ECtHR, XX v. Italy, No. 50163/08, 2010
- 2010
- Italy
Topics
Membership in a terrorist organisationLegal bases
European Convention on Human Rights Rule 39 (interim measures) of the Rules of Court (ECtHR)Courts
European Court of Human Rights (ECtHR)Laws
Torture, degrading and inhuman and treatment Right to respect for private and family life Right of individual petitionFacts
The applicant, XX, is a Tunisian national who was born in 1969. He had been living in Italy since 1986 with his wife, a Tunisian national, and his three young children, born in Italy. In April 2003 he was arrested on suspicion of criminal conspiracy linked to fundamentalist Islamist groups and of aiding and abetting illegal immigration, and was placed in pre-trial detention. On 15 July 2006 the Cremona Assize Court sentenced him to ten years and six months’ imprisonment and ordered his deportation once his sentence had been served. The Brescia Assize Court of Appeal acquitted Mr XX of the charge of aiding and abetting illegal immigration and reduced his sentence to seven years’ imprisonment. That decision was upheld by the Court of Cassation and became final. In November 2008 the applicant was granted a remission of 485 days of his sentence. Meanwhile, the Tunisian courts had also sentenced him, in absentia, to ten years’ imprisonment for membership of a terrorist organization in peacetime. At Mr XX’s request the Court, applying Rule 39 of the Rules of Court (interim measures), indicated to the Italian authorities on 18 November 2008 that, in the interests of the proper conduct of the proceedings before it, the applicant should not be deported until further notice. The Court pointed out that failure by a Contracting State to comply with a measure indicated under Rule 39 could entail a violation of Article 34 of the Convention. Mr XX was nevertheless deported to Tunisia on 13 December 2008. The previous day, the Italian authorities had sought diplomatic assurances from the Tunisian authorities. Replying on 3 January 2009, the Advocate-General at the Directorate-General of Judicial Services in Tunisia assured the Italian authorities that the applicant’s human dignity would be respected, that he would not be subjected to torture, inhuman or degrading treatment or arbitrary detention, that he would receive the appropriate medical care and that he would be able to receive visits from his lawyer and members of his family. Following an enquiry from the Italian authorities, the Tunisian Ministry of Foreign Affairs indicated in October 2009 that Mr XX was being detained in Saouaf Prison and was receiving visits from his family and medical treatment.
Legal grounds
Rule 39 of the Rules of the ECtHR (Interim measures); Article 3 of the ECHR (prohibition of inhuman or degrading treatment); Article 8 of the ECHR (right to respect for private and family life and the home); Article 34 of the ECHR (right of individual application).
Findings
Basing its findings on the conclusions it had reached in a previous case (Saadi vs. Italy), which were confirmed by Amnesty International’s 2008 report on Tunisia, the Court considered that substantial grounds had been shown for believing that Mr XX faced a real risk of being subjected to treatment contrary to Article 3 in Tunisia. It remained for the Court to ascertain, firstly, whether the diplomatic assurances provided by the Tunisian authorities were sufficient to eliminate that risk and, secondly, whether the information concerning Mr XX’s situation following his deportation confirmed the view of the Italian authorities. As a result of examinations carried out, the Court found that the carrying-out of the applicant’s expulsion to Tunisia had been in breach of Article 3 of the Convention. In view of its finding of a violation of Article 3, the Court did not consider it necessary to rule separately on Article 8 of the Convention. In cases such as the present one where a risk of irreparable damage was plausibly asserted, the object of the interim measure indicated by the Court was to maintain the status quo pending the Court’s determination of the case; the interim measure therefore went to the substance of the application. Furthermore, the Court had already ruled that failure to comply with interim measures was to be regarded as preventing the Court from effectively examining the applicant’s complaint, as impeding the effective exercise of his or her right and, accordingly, constituted a violation of Article 34. The Court therefore held that there had been a violation of Article 34.