Decisions of the European Court of Human Rights Affecting Criminal Law/Criminal Procedure [February to April 2009]
| Author | Richard Lang |
| Published date | 01 June 2009 |
| Date | 01 June 2009 |
| DOI | http://doi.org/10.1177/203228440901a00110 |
| Subject Matter | Update |
New Journal of Eur opean Crimina l Law – Special Edit ion 79
UPDATE
DeCIsIons of THe eURoPean CoURT
of HUMan RIGHTs affeCTInG CRIMInal
laW/CRIMInal PRoCeDURe
[febRUaRy To aPRIl 2009]
R L*
For ease of readi ng, certai n cases have been omitted from this su mmary. ey are
cases solely concerning the length of proceedings, cases solely concerning the presence
of a military judge on the bench, cases solely concerning the censorship of letters, and
other “repetitive” or “recurrent” case s which disclose no new point of law.
Ben Khemais v. Italy
Date of judgment: 24 Februar y 2009
Applicant is a Tunisian nationa l. He was found guilty of membership of a crimina l
organization in Italy in February 20 02, and sentenced to ve years’ imprisonment. He
was a lso found g uilty of assault in March 20 06 and sentenced to a further term in
prison. It was understood that he would be depor ted to Tunisia on completion of this
sentence. Meanwhile, in January 20 02, a Tunisian Milita ry Court had sentenced him,
in absentia, to ten years’ imprisonment for membership of a terrorist organization. In
January 2007, Mr Ben Khemais lodged an application at t he Europea n C ourt of
Human Rights, and in March 20 07, the Court ordered Italy, via Rule 39, not to deport
the applicant until it had considered his case. However, the applicant was deported on
3 June 2008. e European Court found a breach of A rticle 3 in respect of t he
applicant’s deportation, because there was a high risk that he would be subjected to
torture in a Tunisian prison; this was veried by a number of international reports
and Amnesty International’s report of 2008 on Tunisia. Diplomatic assu rances given
to Italy by Tunisia made no dierence to this nding. Turning to Article 34, the Court
underlined that, by deporting the applicant, the Italian Government had deprived
him of practically all of the protection to which he had been entitled in Italy, as Tunisia
was not a party to the C onvention. is seriously jeopardi zed the smooth-running of
his case, and the use ful eect of any violation found. e Government had also fai led
* BA(Hons), LL.M. Of Couns el, Crosby, Houben & Aps, Brussels .
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