''Saadi v Italy'' was a case of the
European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
(ECtHR) decided in February 2008, in which the Court unanimously reaffirmed and extended principles established in ''
Chahal v United Kingdom'' regarding the absolute nature of the principle of
non-refoulement
Non-refoulement () is a fundamental principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on "race, religion, nationality, membe ...
and the obligations of a state under
Article 3 of the European Convention on Human Rights Article 3 of the European Convention on Human Rights prohibits torture, and "inhuman or degrading treatment or punishment".
An absolute right
Article 3 is an absolute right. The right is unqualified and cannot be balanced against the rights and ...
(ECHR).
In particular the Court addressed the role of an
exchange of notes between
Italy
Italy ( it, Italia ), officially the Italian Republic, ) or the Republic of Italy, is a country in Southern Europe. It is located in the middle of the Mediterranean Sea, and its territory largely coincides with the homonymous geographical ...
(the state which sought to deport Saadi) and
Tunisia
)
, image_map = Tunisia location (orthographic projection).svg
, map_caption = Location of Tunisia in northern Africa
, image_map2 =
, capital = Tunis
, largest_city = capital
, ...
(the receiving state, to which he would be deported) and ruled that it was inadequate to protect against the risk that Saadi would be ill-treated, as Tunisia had only restated Tunisian law and had not made the diplomatic assurances against ill-treatment requested by Italy. The ruling did not directly address in its ''ratio'' whether diplomatic assurances could constitute adequate protection in general when such assurances were provided by states known to practice torture, but reiterated in ''dicta'' that even if Italy had received such assurances, the Court would still have examined them for reliability.
Background
Nassim Saadi, a
Tunisia
)
, image_map = Tunisia location (orthographic projection).svg
, map_caption = Location of Tunisia in northern Africa
, image_map2 =
, capital = Tunis
, largest_city = capital
, ...
n citizen, had resided in Italy since the late 1990s and held a residence permit from the
Bologna
Bologna (, , ; egl, label=Emilian language, Emilian, Bulåggna ; lat, Bononia) is the capital and largest city of the Emilia-Romagna region in Northern Italy. It is the seventh most populous city in Italy with about 400,000 inhabitants and 1 ...
police. Saadi was arrested in Italy on charges of conspiracy to commit acts of violence with the aim of spreading terror, falsification of documents, receiving stolen goods, and aiding and abetting illegal entry. At trial before Milan
Corte d'Assise
The Corte d'Assise ( en, Court of Assizes) is an Italian court composed of two professional, stipendiary judges or ''giudici togati''; and six lay judges or ''giudici popolari'', who are selected from the people. The Corte d'Assise has jurisdictio ...
, he was found guilty of a downgraded charge of criminal conspiracy on 9 May 2005 and sentenced to four-and-a-half years imprisonment followed by deportation to Tunisia. Two days later, Saadi's
trial in absentia
Trial in absentia is a criminal proceeding in a court of law in which the person who is subject to it is not physically present at those proceedings. is Latin for "in (the) absence". Its meaning varies by jurisdiction and legal system.
In comm ...
before a military tribunal in
Tunis
''Tounsi'' french: Tunisois
, population_note =
, population_urban =
, population_metro = 2658816
, population_density_km2 =
, timezone1 = CET
, utc_offset1 ...
concluded and resulted in a conviction for
incitement
In criminal law, incitement is the encouragement of another person to commit a crime. Depending on the jurisdiction, some or all types of incitement may be illegal. Where illegal, it is known as an inchoate offense, where harm is intended but ...
to terrorism and membership in a terrorist organisation, with a sentence of twenty years' imprisonment.
Saadi was released on 9 August 2006, but the
Italian Minister of the Interior
The Minister of the Interior (Italian: ''Ministro dell'Interno'') in Italy is one of the most important positions in the Italian Council of Ministers and leads the Ministry of the Interior. The current Minister is prefect Matteo Piantedosi, ...
made a deportation order against him the following day. In
municipal law
Municipal law is the national, domestic, or internal law of a sovereign state and is defined in opposition to international law. Municipal law includes many levels of law: not only national law but also state, provincial, territorial, regional, ...
, appeal from the deportation order laid to the and to the
Council of State
A Council of State is a governmental body in a country, or a subdivision of a country, with a function that varies by jurisdiction. It may be the formal name for the cabinet or it may refer to a non-executive advisory body associated with a head o ...
, but execution of the deportation order would not be
stayed whilst the appeal was pending. Saadi's request for
political asylum
The right of asylum (sometimes called right of political asylum; ) is an ancient juridical concept, under which people persecuted by their own rulers might be protected by another sovereign authority, like a second country or another ent ...
was also denied on the national security grounds. As such, Saadi lodged his appeal to the
European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
(ECtHR) on 14 September 2006.
Submissions by the parties
Saadi argued that his deportation to Tunisia created a "real risk" that he would be subject to torture or
inhuman or degrading treatment and that the deportation would thus contravene Article 3 of the Convention. He further argued that deportation would abrogate his
right to a fair trial under
Article 6 (due to his conviction in absentia in Tunisia), and that it would deprive his wife and son of his support and thus contravene
Article 8. Italy argued that it had received diplomatic assurances from Tunisia that Saadi would not be subject to torture and that its receipt of such assurances fulfilled its Article 3 obligations.
The United Kingdom as
intervenor
In law, intervention is a procedure to allow a nonparty, called intervenor (also spelled intervener) to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants. The ...
urged the Court to modify the "real risk" standard established in ''Chahal v. United Kingdom'' to allow the risk of torture to be balanced against consideration of the individual's dangerousness. The United Kingdom had repeatedly criticised the "absolute ban" established in Chahal and was an intervenor in two other Article 3 cases simultaneously pending before the ECtHR, namely ''Ramzy v the Netherlands'' and ''A v the Netherlands''.
Judgment
In the unanimous decision, the Grand Chamber accepted Saadi's argument that Italy was in violation of Article 3. Addressing the United Kingdom's arguments submitted as intervenor, the Court ruled that the threat that Saadi posed to Italy did not reduce the risk of ill-treatment in Tunisia.
The Court was faced with the question of assessing whether there existed a risk of Saadi facing torture or ill treatment were he to be deported to Tunisia. This was a different question than a
standard of proof
In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts ...
for an event that had already occurred, as it involved forecasting the likelihood of a future event. The Court adopted the test of "whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Article 3", which English courts have subsequently referred to as the "''Saadi'' test". The Court did not reach Saadi's Article 6 (right to a fair trial) and Article 8 (right to family life) arguments, ruling that since "there was no reason to doubt" that Italy would comply with the Court's order in relation to Article 3, there was no need to address the more complicated issue of whether an expulsion or potential expulsion could constitute a violation of the right to a fair trial. In its jurisprudence up to 2008 the Court had never addressed that issue.
Reception
The ECtHR addressed the persuasiveness of diplomatic assurances again in ''Beh Khemais v Italy'' shortly after. ''Saadi'' was soon after applied in the English courts in to bar the deportation to
Libya
Libya (; ar, ليبيا, Lībiyā), officially the State of Libya ( ar, دولة ليبيا, Dawlat Lībiyā), is a country in the Maghreb region in North Africa. It is bordered by the Mediterranean Sea to the north, Egypt to the east, Suda ...
of the two applicants.
''Saadi'' was hailed as a "landmark" case by human rights organisations including
Amnesty International,
Human Rights Watch
Human Rights Watch (HRW) is an international non-governmental organization, headquartered in New York City, that conducts research and advocacy on human rights. The group pressures governments, policy makers, companies, and individual human r ...
, and the
International Commission of Jurists despite that the ruling seemed a foregone result given earlier case law. The case's significance lay in that it rejected repeated calls for a "balancing test" to be introduced in response to the new "international climate" of terrorism. Some commentators compared and contrasted the case with the earlier ''
Suresh v Canada (Minister of Citizenship and Immigration)'', in which the
Supreme Court of Canada did not categorically reject deporting an individual to a state where he or she could face the risk of torture, but instead applied such a balancing test.
In light of the bar against deportation which ''Saadi'' reiterated, parties to the ECHR were left to look into other methods of protecting the public from dangerous individuals who could not be returned to their countries of origin. One scholar subsequently argued that civil detention following completion of criminal sentence could be justified under
Article 15 of the ECHR.
Footnotes
References
*
*
*
*
*
*
Further reading
*
*{{cite journal, first=Evelyn, last=Schmid, title=The End of the Road on Diplomatic Assurances: The Removal of Suspected Terrorists under International Law, journal=Essex Human Rights Review, volume=8, issue=1, date=2011, ssrn=1962654
External links
Judgmentat refworld.org
2008 in case law
Article 3 of the European Convention on Human Rights
European Court of Human Rights cases decided by the Grand Chamber
European Court of Human Rights cases involving Italy