’, said Salah Zarli. ‘I acknowledged that I had been to Afghanistan . They asked me to work with them to better understand the “Afghans”, especially the Afghan Moroccans and the Islamists in Milan, where I worked at the Islamic Institute. Four days later, they let me go and asked me to keep them informed.’ After being released, S. Zarli was arrested again on 3 September 2002: ‘Four people accompanied me home, searched everywhere and took away all my papers. Once again they took me to Temara, where they kept me a month and a half locked in a single cell that I would leave only for interrogation, which lasted 16 hours at a time; the interrogation began at 8 in the morning and went on until midnight. I was beaten all over, stripped naked, insulted, spat at, threatened and so on. All this without seeing the faces of my torturers. What interested them was the Islamists in Italy and those who were going to Afghanistan or Bosnia. They tried to bribe me by promising to help me set up a business.’ Cases of rape have been reported. Abdelghani Bentaous claimed to have been raped three times. Abdelmajid Rais said he was raped with a bottle and burned with cigarettes. Other detainees said they had been burned with cigarettes and suspended for hours or tortured by water-boarding. Bouchaïeb Kermej told his sisters that, in addition to the beatings and threats, he had once been given an injection at the top of the spine, as a result of which he thought he must have fainted. Several detainees who had refused to sign their statements were finally tortured into signing. This was claimed, for example, by Abdelghani Bentaous and Atchane to their lawyers and to the judge. ‘... Handcuffed and blindfolded, I was taken to the torture chamber where I was made to kneel and put my arms on my head to keep me like that during the long interrogation that followed. Whenever I hesitated and stuttered or made a mistake, I was beaten with a braided electric wire. I was struck on the head, back, soles of the feet, buttocks and thighs, also being slapped and punched on the face, which left me deaf in my left ear. A doctor then came to see me and prescribed medication. When I went back the torture room, one of the torturers tore my shirt off in front of my younger brother, who was screaming – I heard him but could not see him because I was still blindfolded. I was taken to torture sessions, where I spent the first night without sleeping because I was interrogated virtually non stop’ (Kamel Chtoubi). The family of Mohamed Chtoubi has claimed that he was raped with a bottle and has insisted on telling us that he was denied treatment in Okasha prison even though he could no longer sit down, as they noticed during his trial. Mohamed Chtoubi was subjected to constant blackmail, being told: ‘confess and your brother will be released’. ‘The day I saw him’, his sister recounts, ‘his nose and mouth were distorted by the blows’. ‘They became more and more perverse as the nightmare went on’, recounted Mohamed Chtoubi, ‘threatening to rape my mother, my wife and my sisters in front of me. They did not, however, forget the physical torture, using electricity, hanging me, choking me with wet rags ... I was abandoned because my condition seriously deteriorated and I spent whole nights screaming after horrible nightmares haunted me as soon as I tried to sleep, as well as not being able to eat anything. They refused me sleeping pills, just like they refused to give me a Koran ... The most difficult thing was above all the fear of being raped, with which I was constantly threatened, and the screams of those being tortured ... After 40 days of this, I no longer knew what was going on or what I was saying or what I was doing ... One day in the month of Ramadan (November 2002) I removed the cover of my mattress to turn it into a rope, which I then tied to the window to hang myse