Home > Commentary > Italy, Tunisia and the European Court of Human Rights

Italy, Tunisia and the European Court of Human Rights

ECtHRVia Statewatch comes news that the European Court of Human Rights is still battling with the Italian government’s penchant for ignoring interim measures under which the Court provides that applicants are not to be transferred to Tunisia pending the hearing of their Article 3 (torture, inhuman and degrading treatment and punishment) claims.

It has long been established (Soering v United Kingdom and Chahal v United Kingdom) that the prohibition of torture, inhuman and degrading treatment and punishment in Article 3 of the European Convention on Human Rights includes a prohibition on refoulement. In other words, it includes an implied obligation not to transfer an individual to a state where there is a “real risk” that the individual would be subjected to treatment prohibited by Article 3. In the 2008 case of Saadi v Italy the Court found that the proposed transfer of a Tunisian national who had been convicted in absentia of terrorism-related crimes in a Tunis court, would violate Article 3 notwithstanding the diplomatic assurances provided (for an account of this case and its potential implications for Ireland’s practice of accepting diplomatic assurances in relation to Shannon Airport see my recent article in the Irish Yearbook of International Law available here).

This latest instance of Italy breaching an Article 39 interim measure is the fourth in recent times and the reasoning provided by the Italian foreign minister, and noted by Statewatch, is worth consideration:

We respect the European Court’s decisions, and I stress decisions. However, when I receive a fax from an official that says that it is necessary to suspend the expulsion while awaiting the Court’s decision, I prefer to continue and expel an alleged terrorist. We cannot await the slowness of the Court, whose decisions we are nonetheless willing to receive. However, while awaiting their arrival, we apply our law. We have done so now and will continue to do it.

This perspective both ignores the binding nature of interim measures and the important functions that such measures play in bolstering the absolute nature of the Article 3 prohibition. As a practice, it is worrying and one would hope that it would not be replicated across other states. More deeply, however, it begs the question as to how the Article 3 guarantee can be effective given the slowness of the European Court of Human Rights (which can be relatively more expeditious in cases of this nature than in others) resulting from its enormous workload.

Putting both of these questions to one side, however, it is to be hoped that Italy’s European neighbours would be both forceful and vociferous in their objections to this growing practice.

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