CASE OF SAADI v. ITALY
(Application no. 37201/06)
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:
Boštjan M. Zupančič,
Sverre Erik Jebens,
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:
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.
I. THE CIRCUMSTANCES OF THE CASE
A. The criminal proceedings against the applicant in Italy and Tunisia
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
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 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.”
“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
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:
“Where a defendant fails to appear on the appointed date, having been personally informed of the obligation to do so, the court shall proceed to judgment, giving a decision which is deemed to follow adversarial proceedings. Where a defendant who fails to appear has been lawfully summoned, though not informed in person, judgment is given by default. Notification of judgment by default shall be given by the registrar of the court which gave judgment.
An appeal against a judgment by default must be lodged by the appellant in person, or his representative, with the registry of the court which has given judgment, within the ten days following service of the defendant's copy.
If the appellant lives outside Tunisian territory, the time allowed for appeal shall be increased to thirty days.
An appeal shall be lodged either by means of a verbal declaration, which shall be formally recorded forthwith, or by means of a written declaration. The appellant must sign; if he refuses or is unable to sign, that circumstance shall be formally recorded.
The registrar shall immediately fix a date for the hearing and inform the appellant thereof; in all cases the hearing must be held within one month from the date of the appeal.
The appellant or his representative shall inform the interested parties, with the exception of State counsel, and have them summoned by an officer of the court, at least three days before the date of the hearing, failing which the appeal shall be dismissed.”
“Where judgment has not been served on the defendant in person or where it does not appear from the documents recording enforcement of the judgment that the defendant had knowledge of it, an appeal shall lie until expiry of the limitation period applicable to the penalty concerned.”
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.”
“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
“The Contracting Parties, in accordance with their respective national legislation, agree that cooperation to prevent crime, as contemplated in the present agreement, will extend to searching for persons who have sought to evade justice and are responsible for criminal offences, and recourse to expulsion where circumstances so require and in so far as compatible with application of the provisions on extradition.”
“The present agreement is without prejudice to rights and obligations arising from other international, multilateral or bilateral agreements entered into by the Contracting Parties.”
B. Articles 1, 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees
“For the purposes of the present Convention, the term “refugee” shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
“1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law ...”
“1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
C. Guidelines of the Committee of Ministers of the Council of Europe
“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
“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.”
E. Report on Tunisia by Human Rights Watch
F. Activities of the International Committee of the Red Cross
G. Report of the US State Department on human rights in Tunisia
H. Other sources
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.
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Arguments of the parties
(a) The applicant
(b) The Government
2. The third-party intervener
3. The Court's assessment
(a) General principles
i. Responsibility of Contracting States in the event of expulsion
ii. Material used to assess the risk of exposure to treatment contrary to Article 3 of the Convention
iii. The concepts of “torture” and “inhuman or degrading treatment”
(b) Application of the above principles to the present case
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.”
1. Arguments of the parties
(a) The applicant
(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.
2. The Court's assessment
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.”
1. Arguments of the parties
(a) The applicant
(b) The Government
2. The Court's assessment
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.”
1. Arguments of the parties
(a) The applicant
(b) The Government
2. The Court's assessment
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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;
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
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.
CONCURRING OPINION OF JUDGE ZUPANČIČ
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.
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.
1 Scozzari and Giunta v. Italy [GC], nos 39221/98 and 41963/98, ECHR 2000 VIII.