UN expert criticizes proposed Italy wiretapping law

UN Special Rapporteur on freedom of expression Frank La Rue on Tuesday 13 July criticized an Italian draft bill (in Italian) that would restrict the use of wiretaps and criminalize the reporting of wiretap transcripts by the news media.

The proposed law covers surveillance and eavesdropping in criminal investigations, but some observers are concerned it may limit the work of journalists and impinge on freedom of expression. La Rue urged the Italian government to either abolish or substantially revise the bill, warning that if it is adopted in its current form, it could significantly suppress freedom of expression in the country.

Under the proposed legislation, a three-judge panel would be required to grant a wiretap, and the wiretap would only be valid for a two-month period. The proposed law would sanction the imprisonment for up to four years of anyone who records any communication without consent, unless the person doing the recording is accredited as a journalist. The same penalty could be imposed for publicizing information obtained by such recording. Other provisions establish penalties of up to 30 days in jail and a fine of up to €10,000 for journalists and of €450,000 for publishers for publicizing the contents of leaked wiretapped materials prior to the commencement of a trial.

La Rue expressed concern about the penalties journalists would face under the bill and the effect it would have on investigative reports on matters of public interest like corruption. He also cautioned that the penalties proposed under the bill would, “seriously undermine all individuals’ right to seek and impart information” in violation of the International Covenant on Civil and Political Rights to which Italy is a party. The Italian Senate approved the bill last month. The bill must be approved by Italy’s lower house of parliament before it becomes law.

(JURIST) The Italian bill has been extremely controversial. Supporters of the bill claim it is necessary in order to protect privacy and curb the excessive use of wiretaps. The bill has been widely criticized by members of the media and prosecutors who contend the bill is aimed at protecting high-ranking officials, including Prime Minister Silvio Berlusconi, who are often the focus of wiretap investigations. Opponents also contend that the bill would weaken the ability of the judiciary to conduct investigations, including investigations into organized crime.

Guantanamo update

Judge orders Yemeni freed
A federal judge Wednesday 26 May ordered the Obama administration to free a Yemeni man at Guantánamo who has long claimed he was captured in Pakistan studying Koran and had no ties to al Qaeda.

U.S. District Judge Henry H. Kennedy Jr.’s ruling of unlawful detention in the case of Mohammed Hassen, 27, raised the number of detainee wins in Guantánamo detention challenges to 36.

The judge gave the government until June 25 to report back. It ordered the Obama administration to “take all necessary and appropriate diplomatic steps” to arrange for the Yemeni’s release “forthwith.”

Judge upholds Libyan’s Guantanamo detention
Separately, a federal judge upheld the indefinite detention of a Libyan at Guantánamo in an April 19 decision during a closed-door hearing in Washington not yet noted on the U.S. District Court’s public docket.

Judge James Robertson accepted the government’s argument in the case of Omar Mohammed Khalifh, 38, who as far back as 2004 sent a message to a military panel reviewing his status. “I would rather be in the worst American jail than be a minister in my country,” he wrote. “I want to stay here.”

Volunteer defense attorney Cary Silverman of Washington said Khalifh fled his country in 1995, as an opponent of the Qaddafi regime, and fears for his safety and that of his family were he to be returned. Defense lawyers, however, had sought his release to a safe third country.

DC Circuit refuses evidentiary hearing for Uighur detainees
(JURIST) The US Court of Appeals for the District of Columbia Circuit on Friday refused to order a new evidentiary hearing in the case of five Chinese Muslim Uighurs detained at Guantanamo Bay. Instead, in a per curiam decision, the court reinstated its original opinion, which gives political branches exclusive power in determining the release of non-citizens being held by the federal government. In April, the Supreme Court ordered the circuit court to reconsider Kiyemba v. Obama in light of the fact that each of the remaining Uighurs has received an offer of resettlement by another country. In response, the circuit court denied the petitioners’ request to remand the case to the district court for an evidentiary hearing on whether any of the resettlement offers were “appropriate,” holding that it was in the power of the political branches to determine whether a country is appropriate for resettlement. The court further explained that even if the detainees had good reason to reject the resettlement offers, they still possessed no right to be released into the US:

    In seven separate enactments – five of which remain in force today – Congress has prohibited the expenditure of any funds to bring any Guantanamo detainee to the United States. Petitioners say these statutes, which clearly apply to them, violate the Suspension Clause of the Constitution. But the statutes suspend nothing: petitioners never had a constitutional right to be brought to this country and released. Petitioners also argue that the new statutes are unlawful bills of attainder. The statutory restrictions, which apply to all Guantanamo detainees, are not legislative punishments; they deprive petitioners of no right they already possessed.

The Constitution Project, a bipartisan think tank focusing on constitutional issues, immediately denounced the judgment. The group criticized the court’s ruling for being too broad on the issue of the judiciary’s role the release of detainees. Authoring a separate concurring opinion, Circuit Judge Judith Rogers, agreed with the Constitution Project’s assertion that the ruling was too broad, but held that there was no role for the judiciary in this case because the five Uighurs “hold the keys to their release from Guantanamo. All they must do is register their consent” to the proposed resettlement offers.

Italy agrees to take two more Guantanamo detainees
[JURIST] Italian Foreign Minister Franco Frattini announced Tuesday 25 May that Italy will take two more detainees from the Guantanamo Bay detention facility. The announcement came during a meeting the US officials from the National Security Council, including National Security Adviser James Jones. Italy’s Interior Ministry will review profiles of potential transferees before an agreement is made with US authorities on which detainees Italy will take. Italy hinted at the possibility that the selected detainees may be brought to Italy as cleared captives rather than face trial or additional jail time. Last year, Italy accepted three Tunisian detainees  from Guantanamo to stand trial for terrorism charges.

US lawmakers mull bill to increase scrutiny of Guantanamo lawyers
(JURIST) US lawmakers are currently considering a Department of Defense (DOD) appropriations bill containing a section that would allow increased investigation by the Pentagon into the practices of lawyers representing Guantanamo Bay detainees.

Section 1037 of the National Defense Authorization Act for Fiscal Year 2011 would allow the Pentagon’s inspector general to conduct investigations if there is reasonable suspicion that a Guantanamo lawyer is interfering with DOD detention facility operations, violating DOD policy, violating any law that is within the exclusive jurisdiction of the inspector general, or generating a “material risk” to a member of the armed forces. Results from these investigations are reported back to Congress.

Italy: Minister revokes imam’s political asylum

Italy’s interior minister Roberto Maroni revoked the political asylum granted to a radical Islamist preacher after he was jailed on terrorism charges. Egyptian-born imam Abu Imad will be deported as soon has served a 44-month sentence which he began last month, Maroni said.

“When this individual has finished serving his sentence, he will be expelled from Italian soil,” Maroni stated.

Imad is currently detained at Benevento jail in southern Italy.

Maroni’s announcement came a day after Imad was granted asylum – two weeks after Italy’s highest court, the Court of Cassation on 28 April upheld a previous prison sentence imposed on Imad by a Milan court in December 2007.

A member of the Muslim community in Italy’s Lombardy surrounding Milan, Muhammad Rida al-Badri, said Italian authorities had granted asylum to Imam, who is reportedly close to Egypt’s Islamist Muslim Brotherhood, to prevent him being extradited to Egypt as Cairo had requested.

“Abu Imad first asked for political asylum in Italy 17 years ago,” said al-Badri. “He has now been given political asylum because they want to keep him in jail in Italy for several reasons, and one of these is to avoid any criticism from the European Union that he should be handed over to Egypt.”

Imad’s own lawyer, Carmelo Scambia, said on Thursday he was “amazed” at the granting of asylum to his client, which Imad had requested in 1995.

Imad was until March last year an imam at the northern Italian city of Milan’s central mosque, which has been linked to Islamist terrorism several times.

Imad and 10 other defendants had allegedly set up a Salafite cell that was active in Milan and elsewhere in the northern Lombardy region. Imad’s co-defendants were also jailed.

The cell’s mission is believed to have been recruiting suicide bombers, trafficking illegal immigrants and to have been responsible for indoctrination of recruits in radical jihadist ideology.

Italy expels 2 Moroccans on terrorism grounds

Italy has expelled under its anti-terrorism law two Moroccans on 29 April 2010 because they were suspected of plotting to assassinate Pope Benedict, an Italian Ministry source said on Friday.

Mohammed Hlal, 27, studied international communications in the central  town of Perugia before being sent back to Morocco by Italian police  along with 22-year-old Errahmouni Ahmed, who studied maths and physics  also in Perugia.

“Hlal wished for the death of the head of the Vatican City state, saying he was ready to kill him to ensure his own ascent to heaven,” said the  expulsion decree signed by Italian Interior Minister Roberto Maroni.

The ministry said Friday the two were placed on a Casablanca-bound plane in Rome on April 29 in order to “safeguard the security of the state” and to prevent terrorism, the  interior ministry said, citing phone tapped conversations as evidence.

News magazine Panorama, owned by Prime Minister Silvio Berlusconi’s family, reported on Friday that local anti-terrorist police had tapped Hlal’s phone and had raised the alarm when he said he wanted to acquire explosives.

The magazine said police discovered a map of Turin at Errahmouni’s house annotated with numbers and circles, ahead of a visit to the northern Italian city by Pope Benedict on May 2 to venerate the Shroud of Turin, which many Catholics believe was Jesus Christ’s burial cloth.

Panorama described Errahmouni as a computer expert who remained in contact with militant groups over the Internet. It said Perugia had become a centre for travelling imams to preach radical Islam.

The deportations followed an investigation begun by anti-terrorism  police last October into a group of radical Muslim foreign students in Italy,most of whom came from the Moroccan city of Fez. The interior ministry said the two deported Moroccans belonged to this group.

Anti-terror police also searched the homes of several foreign students at Perugia, including four Moroccans, a Tunisian and a Palestinian with Israeli citizenship, who had in recent months had contact with the two deported Moroccans.

ECtHR Chamber Judgment in Trabelsi v. Italy

On 13 April, the European Court of Human Rights (ECtHR) issued a judgment (press release in english; judgment in French) condemning Italy for the violation of Article 3 (prohibition of inhuman or degrading treatment) and Article 34 (right of individual petition). In a nutshell the Court held that the expulsion of an Islamic fundamentalist to Tunisia, despite the Court’s indications, placed him at risk of torture or ill-treatment and deprived his application of any useful effect.

Principal facts

The applicant, Mourad Trabelsi, is a Tunisian national who was born in 1969. He had been living in Italy since 1986 with his wife, a Tunisian national, and his three young children, born in Italy. In April 2003 he was arrested on suspicion of criminal conspiracy linked to fundamentalist Islamist groups and of aiding and abetting illegal immigration, and was placed in pre-trial detention.

On 15 July 2006 the Cremona Assize Court sentenced him to ten years and six months’ imprisonment and ordered his deportation once his sentence had been served. The Brescia Assize Court of Appeal acquitted Mr Trabelsi of the charge of aiding and abetting illegal immigration and reduced his sentence to seven years’ imprisonment. That decision was upheld by the Court of Cassation and became final. In November 2008 the applicant was granted a remission of 485 days of his sentence. Meanwhile, the Tunisian courts had also sentenced him, in absentia, to ten years’ imprisonment for membership of a terrorist organisation in peacetime.

At Mr Trabelsi’s request the Court, applying Rule 39 of the Rules of Court (interim measures), indicated to the Italian authorities on 18 November 2008 that, in the interests of the proper conduct of the proceedings before it, the applicant should not be deported until further notice. The Court pointed out that failure by a Contracting State to comply with a measure indicated under Rule 39 could entail a violation of Article 34 of the Convention.

Mr Trabelsi was nevertheless deported to Tunisia on 13 December 2008.

The previous day, the Italian authorities had sought diplomatic assurances from the Tunisian authorities. Replying on 3 January 2009, the Advocate-General at the Directorate-General of Judicial Services in Tunisia assured the Italian authorities that the applicant’s human dignity would be respected, that he would not be subjected to torture, inhuman or degrading treatment or arbitrary detention, that he would receive the appropriate medical care and that he would be able to receive visits from his lawyer and members of his family.

Following an enquiry from the Italian authorities, the Tunisian Ministry of Foreign Affairs indicated in October 2009 that Mr Trabelsi was being detained in Saouaf Prison and was receiving visits from his family and medical treatment.

Complaints

Relying on Articles 3 and 34 and also on Article 8 of the Convention (right to respect for private and family life), Mr Trabelsi complained of his expulsion and its consequences. The application was lodged with the European Court of Human Rights on 20 October 2008.

Decision of the Court

Complaint concerning the risk of torture (Article 3)

Expulsion by a Contracting State could engage the responsibility of that State under the Convention, where substantial grounds had 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. In these circumstances, Article 3 dictated that the person concerned should not be expelled to that country.

Basing its findings on the conclusions it had reached in a previous case (Saadi v. Italy) which were confirmed by Amnesty International’s 2008 report on Tunisia, the Court considered that substantial grounds had been shown for believing that Mr Trabelsi faced a real risk of being subjected to treatment contrary to Article 3 in Tunisia.

It remained for the Court to ascertain, firstly, whether the diplomatic assurances provided by the Tunisian authorities were sufficient to eliminate that risk and, secondly, whether the information concerning Mr Trabelsi’s situation following his deportation confirmed the view of the Italian authorities.

On the first point the Court examined whether, looking beyond the assurances received and the legislation in force, their actual application in Mr Trabelsi’s case was such as to protect him against the risk of treatment prohibited by the Convention. It noted first of all that it had not been established that the Advocate-General at the Directorate-General of Judicial Services had had the power to give assurances on behalf of the Tunisian State. The Court went on to observe that reliable international sources indicated that allegations of ill-treatment were not investigated by the competent authorities in Tunisia and that the Tunisian authorities were reluctant to cooperate with independent human rights organisations. Lastly, the Court noted that neither Mr Trabelsi’s representative before the Court nor the Italian ambassador in Tunisia had been able to visit the applicant in prison, check on his situation and hear any complaints he might have had. Accordingly, the Court could not share the view of the Italian Government that the assurances given offered the applicant effective protection against the serious risk of being subjected to treatment contrary to Article 3.

On the second point the Court reiterated that the existence of a risk of ill-treatment had to be assessed primarily with reference to those facts which were known or ought to have been known to the State in question at the time of the expulsion. The Court was not precluded, however, from having regard to information which came to light subsequently and which might be of value in confirming or refuting the appreciation made by the State concerned of the well-foundedness or otherwise of an applicant’s fears. The Court noted that the Tunisian Ministry of Foreign Affairs had stated that the applicant received regular visits from his family and would be kept under medical supervision. However, although these assertions came directly from the Tunisian Foreign Affairs Ministry, they were not corroborated by medical reports and were not capable of demonstrating that the applicant had not been subjected to treatment contrary to Article 3. In that connection the Court could only reiterate its observations as to the inability of the applicant’s lawyer and the Italian ambassador to visit the applicant in prison and to verify whether his physical integrity and human dignity were indeed being respected.

The Court therefore held that the carrying-out of the applicant’s expulsion to Tunisia had been in breach of Article 3 of the Convention.

Complaint concerning respect for private and family life

In view of its finding of a violation of Article 3, the Court did not consider it necessary to rule separately on this second complaint.

Complaint concerning the failure to comply with the interim measure indicated to Italy (Article 34)

In cases such as the present one where a risk of irreparable damage was plausibly asserted, the object of the interim measure indicated by the Court was to maintain the status quo pending the Court’s determination of the case; the interim measure therefore went to the substance of the application. Furthermore, the Court had already ruled that failure to comply with interim measures was to be regarded as preventing the Court from effectively examining the applicant’s complaint, as impeding the effective exercise of his or her right and, accordingly, as a violation of Article 34.

The present case was no exception. Italy had deported the applicant to Tunisia in the knowledge that the interim measure indicated under Rule 39 was still in force and without even having obtained beforehand the diplomatic assurances to which the Government referred in their observations. In the circumstances, Mr Trabelsi had been unable to set out all the arguments relevant to his defence and the Court’s judgment was in danger of being deprived of any useful effect. In particular, the fact that the applicant had been removed from Italian jurisdiction constituted a serious impediment to the fulfilment by the Government of their obligations (arising out of Articles 1 and 46 of the Convention) to safeguard the applicant’s rights and make reparation for the consequences of the violations found by the Court. That situation had amounted to hindrance of the effective exercise by the applicant of his right of individual petition, which had been nullified by his expulsion.

The Court therefore held that there had been a violation of Article 34.

Italian judge explains guilty verdict against Google

Google profited commercially from a video posted in 2006 of an Italian teenager with Down’s Syndrome being bullied in school, according to Judge Oscar Magi.

His statements were contained in the explanation (pdf, italian) of the guilty verdict Magi handed down February 24 in a landmark case against three Google executives for invasion of privacy.

According to Magi, the Internet is not a ‘no man’s land’ where everything is permitted because “laws exist which govern behavior and which establish obligations. And if these obligations are not respected then they result in penal consequences”.

“It is not what is written on a wall that constitutes a crime for the wall’s owners, unless it is exploited commercially,” the judge observed. The criminal intent of the three executives was identified in their purpose of profiting commercially from the video. In the case at hand, the magistrate wrote that this purpose was related to the commercial and operational interaction between Google Italy and Google Video. Google Italy was dealing with the data contained in uploaded videos on Google Video platform and was therefore responsible for them. The Judge referred to conscious acceptance of risk by the diffusion of data, especially sensitive ones, such as the video in question, which should have been given special protection.

The conviction of the three Google executives drew criticism from the United States embassy in Rome which said that “the fundamental principle of freedom on the Internet is vital for democracy”.

A similar argument was used by Google when it announced it would appeal a sentence it saw as “an attack on the fundamental principles of freedom on which the Internet was built”.

Magi also responds to the critics, writing: “It does not seem to this court to have significantly altered the legal parameters that governed the decision” in similar cases. “In any case – it can be read – this judge, like everyone else, is waiting for a ‘good law’ on this subject.”

The trial was the first anywhere against executives of the Internet search engine company and was seen as having implications for the way Google operates in Italy and for the wider debate over freedom of speech and legal responsibility for Internet postings.

Former Google Italy president David Carl Drummond, now senior vice president, was given a six-month suspended jail term along with George De Los Reyes, a retired former Google Italy board member, and Peter Fleitcher, Google Europe’s privacy strategy chief.

Under Italian law the three are entitled to two automatic appeals.

The three, for whom prosecutors had asked a year’s term, were found guilty of invasion of privacy.

At the time of the ruling, prosecutors said they were “satisfied” because “business freedom can never neglect safeguards for human dignity, as this trial demonstrated”.

They argued that “this was never a trial on Web freedom as some (experts) said”.

From the outset, Google expressed puzzlement over the case and said the decision to take it to trial was ”difficult to understand” and it set a ”worrying precedent”.

In the smartphone footage, posted on September 8, 2006 and removed on November 7, 2006, the boy was seen being taunted, insulted and kicked by one student in particular as others looked on. The location appeared to be a classroom and the people visible appeared to be about 16 years of age. The video was posted in Google Italy’s ‘Most Fun Videos’ section and got 5,500 hits in its two months on the Web.

Three Italian NGO volunteers ‘probably held illegally’ in Afghanistan

Italian medical charity Emergency said it will demand the “immediate” release of three of its workers arrested on Saturday 10 april  in connection with an alleged plot to kill a southern Afghanistan provincial governor.

“We’re going to ask for the immediate release of our guys,” said the communications chief of the Italian NGO, Maso Notarianni.

Notarianni said Afghan law requires suspects to be released within 24 hours unless charges are pressed.

“We think they’re probably being held illegally,” he said. “Rather than (their) detention, we should be talking about abduction”.

He added that the Italian foreign ministry was “moving” on the case.

So far, the three detainees- surgeon Marco Garatti, 40, nurse Matteo Dell’Aira, 30, and logistical technician Matteo Pagani Bonaiuti, 18 – have only been placed under investigation after arms and explosives were found in their field hospital in the capital of Helmand province, Lashkar Gah.

Afghan officials say the find was linked to a plot to kill the governor of the war-torn province, Goulab Mangal.

Emergency says the three were “framed” to get rid of the relief organisation because it is an unwanted witness to the scale of civilian casualties.

The Emergency spokesman said the idea of shutting down its operations in Afghanistan in protest at the arrests was “for now premature”.

“We aren’t thinking about it,” Notarianni said.

Meanwhile Rome prosecutors said they were following the case.

A probe has not yet started because the alleged involvement of the Emergency men “is not very clear”, judicial sources said. But they said a probe will be formally opened “in the next few days” whether the charges prove to have some basis or not.

The parliamentary secret service commission, COPASIR, will hear Italian intelligence agency AISE on the case Wednesday.

According to Italian media, Italian intelligence suspects there is something “strange” about the case. Earlier, Helmand province spokesman Daud Ahmadi told ANSA the three had not confessed to being linked to al-Qaeda, as erroneously reported by The Sunday Times.

Ahmadi said the British newspaper had already “apologised” to him.

Italian Foreign Minister Franco Frattini called the Sunday Times’ report a serious case of “misinformation”. But The Times correspondent in Afghanistan, Jerome Starkey, denied the spokesman’s claim, saying Ahmadi had spoken of a confession on two occasions.

When he announced the arrest of nine people including the three Italians on Saturday, Ahmadi said the arms were intended for use against Helmand Governor Mangal.

Helmand has been the stage of some of the fiercest fighting in the Afghan war since NATO launched a huge offensive against the Taliban in February. Italian Ambassador Claudio Glaentzer has met with Governor Mangal and reaffirmed Italy’s confidence in the Afghan justice system, the spokesman said.

Glaentzer asked the Afghan investigators to bring their probe to a speedy conclusion “so that we know the results as soon as possible,” Ahmadi said.

Any decision on keeping the three in Helmand or sending them to Kabul would be up to the central government, the spokesman said.

The Afghan interior ministry said Monday the probe into the weapons was ongoing and speculation as to how it might turn out was premature. The head of Emergency, Gino Strada, has called the allegations against the three “a set-up” and suggested NATO wants Emergency out of the way because it is releasing undesired details about the civilian cost of the war.

NATO has denied taking part in the raid on the hospital but Strada says soldiers wearing NATO gear were caught on video there. Frattini has said if the allegations against the three turn out to be true it would be a “disgrace for Italy”.

On Monday NATO troops fired on a bus near Kandahar killing at least four civilians and wounding another 18. Afghan President Hamid Karzai condemned the attack and NATO admitted it had made a mistake, voicing “deep regret”.