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ECtHR rules against Italy in Trabelsi expulsion case

On 13 April 2010 in Strasbourg, the European Court on Human Rights (ECtHR) found that Italy violated articles 3 -prohibition of torture- and 34 -obstructing the applicant's right to seek effective remedy through the ECtHR- of the European Convention on Human Rights (ECHR) in relation to the expulsion of a Tunisian national. It did not comply with the temporary suspension of the removal measure ordered in application of article 39 of its regulation by the ECtHR, by expelling Mourad Trabelsi to Tunisia on 13 December 2008. The ruling noted that, in view of the violation of article 3, there was no need to examine whether a violation of article 8 (right to private and family life) was also applicable. The Italian government was ordered to pay 21,000 Euros in damages, court costs and compensation.

Trabelsi had lived legally in Italy (Cremona in Lombardy) since 1986 and was married to a Tunisian woman with whom he had had three young children born in Italy. He was arrested in April 2003 and found guilty in July 2006 of membership of a criminal organisation involved in assisting illegal immigration that was linked to fundamentalist groups, receiving a ten-and-a-half-year prison sentence which after serving he was to be deported. A military court in Tunis had sentenced him in absentia to ten years in prison for membership of a terrorist organisation in January 2005. Having applied to the Pavia judge for the supervision of sentence execution for a sentence remission on 3 October 2008, it was granted on the following 14 November, reducing his sentence by 485 days. Trabelsi had filed a submission before the ECtHR to prevent his expulsion on 20 October 2008, and on 18 November the court informed the Italian government that Trabelsi's expulsion should not be executed until it received further instructions in order to allow the completion of the procedure before the court, reminding it that failure to comply could have entailed a violation of article 34 of the ECHR. His asylum application was rejected on 28 November 2008 by the Commission for the recognition of refugee status in Milan, which advised that a temporary permit "for humanitarian reasons" be issued as a result of the instructions from the ECtHR, but the interior minister proceeded to issue a new expulsion order that was enacted by first detaining Trabelsi in a temporary detention centre (CPT) on 4 December and then expelling him nine days later. On 4 December, the day when his client was detained and informed that he would be expelled, Trabelsi's lawyer informed the court of the new situation, and it sent a fax to remind Italian authorities that the interim measure "had not been lifted" and that the instruction "was still in force in spite of the fact that the expulsion was based on a new order".

Apart from the fact that they have been deemed unreliable in the wake of the Guantanamo and extraordinary rendition scandals, key elements in the ruling include the fact that diplomatic assurances sought by Italy from the Tunisian authorities that Trabelsi would not be subjected to torture, ill-treatment or an unfair trial were only received weeks after the expulsion, on 3 January 2009. The Court recalled that it had reliable sources that indicated the existence of "numerous and regular cases of torture and ill-treatment inflicted upon people suspected or found guilty of terrorism in Tunisia", noting that Trabelsi was convicted in absentia in a military court, and deemed that there was a "real risk of the applicant being subjected to treatment" that contravenes article 3 of the ECHR. The assessment that led to a dismissal of the worth of diplomatic assurances provided by Tunisia included documented cases in which torture had been alleged but were not investigated by Tunisian authorities, a Council of Europe's parliamentary assembly resolution (1433/2005) that considered them "insufficient when the absence of a risk of torture is not firmly established", the impossibility for Trabelsi's lawyer before the ECtHR and Italian embassy officials to visit him, and the fact that further information provided by Tunisia's foreign affairs ministry in October 2009 was not duly documented (in particular as regards his receiving medical care).

With regards to the alleged violation of article 34, the Italian government argued that the interim measure imposing a stay on the expulsion's execution is only applicable in cases involving "imminent danger of irreparable damage" after the exhaustion of internal remedies, which was not the case because the Pavia judge supervising sentence execution only confirmed Trabelsi's expulsion on 4 December 2008, while the interim measure was dated 18 November. It added that assurances obtained from Turkey in application of the ECtHR's Saadi vs. Italy ruling meant that no protected interests were in play. The applicant noted that the assurances were obtained weeks after the expulsion and hence, the Italian government could not argue that the expulsion was enacted on the "basis of the formal guarantees provided by Tunisia". The court appreciated that interim measures have a role in ensuring that the status quo is maintained while it decides upon a case in which the applicant "plausibly" states that they may be denied exercise of a human right protected by the ECHR, and that they are envisaged so as to guarantee "effective exercise" of the right to appeal a decision by a State. The decisions are of "fundamental importance" to prevent "irreversible situations" that would prevent the court from duly assessing the case or prevent the ruling from being effective. Hence, non-compliance by a State is deemed to be an "obstruction" of this right. His lawyer before the court was not allowed to visit Trabelsi in jail in Tunisia, thus undermining his possibility of stating his case before it, the interim measure was still in force, the Tunisian government's assurances were received after the expulsion had been enacted, and the court's ruling was stripped of any effectiveness. Hence, "Italy did not comply with its obligations… in relation to article 34 of the Convention".

The ruling is particularly important because Italy was already found guilty of a similar violation by the ECtHR in the Saadi vs. Italy case on 28 February 2008 about the applicant's expulsion to Tunisia when he was at risk of suffering torture, cruel or inhuman treatment. Italy's repeated failure to comply with the Strasbourg-based court's interim instructions, which are binding, was also criticised as "intolerable" in a press statement issued on 6 August 2009 by Herta Däubler-Gmelin (Germany) and Christos Pourgourides (Cyprus), respectively the Chair of the Council of Europe Parliamentary Assembly (PACE) Legal Affairs Committee and the rapporteur on the implementation of Strasbourg Court judgments. The statement followed the expulsion of Ali Toumi on 2 August 2009 in spite of an interim measure issued by the court for him not to be deported while his case was under examination, and listed it as one of four cases in which Italy had "blatantly disregarded" instructions from the court. This drew a response from interior minister Roberto Maroni:

"We respect the European Court's decisions, and I stress decisions. However, when I receive a fax from an official that says that it is necessary to suspend the expulsion while awaiting the Court's decision, I prefer to continue and expel an alleged terrorist. We cannot await the slowness of the Court, whose decisions we are nonetheless willing to receive. However, while awaiting their arrival, we apply our law. We have done so now and will continue to do it".

Once again, the ECtHR has ruled that this contravenes Italy's human rights obligations as a signatory of the European Convention on Human Rights, undermining the effectiveness of the court's decisions and the enjoyment of their human rights by applicants.

Sources

Trabelsi vs. Italy, Application no. 50163/2008, Decision, 13.4.2010
, Strasbourg, available at (in French)

Previous Statewatch coverage:

Allowing someone to live or letting them die: Italy contravenes European Court of Human Rights instructions by deporting Tunisian, by Gabriella Petti, Statewatch News online, December 2008 (includes relevant documentation on the case, including the Saadi vs. Italy decision):

Italy repeatedly ignores ECtHR orders to suspend expulsions to Tunisia, Statewatch news Online, September 2009

"Ordinary rendition" in Tunisia and relations with Libya: the Italian government heaps shame and ridicule onto itself, Fulvio Vassallo Paleologo, 10 August 2009, Statewatch News Online, September 2009 [translation]

The original, 'Ordinary rendition' in Tunisia e rapporti con la Libia: il governo italiano si copre di vergogna e di ridicolo, (in Italian, from MeltingPot)


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