28 March 2012
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Allowing someone to live or letting
them die
Italy contravenes European Court of Human Rights instructions
by deporting Tunisian
by Gabriella Petti
Six days have passed since
Mourad Trabelsi's expulsion, yet we know nothing about his fate
once he arrived in Tunisia. His relatives have looked for him
in prisons without any results, and his lawyer has not received
any news. The Italian government has probably co-operated with
the umpteenth disappearance of an individual involved in trials
for international terrorism.* According to lawyers, many of those
expelled, when they return to their countries of origin, have
been arrested, subjected to torture and and have sometimes disappeared.
In this case, we are dealing with someone who was sentenced to
seven years' imprisonment that he has just served in an Italian
prison, with a further twenty years to serve in a Tunisian jail,
following a sentence issued in absentia in his country of origin.
The status of people who have become embroiled in investigations
is unchangeable: they are terrorists for life, no possibility
of mending one's ways is envisaged. A clear example of this inevitability
is illustrated clearly by the circumstances involving Trabelsi,
to whom, apart from the prison sentence, the additional punishment
of expulsion has been applied as a security measure. In fact,
this last measure was announced by the interior affairs minister
on 3 December, on occasion of the arrest of two other terrorist
suspects a few days after the Mumbai attacks. On 14 November
2008, his lawyer turned to the European Court of Human Rights,
which asked the Italian government, in application of art. 39
of its own regulation, not to carry out the expulsion (see document,
below). As soon as Trabelsi was released (on 21 November), the
same lawyer turned to the interior ministry's Commissione Territoriale
di Riconoscimento dello Statuto di Rifugiato (Territorial Commission
for the Recognition of Refugee Status) of Milan in order to obtain
a "subsidiary protection status", in view of the high
risk of the man he defends being subjected to torture on his
return to Tunisia. In its session on 26 November 2008, the commission
decided not to grant the international protection status. At
the same time, however, it "advised" the Milan questore
(police chief) to issue a residence permit (under art. 5 point
6 of legislative decree 186/98) on the grounds of serious reasons
of a humanitarian kind, assessed while taking into account (see
document, below):
- the impossibility of carrying out the expulsion towards Tunisia
of the applicant on the basis a) of the measure adopted by the
European Court of Human Rights dated 18-11-2008, and b) of the
Saadi vs Italy sentence of 28-02-2008 that concerns an analogous
case, and c) of the unconditional "non refoulement"
principle in cases in which the person [in question] runs an
effective risk of being subjected to torture in their country
of origin (art. 3 ECHR)
- the presence of his three under-age children born in Italy
and of his wife, who has been in the national territory for a
considerable amount of time.
The "effective risk of being subjected to torture"
and the presence of his children and wife were seriously taken
into account by the ministerial commission. This cannot be said
of the media, which announced the news of the expulsion while
presenting the risk of torture as a conjecture by the person
concerned who, it was written, would only risk torture "in
his opinion". The position of the Magistrato di Sorveglianza
(judge supervising sentence execution) was just as frosty, as,
when he was called upon by the lawyer to re-examine whether his
client represented a danger to society, he confirmed the security
measure. The judge was rather quick in issuing his decision on
this complex matter: the hearing took place on 3 December, the
ordinance was issued on the same day (see document, below). The
main reason upon which the alleged danger posed by Trabelsi is
based - apart from a tautological consideration concerning the
seriousness of the crime for which he was sentenced - is his
lack of employment at the time of the decision and prior to his
arrest. It is worth clarifying that Mourad Trabelsi spent his
last days in Italy - from his release from prison until his expulsion
- in a Centro di Permanenza Temporanea (detention centre for
migrants awaiting expulsion).
Also on 3 December, strengthening the position assumed by the
magistrate, the interior minister issued a further expulsion
order (about which no documentation is available). On 4 December,
a new request from the European Court not to expel Trabelsi was
received by the Italian government (see document, below). Once
again, the request was ignored: on 13 December the measure was
carried out. His relatives and lawyers were informed when the
matter had already been resolved. The answer, a refusal, from
the official of the questore's office concerning the request
from the ministerial commission for the issuing of a permit for
humanitarian reasons was received by the lawyer when Trabelsi
was, perhaps, already back in Tunisia. While the counting game
regarding the days that have passed since the terrorist for life
was swallowed up into a void continues, another person awaits
the same fate in Nuoro prison [in Sardinia]: he is Drissi Noureddine,
who has already refused early release to avoid the risk of being
moved to a CPT. In the meantime, a judge supervising sentence
execution in Nuoro is examining his position. However, for Noureddine,
it may still be possible to do something.
Trabelsi's is "just" one of the many examples that
should lead to a reflection on the actual incisiveness of a body
such as the European Court of Human Rights, whose rulings, by
now, appear to have been relegated to the space of human rights
rhetoric without being capable of resulting in any concrete effects
on the lives of those who resort to its authority. However, even
more, these cases should draw attention to the threat of courts
turning into a transitional space that pushes [people] towards
the obscure areas of administrative control, where subjects who
are downgraded in human terms and deprived politically are placed.
From this perspective, the court may become a starting point
for a journey of invisibility that leads terrorists towards their
own "disappearance", in the midst of a general lack
of interest and without raising an outcry.
[translated by Statewatch]
Update:
Two days after this article was written, Mourad Trabelsi managed
to contact his sister by telephone, but it is still unclear what
happened during those six days.
Note:
On 28 February 2008, the European Court of Human Rights found
in favour of Nassim Saadi, unanimously deeming that expelling
the applicant to Tunisia would involve a violation of article
3 of the ECHR ("no one shall be subjected to torture or
to cruel or inhuman treatment or punishment"), and may be
in breach of articles 6 (right to a fair trial, in relation to
the in absentia trial in which he was sentenced in Tunisia) and
8 (respect for private and family life, home and correspondence)
of the Convention and article 1 of Protocol no. 7 ("an alien
may be expelled... when such expulsion is necessary in the interests
of public order or is grounded on reasons of national security").
In relation to Trabelsi's current plight [above], it is worth
noting that the judgement referred to reports by Amnesty International
and the US State Department indicating that "some persons
deported there had quite simply disappeared". Other parallels
between the cases include the fact that Trabelsi has a wife and
children living in Italy and that, like Saadi, has received a
20-year sentence in absentia for terrorist offences in Tunisia.
European Court of Human Rights Grand Chamber Judgement, Saadi v Italy (Application no. 37201/06)
Original article:
"Far vivere e lasciare morire", in Italian, original, 19.12.2008
Documents
Document 1: Rejection of the request for
subsidiary protection status, which also notes that the expulsion
cannot be carried out and suggests that issuing a residence permit
for serious humanitarian reasons be considered, Commissione Territoriale
di Riconoscimento dello Statuto di Rifugiato di Milano, 26.11.2008
(p. 1, in Italian); European Court of Human Rights, 2nd section,
reiterating the request not to expel Trabelsi, Strasbourg 4.12.2008
(p. 2, in French); European Court of Human Rights, 2nd section,
inviting the Italian government not to expel Trabelsi, Strasbourg,
18.11.2008 (p. 3, in French); European Court of Human Rights,
2nd section, communication to Trabelsi's lawyer, informing him
that the Court has invited the Italian government not to expel
Trabelsi in application of the Court regulation's article 39,
and that failure to comply may involve a violation of article
34 of the ECHR, Strasbourg, 18.11.2008 (pp. 4-5, in Italian).
Document 2:
European Court of Human Rights, 2nd section, communication to
Trabelsi's lawyer, informing him that the Court has invited the
Italian government not to expel Trabelsi in application of the
Court regulation's article 39, and that failure to comply may
involve a violation of article 34 of the ECHR, Strasbourg, 18.11.2008
(p. 1, in French); Rejection of the request for subsidiary protection
status, which also notes that the expulsion cannot be carried
out Commissione Territoriale di Riconoscimento dello Statuto
di Rifugiato di Milano, 26.11.2008 (p. 2, in Italian); Decision
by the Pavia Magistrato di Sorveglianza concerning Trabelsi's
expulsion as a security measure, deeming that "Trabelsi
is a person who is currently and concretely dangerous" on
the basis of the findings for which he was sentenced to seven
years for participation in terrorist activity, as well as his
lack of gainful employment opportunities. The judge also dismisses
Trabelsi's claims that he may be tortured if expelled to Tunisia,
by arguing that in spite of the 20-year in absentia sentence
passed against him, he did not submit any concrete element about
this danger, other than the violation of defence rights leading
to the sentence he has left to serve, about which the judge cannot
express an opinion. Moeover, he denies that the prohibition of
expulsions on the basis of possible discrimination or persecution
is applicable to cases in which they have not led to the recognition
of refugee status. The European Court of Human Rights' precautionary
request that the expulsion not be carried out while it examines
the case, is likewise dismissed as "not precluding the subject's
expulsion" as a security measure. Pavia, 3.12.2008, (pp.
3-7, in Italian); European Court of Human Rights, 2nd section,
reiterating the request not to expel Trabelsi, Strasbourg 4.12.2008
(p. 8, in French).
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