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]
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.
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)
"Far vivere e lasciare morire", in Italian, original, 19.12.2008
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).
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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