In Saadi v Italy, the European Court of Human Rights held in 2008 that article 3 of the European Convention on Human Rights prohibits expulsion of individuals to states where they would face a “real risk” of torture, inhuman or degrading treatment. In other words, the Court held that serious threats to the community presented by the suspected terrorist cannot be given priority over the risk of potential ill-treatment of this person in a state which is not a party to the ECHR.
In a smiliar case, Ali Toumi v. Italy, Italy ignored the 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 and transferred Toumi to Tunisia. Such conduct has sparked a strong reaction by Herta Däubler-Gmelin and Christos Pourgourides, respectively the Chair of the Council of Europe Parliamentary Assembly (PACE) Legal Affairs Committee and the rapporteur on the implementation of Strasbourg Court judgments, who noted that:
It is totally unacceptable to ignore binding interim measures ordered by the European Court of Human Rights (ECHR). It is disgraceful, for a mature democracy like Italy, to have send Ali Toumi back to Tunisia last Sunday, a case in which there exists an imminent risk of irreparable damage to the applicant… Such action is in blatant contravention of the Strasbourg Court’s clearly established case-law. This is the fourth case in which, since 2005, the Italian authorities have taken measures in flagrant disregard of the Court’s orders .
It is certainly not a good development if a Member State of the Council of Europe fails to comply with the rules of procedure of the European Court of Human Rights. The applicants have a right that the Court’s interim measures are complied with pending the Court’s decision on the application whether an applicant runs the risk of being subjected to torture or ill-treatment in his home country upon his return.
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