Saadi v. Italy—European Convention on Human Rights—prohibition of torture and ill-treatment—absolute character of the provision—deportation of Tunisian citizen—national security—responsibility of the deporting state—diplomatic assurances—Ben Khemais v. Italy
In Saadi v. Italy,1 the Grand Chamber of the European Court of Human Rights (ECtHR) unanimously reaffirmed the absolute character of the prohibition of torture and inhumane or degrading treatment or punishment provided by article 3 of the European Convention on Human Rights (ECHR).2 In the case at issue, the ECtHR held that the decision of the Italian government to deport a suspected terrorist to Tunisia—where he would have faced a “real risk” of torture—would have resulted in a violation of article 3 ECHR. This note presents the facts surrounding the case and analyzes the main issues addressed by the decision, with reference to the arguments presented by the parties and interveners before the Court. Despite the express prohibition in article 15(2) of the ECHR of any derogation to article 3, the Court's decision is, nonetheless, of major importance in light of the claims advanced by several states since September 2001 that, in the effort to provide a more secure environment for citizens and to fight international terrorism, the protection of some fundamental rights should be balanced against national security concerns. The Court rejected these claims and strongly reaffirmed the principle that no circumstance, including the threat of terrorism, can justify exposing an individual to the risk of serious human rights mistreatments. The principles reaffirmed in Saadi have recently found application in Ben Khemais v. Italy,3 where the ECtHR addressed in further detail the persuasiveness of diplomatic assurances when ascertaining whether there is a real risk of ill-treatment in the receiving country.
The applicant in Saadi v. Italy, Nassim Saadi, was a Tunisian national lawfully residing in Italy and married to an Italian citizen. On October 9, 2002, Saadi was arrested under article 270bis of the Italian criminal code on suspicion of involvement in international terrorism. Saadi was charged on four counts: conspiracy to commit acts of violence in states other than Italy, with the intention of arousing widespread terror; falsification of documents; receiving stolen goods; and attempting to aid and abet clandestine immigration.4 On May 9, 2005, the criminal court in Milan reclassified the first offense from international terrorism to criminal conspiracy and ordered Saadi's deportation to his home country after serving his sentence of four years and six months’ imprisonment. On May 11, 2005, a military tribunal in Tunis sentenced Saadi in absentia to twenty years’ imprisonment for incitement to terrorism and membership in a terrorist organization operating abroad in time of peace. Saadi would later maintain that he received no notice of this sentence until July 2, 2005, when the judgment was served on his father in Tunisia.
After serving his sentence in Italy, Saadi was released on August 9, 2006. The next day, Italy's minister of the interior issued a deportation order under Law no. 155/2005,5 based on a determination that Saadi was considered a threat to national security for his activity in an organization supporting fundamentalist Islamist cells in Italy and abroad. Under article 3, §§4 and 4bis of Law no. 155/2005, appeals filed against deportation orders issued under this law can be lodged with the Regional Administrative Tribunal and the Council of State; however, enforcement of the order is not automatically stayed. The questore in Milan declared Saadi's request for political asylum inadmissible on August 16, 2006, on the ground that he represented a danger to national security. On September 14, 2006, Saadi lodged an application6 with the ECtHR against Italy under article 34 ECHR, claiming that enforcement of the order would violate three articles of the ECHR. First, it would expose him to a risk of treatment contrary to article 3. He also claimed that enforcement would constitute a flagrant denial of justice under article 6. Finally, deportation would deprive his wife and son of his presence and support, thereby infringing on the right to respect for family life in article 8. Lastly, Saadi further alleged under article 1 of Protocol No. 7 (“Procedural safeguards relating to expulsion of aliens”) that expulsion was neither necessary to protect public order nor grounded in national security concerns. On October 5, 2006, the ECtHR asked the Italian government to stay Saadi's expulsion.7 After his applications for a residence permit and recognition of refugee status were rejected, Saadi was taken back to the temporary holding center in Milan.
On May 29, 2007, the Italian embassy in Tunis made a series of requests, including (a) a copy of the judgment issued by the military tribunal on May 11, 2005, (b) diplomatic assurances that the applicant would not be subjected to treatment contrary to article 3 if Italy deported him, and (c) a grant of “the right to appeal, and to be judged by an independent and impartial tribunal, in accordance with a procedure which, taken as a whole, complies with the principles of a fair and public trial.”8 The Italian government notified the ECtHR in July 2007 of receipt of such assurances. The Tunisian minister of foreign affairs had sent two notes verbales to the Italian embassy emphasizing that “Tunisian laws in force guarantee and protect the rights of prisoners in Tunisia and secure to them the right to a fair trial,”9 and that Tunisia had “voluntarily acceded to the relevant international treaties and conventions.”10 Pursuant to these declarations, Italy claimed to have complied with its obligations arising under article 3. In contrast, Saadi claimed that the declarations issued by the Tunisian government did not satisfy article 3.
Relevant Court precedents
The Saadi case builds on principles established by the ECtHR in two previous decisions addressing the protection provided by article 3 to the foreign national whom a contracting state is seeking to deport to a state not party to the Convention and where there is a risk that the deportee would face torture, or inhumane or degrading treatment or punishment. Under article 3, even those acts of torture or ill-treatment carried out by the receiving state remain the responsibility of the deporting state.11 This was first affirmed in Soering v. United Kingdom, in which the United Kingdom sought to extradite a U.S. citizen charged with murder to Virginia, where he was likely to face the death penalty. The ECtHR determined that extradition would have subjected him to inhumane and degrading treatment or punishment, taking into account the typical average seven-year delay in Virginia between conviction and execution.12 The Court rejected the U.K.’s argument that an extraditing state could not be responsible under the ECHR for any inhumane or degrading treatment or punishment inflicted by a receiving state: “[i]n so far as any liability under the Convention is or may be incurred, it is responsibility incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.”13
The Court addressed article 3, again, in Chahal v. United Kingdom, in which the deporting state claimed that the deportee, a Sikh separatist, represented a threat to national security and should have been deported to India.14 The U.K. government argued in Chahal that the ECtHR must consider the deporting state's national security interests in expelling the applicant. The Court held that the state's security interests could not be considered in determining whether the contracting state had violated the Convention. The Court undertook a textual and structural analysis of the ECHR, concluding that the prohibition in article 3 against torture, inhumane or degrading treatment or punishment, unlike some other provisions, was absolute.15 Thus, the Court found, article 3 excludes any possibility of balancing the conflicting interests involved. Neither is any possibility of derogation in the interest of national security, public order or safety, welfare or morality allowed. Moreover, the prohibition in article 3 applies even “in time of war or other public emergency threatening the life of the nation.”16 This interpretation makes the prohibition in article 3 more absolute than the article 2 protection of the “Right to life,” for example, whose protection can be derogated, upon adoption of proper measures, for deaths resulting “from lawful acts of war.” The Court stated, therefore, that consistency within the Convention's structure and provisions meant that “the activities of the individual in question, however undesirable or dangerous, cannot be of material consideration.”17 The Court has consistently reaffirmed this principle in its subsequent judgments.
Intervention by the U.K.
Saadi was only one of three cases to address this matter, pending a decision by the ECtHR. These are cases in which the United Kingdom had requested—and, under article 36(2) ECHR, had been granted—leave to intervene as a third party.18 Together with the governments of Lithuania, Portugal, and Slovakia, the U.K. government in Saadi raised arguments also presented in Ramzy v. the Netherlands, a case involving a deportation to Algeria.19 The governments contended that threats by international terrorists, as well as the difficulties of combating terrorism, had significantly increased in the years following the 1996 Chahal decision,20 and they urged the Court to adopt a new interpretive approach to articles 3 and 15 that would balance the risks faced by the deportee against the deportee's potential threat to the deporting country's national security. The U.K. government argued that the rigidity of the “absolute ban” interpretation was inconsistent with the original intention of the signatories to the ECHR and had compromised the ability of states parties to enforce expulsion measures effectively. The changed circumstances called for a new approach that would first weigh, on a case-by-case basis, the risk faced by a deportee (article 3 protection) against a state's interest in national security and the safety of its citizens (article 2 protection). Second, this new approach should change the burden of proof borne by the deportee; namely, if a deporting state provided evidence of a threat to national security, then the applicant should meet a higher burden of proof that there is a risk of torture or ill-treatment in the receiving country. Further, the U.K. advocated a reconsideration of the principle established in Soering that holds the deporting state responsible for inhumane acts committed by the receiving state. Finally, the U.K. joined Italy in strongly advocating a waiver of article 3 responsibilities for deporting countries when the receiving state provides diplomatic assurances that the individual concerned will not be subjected to inhumane treatment.
The decision of the ECtHR
In a unanimous decision, the Grand Chamber of the ECtHR found Italy in violation of article 3. Reaffirming the responsibility of the contracting states for “taking action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment,”21 the Court went on to acknowledge the difficulties faced since 2001 by states in protecting their citizens from acts of terrorism; nevertheless, it emphasized that the danger of terrorism “must not […] call into question the absolute nature of Article 3.”22 Because article 3 protection is absolute, it is impossible to balance the risk of inhumane and degrading treatment against any other reason expressed by a state. In response to the U.K.’s first argument—regarding the threat an applicant might pose to the community—the Court reasoned that such a threat does not reduce the risk that the applicant might suffer harm if deported. Addressing the second argument, the Court reaffirmed that showing substantial grounds for believing the applicant will be subjected to inhumane treatment in the receiving country is all that is needed for a deportation to violate the ECHR. The burden of proof cannot be raised in situations like these, where the subject already faces difficulties proving the risk of mistreatment.
Traditionally, the Court has relied on reports drafted by independent international human rights organizations or government sources to assess the risk of ill-treatment. This case was no exception; the ECtHR based its determination of the risk of torture in the receiving country on 2006 and 2007 Amnesty International reports, the 2007 Human Rights Watch report, and the 2006 report on “human rights practices” compiled by the U.S. State Department.23 These documents denounced the controversial 2003 Tunisian antiterrorism law that broadly defines terrorism and was being “used against Tunisians repatriated against their will from Bosnia-Herzegovina, Bulgaria and Italy” to “prosecute persons merely for exercising their right of political dissent.”24 The U.S. State Department report describes the practices adopted by Tunisian authorities to secure confessions25 and affirms that conditions of incarceration in Tunisia fall below the international standard.26
Turning to the issue of diplomatic assurances, the Court found that the information provided by the Tunisian government did not qualify as such: “[The] existence of domestic laws and accession to treaties [is] not sufficient to ensure adequate protection against the risk of ill-treatment,” it stated, especially when other reliable sources report practices contrary to the principles of the Convention. Finally, even if the Tunisian authorities had provided guarantees, the ECtHR would still have had to assess their reliability.27 In the Court's view, Italy had not taken all necessary steps to obtain proper assurances.
Both Judge Zupančič and Judge Myjer issued concurring opinions, with Judge Zagrebelsky joining Myjer. Judge Zupančič found the U.K. argument that the deportee should bear a higher burden of proof “intellectually dishonest.” “The interest of a party [in expelling a person] is no proof of its entitlement. The spirit of the ECHR is precisely the opposite, i.e., the Convention is conceived to block such short circuit logic and protect the individual from the unbridled ‘interest’ of the executive […] or the legislative branch of the State.”28 Judge Myjer and Judge Zagrebelsky focused their attention on the policy reasons supporting the decision. While recognizing the “imperative duty” of contracting states to protect their citizens against terrorist attacks and to ensure they can live without fear that their lives or property will be at risk,29 the two judges stress that “[s]tates are not allowed to combat international terrorism at all costs. They must not resort to methods which undermine the very values they seek to protect. This principle applies, in particular, to those “absolute” rights that may not be derogated even in times of emergency.”30 The Court, therefore, found that deporting Saadi would have violated article 3 of the ECHR. Trusting that the Italian Government would comply with the decision and not enforce deportation, the ECtHR considered it unnecessary to decide whether articles 6 and 8 of the ECHR and article 1 of Protocol No. 7 had been violated.
“There is only one (unanimous) answer possible”31
Although the Saadi decision does not represent an innovation in the Court's deportation jurisprudence, it is, nonetheless, important in light of attempts to lower the standard of protection for fundamental rights as various states struggle with international terrorism. While some commentators find unusual the assignment of such a case to the Grand Chamber, others view it as an acknowledgment of the importance and relevance of the issue,32 especially since the Grand Chamber's previous pivotal decision on the matter, Chahal, was issued before the September 2001 terrorist attack on the World Trade Center and the July 2005 London bombings. Saadi sends a strong message to all states parties to the ECHR that the Court is not willing to lower the standard of protection for fundamental rights just when this protection is needed most. Adoption of the U.K.’s approach would significantly weaken the guarantee of article 3 and render meaningless the absolute prohibition on torture and other ill-treatments guaranteed by article 15.
Judge Myjer's concurring opinion, joined by Judge Zagrebelsky, adds some policy reflections to the structural analysis of the Court, pointing up certain shortcomings in the reasoning of the Italian and British governments. Expulsions and deportations, while traditionally regarded as established principles of international law permitting states to use immigration legislation to protect their territories from threats to their citizen's lives, should not be considered primary tools in the fight against terrorism, as has often been the case after the World Trade Center and London terrorist attacks. In the interests of human rights’ protection and a democratic system of government, these traditional mechanisms should be considered as last resorts and be used only when in compliance with the ECHR. Restricting liberty in pursuit of security carries with it its own risks of harm and of “giv[ing] terrorists the perfect pretext for martyrdom and for accusing democracies of using double standards.”33 States can employ alternative means to fight terrorism and protect citizens, such as covert investigation, surveillance, or restriction of a suspect's freedom of movement. While these actions may require more economic resources, at least they comply with the system of human rights protection established by the ECHR, since the rights potentially infringed are not subject to absolute protection under the Convention. In contrast, when a contracting state advocates lowering the standards that protect fundamental rights, the Court has shown that “there is only one (unanimous) answer possible.”
This message from the ECtHR is particularly relevant to the Italian legislation enacted to fight international terrorism after September 11. Law no. 155/2005 is part of a package of comprehensive legislation passed by the Italian government to combat international terrorism, which included amending the Italian Criminal Code in 2001 and 2005, modifying existing articles, and introducing new provisions criminalizing a wide range of conduct directly or indirectly supporting terrorism.34
Law no. 155/2005 provides that deportation orders issued by the Ministry of the Interior on the basis of suspicion of involvement in terrorist activities remain enforceable.35 Even if a deportation order is not supported by a final judgment by a judicial authority or is challenged before an administrative court, deportation is not stayed. Law no. 155/2005 thus privileges deportation as a means of fighting terrorism. This approach contrasts starkly with the jurisprudence of the ECtHR. The Italian Constitutional Court has been called upon only once to judge the constitutionality of Law no. 155/2005 with regard to these very provisions; in that case, the Constitutional Court declared unfounded the questions of constitutionality presented with regard to articles 3 (principle of equality), 25, and 113 (both related to the right to a fair trial) of the Italian Constitution.36 The judgment was surprising, especially in light of two important decisions handed down by the Italian Constitutional Court a few weeks earlier.37 In those decisions, the Italian Court overruled previous case law and determined that the ECHR—and the jurisprudence of the ECtHR interpreting it—enjoyed semiconstitutional status as an “interposed norm.” The Convention now supplemented the constitutional parameter according to which the constitutionality of a law had to be assessed.38 In judging the constitutionality of Law no. 155/2005, however, the Court and parties did not invoke article 3 of the ECHR as a parameter. Therefore, Law no. 155/2005 may be vulnerable to a subsequent challenge under Article 3 of the ECHR before the Italian Constitutional Court and should be amended to comply with the decisions issued by the ECtHR and to avoid further declarations of violation of the ECHR or “unconstitutionality.”
Without resolving the issue, the Court in Saadi also addressed whether formal assurances of humane treatment from a receiving country can mitigate the duty of a contracting state in deportation cases.39 The Italian government had presented “an urgent request for guarantees, as an indispensable formal prerequisite” from the Tunisian government.40 Yet the Court underlined that even if the Tunisian authorities had provided Italy with these assurances, the Court must still examine whether such assurances represented a reliable guarantee. In practice, however, the Court has never found diplomatic assurances reliable enough whenever a risk of torture or ill-treatment had been found. This is consistent with the statements made by several international institutions that diplomatic assurances against torture and ill-treatment should be considered unreliable.41
Additionally, the Second Chamber of the ECtHR unanimously found Italy in violation of article 3 of the ECHR in Ben Khemais v. Italy, another case involving deportation of a Tunisian citizen.42 In Ben Khemais, the Court clarified further the weight to be accorded to diplomatic assurances in mitigating a state's duty under article 3. In a situation analogous to Nassim Saadi’s, the Tunis Military Court had sentenced Essid Sammi Ben Khemais in absentia to ten years’ imprisonment for membership in a terrorist organization during a time of peace; the Italian tribunal ordered him deported to Tunisia after serving his sentence. Unlike in Saadi, however, Ben Khemais was deported to Tunisia before the ECtHR could issue its judgment. In January 2007, after Ben Khemais lodged an application with the ECtHR alleging that deportation would violate articles 2 and 3 of the ECHR, the Court notified the Italian government to stay the deportation. On May 31, 2008, however, a new deportation order was issued against the applicant, who was deemed capable of resuming international terrorist activities. The applicant was taken to the Milan airport on June 3, 2008, and deported to Tunisia. To avoid being found in violation of article 3, the Italian Government requested diplomatic assurances from the Tunisian authorities that Ben Khemais would not be subjected to inhumane treatment while serving his sentence in Tunisia. On August 28, 2008, Tunisian authorities provided information more detailed than the notes verbales presented in the Saadi case: a new trial had been set to pass on the prisoner's crimes; Ben Khemais had never been subjected to inhumane treatment, consistent with the express prohibition in the Constitution of Tunisia;43 police custody was subjected to judicial control under the Constitution of Tunisia44 and instances of ill-treatments were severely punished; and a national law provided that detention conditions were determined “with a view to safeguard the physical and moral integrity of the detainee, help him to be prepared for his life after detention and provide for rehabilitation.”45 As in Saadi, these notes verbales reiterated that Tunisia had ratified and implemented the United Nations Convention Against Torture and Other Cruel Inhumane or Degrading Treatment or Punishment.46 No complaint had been filed by Ben Khemais or his lawyers, and the particulars of his trial were reported. His trial was public, the rules of procedure provided for cross-examination of witnesses and accusers, and the right to a lawyer was observed. However, Tunisian law prohibited visits from Italian diplomatic authorities or the foreign lawyer representing the detainee before the ECtHR.
In acknowledging the assurances provided, the ECtHR referred to the principle that assurances are not in themselves sufficient to avoid responsibility under article 3 of the ECHR, unless the absence of a risk of ill-treatment is established firmly.47 Even the provision of extensive assurances does not per se waive responsibility under the ECHR, and it is up to the Court to determine, on a case-by-case basis, whether the guarantees provide effective protection against inhumane treatment. The Court did not share the Italian government's view that the proffered assurances demonstrated an effective degree of protection. Indeed, the ECtHR found that not even the existence of national law (constitutional and statutory) prohibiting ill-treatment, together with law implementing international agreements, when weighed against reports issued by the same international human rights organizations cited in Saadi, qualify as a sufficient guarantee against the risk of torture. The prohibition against the applicant's communicating with his lawyer or with Italian diplomatic authorities confirmed the disadvantages faced by a detainee in Tunisia who wishes to access international and independent tribunals. In the Court's view, the level of protection guaranteed by the ECHR was irreversibly diminished48 and even a favorable decision by the Court would not have much utility for the applicant. The fact that the applicant had been removed from Italy hindered the Italian government from effectively complying with its obligation under the ECHR to protect fundamental rights or even to make up for the consequences of the violations eventually found by the Court. In light of the foregoing, the Court unanimously that the action taken by the Italian government violated article 3 of the ECHR.
Taken together, the two decisions described here provide a comprehensive account of the ECtHR's interpretation of article 3 ECHR in cases of deportation of foreign nationals to countries where they risk inhumane treatment. In a time when the “ticking bomb” scenario has become an oft-cited hypothetical identifying unlikely circumstances in which the ends would justify the use of exceptional means to avoid “closing the door” completely on the use of torture,49 the interpretation of article 3 articulated by the ECtHR in Saadi and Ben Khemais stands in vivid contrast. Despite the changed international environment, the Court has confirmed the rejection of even the risk of subjecting foreign nationals to ill-treatment, even in cases when actions are carried out by a noncontracting states and national security is at stake. The door is thus closed to any possible instance of torture.
The ECtHR also rejects a formalist approach in evaluating the persuasiveness of the diplomatic assurances provided by receiving states. In this respect, the standard set is high and is difficult to meet, especially when reports by international human rights organizations describe a different scenario. The message sent by the ECtHR is clear; in the fight against terrorism, democracies indeed carry a higher burden, which in itself defines them as democratic systems. The reaffirmation of these principles, when the pressure to use less protective means in fighting terrorism is very high, could not have been more timely.
This note is dedicated to Nicole D’Angelo—my best friend, confidant and fiancée.