IGNAOUA AND OTHERS v. THE UNITED KINGDOM
Inadmissible
Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicants, Mr Habib Ignaoua (“the first applicant”), Mr Mohammed Salah Khemiri (“the second applicant”) and Mr Ali Ben Zidane Chehidi (“the third applicant”), are Tunisian nationals, who were born in 1960, 1954 and 1972 respectively. They were represented before the Court by Mr D. Guedalla of Birnberg Peirce & Partners, a firm of solicitors based in London. 2. s, may be summarised as follows. 3. The applicants arrived in the United Kingdom on unknown dates. The first and second applicants subsequently claimed asylum on the ground that they had previously been detained and tortured by the Tunisian authorities and feared being subjected to similar treatment if they returned. The second applicant was granted asylum in 2001. 4. On 4 June 2007, while the first applicant’s request for asylum was pending, an Italian court issued a European Arrest Warrant (“EAW”) in respect of the applicants, under a European Union Framework Decision (see paragraphs 41-43 below), seeking their surrender to Italy. They were accused of membership of a criminal organisation for the purposes of terrorism. They were subsequently arrested in the United Kingdom pursuant to the EAW. 5. By letter dated 28 June 2007, the Prosecutor to the Republic of Italy stated: “If the United Kingdom judicial authority agrees to extradite [Mr Ignaoua] to Italy, [Mr Ignaoua] will not be extradited to another state without the consent of the United Kingdom. The only purpose of this extradition request is to secure the surrender of [Mr Ignaoua] to Italy to stand trial for the offence alleged against him. I can confirm categorically that his extradition is not sought for the purpose of deporting him to Tunisia.” 6. On 20 May 2008 an extradition hearing took place at the City of Westminster Magistrates’ Court. It was accepted in the proceedings that if the applicants were returned to Tunisia there would be a real risk of a breach of their Article 3 rights, following this Court’s ruling in Saadi v. Italy [GC], no. 37201/06, ECHR 2008. The question was whether there were substantial grounds to believe that Italy would extradite, expel or deport the applicants to Tunisia. The judge explained: “9. I propose to deal very shortly with any further onward extradition request, or an order of expulsion from Italy that might be linked to a sentence of imprisonment following conviction ... [T]here are recognised routes of appeal that are available to a person subject to an extradition request (by Tunisia should there ever be one) or an expulsion order (to Tunisia) to enable the highest court in Italy to make a determination as to whether or not, if such an order were allowed to proceed, the defendant’s Article 3 rights would be prejudiced. That is, there is effective judicial oversight, with guaranteed rights of appeal, available to any defendant who might feel aggrieved by an order for his removal from Italy.” 7. The judge considered the provisions of the Italian “Pisanu Law” (see paragraphs 37-40 below) which governed deportation from Italy at the relevant time. He observed that notwithstanding the apparent inability under that law for a person whose expulsion had been ordered to obtain a stay of execution pending an appeal, expert evidence presented to the court had suggested that it was in practice possible to obtain a stay from the Court of Cassation. However, he accepted that there was potential for a person to be deported before being able to persuade a court to suspend the process. He accordingly found that the Pisanu Law failed to provide the necessary guarantees required by Article 13 of the Convention. However, he noted that Mr Saadi was not deported prior to this Court’s hearing in Saadi, cited above, nor had he been deported since. While some evidence from Italian lawyers showed a reluctance to accept that Italian courts were bound to ensure that the rulings they made were in accordance with the Convention, the judge rejected that aspect of their evidence. He observed that the lawyers had “a low opinion of the competence and integrity of the Italian judiciary” which he did not share, referring to the expert evidence submitted by the judicial authority which sought the applicants’ extradition. He therefore concluded: “20. (1) Since the 28th February 2008 there will have been many people in the Italian civil service giving anxious consideration to the decision in Saadi v Italy, all trying to devise a solution to the ‘dilemma’. (2) It is highly likely new provisions will shortly be in place, and that would make this whole discussion, based as it is on the Pisanu law, somewhat academic. (3) I am not surprised the Minister of Justice has declined to give an undertaking that the Pisanu law will not be applied to any of these three men. There are many reasons why it might not be appropriate to offer such a guarantee. The lack of it does not suggest that, if extradited, the Pisanu law would be applied to them. (4) I consider it unlikely, unless and until the circumstances allow it, the Minister of the Interior would make a deportation against any of these three men requiring their return to Tunisia. (5) ... I am confident, given all the activity these defendants have generated with the authorities in Italy and their situation being now so ‘high profile’ that they would have no difficulty accessing the Italian courts, should they wish to challenge any deportation order.” 8. He found no reason to suppose that any future deportation proceedings would not be in accordance with the Convention and the Saadi judgement. He did not consider that evidence of what had undoubtedly happened in the past was evidence that such an approach would be repeated in future, since Saadi would “cause the Italian authorities to rethink its approach to this issue.” The judge therefore held that there were no substantial grounds for believing that the applicants would be expelled from Italy to Tunisia. 9. He added that the Framework Decision on the European Arrest Warrant was based on mutual trust and confidence between EU Member States and that he was confident that the Italian authorities could be relied upon not to act contrary to the Convention. 10. The applicants appealed to a Divisional Court. They argued that, if returned to Italy, there was a real risk of their onward transmission to Tunisia, in breach of Article 3 of the ECHR. 11. In early June 2008, while the case was pending before the Divisional Court, an expulsion order was made by the Italian authorities against Mr Sami Essid Ben Khemais, ordering that he be expelled to Tunisia. He was then removed to Tunisia, despite Rule 39 having been applied by the Court on 29 March 2007 (see Ben Khemais v. Italy, no. 246/07, 24 February 2009). The applicants brought the matter to the attention of the Divisional Court as evidence of the inadequacy of judicial safeguards in the Italian deportation procedure. 12. On 28 July 2008 the Divisional Court handed down its judgment in the applicants’ case. Lord Justice Pill, delivering the judgment of the court, noted first that the applicants accepted that the EAW was a genuine exercise of the power conferred under the relevant Framework Decision with a view to bringing criminal proceedings against the applicants in Italy. It was not a device to achieve deportation to Tunisia. 13. Pill LJ examined in some detail a number of reports concerning the procedures in place in Italy, including a 2005 report by the Council of Europe’s Human Rights Commissioner and a 2007 report by the United Nations Committee Against Torture. He considered carefully the submissions of the applicants and those of the judicial authority. He accepted that the 2007 assurance by the Italian Prosecutor of the Republic (see paragraph 5 above) covered all three applicants. For essentially the same reasons as the District Judge, he did not consider the absence of an assurance that Italy would not seek to deport the applicants as an indication that it did not intend to fulfil its legal obligations. 14. Pill LJ concluded that a real risk of expulsion to Tunisia had not been established in the cases. He explained: “46. ... It is relevant that the extradition to Italy will be effected under the Framework Directive ... The Italian authorities are under Article 3 duties in any event, but the Framework Directive adds an additional dimension. It requires cooperation between judicial authorities on the basis of trust and a high level of confidence ... 47 ... [F]or better or worse we have committed ourselves to this system. Under the Framework Decision, we can assume that the trust placed in the Italian authorities will be justified. The Framework Decision provides a safeguard and a disincentive to the Italian authorities, as with the authorities of any Member State, not to act in breach of Article 3 of the Convention. Article 34 of the Treaty [on European Union] provides for sanctions against States failing to comply with the basic principles of the Treaty. Bilateral trust also arises. This is bilateral action premised on the existence of a high degree of confidence. Courts in a returning state would be likely to have a real sense of grievance, having regard to the contents of the Framework Directive, if a receiving state subsequently ignored its duty under Article 3 of the Convention. The Italian government had not hitherto deported in an Article 3 case a person received under the Framework Directive and had not deported in the case of Saadi. 15. He also noted that when the Italian authorities received a person under the Framework Directive, the entire judiciary was likely to be alerted to its duties under Article 3 of the Convention, which he said was “certainly so” in the applicants’ cases. He was not prepared to disagree with the District Judge’s assessment of the witnesses or his rejection of the applicants’ witnesses’ low opinion of the Italian judiciary. He continued: “50. It is disturbing if the evidence before the court is correct – and the court has to take it at face value – that the Italian executive in the case of [Ben Khemais] have apparently disregarded an interim direction of the ECtHR. I cannot regard that act, or the statement of a representative of the Ministry of Justice which is claimed also to have been made, as destroying the trust and confidence which is to be assumed in the context described. I am not prepared to hold, on the basis of a single post-Saadi case, that the Italian State will in the present cases ignore its duties under Article 3 of the Convention as confirmed in Saadi.” 16. On the risk of further deportation by the Italian authorities, he added: “51. ... The risk on return has to be assessed on present evidence, and there is no risk of deportation while the contemplated criminal proceedings and any resulting custodial sentence are extant. That being so, any risk is, to that extent, remote from the current situation. 52 The District Judge’s optimism about Italian legislation has not yet been justified by events in the post-election period. There are, however, clear limits, in my view, to the extent to which a court assessing current risk should speculate as to events in the long term or even medium term future ... Circumstances can change. The remoteness factor ... adds weight to a conclusion that the appellants have not established a real risk of being deported to Tunisia within the meaning of the authorities.” 17. An application for a certificate of a point of law of general public importance was dismissed by the Divisional Court on 30 September 2008. 18. On 9 and 10 October 2008 the applicants made an application to the Divisional Court for habeas corpus to reopen their appeals, based on fresh evidence. The fresh evidence in question largely consisted of documents in the proceedings before this Court in respect of Mr Ben Khemais. The applicants contended that the documents revealed an attitude on the part of the Italian authorities which was prepared to deport suspected terrorists irrespective of Article 3 risks, particularly where diplomatic assurances had been obtained from the receiving State. 19. On 30 October 2008 the application was refused. Lord Justice Keene, with whom Lord Justice Owen agreed, considered that the new evidence did not provided a reliable guide to Italy’s future conduct; that there had still been only one instance of Italy deporting a person in breach of interim measures or Article 3 since the Saadi judgment; that there was no evidence of any willingness to deport a person who had been extradited under an EAW so the mutual trust and confidence remained intact; and that nothing in the fresh evidence undermined the previous finding that the applicants were genuinely wanted for trial in Italy, which made any risk of further deportation remote in any case. 20. The House of Lords subsequently refused to grant permission to appeal. 21. Meanwhile, on 30 September 2008, the applicants made a request to this Court for interim measures pursuant to Rule 39 of the Rules of Court to prevent their extradition to Italy. The request was refused by the Fourth Section on 7 October 2008. The letter to the applicants explained: “The Section found that it would be open to your clients to make an application against Italy, including an application under Rule 39, if it appeared that they would be surrendered from Italy in breach of their rights under the Convention.” 22. The Italian Government was informed of the Court’s decision in the following terms: “I write to inform you that on 30 September 2008 the above applicants lodged a request for interim measures under Rule 39 of the Rules of Court to prevent their extradition from the United Kingdom to Italy. They argued that if extradited, they would be at real risk of onward removal to Tunisia where they would be subjected to ill-treatment contrary to Article 3 of the Convention. They relied on the Grand Chamber’s recent ruling in Saadi v. Italy [GC], no. 37201/06, ECHR 2008 ... and further relied on the fact that in the domestic proceedings in their case, both the District Court and the High Court accepted that Law 155 of 31 July 2005 (‘the Pisanu Law’) failed to provide the necessary guarantees that are required by Article 13 of the Convention. Finally, they relied on your Government’s decision to remove Mr Sami Essid Ben Khemais to Tunisia despite this Court’s Rule 39 indication in his case. On 7 October the Fourth Section decided to refuse their request. The decision to do so was based on the express understanding that Italy as a Contracting State would abide by its obligations under Articles 3, 13 and 34 of the Convention and in particular the obligation to respect the terms of any interim measure which the Court might indicate in respect of Italy at the request of the applicants. The Section also expressed its confidence that your Government would comply with their obligations under Council Framework Decision of 13 June 2002 (on the European arrest warrant and the surrender procedures between Member States) and in particular their obligation under Article 28(1) of the Framework Decision not to extradite to a third State a person who has been surrendered pursuant to a European Arrest Warrant without the consent of the competent authority of the Member State which surrendered the person.” 23. On 1 November 2008 the applicants were extradited to Italy. On three occasions between 13 December 2008 and 1 May 2010, the Italian authorities deported individuals to Tunisia, contrary to Rule 39 indications made by the President of the Second Section (see Trabelsi v. Italy, no. 50163/08, 13 April 2010; Toumi v. Italy, no. 25716/09, 5 April 2011; and Mannai v. Italy, no. 9961/10, 27 March 2012). 24. On 8 July 2010 the Milan Assize Court acquitted the applicants of the charges for which they had been extradited. The Italian authorities subsequently issued expulsion order against them. They were taken into immigration detention. The United Kingdom authorities issued decisions to exclude the applicants from returning to the United Kingdom and the second applicant’s refugee status was revoked. 25. On 9 July 2010 the Milan Magistrates’ Court authorised the expulsion of the applicants. 26. In July 2010 the acting President of the Second Section of the Court decided to apply Rule 39 of the Rules of Court and indicated to the Government of Italy that the applicants should not be deported to Tunisia until further notice. 27. The enforcement of the Italian expulsion orders was suspended pending the outcome of the applications before this Court. 28. By a decision of 6 August 2010, the second and third applicants were released from immigration detention in August 2011. They were instructed to leave Italy within five days. 29. The second applicant went to Switzerland. On 27 August 2010 he was deported from Switzerland to the United Kingdom. He was taken into immigration detention in the United Kingdom. 30. The third applicant went to France. Upon arrival he claimed asylum. 31. On 7 December 2010 the Second Section of the Court lifted the interim measures granted in favour of the second and third applicants since they were no longer at risk of expulsion to Tunisia. 32. On 21 February 2011 the second applicant was released on bail in the United Kingdom. His refugee status was subsequently reinstated. 33. On 14 April 2011 the United Kingdom lifted the exclusion decision in respect of the third applicant. He returned to the United Kingdom. 34. In December 2010 the first applicant was released from immigration custody in Italy to await the outcome of a prosecution appeal against his acquittal and a second trial. After obtaining legal advice, he made an asylum claim in Italy. His current situation is not known. 35. Extradition from the United Kingdom is governed by the Extradition Act 2003 (“the 2003 Act”). The Act implements the provisions of the EAW Framework Decision (see paragraphs 41-43 below). 36. Pursuant to section 21 of the 2003 Act the extradition judge must decide, before ordering extradition, whether the person’s extradition would be compatible with the Convention. If he decides that extradition would not be compatible with the Convention, he must order the person’s discharge. 37. Deportation from Italy was at the relevant time governed by the Pisanu Law (Law 155 of 31 July 2005). 38. Article 3(1) of the Pisanu Law stated that: “...[T]he Interior Minister or, if he so delegates, the prefect, may order the expulsion of a foreigner ... where there are well-grounded reasons to believe that his presence in Italy would in some way facilitate terrorist organisations or activity, including international organisations or activity.” 39. The order had to be approved by a Magistrates’ Court. 40. An appeal could be lodged against the order to the Regional Administrative Tribunal but the appeal did not suspend the enforcement of the deportation order. 41. On 13 June 2002 the Council of the European Union adopted Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States. The Framework Decision created a simplified extradition procedure between member States of the European Union. Member States are required to execute any EAW on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision. 42. Recital 13 of the preamble to the Framework Decision provides that no person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. Article 3(1) confirms that the Framework Decision does not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union. 43. Under Article 28(4) of the Framework Decision, where a person has been extradited pursuant to an EAW, the receiving State may not extradite the person to a third State with without the permission of the extraditing State which surrendered the person.