CASE OF SAADI v. ITALY
(Application no. 37201/06)
A. The criminal proceedings against the applicant in Italy and Tunisia
11. 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.
12. 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.
[…]
17. 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.
18. 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.
19. 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.
20. 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.
[…]
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
32. 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.
[…]
36. 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”.
37. 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.
[…]
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.
[…]
55. 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.”
[…]
3. The Court's assessment
(a) General principles
i. Responsibility of Contracting States in the event of expulsion
124. 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).
125. 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).
126. 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).
127. 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
128. 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 2001II).
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).
129. 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.
130. 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).
131. 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.o
53566/99, § 67, 26 April 2005; Said v. the
Netherlands, no. 2345/02, § 54, 5 July 2005; and Al-Moayad v. Germany (dec.),
no.o
35865/03, §§ 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).
132. 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).
133. 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”
134. 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).
135. 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).
136. 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
137. 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.
138. 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
127 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).
139. 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.
140. 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 illtreatment
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).
141. The Court further observes that similar arguments to those put forward by the thirdparty
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.
142. 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.
143. 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.
144. 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).
145. 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).
146. 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 pretrial
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.
147. 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.
148. 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 prevailing at the material time.
149. Consequently, the decision to deport the applicant to Tunisia would breach Article 3 of
the Convention if it were enforced.