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.
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.
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.