Saadi v Italy: European Court of Human Rights Reasserts the Absolute Prohibition on Refoulement in Terrorism Extradition Cases

On February 28, 2008, the Grand Chamber of the European Court of Human Rights (ECtHR) handed down its judgment in Saadi v Italy.[1] In this case, Italy and the United Kingdom (as third party intervener) claimed that the climate of international terrorism called into question the appropriateness of the ECtHR's existing jurisprudence on states' non-refoulement obligation under Article 3 of the European Convention on Human Rights (European Convention).[2] Article 3 had earlier been interpreted to prohibit return or extradition of individuals to states in which they faced a "real risk" of torture, inhuman or degrading treatment. Both states also claimed that diplomatic assurances from a receiving state were sufficient to satisfy a sending state's Article 3 obligations. The ECtHR unanimously reasserted its existing jurisprudence and noted that involvement in terrorism did not affect an individual's absolute rights under Article 3.

Factual and Procedural Background

Nassim Saadi, a Tunisian national in Italy on the basis of a residence permit, was arrested on suspicion of involvement in international terrorism in October 2002. A lengthy prosecutorial and appeals process followed and continued until August 4, 2006 when he was released. In the intervening period, a military court in Tunis had convicted Saadi in abstentia of (1) membership in a terrorist organisation operating abroad in a time of peace, and (2) incitement to terrorism. He was sentenced to 20 years imprisonment. Following his release in Italy, Saadi was taken into pre-deporation detention on the basis of a Deportation Order issued by the Minister for the Interior on August 8, 2006. In issuing the Order, the Minister stated that "'it was apparent from the documents in the file' that the applicant had played an 'active role' in an organisation responsible for providing logistical and financial support to persons belonging to fundamentalist Islamist cells in Italy and abroad. Consequently, his conduct was disturbing public order and threatening national security."[3] Saadi then applied for political asylum, claiming that he was at risk of torture and political and religious reprisals if returned to Tunisia. His application for asylum was deemed inadmissible on the basis of national security. Following the intervention of numerous non-governmental organizations and production of documentation relating to incidences of torture and ill-treatment in Tunisia, the deportation was stayed by the Italian courts and a stay was also requested by the ECtHR.[4]

Saadi claimed that it was "a matter of common knowledge" that persons suspected of involvement in terrorism were frequently subjected to torture in Tunisia and, as a result, that the planned deportation would constitute a violation of his rights under Article 3 of the ECHR,[5] which provides that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

In response, the Italian government argued that Tunisia was a party to the relevant international human rights treaties (the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention Against Torture) and to agreements with Italy and the EU that required respect for fundamental rights. Taking into account the scale of the contemporary terrorist threat, the Italian government claimed that "the benefit of the doubt" ought to be given to a state that intends to deport an individual whose presence threatens the state's national interests.[6] Italy also noted its receipt of assurances from Tunisia in respect of the relevant Tunisian law prohibiting torture and ill-treatment. Thus, Italy argued, it fulfilled its positive obligation under Article 3 not to remove an individual to a state where there was a real risk that he would be subjected to prohibited treatment.[7]

The UK's Third Party Intervention

In a third party intervention, the UK[8] urged the Court to reconsider its principle, laid down in Chahal v UK,[9] that states may not take the dangerousness of an individual into account when conducting an Article 3 assessment of his proposed expulsion. Although the UK acknowledged that the positive obligation to protect against refoulement was implied into Article 3, it argued that the "real risk of torture or ill-treatment" standard laid down in Chahal ought to be altered and clarified in two ways. First, the UK claimed that the security risk posed by an individual's dangerousness ought to be weighed against the risk to the individual in the receiving state. Second, the UK claimed that where an individual is suspected of involvement in terrorism, the standard of proving that expulsion would constitute a breach of Article 3 ought to be that he is "more likely than not" to be exposed to prohibited treatment, rather than the lower "real risk" standard currently applied to individual applications for non-refoulement. Finally the UK joined with Italy in arguing that diplomatic assurances that an individual would not be subjected to treatment prohibited by Article 3 could satisfy a state's positive obligation of non-refoulement.

The Absolute Nature of Article 3

Although the ECtHR accepted the right of contracting states to control the entry, residence and expulsion of aliens from the state[10] and confirmed that there is no Convention right to political asylum,[11] it reasserted its longstanding position that state action relating to expulsion is restrained by the absolute nature of Article 3 and the implied positive obligation not to send individuals to a state where they are at real risk of prohibited treatment.[12] The absolute nature of the prohibition on torture, inhuman and degrading treatment or punishment "enshrines one of the fundamental values of democratic societies"[13] and must therefore be maintained, even in times of emergency or war. Notwithstanding the fact that states face "immense difficulties" in combating the contemporary international terrorist threat,[14] one's suspected involvement in terrorist activity does not take away from the absolute nature of their rights under Article 3:

As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim's conduct [internal ref omitted], the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 [internal ref omitted].[15]

The Court noted that it had reached a similar conclusion in Chahal v UK and held that even if it were true that the terrorist threat has increased since that time this does not call into question the absolute nature of the prohibition in Article 3. [16]

A "Real Risk" of Torture, Inhuman or Degrading Treatment or Punishment

As a result of the absolute nature of Article 3, the Court rejected the UK's argument that the test to be applied when assessing whether expulsion would engage Article 3 ought to (a) allow for the community interest to be weighed against the individual's rights; and (b) be assessed on a "more likely than not" standard where the individual is considered to pose a threat to national security.

As to the first claim, the Court held that conduct of the individual being deported is irrelevant to Article 3 assessments.[17] In this respect, Article 3 in fact provides a greater degree of protection than that afforded by Articles 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees.[18] The Court further held that the UK's idea of "balancing" the risk to the individual and the dangerousness of the individual was "misconceived":

The concepts of "risk" and "dangerousness" in this context do not lend themselves to a balancing test because they are notions that can only be assessed independently of each other. Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return.[19]

This finding led the Court to also reject the UK's second claim that, where an individual is considered to pose a considerable danger to national security, Article 3 would only be breached if he were "more likely than not" to be subjected to prohibited treatment in the receiving state. This would place a higher burden of proof on the applicant than that which is required under the ECtHR's established jurisprudence, which speaks of a "real risk" of prohibited treatment. Having reaffirmed the "real risk" standard of proof, the Court also reasserted its principles of assessing an Article 3 claim from previous jurisprudence. In this respect, the Court held that when assessing risk it would consider evidence laid before it by the applicant, who generally has the burden of proof in these circumstances,[20] but may also consider evidence obtained by the Court.[21] Using this evidence, the Court will "examine the foreseeable consequences" of the proposed expulsion "bearing in mind the situation there and [the applicant's] personal circumstances".[22] Thus, although an Article 3 assessment is necessarily speculative, it takes into account the circumstances of the case in the context of what the sending state knew or ought to have known at the time of the deportation[23] and is carried out in a measured and cautious manner.[24]

Employing these principles in the present case the Court found that there were substantial grounds to believe that Saadi was at a real risk of being subjected to treatment prohibited by Article 3 upon return to Tunisia and, as a result, that his deportation would constitute a breach of Italy's obligations under Article 3 of the Convention.

Diplomatic Assurances and Non-Refoulement

As a final matter the Court briefly considered the claim that a state's Article 3 obligations could be satisfied by means of diplomatic assurances from the receiving state. While the Court implied that diplomatic assurances might be sufficient in some cases, it did not find the representations of the Tunisian government sufficient in this case. These representations merely outlined that Tunisian law would be applied to Saadi. However the Court held that the mere existence of domestic prohibitions on torture and ill-treatment was not sufficient to ensure the adequate protection of an individual's Article 3 rights if reliable sources report that prohibited treatment is either engaged in or tolerated by the receiving state.[25] When assessing the sufficiency of any particular diplomatic assurances, the Court is obliged to consider whether the assurances provide a sufficient guarantee of protection from prohibited treatment in their practical application and taking the circumstances into account.[26]

Conclusion

The ECtHR's decision in Saadi is a significant rebuff to the UK's practice of acquiring diplomatic assurances from receiving states and, pursuant to these assurances, returning non-citizens who are deemed to pose a significant terrorist threat to countries with a demonstrated record of carrying out or tolerating torture or ill-treatment. While the ECtHR did not hold that diplomatic assurances can never be sufficient to fulfill a state's Article 3 obligations, it not only endorsed but required a thorough judicial investigation of the practical capacity for such assurances to adequately protect an individual's absolute rights under Article 3.

Saadi had an immediate impact in the English courts, which are obliged to take the jurisprudence of the ECtHR into account pursuant to section 2 of the Human Rights Act 1998.[27] On April 9, 2008, the Court of Appeal applied Saadi in AS & DD v Secretary of State for the Home Department[28] to find that, notwithstanding the fact that a diplomatic assurance had been received from Libya, the UK could not deport the applicants. Echoing the principles laid down in Saadi, the Court held that the sufficiency of any particular diplomatic assurance must be assessed on a case-by-case basis, taking into account the reality "on the ground" in the receiving state and the extent to which it is likely that prohibited treatment would take place notwithstanding the diplomatic assurance. Although the Court agreed that it would be in Libya's international interests to comply with its Memorandum of Understanding with the UK, the pragmatism of the regime there as well as the reality on the ground demonstrated that a real risk of the applicants being subjected to prohibited treatment remained. As the assurance was insufficient to adequately protect the applicants' absolute Article 3 rights, and as there was a real risk of torture or ill-treatment in the absence of adequate assurances, deportation of the applicants would violate Article 3.

About the Author
Fiona de Londras, an ASIL member, is a College Lecturer at the Centre for Criminal Justice and Human Rights, Faculty of Law, University College Cork (Ireland). She runs the CCJHR Blog and is a regular contributor to the successful international law blog, IntLawGrrls.

Footnotes