EU: Court fines Italy for deporting terrorist

EU: Court fines Italy for deporting terrorist

This hasn't reached the English-language news yet, so I'll just bring the ECHR press release.    Mourad Trabelsi was part of an Al-Qaeda cell in northern Italy which collected funds and sent fighters to Jihad in Iraq.  See here and here for more on the cell.    He sat in prison in Italy and was later deported to Tunisia, where he was also wanted on terrorism charges.

Trabelsi's wife also made headlines, when she was prosecuted for wearing a burka during his trial.


Trabelsi v. Italy (application no. 50163/08)


Violation of Article 3 (prohibition of inhuman or degrading treatment)

and Article 34 (right of individual petition)
of the European Convention on Human Rights

Principal facts

The applicant, Mourad Trabelsi, 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 Trabelsi 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 organisation in peacetime.

At Mr Trabelsi'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 Trabelsi 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 Trabelsi was being detained in Saouaf Prison and was receiving visits from his family and medical treatment.


Complaint concerning the risk of torture (Article 3)

Expulsion by a Contracting State could engage the responsibility of that State under the Convention, where substantial grounds had been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 dictated that the person concerned should not be expelled to that country.

Basing its findings on the conclusions it had reached in a previous case2, which were confirmed by Amnesty International's 2008 report on Tunisia, the Court considered that substantial grounds had been shown for believing that Mr Trabelsi 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 Trabelsi's situation following his deportation confirmed the view of the Italian authorities.

On the first point the Court examined whether, looking beyond the assurances received and the legislation in force, their actual application in Mr Trabelsi's case was such as to protect him against the risk of treatment prohibited by the Convention. It noted first of all that it had not been established that the Advocate-General at the Directorate-General of Judicial Services had had the power to give assurances on behalf of the Tunisian State. The Court went on to observe that reliable international sources indicated that allegations of ill-treatment were not investigated by the competent authorities in Tunisia and that the Tunisian authorities were reluctant to cooperate with independent human rights organisations. Lastly, the Court noted that neither Mr Trabelsi's representative before the Court nor the Italian ambassador in Tunisia had been able to visit the applicant in prison, check on his situation and hear any complaints he might have had. Accordingly, the Court could not share the view of the Italian Government that the assurances given offered the applicant effective protection against the serious risk of being subjected to treatment contrary to Article 3.

On the second point the Court reiterated that the existence of a risk of ill-treatment had to be assessed primarily with reference to those facts which were known or ought to have been known to the State in question at the time of the expulsion. The Court was not precluded, however, from having regard to information which came to light subsequently and which might be of value in confirming or refuting the appreciation made by the State concerned of the well-foundedness or otherwise of an applicant's fears. The Court noted that the Tunisian Ministry of Foreign Affairs had stated that the applicant received regular visits from his family and would be kept under medical supervision. However, although these assertions came directly from the Tunisian Foreign Affairs Ministry, they were not corroborated by medical reports and were not capable of demonstrating that the applicant had not been subjected to treatment contrary to Article 3. In that connection the Court could only reiterate its observations as to the inability of the applicant's lawyer and the Italian ambassador to visit the applicant in prison and to verify whether his physical integrity and human dignity were indeed being respected.

The Court therefore held that the carrying-out of the applicant's expulsion to Tunisia had been in breach of Article 3 of the Convention.


The Court held that Italy was to pay the applicant 15,000 euros (EUR) in respect of non-pecuniary damage and EUR 6,000 for costs and expenses.


Source: ECHR (English)

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