Ben Khemais v. Italy

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 116

February 2009

Ben Khemais v. Italy - 246/07

Judgment 24.2.2009 [Section II]

Article 34

Hinder the exercise of the right of petition

Deportation despite interim measure ordered by Court: failure to comply with Article 34

Article 3

Expulsion

Risk of ill-treatment owing to deportation to Tunisia of a terrorist convicted in his absence: violation

Facts: The applicant was convicted of assault at first instance and on appeal and the judgment stated that he was to be expelled from Italian territory after serving his sentence. The outcome of an appeal on points of law was unknown. In the meantime, in 2002 the Tunis Military Court had sentenced the applicant in absentia to ten years’ imprisonment for being a member, in peacetime, of a terrorist organisation. The applicant allegedly did not learn about his conviction in Tunisia until one of his co-defendants was expelled there. On that occasion, members of the co-defendant’s family allegedly informed the applicant that the co-defendant had been tortured and imprisoned in Tunis and had not been allowed to contact a lawyer. In March 2007 thePresident of the Second Section of the Court decided to inform the Italian Government, by virtue of Rule 39 of the Rules of Court, that in the interest of the parties and of the proper conduct of the proceedings it was advisable not to expel the applicant to Tunisia until further notice. In June 2008 the applicant’s representative informed the Registry that his client had been taken to Milan airport for deportation to Tunisia. The Government informed the Court that an expulsion order had been issued against the applicant in May 2008 because of the part he had played in the activities of Islamic extremists planning terrorist attacks.

Law: Article 3 – The Court referred to the case of Saadi v. Italy (no. 37201/06, [GC], judgment of 28 February 2008, see also Information Note no. 105 for further details) and saw no reason in the present case to revise the conclusions it had reached in that case concerning the situation in Tunisia. There were substantial grounds in the present case for believing that there had been a real risk that the applicant, who had been sentenced to a long term of imprisonment for belonging to a terrorist organisation in peacetime, would be subjected to treatment contrary to Article 3 of the Convention if sent to Tunisia. Concerning the diplomatic assurances offered by the Tunisian authorities and considering the circumstances of the case, the Government’s argument that the assurances given afforded effective protection against the serious risk of the applicant being subjected to treatment contrary to Article 3 of the Convention could not be accepted. On the contrary, according to the principle laid down by the Parliamentary Assembly of the Council of Europe in its Resolution 1433(2005), diplomatic assurances were not enough unless the absence of a risk of ill-treatment was firmly established. Furthermore, as regards the information supplied by the Government concerning the applicant’s situation in Tunisia, while there was evidence that the applicant had not suffered any treatment contrary to Article 3 of the Convention in the weeks following his expulsion, there was no knowing what might happen to him in the future. In that connection the Court could but note that the applicant’s representative before the Court and the Italian Ambassador in Tunis had not been allowed to visit the applicant in prison and verify that he was being treated with due respect for his physical integrity and his human dignity.

That being so, the applicant’s expulsion to Tunisia had violated Article 3 of the Convention.

Conclusion: violation (unanimously).

Article 34 – As Italy had deported the applicant to Tunisia, the level of protection of the rights enshrined in Articles 2 and 3 of the Convention which the Court could guarantee the applicant had been irreversibly diminished. The expulsion had deprived of its effect any finding of a violation of the Convention, the applicant having been deported to a country which was not party to the Convention, where he alleged he was at risk of being subjected to treatment contrary to the Convention. Furthermore, having lost all contact with his lawyer, the applicant had been denied an opportunity to have additional inquiries made in order to obtain evidence in support of his allegations, inquiries that could have been carried out even after the exchange of submissions. In addition, before deporting the applicant the Government had not requested the lifting of the interim measure adopted under Rule 39 of the Rules of Court, which they knew was still applicable, and had gone ahead with the expulsion even before obtaining the diplomatic assurances it referred to. The facts of the case as described above clearly show that as a result of his expulsion to Tunisia the applicant had not been able to submit all the relevant arguments in his defence and the Court’s judgment was likely to be deprived of its effect. In particular, the fact that the applicant had been removed from Italy’s jurisdiction was a serious obstacle that might prevent the Government from honouring their obligations, under Articles 1 and 46 of the Convention, to protect his rights and make reparation for the consequences of any violations found by the Court. That situation had hindered the applicant’s effective exercise of his right of individual application guaranteed by Article 34 of the Convention, which his expulsion had rendered nugatory. That being so, by failing to comply with the interim measure indicated in conformity with Rule 39 of the Rules of Court, Italy had failed in this case to honour its commitments under Article 34 of the Convention.

Conclusion: violation (unanimously).

Article 41 – EUR 10,000 in respect of non-pecuniary damage.

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