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SAADI v. ITALY - 37201/06 [2008] ECHR 179 (28 February 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/179.html
Cite as:
[2008] ECHR 179,
(2009) 49 EHRR 30,
49 EHRR 30,
CE:ECHR:2008:0228JUD003720106,
[2008] INLR 621,
ECLI:CE:ECHR:2008:0228JUD003720106
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GRAND
CHAMBER
CASE
OF SAADI v. ITALY
(Application
no. 37201/06)
JUDGMENT
STRASBOURG
28
February 2008
This
judgment is final but may be subject to editorial revision
In the case of Saadi v. Italy,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Jean-Paul Costa,
President,
Christos Rozakis,
Nicolas
Bratza,
Boštjan M. Zupančič,
Peer
Lorenzen,
Françoise Tulkens,
Loukis
Loucaides,
Corneliu Bîrsan,
Nina
Vajić,
Vladimiro Zagrebelsky,
Alvina
Gyulumyan,
Khanlar Hajiyev,
Dean
Spielmann,
Egbert Myjer,
Sverre Erik
Jebens,
Ineta Ziemele,
Isabelle Berro-Lefèvre,
judges,
and V. Berger, Jurisconsult,
Having
deliberated in private on 11 July 2007 and 23 January 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 37201/06) against the Italian
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Tunisian national, Mr Nassim Saadi (“the
applicant”), on 14 September 2006.
The
applicant was represented by Mr S. Clementi and Mr B. Manara, lawyers
practising in Milan. The Italian Government (“the Government”)
were represented by their Agent, Mr I.M. Braguglia, and their deputy
Co-Agent, Mr N. Lettieri.
The
applicant alleged that enforcement of a decision to deport him to
Tunisia would expose him to the risk of being subjected to treatment
contrary to Article 3 of the Convention and to a flagrant denial of
justice (Article 6 of the Convention). In addition, the measure
concerned would infringe his right to respect for his family life
(Article 8 of the Convention) and had been taken in disregard of the
procedural safeguards laid down in Article 1 of Protocol No. 7.
The
application was allocated to the Third Section of the Court (Rule 52
§ 1 of the Rules of Court). On 16 October 2006 the
President of that Section decided to give notice of the application
to the respondent Government. By virtue of Article 29 § 3 of the
Convention, it was decided that the admissibility and merits of the
application would be examined together and that the case would be
given priority (Rule 41).
On
29 March 2007 a Chamber of the Third Section, composed of the
following judges: Boštjan M. Zupančič, Corneliu
Bîrsan, Vladimiro Zagrebelsky, Alvina
Gyuyulumyan, Egbert Myjer,
Ineta Ziemele
and Isabelle Berro-Lefèvre,
and also of Santiago Quesada, Section Registrar, relinquished
jurisdiction in favour of the Grand Chamber, none of the parties
having objected to relinquishment (Article 30 of the Convention and
Rule 72).
The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court.
The
applicant and the Government each filed a memorial on the merits. The
parties replied in writing to each other's memorials. In addition,
third-party comments were received from the United Kingdom
Government, which had exercised its right to intervene (Article 36 §
2 of the Convention and Rule 44 § 2).
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 11 July 2007 (Rule 59 § 3).
There appeared before the Court:
(a) for the respondent Government
Mr N.
Lettieri, officer of the State legal service,
Ministry of
Foreign Affairs, deputy Co-Agent,
Mrs E. Mazzuco,
prefect,
Mr A. Bella, senior police officer,
Mr C. Galzerano,
deputy chief constable, Advisers;
(b) for the applicant
Mr S. Clementi,
lawyer, Counsel;
(c) for the United Kingdom Government
Mr D.
Walton, Agent,
Mr J. Swift, barrister, Counsel,
Mr S.
Braviner-Roman, Home Office,
Mrs A. Fitzgerald, Ministry of
Justice,
Mr E. Adams, Ministry of Justice, Advisers.
The
Court heard addresses by Mr Clementi, Mr Lettieri and Mr Swift and
their replies to questions by the judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1974 and lives in Milan.
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.
A. The criminal proceedings against the applicant in
Italy and Tunisia
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.
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.
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.
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, 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.
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.
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.
As
regards the charge of international terrorism, the Assize Court first
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 which the
applicant and his accomplices were preparing to commit, according to
the prosecution submissions, were to be part of an armed conflict or
not.
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.
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.
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.
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.
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 too.
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 being implemented.
Furthermore, at that time the armed conflict in Afghanistan had ended
and the one in Iraq had not yet started.
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.
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.
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 (“the CCP”).
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.
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.
The
first hearing before the Milan Assize Court of Appeal was set down
for 10 October 2007.
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, the judgment having become final, its operative
part was served on his father on 2 July 2005.
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.
B. The order for the applicant's deportation and his
appeals against its enforcement and for the issue of a residence
permit and/or the granting of refugee status
On
4 August 2006, after being imprisoned uninterruptedly since 9 October
2002, the applicant was released.
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.
The
Minister made it clear that the applicant could not return to Italy
except on the basis of an ad hoc ministerial authorisation.
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.
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.
On
6 September 2006 the director of a non-governmental organisation, the
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 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”.
On
12 September 2006 the president of another non-governmental
organisation, the 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.
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 State Department,
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.
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
Italian 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.
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.
On
5 October 2006 the Court decided to apply Rule 39. It asked the
Government to stay the applicant's expulsion until further notice.
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.
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.
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.
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.
On
a date which has not been specified the applicant also asked the
Lombardy Regional Administrative Court (“the RAC”) to set
aside the deportation order of 6 October 2006 and stay its execution.
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.
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.
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).
C. The diplomatic assurances requested by Italy from
Tunisia
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 precious
collaboration of the Tunisian authorities in reaching a positive
development in the following case.
The Tunisian national Nassim Saadi, born in Haidra
(Tunisia) on 30.11.1974, was served with an order for his deportation
from Italy, issued by the Ministry of the Interior on 08.08.2006.
After the above order had been issued Mr Saadi lodged an
application with the European Court of Human Rights on 14.09.2006,
requesting and obtaining the decision to stay execution of the
deportation order.
His application is based on the argument that after
being tried in his absence he was sentenced to 20 years' imprisonment
for terrorist-related offences, in a judgment given by the Tunis
military court on 11.05.2005, served on Mr Saadi's father on
02.07.2005. 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 intend, 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 11.05.2005 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 11.07.2007, 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, within the framework of the
friendly relations between our two countries.”
The
Italian Government observed that such assurances had never before
been requested from the Tunisian authorities.
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 of 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 confirm that they are
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 of Foreign Affairs seizes this opportunity
of expressing once again to the Italian ambassador in Tunis the
assurance of his high regard.”
A
second note verbale, dated 10 July 2007, was worded as follows:
“The Minister of 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 of 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 of Foreign Affairs seizes this opportunity
of expressing once again to the Italian ambassador in Tunis the
assurance of his high regard.”
D. The applicant's family situation
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.
II. RELEVANT DOMESTIC LAW
A. Remedies against a deportation order in Italy
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, previously cited decision).
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 4bis
of the Legislative Decree).
B. Reopening of a trial conducted in the defendant's
absence in Tunisia
60. In the French translation produced
by the Government the relevant provisions of the Tunisian Code of
Criminal Procedure read as follows:
Article
175
“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.”
Article
176
“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.”
Article
180 (as amended by Law no. 2004-43 of 17 April 2000)
“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.”
Article
213
“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.”
III. INTERNATIONAL TEXTS AND DOCUMENTS
A. The cooperation agreement on crime prevention signed
by Italy and Tunisia and the association agreement between Tunisia,
the European Union and its member States
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:
Article 10
“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.”
Article 16
“The present agreement is without prejudice to
rights and obligations arising from other international, multilateral
or bilateral agreements entered into by the Contracting Parties.”
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.
B. Articles 1, 32 and 33 of the 1951 United Nations
Convention relating to the Status of Refugees
Italy
is a party to the 1951 United Nations Convention on the Status of
Refugees. Articles 1, 32 and 33 of this Convention read as follows:
Article 1
“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.”
Article 32
“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 ...”
Article 33
“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.”
C. Guidelines of the Committee of Ministers of the
Council of Europe
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.”
D. Amnesty International report on Tunisia
In
a report concerning the situation in Tunisia in 2006 Amnesty
International noted that following a large number of unfair trials at
least 12 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 14 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.
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.
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 the
right to work.
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 UN 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-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-Herzegovina) and six members of the “Zarzis group”.
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.
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.
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 20 years' imprisonment on charges of
belonging to a terrorist organization 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 realized 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 been also 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 10 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
authorized his detention for a further 15 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 (procedure 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
36-month prison 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-terroristm law with belonging to a terrorist
organization 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 10
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 organization,
possessing or manufacturing explosives, theft, using banned websites
and holding unauthorized 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 19 years and three months to 13
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 24 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.”
A
similar statement was issued by Amnesty International on 23 July
2007.
E. Report on Tunisia by Human Rights Watch
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 against 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.
Although
many members of the proscribed Islamist party an-Nahdha 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-terror law. Released
political prisoners were monitored very closely by the authorities,
who refused to renew their passports and denied them access to most
jobs.
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.
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.
The
2003 “anti-terrorism” Act 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.
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
on-line forum a statement by an obscure group threatening bomb
attacks if the President of Tunisia agreed to host a visit by the
Israeli Prime Minister.
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.
F. Activities of the International Committee of the Red
Cross
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 only by 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”.
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”.
G. Report of the US State Department on human rights in
Tunisia
In
its report on “human rights practices” published on 8
March 2006, the US State Department criticised violations of
fundamental rights by the Tunisian Government.
Although there had been no politically-motivated
killings attributable to the Tunisian authorities, the report
commented critically on two cases: Mr Moncef Ben Ahmed Ouachichi
had died while in police custody and Mr Beddreddine Rekeii after
being released from police custody.
Referring
to the information gathered by Amnesty International, the State
Department 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.
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.
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.
The
conditions of incarceration in Tunisian prisons fell well below
international standards. Prisoners were held in cramped conditions
and had to share beds and lavatories. 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.
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.
In
April 2005, after lengthy negotiations, the Tunisian Government had
signed an agreement permitting the International 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.
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.
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.
The
Tunisian Government denied that there were any political prisoners,
so their exact number was impossible to determine. However, the
Association internationale pour le 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.
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.
H. Other sources
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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant submitted that enforcement of his deportation would expose
him to the risk of treatment contrary to Article 3 of the Convention,
which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government rejected that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
(a) The applicant
The
applicant submitted that it was “a matter of common knowledge”
that persons suspected of terrorist activities, in particular those
connected with Islamist fundamentalism, were frequently tortured in
Tunisia. He had lodged a request for political asylum which had been
refused by the Milan police authority without his being interviewed
by the Italian refugee status board. His attempts to obtain a
residence permit had failed because the Tunisian consulate had
refused to renew his passport, a document which the Italian
authorities had asked him to produce. In the aggregate these
circumstances amounted to “persecution”.
In
addition, the investigations conducted by Amnesty International and
by the US State Department showed that torture was practised in
Tunisia and that some persons deported there had quite simply
disappeared. The numerous press articles and witness accounts he had
produced condemned the treatment of political prisoners and their
families.
The
applicant's family had received a number of visits from the police
and was constantly subject to threats and provocations. His sister
had twice tried to kill herself because of this.
In
view of the serious risks to which he would be exposed if he were to
be deported, the applicant considered that a mere reminder of the
treaties signed by Tunisia could not be regarded as sufficient.
(b) The Government
The
Government considered it necessary in the first place to provide an
account of the background to the case. After the attacks of
11 September 2001 on the “twin towers” in New York
the Italian police, having been tipped off by intelligence services,
uncovered an international network of militant Islamists, mainly
composed of Tunisians, and placed it under surveillance. In May 2002
one of the leaders of this network, Mr Faraj Faraj Hassan, was
arrested in London. The applicant had in the meantime left Milan for
Iran, where he had spent time in an al-Qaeda training camp. He then
returned to Italy, from where he frequently travelled to the Côte
d'Azur. There, with the help of another Tunisian living in San Remo,
Mr Imed Zarkaoui, he met his brother, Mr Fadhal Saadi.
Mr
Zarkaoui had been given the job of finding fulminate of mercury to
make detonators, while in Italy another accomplice was seeking
information about night-filming cameras. Contact was established with
Malaysia, where the group which was to carry out the attacks were
standing by, and weapons were distributed to some militants. The
Islamist cell to which the applicant belonged had embarked on a
large-scale enterprise involving the production of false identity
papers and their distribution to its members. The Government rejected
the applicant's argument that the offence – forgery – of
which he had been convicted in Italy was not linked to the activity
of terrorist groups; in that connection they pointed out that
although the applicant and one of his co-defendants held legal
residence permits they had provided themselves with false papers.
In
that context, in October 2002, a number of European police forces
launched “Operation Bazar”, as a result of which the
applicant, Mr Zarkaoui and three other persons were arrested in
Italy. Mr Fadhal Saadi managed to evade an attempt by the French
police to arrest him. He was later to die in a suicide bombing in
Iraq. When the applicant's family informed him of this he was
delighted to learn that his brother had died a “martyr”
in the war against “the infidel”. In the criminal
proceedings against the applicant in Italy the prosecution was
convinced of three things: that the cell he belonged to was
associated with al-Qaeda, that it was preparing an attack against an
unidentified target and that it was receiving instructions from
abroad.
The
Government next observed that a danger of death or the risk of being
exposed to torture or to inhuman and degrading treatment must be
corroborated by appropriate evidence. However, in the present case
the applicant had neither produced precise information in that regard
nor supplied detailed explanations, confining himself to describing
an allegedly general situation in Tunisia. The “international
sources” cited by the applicant were indeterminate and
irrelevant. The same was true of the press articles he had produced,
which came from unofficial circles with a particular ideological and
political slant. As this information had not been checked, nor had an
explanation been requested from the Tunisian Government, it had no
probative value. The provocations that the applicant's family had
allegedly suffered at the hands of the Tunisian police had nothing to
do with what the applicant sought to prove before the Court.
The
Amnesty International report cited three isolated cases, connected to
the prevention of terrorism, which did not disclose “anything
to be concerned about” (certain persons had been convicted of
terrorism or were awaiting trial). Regarding the allegations of
ill-treatment, the report used the conditional tense or expressions
such as “it seems”. There was therefore no certainty as
to what had happened. The superficial nature of the report was
“obvious” in the passages concerning Italy, which
described as a human rights violation the deportation to Syria of
Muhammad Al-Shari, whose application to the Court had been rejected
as manifestly ill-founded (see Al-Shari and Others v. Italy
(dec.), no. 57/03, 5 July 2005).
The
report by the US State Department cited (a) the case of Moncef
Louhici or Ouahichi, in which the investigation into a complaint by
the family of a person allegedly killed by the police was still in
progress; (b) the case of Badreddine Rekeii or Reguii, which
concerned crimes without a political motivation, and about which the
Tunisian authorities had provided complete and reassuring details;
(c) the case of the “Bizerte” group, in which five of the
eleven defendants had been acquitted on appeal and the sentences of
the other six had been considerably reduced; and (d) imprecisely
identified cases to which vague reference was made or cases involving
offences without political motivation or concerning freedom of
expression or association.
The
Government argued that these documents did not portray Tunisia as a
kind of “hell”, the term used by the applicant. The
situation in the country was, by and large, not very different from
that in certain States which had signed the Convention.
The
misfortunes of Mr Hichem Ben Said Ben Frej, cited by the applicant
(see paragraph 94 above), were not relevant in the present case,
since he had committed suicide.
The
Government further observed that in numerous cases concerning
expulsion to countries (Algeria in particular) where subjection to
ill-treatment as a regular practice seemed much more alarming than in
Tunisia, the Court had rejected the applicants' allegations.
The
Government also noted that Tunisia had ratified numerous
international instruments for the protection of human rights,
including the International Covenant on Civil and Political Rights,
the International Covenant on Economic, Social and Cultural Rights
and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, all adopted by the United Nations.
Under Article 32 of the Tunisian Constitution, international treaties
took precedence over statute law. In addition, Italy and Tunisia had
signed bilateral agreements on the question of emigration and
combating transnational crime, including terrorism (see paragraph 61
above). That presupposed a common basis of respect for fundamental
rights. The effectiveness of the agreements concerned would be
jeopardised if the Court were to assert as a principle that Tunisians
could not be deported.
Tunisia
had also signed an association agreement with the European Union. A
precondition for implementation of that agreement was respect for
fundamental freedoms and democratic principles (see paragraph 62
above). The European Union was an international organisation which,
according to the Court's case-law, was presumed to provide a level of
protection of fundamental rights “equivalent” to that
provided by the Convention. Moreover, the Tunisian authorities
permitted the International Red Cross and “other international
bodies” to visit prisons (see paragraphs 80 and 81 above). In
the Government's submission, it could be presumed that Tunisia would
not default on its obligations under international treaties.
In
Tunisia the terrorist danger was a grim reality, as shown by the
explosion on Djerba on 11 April 2002, for which al-Qaeda had claimed
responsibility. To meet that danger the Tunisian authorities had,
like some European States, enacted a law for the prevention of
terrorism.
In
these circumstances, the “benefit of the doubt” should be
given to the State which intended to deport the applicant and whose
national interests were threatened by his presence. In that
connection, account had to be taken of the scale of the terrorist
threat in the world of today and of the objective difficulties of
combating it effectively, regard being had not only to the risks in
the event of deportation but also to those which would arise in the
absence of deportation. In any event, the Italian legal system
provided safeguards for the individual – including the
possibility of obtaining refugee status – which made expulsion
contrary to the requirements of the Convention “practically
impossible”.
At
the hearing before the Court the Government had agreed in substance
with the arguments of the third-party intervener (see paragraphs
117-123 below), observing that, before the order for the applicant's
deportation was made, the applicant had neither mentioned the risk of
ill-treatment in Tunisia, although he must have been aware of it, nor
requested political asylum. His allegations had accordingly come too
late to be credible.
Lastly,
the Government observed that, even though there was no extradition
request or a situation raising concern regarding respect for human
rights (like, for example, the one described in the Chahal v. the
United Kingdom judgment of 15 November 1996, Reports of
Judgments and Decisions 1996-V), Italy had sought diplomatic
assurances from Tunisia (see paragraphs 51 and 52 above). In
response, Tunisia had given an undertaking to apply in the present
case the relevant Tunisian law (see paragraphs 54 and 55 above),
which provided for severe punishment of acts of torture or
ill-treatment and extensive visiting rights for a prisoner's lawyer
and family.
2. The third-party intervener
The
United Kingdom Government observed that in the Chahal case
(cited above, § 81) the Court had stated the principle that in
view of the absolute nature of the prohibition of treatment contrary
to Article 3 of the Convention, the risk of such treatment could not
be weighed against the reasons (including the protection of national
security) put forward by the respondent State to justify expulsion.
Yet because of its rigidity that principle had caused many
difficulties for the Contracting States by preventing them in
practice from enforcing expulsion measures. The Government observed
in that connection that it was unlikely that any State other than the
one of which the applicant was a national would be prepared to
receive into its territory a person suspected of terrorist
activities. In addition, the possibility of having recourse to
criminal sanctions against the suspect did not provide sufficient
protection for the community.
The
individual concerned might not commit any offence (or else, before a
terrorist attack, only minor ones) and it could prove difficult to
establish his involvement in terrorism beyond a reasonable doubt,
since it was frequently impossible to use confidential sources or
information supplied by intelligence services. Other measures, such
as detention pending expulsion, placing the suspect under
surveillance or restricting his freedom of movement provided only
partial protection.
Terrorism
seriously endangered the right to life, which was the necessary
precondition for enjoyment of all other fundamental rights. According
to a well-established principle of international law, States could
use immigration legislation to protect themselves from external
threats to their national security. The Convention did not guarantee
the right to political asylum. This was governed by the 1951
Convention relating to the Status of Refugees, which explicitly
provided that there was no entitlement to asylum where there was a
risk for national security or where the asylum seeker had been
responsible for acts contrary to the principles of the United
Nations. Moreover, Article 5 § 1 (f) of the Convention
authorised the arrest of a person “against whom action is being
taken with a view to deportation...”, and thus recognised the
right of States to deport aliens.
It
was true that the protection against torture and inhuman or degrading
treatment or punishment provided by Article 3 of the Convention was
absolute. However, in the event of expulsion, the treatment in
question would be inflicted not by the signatory State but by the
authorities of another State. The signatory State was then bound by a
positive obligation of protection against torture implicitly derived
from Article 3. Yet in the field of implied positive obligations the
Court had accepted that the applicant's rights must be weighed
against the interests of the community as a whole.
In
expulsion cases the degree of risk in the receiving country depended
on a speculative assessment. The level required to accept the
existence of the risk was relatively low and difficult to apply
consistently. Moreover, Article 3 of the Convention prohibited not
only extremely serious forms of treatment, such as torture, but also
conduct covered by the relatively general concept of “degrading
treatment”. And the nature of the threat presented by an
individual to the signatory State also varied significantly.
In
the light of the foregoing considerations, the United Kingdom argued
that, in cases concerning the threat created by international
terrorism, the approach followed by the Court in the Chahal
case (which did not reflect a universally recognised moral imperative
and was in contradiction with the intentions of the original
signatories of the Convention) had to be altered and clarified. In
the first place, the threat presented by the person to be deported
must be a factor to be assessed in relation to the possibility and
the nature of the potential ill-treatment. That would make it
possible to take into consideration all the particular circumstances
of each case and weigh the rights secured to the applicant by Article
3 of the Convention against those secured to all other members of the
community by Article 2. Secondly, national-security considerations
must influence the standard of proof required from the applicant. In
other words, if the respondent State adduced evidence that there was
a threat to national security, stronger evidence had to be adduced to
prove that the applicant would be at risk of ill-treatment in the
receiving country. In particular, the individual concerned must prove
that it was “more likely than not” that he would be
subjected to treatment prohibited by Article 3. That interpretation
was compatible with the wording of Article 3 of the United Nations
Convention against Torture, which had been based on the case-law of
the Court itself, and took account of the fact that in expulsion
cases it was necessary to assess a possible future risk.
Lastly,
the United Kingdom Government emphasised that Contracting States
could obtain diplomatic assurances that an applicant would not be
subjected to treatment contrary to the Convention. Although, in the
above-mentioned Chahal case, the Court had considered it
necessary to examine whether such assurances provided sufficient
protection, it was probable, as had been shown by the opinions of the
majority and the minority of the Court in that case, that identical
assurances could be interpreted differently.
3. The Court's assessment
(a) General principles
i. Responsibility of Contracting States in
the event of expulsion
It
is the Court's settled case-law that as a matter of well-established
international law, and subject to their treaty obligations, including
those arising from the Convention, Contracting States have the right
to control the entry, residence and removal of aliens (see, among
many other authorities, Abdulaziz, Cabales and Balkandali v. the
United Kingdom, judgment of 28 May 1985, Series A no. 94, §
67, and Boujlifa v. France, judgment of 21 October 1997,
Reports of Judgments and Decisions 1997-VI, § 42). In
addition, neither the Convention nor its Protocols confer the right
to political asylum (see Vilvarajah and Others v. the United
Kingdom, judgment of 30 October 1991, Series A no. 215, §
102, and Ahmed v. Austria, judgment of 17 December 1996,
Reports 1996-VI, § 38).
However,
expulsion by a Contracting State may give rise to an issue under
Article 3, and hence engage the responsibility of that State under
the Convention, where substantial grounds have been shown for
believing that the person concerned, if deported, faces a real risk
of being subjected to treatment contrary to Article 3. In such a case
Article 3 implies an obligation not to deport the person in question
to that country (see Soering v. the United Kingdom, judgment
of 7 July 1989, Series A no. 161, §§ 90-91;
Vilvarajah and Others, cited above, § 103; Ahmed,
cited above, § 39; H.L.R. v. France, judgment of
29 April 1997, Reports 1997 III, § 34; Jabari
v. Turkey, no. 40035/98, § 38,
ECHR 2000-VIII; and Salah Sheekh v. the Netherlands,
no. 1948/04, § 135, 11 January 2007).
In
this type of case the Court is therefore called upon to assess the
situation in the receiving country in the light of the requirements
of Article 3. Nonetheless, there is no question of adjudicating
on or establishing the responsibility of the receiving country,
whether under general international law, under the Convention or
otherwise. In so far as any liability under the Convention is or may
be incurred, it is liability incurred by the Contracting State, by
reason of its having taken action which has as a direct consequence
the exposure of an individual to the risk of proscribed ill-treatment
(see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99
and 46951/99, § 67, ECHR 2005-I).
Article
3, which prohibits in absolute terms torture and inhuman or degrading
treatment or punishment, enshrines one of the fundamental values of
democratic societies. Unlike most of the substantive clauses of the
Convention and of Protocols Nos. 1 and 4, Article 3 makes no
provision for exceptions and no derogation from it is permissible
under Article 15, even in the event of a public emergency threatening
the life of the nation (see Ireland v. the United Kingdom,
judgment of 8 January 1978, Series A no. 25, § 163;
Chahal, cited above, § 79; Selmouni v.
France [GC], no. 25803/94, § 95, ECHR 1999-V;
Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 59,
ECHR 2001-XI; and Shamayev and Others v. Georgia and Russia, no.
36378/02, § 335, ECHR 2005-III). As the prohibition of
torture and of inhuman or degrading treatment or punishment is
absolute, irrespective of the victim's conduct (see Chahal,
cited above, § 79), the nature of the offence allegedly
committed by the applicant is therefore irrelevant for the purposes
of Article 3 (see Indelicato v. Italy, no. 31143/96,
§ 30, 18 October 2001, and Ramirez Sanchez v.
France [GC], no. 59450/00, §§ 115-116, 4 July
2006).
ii. Material used to assess the risk of
exposure to treatment contrary to Article 3 of the Convention
In
determining whether substantial grounds have been shown for believing
that there is a real risk of treatment incompatible with Article 3,
the Court will take as its basis all the material placed before it
or, if necessary, material obtained proprio motu
(see H.L.R. v. France, cited above,
§ 37, and Hilal v. the United Kingdom, no. 45276/99,
§ 60, ECHR 2001-II). In cases such as the present the Court's
examination of the existence of a real risk must necessarily be a
rigorous one (see Chahal, cited above, § 96).
It
is in principle for the applicant to adduce evidence capable of
proving that there are substantial grounds for believing that, if the
measure complained of were to be implemented, he would be exposed to
a real risk of being subjected to treatment contrary to Article 3
(see N. v. Finland, no. 38885/02, § 167, 26 July
2005). Where such evidence is adduced, it is for the Government to
dispel any doubts about it.
In
order to determine whether there is a risk of ill-treatment, the
Court must examine the foreseeable consequences of sending the
applicant to the receiving country, bearing in mind the general
situation there and his personal circumstances (see Vilvarajah and
Others, cited above, § 108 in fine).
To
that end, as regards the general situation in a particular country,
the Court has often attached importance to the information contained
in recent reports from independent international
human-rights-protection associations such as Amnesty International,
or governmental sources, including the US State Department (see, for
example, Chahal, cited above, §§ 99-100;
Müslim v. Turkey, no.o53566/99, § 67,
26 April 2005; Said v. the Netherlands, no. 2345/02, §
54, 5 July 2005; and Al-Moayad v. Germany (dec.),
no.o35865/03, §§ 65-66, 20 February 2007).
At the same time, it has held that the mere possibility of
ill-treatment on account of an unsettled situation in the receiving
country does not in itself give rise to a breach of Article 3 (see
Vilvarajah and Others, cited above, § 111, and
Fatgan Katani and Others v. Germany (dec.), no. 67679/01,
31 May 2001) and that, where the sources available to it describe a
general situation, an applicant's specific allegations in a
particular case require corroboration by other evidence (see
Mamatkulov and Askarov, cited above, § 73, and Müslim,
cited above, § 68).
In
cases where an applicant alleges that he or she is a member of a
group systematically exposed to a practice of ill-treatment, the
Court considers that the protection of Article 3 of the Convention
enters into play when the applicant establishes, where necessary on
the basis of the sources mentioned in the previous paragraph, that
there are serious reasons to believe in the existence of the practice
in question and his or her membership of the group concerned (see,
mutatis mutandis, Salah Sheekh, cited above, §§
138-149).
With
regard to the material date, the existence of the risk must be
assessed primarily with reference to those facts which were known or
ought to have been known to the Contracting State at the time of
expulsion. However, if the applicant has not yet been extradited or
deported when the Court examines the case, the relevant time will be
that of the proceedings before the Court (see Chahal, cited
above, §§ 85 and 86, and Venkadajalasarma v. the
Netherlands, no. 58510/00, § 63,
17 February 2004). This situation typically arises when, as
in the present case, deportation or extradition is delayed as a
result of an indication by the Court of an interim measure under
Rule 39 of the Rules of Court (see Mamatkulov and Askarov,
cited above, § 69). Accordingly, while it is true that
historical facts are of interest in so far as they shed light on the
current situation and the way it is likely to develop, the present
circumstances are decisive.
iii. The concepts of “torture”
and “inhuman or degrading treatment”
According
to the Court's settled case-law, ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3. The
assessment of this minimum level of severity is relative; it depends
on all the circumstances of the case, such as the duration of the
treatment, its physical and mental effects and, in some cases, the
sex, age and state of health of the victim (see, among other
authorities, Price v. the United Kingdom, no..33394/96,
§ 24, ECHR 2001-VII; Mouisel v. France,
no. 67263/01, § 37, ECHR 2002-IX; and Jalloh v.
Germany [GC], no. 54810/00, § 67, 11 July 2006).
In
order for a punishment or treatment associated with it to be
“inhuman” or “degrading”, the suffering or
humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation connected with a given form of
legitimate treatment or punishment (see Labita v. Italy [GC],
no. 26772/95, § 120, ECHR 2000-IV).
In
order to determine whether any particular form of ill-treatment
should be qualified as torture, regard must be had to the distinction
drawn in Article 3 between this notion and that of inhuman or
degrading treatment. This distinction would appear to have been
embodied in the Convention to allow the special stigma of “torture”
to attach only to deliberate inhuman treatment causing very serious
and cruel suffering (see Aydin v. Turkey, judgment of
25 September 1997, Reports 1997-VI, § 82, and
Selmouni, cited above, § 96).
(b) Application of the above principles to
the present case
The
Court notes first of all that States face immense difficulties in
modern times in protecting their communities from terrorist violence
(see Chahal, cited above, § 79, and Shamayev and
Others, cited above, § 335). It cannot therefore
underestimate the scale of the danger of terrorism today and the
threat it presents to the community. That must not, however, call
into question the absolute nature of Article 3.
Accordingly,
the Court cannot accept the argument of the United Kingdom
Government, supported by the respondent Government, that a
distinction must be drawn under Article 3 between treatment inflicted
directly by a signatory State and treatment that might be inflicted
by the authorities of another State, and that protection against this
latter form of ill-treatment should be weighed against the interests
of the community as a whole (see paragraphs 120 and 122 above). Since
protection against the treatment prohibited by Article 3 is absolute,
that provision imposes an obligation not to extradite or expel any
person who, in the receiving country, would run the real risk of
being subjected to such treatment. As the Court has repeatedly held,
there can be no derogation from that rule (see the case-law cited in
paragraph 130 above). It must therefore reaffirm the principle stated
in the Chahal judgment (cited above, § 81) that it is not
possible to weigh the risk of ill-treatment against the reasons put
forward for the expulsion in order to determine whether the
responsibility of a State is engaged under Article 3, even where such
treatment is inflicted by another State. In that connection, the
conduct of the person concerned, however undesirable or dangerous,
cannot be taken into account, with the consequence that the
protection afforded by Article 3 is broader than that provided for in
Articles 32 and 33 of the 1951 United Nations Convention relating to
the Status of Refugees (see Chahal, cited above, § 80 and
paragraph 63 above). Moreover, that conclusion is in line with points
IV and XII of the guidelines of the Committee of Ministers of the
Council of Europe on human rights and the fight against terrorism
(see paragraph 64 above).
The
Court considers that the argument based on the balancing of the risk
of harm if the person is sent back against the dangerousness he or
she represents to the community if not sent back is misconceived. The
concepts of “risk” and “dangerousness” in
this context do not lend themselves to a balancing test because they
are notions that can only be assessed independently of each other.
Either the evidence adduced before the Court reveals that there is a
substantial risk if the person is sent back or it does not. The
prospect that he may pose a serious threat to the community if not
returned does not reduce in any way the degree of risk of ill
treatment that the person may be subject to on return. For that
reason it would be incorrect to require a higher standard of proof,
as submitted by the intervener, where the person is considered to
represent a serious danger to the community, since assessment of the
level of risk is independent of such a test.
With
regard to the second branch of the United Kingdom Government's
arguments, to the effect that where an applicant presents a threat to
national security, stronger evidence must be adduced to prove that
there is a risk of ill-treatment (see paragraph 122 above), the Court
observes that such an approach is not compatible with the absolute
nature of the protection afforded by Article 3 either. It amounts to
asserting that, in the absence of evidence meeting a higher standard,
protection of national security justifies accepting more readily a
risk of ill-treatment for the individual. The Court therefore sees no
reason to modify the relevant standard of proof, as suggested by the
third-party intervener, by requiring in cases like the present that
it be proved that subjection to ill-treatment is “more likely
than not”. On the contrary, it reaffirms that for a planned
forcible expulsion to be in breach of the Convention it is necessary
– and sufficient – for substantial grounds to have been
shown for believing that there is a real risk that the person
concerned will be subjected in the receiving country to treatment
prohibited by Article 3 (see paragraphs 125 and 132 above and
the case-law cited in those paragraphs).
The
Court further observes that similar arguments to those put forward by
the third-party intervener in the present case have already been
rejected in the Chahal judgment cited above. Even if, as the
Italian and United Kingdom Governments asserted, the terrorist threat
has increased since that time, that circumstance would not call into
question the conclusions of the Chahal judgment concerning the
consequences of the absolute nature of Article 3.
Furthermore,
the Court has frequently indicated that it applies rigorous criteria
and exercises close scrutiny when assessing the existence of a real
risk of ill-treatment (see Jabari, cited above, §
39) in the event of a person being removed from the territory of the
respondent State by extradition, expulsion or any other measure
pursuing that aim. Although assessment of that risk is to some degree
speculative, the Court has always been very cautious, examining
carefully the material placed before it in the light of the requisite
standard of proof (see paragraphs 128 and 132 above) before
indicating an interim measure under Rule 39 or finding that the
enforcement of removal from the territory would be contrary to
Article 3 of the Convention. As a result, since adopting the Chahal
judgment it has only rarely reached such a conclusion.
In
the present case the Court has had regard, firstly, to the reports of
Amnesty International and Human Rights Watch on Tunisia (see
paragraphs 65-79 above), which describe a disturbing situation. The
conclusions of those reports are corroborated by the report of the US
State Department (see paragraphs 82-93 above). In particular, these
reports mention numerous and regular cases of torture and
ill-treatment meted out to persons accused under the 2003 Prevention
of Terrorism Act. The practices reported – said to be often
inflicted on persons in police custody with the aim of extorting
confessions – include hanging from the ceiling, threats of
rape, administration of electric shocks, immersion of the head in
water, beatings and cigarette burns, all of these being practices
which undoubtedly reach the level of severity required by Article 3.
It is reported that allegations of torture and ill-treatment are not
investigated by the competent Tunisian authorities, that they refuse
to follow up complaints and that they regularly use confessions
obtained under duress to secure convictions (see paragraphs 68, 71,
73-75, 84 and 86 above). Bearing in mind the authority and reputation
of the authors of these reports, the seriousness of the
investigations by means of which they were compiled, the fact that on
the points in question their conclusions are consistent with each
other and that those conclusions are corroborated in substance by
numerous other sources (see paragraph 94 above), the Court does not
doubt their reliability. Moreover, the respondent Government have not
adduced any evidence or reports capable of rebutting the assertions
made in the sources cited by the applicant.
The
applicant was prosecuted in Italy for participation in international
terrorism and the deportation order against him was issued by virtue
of Legislative decree no. 144 of 27 July 2005 entitled
“urgent measures to combat international terrorism”
(see paragraph 32 above). He was also sentenced in Tunisia, in
his absence, to twenty years' imprisonment for membership of a
terrorist organisation operating abroad in time of peace and for
incitement to terrorism. The existence of that sentence was confirmed
by Amnesty International's statement of 19 June 2007 (see
paragraph 71 above).
The
Court further notes that the parties do not agree on the question
whether the applicant's trial in Tunisia could be reopened. The
applicant asserted that it was not possible for him to appeal against
his conviction with suspensive effect, and that, even if he could,
the Tunisian authorities could imprison him as a precautionary
measure (see paragraph 154 below).
In
these circumstances, the Court considers that in the present case
substantial grounds have been shown for believing that there is a
real risk that the applicant would be subjected to treatment contrary
to Article 3 of the Convention if he were to be deported to Tunisia.
That risk cannot be excluded on the basis of other material available
to the Court. In particular, although it is true that the
International Committee of the Red Cross has been able to visit
Tunisian prisons, that humanitarian organisation is required to
maintain confidentiality about its fieldwork (see paragraph 80 above)
and, in spite of an undertaking given in April 2005, similar visiting
rights have been refused to the independent human-rights-protection
organisation Human Rights Watch (see paragraphs 76 and 90 above).
Moreover, some of the acts of torture reported allegedly took place
while the victims were in police custody or pre-trial detention on
the premises of the Ministry of the Interior (see paragraphs 86 and
94 above). Consequently, the visits by the International Committee of
the Red Cross cannot exclude the risk of subjection to treatment
contrary to Article 3 in the present case.
The
Court further notes that on 29 May 2007, while the present
application was pending before it, the Italian Government asked the
Tunisian Government, through the Italian embassy in Tunis, for
diplomatic assurances that the applicant would not be subjected to
treatment contrary to Article 3 of the Convention (see paragraphs 51
and 52 above). However, the Tunisian authorities did not provide such
assurances. At first they merely stated that they were prepared to
accept the transfer to Tunisia of Tunisians detained abroad (see
paragraph 54 above). It was only in a second note verbale, dated 10
July 2007 (that is, the day before the Grand Chamber hearing), that
the Tunisian Ministry of Foreign Affairs observed that Tunisian laws
guaranteed prisoners' rights and that Tunisia had acceded to “the
relevant international treaties and conventions” (see paragraph
55 above). In that connection, the Court observes that the existence
of domestic laws and accession to international treaties guaranteeing
respect for fundamental rights in principle are not in themselves
sufficient to ensure adequate protection against the risk of
ill-treatment where, as in the present case, reliable sources have
reported practices resorted to or tolerated by the authorities which
are manifestly contrary to the principles of the Convention.
Furthermore,
it should be pointed out that even if, as they did not do in the
present case, the Tunisian authorities had given the diplomatic
assurances requested by Italy, that would not have absolved the Court
from the obligation to examine whether such assurances provided, in
their practical application, a sufficient guarantee that the
applicant would be protected against the risk of treatment prohibited
by the Convention (see Chahal, cited above, § 105). The
weight to be given to assurances from the receiving State depends, in
each case, on the circumstances obtaining at the material time.
Consequently,
the decision to deport the applicant to Tunisia would breach Article
3 of the Convention if it were enforced.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
150. The
applicant alleged that the criminal proceedings against him in
Tunisia had not been fair and that his expulsion would expose him to
the risk of a flagrant denial of justice. He relied on Article
6 of the Convention, the relevant parts of which provide:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by an independent and impartial tribunal...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an
interpreter if he cannot understand or speak the language used in
court.”
The
Government rejected that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
(a) The applicant
The
applicant submitted that there was a serious risk of a denial of
justice in Tunisia, where the minimal safeguards provided by
international law were disregarded. All Tunisians accused in Italy of
terrorist activities had had unfair trials after being repatriated.
The applicant cited as typical in that respect the case of Mr Loubiri
Habib, who had been acquitted of terrorism charges by the Italian
courts but imprisoned in Tunisia and deprived of the possibility of
seeing his family. Mr Loubiri had succeeded in obtaining “revision”
of the Tunisian criminal proceedings which had resulted in his
conviction, but the revision proceedings in the Military High Court
in Tunis had resulted in a substantial increase in his sentence, from
ten to thirty years' imprisonment.
The
applicant further observed that the operative part of the judgment
pronouncing his conviction in absentia had been served on his
father, Mr Mohamed Cherif, on 2 July 2005. As a result, an
appeal was no longer possible. In any event, even supposing that an
appeal was possible and that such an appeal could stay execution of
the sentence, that would not prevent the Tunisian authorities from
imprisoning him as a precautionary measure. Moreover, in view of the
serious infringements of political prisoners' civil rights in
Tunisia, even the theoretical possibility of an appeal out of time
could not exclude the risk of a flagrant denial of justice. In
addition, it could not be known with certainty whether the court
having jurisdiction to hear such an appeal would be a civilian or a
military court of appeal.
Lastly,
the applicant noted that the trial had been conducted in Tunisia in a
military court and that the defendant in such proceedings had no
possibility of adducing evidence, appointing a lawyer or addressing
the court. Moreover, in the present case, neither his family nor his
lawyers had been able to obtain a copy of the military court's
judgment (see paragraph 30 above).
(b) The Government
156. The Government asserted that
because the file did not contain the original or a certified copy of
the judgment against the applicant given in Tunisia it was impossible
to check whether the information he had supplied was correct. They
further submitted that an expulsion could engage the responsibility
of the Contracting State under Article 6 only in exceptional
circumstances, in particular where it was apparent that any
conviction in the receiving country would amount to a “flagrant”
denial of justice, which was not the position in the present case. On
the other hand, a Contracting State was not required to establish
whether proceedings conducted outside its territory satisfied each of
the conditions laid down in Article 6. To rule otherwise would run
counter to the current trend, encouraged by the Court itself, of
strengthening international mutual assistance in the judicial field.
157. Under the relevant provisions of
Tunisian law, a person convicted in his absence was entitled to have
the proceedings reopened. The right to a reopening of the proceedings
could be exercised in good time and in accordance with the
requirements of Article 6. In particular, a person convicted in his
absence who was living abroad could appeal within thirty days of the
judgment in absentia
being served. Where such service had not been effected, an appeal was
always admissible and would stay execution of the sentence.
Furthermore, the possibility of appealing against a conviction in
absentia in Tunisia was confirmed by
the declarations of the Director of International Cooperation at the
Tunisian Ministry of Justice, which were reassuring on the point (see
paragraph 40 above). In addition, the applicant had not adduced any
evidence that in the light of the relevant rules of Tunisian law
there had been shown to be substantial grounds for believing that his
trial had been conducted in conditions contrary to the principles of
fair trial.
Admittedly,
in the States party to the Convention, trial before a military court
might raise an issue under Article 6. However, in the case of an
expulsion, an applicant had to prove that the denial of justice he
feared would be “flagrant”. Such proof had not been
produced in the present case. In addition, in December 2003 Tunisia
had amended its domestic provisions relating to terrorist crimes
committed by civilians, with the result that military judges had been
replaced by civilian judges and an investigating judge took part in
the investigation.
Lastly,
the Government argued that the case of Mr Loubiri, cited by the
applicant, was not relevant, as an increase of the sentence on appeal
was something that could occur even in those countries which were
most scrupulously compliant with the Convention.
2. The Court's assessment
The
Court recalls its finding that the deportation of the applicant to
Tunisia would constitute a violation of Article 3 of the Convention
(see paragraph 149 above). Having no reason to doubt that the
respondent Government will comply with the present judgment, it
considers that it is not necessary to decide the hypothetical
question whether, in the event of expulsion to Tunisia, there would
also be a violation of Article 6 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
161. The applicant alleged that his
expulsion to Tunisia would deprive his partner and his son of his
presence and assistance. He relied on Article 8 of the Convention,
which provides:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government rejected that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
(a) The applicant
The
applicant observed that he had a family life in Italy which would be
disrupted by enforcement of his expulsion: he had been
living with Mrs V. since 1998; their child had been born the
following year. At that time he had already requested a residence
permit, which was not issued until 2001. When that permit expired he
had tried unsuccessfully to regularise his situation in order to find
work. The applicant's child attended school in Italy, which would not
be possible in Tunisia, where the applicant himself was at risk of
imprisonment or even death. Mrs V. had been out of work for about a
year as she suffered from a serious form of ischaemia which
frequently made it necessary for her to be taken into hospital and
also prevented her from travelling to Tunisia. The applicant was
therefore the family's sole means of financial support.
Any
allegation concerning the applicant's dangerousness to society had
been refuted by his acquittal at first instance on the charge of
international terrorism. As matters stood, this was the only judicial
decision given in the proceedings against him, since the appeal
proceedings were still pending. No new evidence had been adduced by
the Government.
Moreover,
the authorities had many other means to keep an eye on the applicant,
expulsion being a measure to be adopted only in extreme cases. In
that connection, the applicant pointed out that, since 3 November
2006, he had to report three times a week to a police station in
Milan and that he had been forbidden to leave Italian territory (see
paragraph 43 above). He had always complied with these
obligations and had thus been able to obtain the return of his
driving licence, which had been withdrawn from him – illegally
in his submission – by the vehicle licensing authority
(motorizzazione civile).
(b) The Government
The
Government submitted that account had to be taken of the following
facts: (a) the applicant's family unit had been created at a time
when his presence in Italy was unlawful, as he had had a son by an
Italian woman in 1999, whereas the residence permit granted to him
for family reasons had not been issued until 29 December 2001; (b)
the child had not attended school for very long in Italy and had had
no significant exposure to Italian culture (he was currently in the
second year of primary school), so that he would be able to continue
to attend school in Tunisia; (c) the applicant had never lived with
Mrs V. and his son: they had lived in Arluno, until 7
October 2002, when they moved to Milan; the applicant had never lived
in Arluno, had often travelled abroad, had been arrested on 9 October
2002 and had married another woman in a Muslim ceremony (see
paragraph 57 above); (d) the unit of family life could be
preserved outside Italian territory, given that neither the applicant
nor Mrs V. were in work in Italy.
The
interference in the applicant's family life had a legal basis in
domestic law, namely Law no. 155 of 2005. In addition, account had to
be taken of the negative influence which, because of his personality
and the scale of the terrorist danger, the applicant represented for
national security, and of the particular importance which should be
attached to the prevention of serious crime and disorder. Any
interference with the applicant's right to respect for his family
life therefore pursued a legitimate aim and was necessary in a
democratic society.
In
addition, no disproportionate or excessive burden had been imposed on
the applicant's family unit. In the context of crime prevention
policy, the legislature had to enjoy broad latitude to rule both on
the existence of a problem of public interest and on the choice of
arrangements for the application of an individual measure. Organised
crime of a terrorist nature had reached, in Italy and in Europe, very
alarming proportions, to the extent that the rule of law was under
threat. Administrative measures (such as deportation) were
indispensable for effective action against the phenomenon.
Deportation presupposed the existence of “sufficient evidence”
that the person under suspicion was supporting or assisting a
terrorist organisation. The Minister of the Interior could not rely
on mere suspicions but had to establish the facts and assess them
objectively. All the material in the file suggested that that
assessment, in the present case, had been correct and not arbitrary.
The evidence used in the administrative deportation proceedings was
the evidence taken in the course of public and adversarial
proceedings in the Milan Assize Court. During those criminal
proceedings the applicant had had the opportunity, through his
lawyer, of raising objections and submitting the evidence he
considered necessary to safeguard his interests.
2. The Court's assessment
The
Court recalls its finding that the deportation of the applicant to
Tunisia would constitute a violation of Article 3 of the Convention
(see paragraph 149 above). Having no reason to doubt that the
respondent Government will comply with the present judgment, it
considers that it is not necessary to decide the hypothetical
question whether, in the event of expulsion to Tunisia, there would
also be a violation of Article 8 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 7
171. The applicant submitted that his
expulsion would be neither “necessary in the interests of
public order” nor “grounded on reasons of national
security”. He alleged a violation of Article 1 of Protocol No.
7, which provides:
“1. An alien lawfully resident in the
territory of a State shall not be expelled therefrom except in
pursuance of a decision reached in accordance with law and shall be
allowed:
(a) to submit reasons against his expulsion,
(b) to have his case reviewed, and
(c) to be represented for these purposes
before the competent authority or a person or persons designated by
that authority.
2. An alien may be expelled before the
exercise of his rights under paragraph 1 (a), (b) and (c)
of this Article, when such expulsion is necessary in the interests of
public order or is grounded on reasons of national security.”
The
Government rejected that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
(a) The applicant
The
applicant submitted that he was lawfully resident in Italian
territory. He argued that the condition of “lawful residence”
should be assessed by reference to the situation at the time of the
deportation decision. When arrested he had a valid residence permit,
which expired only because he was in prison. He had subsequently
attempted to regularise his situation, but had been prevented from
doing so on account of his internment in the temporary holding
centre.
The
applicant's situation could now be regularised, since the terrorism
charges had not led to his conviction, he was cohabiting with his
Italian partner and son and was able to work. However, any
administrative step he might take was blocked by the fact that he had
no document which could prove his nationality and could never obtain
one from the Tunisian authorities (see paragraph 45 above).
The
applicant submitted that he was being prevented from exercising the
rights listed in paragraph 1 (a), (b) and (c) of Article 1 of
Protocol No. 7, whereas his expulsion could not be regarded as
“necessary in the interests of public order” or “grounded
on reasons of national security”. In that connection, he
observed that the considerations of the Minister of the Interior were
contradicted by the Milan Assize Court, which had acquitted him of
international terrorism. In any event, the Government had not
adduced any evidence of the existence of dangers to national security
or public order, so that the decision to take him to a temporary
holding centre with a view to his expulsion had been “unlawful”.
(b) The Government
The
Government observed that, according to the explanatory report
accompanying Article 1 of Protocol No. 7, the word “lawfully”
referred to the domestic legislation of the State concerned. It was
therefore domestic legislation which should determine the conditions
a person had to satisfy in order for his or her presence within the
national territory to be considered “lawful”. In
particular, an alien whose admission and stay had been made subject
to certain conditions, for example a fixed period, and who no longer
complied with those conditions could not be regarded as being still
“lawfully” present in the State's territory. Yet after 11
October 2002, a date which preceded the deportation order, the
applicant no longer had a valid residence permit authorising his
presence in Italy. He was therefore not “an alien lawfully
resident in the territory” within the meaning of Article 1 of
Protocol No. 7, which was accordingly not applicable.
The
Government further observed that the deportation order had been
issued in accordance with the rules established by the relevant
legislation, which required a simple administrative decision. The law
in question was accessible, its effects were foreseeable and it
offered a degree of protection against arbitrary interference by the
public authorities. The applicant had also had the benefit of
“minimum procedural safeguards”. He had been represented
before the justice of the peace and the Regional Administrative Court
by his lawyer, who had been able to submit reasons why he should not
be deported. A deportation order had also been issued against the
applicant when he was sentenced to four years and six months'
imprisonment, and hence after adversarial judicial proceedings
attended by all the safeguards required by the Convention.
In
any event, the Government submitted that the applicant's deportation
was necessary in the interests of national security and the
prevention of disorder. They argued that these requirements were
justified in the light of the information produced in open court
during the criminal proceedings against the applicant and pointed out
that the standard of proof required for the adoption of an
administrative measure (a deportation order issued by the Minister of
the Interior by virtue of Legislative decree no. 144 of 2005)
was lower than that required to ground a criminal conviction. In the
absence of manifestly arbitrary conclusions, the Court should endorse
the national authorities' reconstruction of the facts.
2. The Court's assessment
The
Court recalls its finding that the deportation of the applicant to
Tunisia would constitute a violation of Article 3 of the Convention
(see paragraph 149 above). Having no reason to doubt that the
respondent Government will comply with the present judgment, it
considers that it is not necessary to decide the hypothetical
question whether, in the event of expulsion to Tunisia, there would
also be a violation of Article 1 of Protocol No. 7.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant requested in the first place 20,000 euros (EUR) for loss of
income. He observed that the deportation order had caused him to fall
into an irregular situation, that he had been detained unlawfully in
the Milan temporary holding centre for three months and that this had
prevented him from carrying on his occupation.
In
respect of non-pecuniary damage, the applicant claimed EUR 50,000
and suspension and/or annulment of the deportation order.
The
Government observed that the deportation had not been enforced, so
that the applicant, an alien who had contravened the laws of the
Italian State and had been lawfully detained after 9 October 2002,
was not entitled to claim for any pecuniary damage or loss of income.
On
the question of non-pecuniary damage, the Government submitted that
there was no causal link between the conduct of the Italian
authorities and the sufferings and inconvenience alleged by the
applicant. In any event, the applicant had not indicated what
criteria had been used for the calculation of the sum claimed.
The
Court reiterates that it is able to make awards by way of the just
satisfaction provided for in Article 41 where the loss or damage on
which a claim is based has been caused by the violation found, but
that the State is not required to make good damage not attributable
to it (see Perote Pellon v. Spain, no. 45238/99, §
57, 25 July 2002).
In
the present case, the Court has found that enforcement of the
applicant's deportation to Tunisia would breach Article 3 of the
Convention. On the other hand, it has not found any violations of the
Convention on account of the deprivation of the applicant's liberty
or the fact that his presence in Italy was unlawful. Consequently, it
can see no causal link between the violation found in the present
judgment and the pecuniary damage alleged by the applicant.
With
regard to the non-pecuniary damage sustained by the applicant, the
Court considers that the finding that his deportation, if carried
out, would breach Article 3 of the Convention constitutes sufficient
just satisfaction.
B. Costs and expenses
The
applicant did not request reimbursement of the costs and expenses
incurred during the domestic proceedings. He did, however, request
reimbursement of his costs relating to the proceedings before the
Court, which, according to a bill from his lawyer, amounted to
EUR 18,179.57.
The
Government considered that amount excessive.
According
to the Court's established case-law, an award can be made in respect
of costs and expenses incurred by the applicant only in so far as
they have been actually and necessarily incurred and are reasonable
as to quantum (see Belziuk v. Poland, judgment of 25 March
1998, Reports 1998-II, § 49).
The
Court considers the amount claimed for the costs and expenses
relating to the proceedings before it excessive and decides to award
EUR 8,000 under that head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that, if the decision to deport the
applicant to Tunisia were to be enforced, there would be a violation
of Article 3 of the Convention;
Holds that it is not necessary to examine
whether enforcement of the decision to deport the applicant to
Tunisia would also be in breach of Articles 6 and 8 of the Convention
and Article 1 of Protocol No. 7;
Holds that the finding of a violation
constitutes sufficient just satisfaction for the non-pecuniary damage
sustained by the applicant;
Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 8,000 (eight thousand euros) in respect of costs and expenses,
plus any tax that may be chargeable to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 28 February 2008.
Vincent Berger Jean-Paul Costa
Jurisconsult President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the following separate opinions are annexed
to this judgment:
- concurring
opinion of Judge Zupančič;
- concurring
opinion of Judge Myjer,
joined by Judge Zagrebelsky.
J.-P.C.
V.B.
CONCURRING OPINION OF JUDGE ZUPANČIČ
To
the majority opinion with which I agree, I would like to add the
following remarks in order to pinpoint two additional issues. I have
explained the first question to some extent in my concurring opinion
in Scozzari and Giunta
several years ago. One problem in family law cases, in pre-trial
detention cases, and in emergency assessment cases, as in Saadi
v. Italy here, is that the judicial assessment does not have
to do with a past historical event. Because I have dealt with this
question in Scozzari and Giunta it is not necessary to
reiterate the whole problem, except that I might add that the legal
paradigm is retrospective. Legal process as a conflict resolution
context, together with all its evidentiary apparatus, is always
retrospective. It is the insurance companies that are used to making
“speculative” probabilistic assessments of the likelihood
of future events. In American legal literature one may find many
serious mathematical contributions concerning the descent from
abstract probability to the concrete assessment of risk. When one is
dealing with large numbers, as insurance companies, for example,
often do, one may use a fairly simple formula known as “Bayes'
theorem”. However, when one is dealing with rare events, the
use of Bayes' formula becomes impossible, given that in rare events
there is no statistical reality one could refer to. In paragraph 142
of the judgment the majority rightly says that although the
assessment of risk remains to some degree speculative, the Court has
always been very cautious in examining the material placed before it
in the light of the requisite standard of proof (§§
128-132) before indicating an interim measure under Rule 39 or
finding that enforcement of removal from the territory would be
contrary to Article 3 of the Convention.
Of
course, the reference in this context has always been to Chahal.
In paragraph 74, the standard rule was established as follows: “where
substantial grounds have been shown for believing that the person in
question, if expelled, would face a real risk of being subjected to
torture or to inhuman or degrading treatment or punishment in the
receiving country, Article 3 implies the obligation not to expel the
person in question to that country.” This standard has been
used by the U.N. Committee against Torture when applying Article 33
of the U.N. Convention against Torture.
While
superficially logical, the Chahal test has an inherent problem which
I describe in the beginning of this opinion. No matter how precise
the wording of the Chahal test, it applies to the probability of
future events rather than something which has already happened. It
is therefore at least inconsistent to say that a certain standard of
proof as referred to in the judgment in paragraph 142 could be
applied. The simple reason for that is, of course, that one cannot
prove a future event to any degree of probability because the law of
evidence is a logical rather than a prophetic exercise. It is
therefore an understatement to say that the application of the
Chahal test is “to some degree speculative”.
The
cognitive approach to future events may be only a rational
probabilistic assessment in the spectrum of experiment which moves
from abstract probability to concrete probability. The correctness
of that probabilistic assessment – one might use the word
prognosis – critically depends on the nature of information
(not evidence!) adduced in a particular situation.
Whether
law deals with past events and their proof on the one hand or with
the probabilities of future events on the other hand, the
information supplied for the purpose is never one hundred per cent
complete. When dealing with historical events, the problem is that
they are un-repeatable by nature and are in some sense irretrievably
lost in the past. This, in contrast with repeatable events, makes
for the difference between the scientific approach and proof on the
one hand and a legal assessment of what has happened in the past on
the other hand.
Consequently,
there is a parallelism between the evidentiary problem in assessing
the actual occurrence of past events on the one hand, and the
probabilistic assessment of future events as in the present case on
the other hand. However, while in both cases we are dealing with
situations that are cognitively never completely accessible, the
“evidentiary” problem concerning future events is far
more radical.
From
time immemorial the legal process has dealt with these problems and
has invented a way of resolving situations despite this cognitive
insufficiency. I refer to the use of presumptions in Roman law where
the magistrate (praetor) was required to make a decision
about the past event although the evidence adduced was insufficient.
The formula concerning presumptions, therefore, referred to
situations of doubt and it required the decision-maker to assume a
particular position when in doubt, as indicated by the legally
mandated presumption. In other words, this enabled the system to
reach a res judicata level even without being able to
ascertain the whole truth.
The
mirror image of presumption is what at common law we call “the
burden of proof” and “risk of non-persuasion”. The
person bearing the burden and risk in the legal process is therefore
put in a situation in which he must adduce sufficient evidence –
or else lose the case.
This
logic works very well with past events, but it does not work very
well either in family law cases (Scozzari and Giunta) or in
pre-trial detention cases or for that matter in Rule 39 cases.
The
latter are clearly emergency situations in which a person is for
example arrested at an airport in order to be expelled
(refoulement). To say in such a situation that this person
must bear both the burden of proof and the risk of non-persuasion –
while being held at the airport detention centre! – is
clearly absurd. To make such a person bear the burden and the risk
without redistributing both the burden and the risk and placing a
large portion of it on the expelling state, borders on the
inquisitorial. This kind of superficial formalism goes against the
very grain of the European Convention on Human Rights.
Moreover,
the purpose of injunctions as per Rule 39 of the Rules of Court is
not to adjudicate a particular case. In every legal system emergency
measures of this kind apply in order to freeze the situation so that
the court dealing with the situation may have the time and the
opportunity to make justice prevail. In such situations the issue is
not whether the person being expelled will or will not be tortured
or subjected to inhuman or degrading treatment in the country to
which he is being expelled, but simply to create a delay without
irremediable consequences should the person be irretrievably
expelled. The aim therefore is not some kind of truth finding. The
aim is to create conditions in which truth finding may yet happen.
It
therefore becomes obvious that the role of presumptions and of the
“burden of proof” is here completely different because
it does not serve an ultimate decision over the subject matter; it
only serves to preserve the future scope of judicial decision-making
over the subject matter. It follows inexorably that the role of the
person being expelled in Rule 39 situations is to produce a shadow
of a doubt, whereupon the burden of proof shifts to the country
concerned. This is human rights. In evidentiary doctrine this is
called “bursting the bubble”, as for example, in the
case of presumption of sanity, where a minimum of doubt suffices to
eliminate this presumption and shifts the burden to the prosecution.
The reasons for that shift are, of course, completely different in
the context of criminal trial, but are extenuated to the nth
degree in an airport emergency situation in which the person is
being expelled. In the context of human rights the minimal empathy
and the humanness of human rights dictate that a person threatened
with expulsion should not bear an excessive burden of proof or risk
of non- persuasion. The expelling state, in other words, is morally
responsible for the mistaken assessment of risk, whereas the Court
must in such situations favour the security of the person being
expelled.
I
am in complete agreement with paragraph 139 of the judgement in
which the majority is saying that there is simply no quid pro quo
between “serious threat to the community” on the one
hand and “the degree of risk of ill-treatment that the person
may be subject to on return” on the other hand. The police
logic advanced by the intervening Contracting State simply does not
hold water. The question of the danger posed by the person to be
expelled to the expelling party does not have an immediate bearing
of any kind on the danger he might face if in fact expelled.
Certainly, there will be cases in which a confirmed or notorious
terrorist will for that reason face a harsher sentence in the
country, usually a non-signatory of the Convention, to which he is
being expelled. The fact, however, that these two sets overlap does
not in itself prove that there should be a quid pro quo
between them.
It
is intellectually dishonest on the other hand to suggest that
expulsion cases require a low level of proof simply because the
person is notorious for his dangerousness. From the policy point of
view it is clear that the expelling state will in such situations be
more eager to expel. The interest of a party, however, is no proof
of its entitlement. The spirit of the ECHR is precisely the
opposite, i.e. the Convention is conceived to block such short
circuit logic and protect the individual from the unbridled
“interest” of the executive branch or sometimes even of
the legislative branch of the state.
It
is thus extremely important to read paragraph 139 of the judgment as
a categorical imperative protecting the rights of individual. The
only way out of this logical necessity would be to maintain that
such individuals do not deserve human rights – the third party
intervenes is unconsciously implying just that to a lesser degree –
because they are less human.
CONCURRING OPINION OF JUDGE MYJER, JOINED BY JUDGE
ZAGREBELSKY
I
voted with the other judges that, if the decision to deport the
applicant to Tunisia were to be enforced, there would be a violation
of Article 3 of the Convention. I also fully agree with the reasoning
which is contained in paragraphs 124-148 of the judgment.
Still,
I would like to add the following remarks.
As
far as the procedure is concerned:
The
question of principle in the case of Saadi v. Italy, as raised
by the intervening Government (is there reason to alter and modify
the approach followed by the Court in the Chahal case in cases
concerning the threat created by international terrorism), was
earlier raised in some other cases which are at present still pending
before a Chamber of the Third Section (Ramzy v. the Netherlands
(25424/05) and A. v. the Netherlands (4900/06). In these cases
against the Netherlands leave to intervene as a third party was
granted to the Governments of Lithuania, Portugal, Slovakia and the
United Kingdom and to some non-governmental organisations. These
Governments submitted a joint third-party intervention; separate
third-party submissions and a joint third-party submission were filed
by some non-governmental organisations.
It
then happened that the case of Saadi v. Italy (earlier
referred to as N.S. v. Italy) was ready for decision while the cases
against the Netherlands were not. In the case Saadi case the
Chamber of the Third Section relinquished jurisdiction on 27 March
2007 in favour of the Grand Chamber. In Case-law report 95 of March
2007 (the provisional version, which appeared in April 2007) mention
was made on p. 38 of the N.S. v. Italy case (relinquishment in
favour of the Grand Chamber), indicating that this was a case
concerning the expulsion of the applicant to Tunisia on grounds of
his alleged participation in international terrorism. The same
appeared in the final version of Information Note No. 95 on the
case-law of the Court, March 2007, which appeared some time later.
The Government of the United Kingdom requested leave to intervene as
a third party in good time.
As
far as the question itself is concerned:
Paragraph
137 of the judgment gives the answer in a nutshell: “the
Court notes first of all that States face immense difficulties in
modern times in protecting their communities from terrorist violence.
It cannot therefore underestimate the scale of the danger of
terrorism today and the threat it presents to the community. That
must not, however, call into question the absolute nature of Article
3.”
I
would not be surprised if some readers of the judgment– at
first sight - find it difficult to understand that the Court by
emphasising the absolute nature of Article 3 seems to afford more
protection to the non-national applicant who has been found guilty
of terrorist related crimes than to the protection of the community
as a whole from terrorist violence. Their reasoning may be assumed
to run as follows: it is one thing not to expel non-nationals –
including people who have sought political asylum – where
substantial grounds have been shown for believing that the person in
question, if expelled, would face a real risk of being subjected to
treatment contrary to Article 3 in the receiving country (see for
instance the judgment of 11 January 2007 in the case of Salah
Sheek v. the Netherlands) or even not to expel non-nationals who
fall in the category of Article 1F of the Convention on the Status
of Refugees of 28 July 1951 (decision of 15 September 2005 in the
case of Teshome Goraga Bonger v. the Netherlands) as long as
these people pose no potential danger for the lives of the citizens
of the State, but it makes a difference to be told that a
non-national who has posed (and maybe still poses) a possible
terrorist threat to the citizens cannot be expelled.
Indeed,
the Convention (and the protocols thereto) contain legal human
rights standards which must be secured to everyone within the
jurisdiction of the High Contracting Parties (Article 1). Everyone
means everyone: not just terrorists and the like. The States also
have a positive obligation to protect the life of their citizens.
They should do all that could be reasonably expected from them to
avoid a real and immediate risk to life of which they have or ought
to have knowledge (judgment of 28 October 1998 in the Osman v.
the United Kingdom case, §§ 115-116). They have, as
was laid down in the preamble of the Guidelines of the Committee of
Ministers of the Council of Europe on human rights and the fight
against terrorism (adopted on 11 July 2002), “the
imperative duty” to protect their populations against
possible terrorist acts. I even daresay that the Convention obliges
the High Contracting States to ensure as far as possible that
citizens can live without fear that their life or goods will be at
risk. In that respect I recall that Freedom from Fear ranks
among the Four Freedoms mentioned in Roosevelt's famous speech.
However,
States are not allowed to combat international terrorism at all
costs. They must not resort to methods which undermine the very
values they seek to protect. And this applies the more to those
“absolute” rights from which no derogation may be made
even in times of emergency (Article 15). During a high level seminar
on Protecting human rights while fighting terrorism (Strasbourg
13-14 June 2005) the former French Minister of Justice Robert
Badinter rightly spoke of a dual threat which terrorism poses for
human rights; a direct threat posed by acts of terrorism and an
indirect threat because anti-terror measures themselves risk
violating human rights. Upholding human rights in the fight against
terrorism is first and foremost a matter of upholding our values,
even with regard to those who may seek to destroy them. There is
nothing more counterproductive than to fight fire with fire, to give
terrorists the perfect pretext for martyrdom and for accusing
democracies of using double standards. Such a course of action would
only serve to create fertile breeding grounds for further
radicalisation and the recruitment of future terrorists.
After
the events of 11 September 2001 the Committee of Ministers of the
Council of Europe reaffirmed in the preamble of the abovementioned
guideline the States' obligation to respect, in their fight against
terrorism, the international instruments for the protection of human
rights and, for the member States in particular, the Convention for
the Protection of Human Rights and Fundamental Freedoms and the
case-law of the European Court of Human Rights. Guideline 14.2 makes
it clear that it is the duty of a State that intends to expel a
person to his or her country of origin or to another country, not to
expose him or her to the death penalty, to torture or to inhuman or
degrading treatment or punishment.
The
Court found that in this case substantial grounds have been shown
for believing that the applicant would risk being subjected to
treatment contrary to Article 3 of the Convention, if he were to be
deported to Tunisia.
Then
there is only one (unanimous) answer possible.
