(Suspected) terrorists
II. RELEVANT DOMESTIC LAW A. Remedies against a deportation order in Italy 58. A deportation order is subject to appeal to the RAC, the court having jurisdiction to examine the lawfulness of any administrative decision and set it aside where it disregards an individual ’ s fundamental rights (see, for example, Sardinas Albo v. Italy ( dec. ), no. 56271/00, ECHR 2004-I). An appeal to the Consiglio di Stato lies against decisions of the RAC. 59. In proceedings before the RAC, a stay of execution of the administrative decision complained of is not automatic, but may be granted if requested (see Sardinas Albo, cited above ). However, where – as in the applicant ’ s case – deportation has been ordered under the terms of Legislative Decree no. 144 of 2005, appeals to the RAC or the Consiglio di Stato cannot stay enforcement of the deportation order (Article 4 §§ 4 and 4 bis of the Legislative Decree). B. Reopening of a trial conducted in the defendant ’ s absence in Tunisia 60. In the French translation produced by the Government, the relevant provisions of the Tunisian Code of Criminal Procedure read as follows: Article 175 “Where a defendant fails to appear on the appointed date, having been personally informed of the obligation to do so, the court shall proceed to judgment, giving a decision which is deemed to follow adversarial proceedings. Where a defendant who fails to appear has been lawfully summoned, though not informed in person, judgment is given by default. Notification of judgment by default shall be given by the registrar of the court which gave judgment. An appeal against a judgment by default must be lodged by the appellant in person, or his representative, with the registry of the court which has given judgment, within the ten days following service of the defendant ’ s copy. If the appellant lives outside Tunisian territory, the time allowed for appeal shall be increased to thirty days. An appeal shall be lodged either by means of a verbal declaration, which shall be formally recorded forthwith, or by means of a written declaration. The appellant must sign; if he refuses or is unable to sign, that circumstance shall be formally recorded. The registrar shall immediately fix a date for the hearing and inform the appellant thereof; in all cases the hearing must be held within one month from the date of the appeal. The appellant or his representative shall inform the interested parties, with the exception of State counsel, and have them summoned by an officer of the court, at least three days before the date of the hearing, failing which the appeal shall be dismissed.” Article 176 “Where judgment has not been served on the defendant in person or where it does not appear from the documents recording enforcement of the judgment that the defendant had knowledge of it, an appeal shall lie until expiry of the limitation period applicable to the penalty concerned.” Article 180 (as amended by Law no. 2004-43 of 17 April 2000 ) “On appeal, execution of a judgment shall be stayed. Where the sentence is capital punishment, the appellant shall be committed to prison and the sentence shall not be enforced before the judgment has become final.” Article 213 “An appeal shall no longer be admissible, save where the appellant has been prevented from appealing by circumstances beyond his or her control, unless lodged within ten days of the date of delivery of the judgment deemed to be adversarial within the meaning of the first paragraph of Article 175, or after expiry of the time allowed where judgment has been given by default, or after notification of the judgment likewise by default. For State counsel and assistant State counsel at courts of appeal the time allowed for appeal shall be sixty days from the date of delivery of the judgment. In addition, on pain of inadmissibility, they must give notice of their appeal within that time to the defendant and any persons found liable towards civil parties.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 95. The applicant submitted that enforcement of his deportation would expose him to the risk of treatment contrary to Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 96. The Government rejected that argument. A. Admissibility 97. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 98. The applicant submitted that it was “a matter of common knowledge” that persons suspected of terrorist activities, in particular those connected with Islamist fundamentalism, were frequently tortured in Tunisia. He had lodged a request for political asylum which had been refused by the Milan police authority without his being interviewed by the Italian refugee - status board. His attempts to obtain a residence permit had failed because the Tunisian consulate had refused to renew his passport, a document which the Italian authorities had asked him to produce. In the aggregate these circumstances amounted to “persecution”. 99. In addition, the investigations conducted by Amnesty International and by the US Department of State showed that torture was practised in Tunisia and that some persons deported there had quite simply disappeared. The numerous press articles and witness accounts he had produced condemned the treatment of political prisoners and their families. 100. The applicant ’ s family had received a number of visits from the police and was constantly subject to threats and provocations. His sister had twice tried to kill herself because of this. 101. In view of the serious risks to which he would be exposed if he were to be deported, the applicant considered that a mere reminder of the treaties signed by Tunisia could not be regarded as sufficient. (b) The Government 102. The Government considered it necessary in the first place to provide an account of the background to the case. After the attacks of 11 September 2001 on the Twin Towers in New York, the Italian police, after it had been tipped off by intelligence services, uncovered an international network of militant Islamists, mainly composed of Tunisians, and placed it under surveillance. In May 2002 one of the leaders of this network, Mr Faraj Faraj Hassan, was arrested in London. The applicant had in the meantime left Milan for Iran, where he had spent time in an al- Qaeda training camp. He then returned to Italy, from where he frequently travelled to the Côte d ’ Azur. There, with the help of another Tunisian living in San Remo, Mr Imed Zarkaoui, he met his brother, Mr Fadhal Saadi. 103. Mr Zarkaoui had been given the job of finding fulminate of mercury to make detonators, while in Italy another accomplice was seeking information about night-filming cameras. Contact was established with Malaysia, where the group which was to carry out the attacks were standing by, and weapons were distributed to some militants. The Islamist cell to which the applicant belonged had embarked on a large-scale enterprise involving the production of false identity papers and their distribution to its members. The Government rejected the applicant ’ s argument that the offence – forgery – of which he had been convicted in Italy was not linked to the activity of terrorist groups; in that connection they pointed out that although the applicant and one of his co-defendants held legal residence permits they had provided themselves with false papers. 104. In that context, in October 2002, a number of European police forces launched “Operation Bazar”, as a result of which the applicant, Mr Zarkaoui and three other persons were arrested in Italy. Mr Fadhal Saadi managed to evade an attempt by the French police to arrest him. He was later to die in a suicide bombing in Iraq. When the applicant ’ s family informed him of this, he was delighted to learn that his brother had died a “martyr” in the war against “the infidel”. In the criminal proceedings against the applicant in Italy, the prosecution was convinced of three things: that the cell he belonged to was associated with al-Qaeda : that it was preparing an attack against an unidentified target; and that it was receiving instructions from abroad. 105. The Government next observed that a danger of death or the risk of being exposed to torture or to inhuman and degrading treatment must be corroborated by appropriate evidence. However, in the present case the applicant had neither produced precise information in that regard nor supplied detailed explanations, confining himself to describing an allegedly general situation in Tunisia. The “international sources” cited by the applicant were indeterminate and irrelevant. The same was true of the press articles he had produced, which came from unofficial circles with a particular ideological and political slant. As this information had not been checked, nor had an explanation been requested from the Tunisian government, it had no probative value. The provocations that the applicant ’ s family had allegedly suffered at the hands of the Tunisian police had nothing to do with what the applicant sought to prove before the Court. 106. The Amnesty International report cited three isolated cases, connected to the prevention of terrorism, which did not disclose “anything to be concerned about” (certain persons had been convicted of terrorism or were awaiting trial ). Regarding the allegations of ill-treatment, the report used the conditional tense or expressions such as “it seems”. There was therefore no certainty as to what had happened. The superficial nature of the report was “obvious” in the passages concerning Italy, which described as a human rights violation the deportation to Syria of Muhammad Said Al ‑ Shari, whose application to the Court had been rejected as manifestly ill-founded (see Al-Shari and Others v. Italy ( dec. ), no. 57/03, 5 July 2005 ). 107. The report by the US Department of State cited (a) the case of Moncef Louhici or Ouahichi, in which the investigation into a complaint by the family of a person allegedly killed by the police was still in progress; (b) the case of Bedreddine Rekeii or Reguii, which concerned crimes without a political motivation, and about which the Tunisian authorities had provided complete and reassuring details; (c) the case of the “ Bizerte ” group, in which five of the eleven defendants had been acquitted on appeal and the sentences of the other six had been considerably reduced; and (d) imprecisely identified cases to which vague reference was made or cases involving offences without political motivation or concerning freedom of expression or association. 108. The Government argued that these documents did not portray Tunisia as a kind of “hell”, the term used by the applicant. The situation in the country was, by and large, not very different from that in certain States which had signed the Convention. 109. The misfortunes of Mr Hichem Ben Said Ben Frej, cited by the applicant (see paragraph 9 4 above), were not relevant in the present case, since he had committed suicide. 110. The Government further observed that in numerous cases concerning expulsion to countries ( Algeria in particular) where subjection to ill- treatment as a regular practice seemed much more alarming than in Tunisia, the Court had rejected the applicants ’ allegations. 111. The Government also noted that Tunisia had ratified numerous international instruments for the protection of human rights, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, all adopted by the United Nations. Under Article 32 of the Tunisian Constitution, international treaties took precedence over statute law. In addition, Italy and Tunisia had signed bilateral agreements on the question of emigration and combating transnational crime, including terrorism (see paragraph 61 above). That presupposed a common basis of respect for fundamental rights. The effectiveness of the agreements concerned would be jeopardised if the Court were to assert as a principle that Tunisians could not be deported. 112. Tunisia had also signed an association agreement with the European Union. A precondition for implementation of that agreement was respect for fundamental freedoms and democratic principles (see paragraph 62 above). The European Union was an international organisation which, according to the Court ’ s case-law, was presumed to provide a level of protection of fundamental rights “equivalent” to that provided by the Convention. Moreover, the Tunisian authorities permitted the International Committee of the Red Cross and “other international bodies” to visit prisons (see paragraphs 8 0 - 8 1 above). In the Government ’ s submission, it could be presumed that Tunisia would not default on its obligations under international treaties. 113. In Tunisia the terrorist danger was a grim reality, as shown by the explosion on the island of Djerba on 11 April 2002, for which al-Qaeda had claimed responsibility. To meet that danger the Tunisian authorities had, like some European States, enacted a law for the prevention of terrorism. 114. In these circumstances, the “benefit of the doubt” should be given to the State which intended to deport the applicant and whose national interests were threatened by his presence. In that connection, account had to be taken of the scale of the terrorist threat in the world of today and of the objective difficulties of combating it effectively, regard being had not only to the risks in the event of deportation but also to those which would arise in the absence of deportation. In any event, the Italian legal system provided safeguards for the individual – including the possibility of obtaining refugee status – which made expulsion contrary to the requirements of the Convention “practically impossible”. 115. At the hearing before the Court the Government had agreed in substance with the arguments of the third-party intervener (see paragraphs 1 17 -2 3 below), observing that, before the order for the applicant ’ s deportation was made, the applicant had neither mentioned the risk of ill-treatment in Tunisia, although he must have been aware of it, nor requested political asylum. His allegations had accordingly come too late to be credible. 116. Lastly, the Government observed that, even though there was no extradition request or a situation raising concern regarding respect for human rights ( such as, for example, the one described in Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996-V), Italy had sought diplomatic assurances from Tunisia (see paragraphs 51 - 52 above). In response, Tunisia had given an undertaking to apply in the present case the relevant Tunisian law (see paragraphs 54 - 55 above), which provided for severe punishment of acts of torture or ill-treatment and extensive visiting rights for a prisoner ’ s lawyer and family. 2. The third-party intervener 117. The United Kingdom Government observed that in Chahal (cited above, § 81) the Court had stated the principle that, in view of the absolute nature of the prohibition of treatment contrary to Article 3 of the Convention, the risk of such treatment could not be weighed against the reasons (including the protection of national security) put forward by the respondent State to justify expulsion. Yet because of its rigidity that principle had caused many difficulties for the Contracting States by preventing them in practice from enforcing expulsion measures. The Government observed in that connection that it was unlikely that any State other than the one of which the applicant was a national would be prepared to receive into its territory a person suspected of terrorist activities. In addition, the possibility of having recourse to criminal sanctions against the suspect did not provide sufficient protection for the community. 118. The individual concerned might not commit any offence (or else, before a terrorist attack, only minor ones) and it could prove difficult to establish his involvement in terrorism beyond a reasonable doubt, since it was frequently impossible to use confidential sources or information supplied by intelligence services. Other measures, such as detention pending expulsion, placing the suspect under surveillance or restricting his freedom of movement, provided only partial protection. 119. Terrorism seriously endangered the right to life, which was the necessary precondition for enjoyment of all other fundamental rights. According to a well-established principle of international law, States could use immigration legislation to protect themselves from external threats to their national security. The Convention did not guarantee the right to political asylum. This was governed by the 1951 Convention relating to the Status of Refugees, which explicitly provided that there was no entitlement to asylum where there was a risk for national security or where the asylum seeker had been responsible for acts contrary to the principles of the United Nations. Moreover, Article 5 § 1 (f) of the Convention authorised the arrest of a person “against whom action is being taken with a view to deportation”, and thus recognised the right of States to deport aliens. 120. It was true that the protection against torture and inhuman or degrading treatment or punishment provided by Article 3 of the Convention was absolute. However, in the event of expulsion, the treatment in question would be inflicted not by the signatory State but by the authorities of another State. The signatory State was then bound by a positive obligation of protection against torture implicitly derived from Article 3. Yet in the field of implied positive obligations, the Court had accepted that the applicant ’ s rights must be weighed against the interests of the community as a whole. 121. In expulsion cases the degree of risk in the receiving country depended on a speculative assessment. The level required to accept the existence of the risk was relatively low and difficult to apply consistently. Moreover, Article 3 of the Convention prohibited not only extremely serious forms of treatment, such as torture, but also conduct covered by the relatively general concept of “degrading treatment”. And the nature of the threat presented by an individual to the signatory State also varied significantly. 122. In the light of the foregoing considerations, the United Kingdom argued that, in cases concerning the threat created by international terrorism, the approach followed by the Court in Chahal (which did not reflect a universally recognised moral imperative and was in contradiction with the intentions of the original signatories of the Convention ) had to be altered and clarified. In the first place, the threat presented by the person to be deported must be a factor to be assessed in relation to the possibility and the nature of the potential ill-treatment. That would make it possible to take into consideration all the particular circumstances of each case and weigh the rights secured to the applicant by Article 3 of the Convention against those secured to all other members of the community by Article 2. Secondly, national-security considerations must influence the standard of proof required from the applicant. In other words, if the respondent State adduced evidence that there was a threat to national security, stronger evidence had to be adduced to prove that the applicant would be at risk of ill-treatment in the receiving country. In particular, the individual concerned must prove that it was “more likely than not” that he would be subjected to treatment prohibited by Article 3. That interpretation was compatible with the wording of Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which had been based on the case-law of the Court itself, and took account of the fact that in expulsion cases it was necessary to assess a possible future risk. 123. Lastly, the United Kingdom Government emphasised that Contracting States could obtain diplomatic assurances that an applicant would not be subjected to treatment contrary to the Convention. Although, in the above-mentioned Chahal case, the Court had considered it necessary to examine whether such assurances provided sufficient protection, it was probable, as had been shown by the opinions of the majority and the minority of the Court in that case, that identical assurances could be interpreted differently. 3. The Court ’ s assessment (a) General principles ( i ) Responsibility of Contracting States in the event of expulsion 124. It is the Court ’ s settled case-law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France, 21 October 1997, § 42, Reports 1997-VI). In addition, neither the Convention nor its Protocols confer the right to political asylum (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 102, Series A no. 215, and Ahmed v. Austria, 17 December 1996, § 38, Reports 1996-VI). 125. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (see Soering v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161; Vilvarajah and Others, cited above, § 103; Ahmed, cited above, § 39; H.L.R. v. France, 29 April 1997, § 34, Reports 1997 ‑ III; Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000-VIII; and Salah Sheekh v. the Netherlands, no. 1948/04, § 135, 11 January 2007 ). 126. In this type of case the Court is therefore called upon to assess the situation in the receiving country in the light of the requirements of Article 3. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State, by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment ( see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). 127. Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a public emergency threatening the life of the nation (see Ireland v. the United Kingdom, 1 8 January 1978, § 163, Series A no. 25; Chahal, cited above, § 79; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Al- Adsani v. the United Kingdom [GC], no. 35763/97, § 59, ECHR 2001-XI; and Shamayev and Others v. Georgia and Russia, no. 36378/02, § 335, ECHR 2005- III ). As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim ’ s conduct ( see Chahal, cited above, § 79), the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 ( see Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001, and Ramirez Sanchez v. France [GC], no. 59450/00, §§ 115- 16, ECHR 2006 -IX ). ( ii ) Material used to assess the risk of exposure to treatment contrary to Article 3 of the Convention 128. In determining whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Article 3, the Court will take as its basis all the material placed before it or, if necessary, material obtained proprio motu ( see H.L.R. v. France, cited above, § 37, and Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). In cases such as the present one, the Court ’ s examination of the existence of a real risk must necessarily be a rigorous one ( see Chahal, cited above, § 96). 129. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 ( see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it. 130. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances ( see Vilvarajah and Others, cited above, § 108 in fine ). 131. To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human rights protection associations such as Amnesty International, or governmental sources, including the US Department of State ( see, for example, Chahal, cited above, §§ 99-100; Müslim v. Turkey, no. 53566/99, § 67, 26 April 2005; Said v. the Netherlands, no. 2345/02, § 54, ECHR 2005 -VI; and Al- Moayad v. Germany ( dec. ), no. 35865/03, §§ 65-66, 20 February 2007). At the same time, it has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 ( see Vilvarajah and Others, cited above, § 111, and Fatgan Katani and Others v. Germany ( dec. ), no. 67679/01, 31 May 2001) and that, where the sources available to it describe a general situation, an applicant ’ s specific allegations in a particular case require corroboration by other evidence ( see Mamatkulov and Askarov, cited above, § 73, and Müslim, cited above, § 68). 132. In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes, where necessary on the basis of the sources mentioned in the previous paragraph, that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned (see, mutatis mutandis, Salah Sheekh, cited above, §§ 138-49). 133. With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion. However, if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court ( see Chahal, cited above, §§ 85 - 86, and Venkadajalasarma v. the Netherlands, no. 58510/00, § 63, 17 February 2004 ). This situation typically arises when, as in the present case, deportation or extradition is delayed as a result of an indication by the Court of an interim measure under Rule 39 of the Rules of Court ( see Mamatkulov and Askarov, cited above, § 69). Accordingly, while it is true that historical facts are of interest in so far as they shed light on the current situation and the way it is likely to develop, the present circumstances are decisive. ( iii ) The concepts of “torture” and “ inhuman or degrading treatment” 134. According to the Court ’ s settled case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim ( see, among other authorities, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001- VII; Mouisel v. France, no. 67263/01, § 37, ECHR 2002-IX; and Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX ). 135. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment ( see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV ). 136. In order to determine whether any particular form of ill-treatment should be qualified as torture, regard must be had to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of “torture” to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see Aydın v. Turkey, 25 September 1997, § 82, Reports 1997-VI, and Selmouni, cited above, § 96). ( b) Application of the above principles to the present case 137. The Court notes first of all that States face immense difficulties in modern times in protecting their communities from terrorist violence (see Chahal, cited above, § 79, and Shamayev and Others, cited above, § 335). It cannot therefore underestimate the scale of the danger of terrorism today and the threat it presents to the community. That must not, however, call into question the absolute nature of Article 3. 138. Accordingly, the Court cannot accept the argument of the United Kingdom Government, supported by the Government, that a distinction must be drawn under Article 3 between treatment inflicted directly by a signatory State and treatment that might be inflicted by the authorities of another State, and that protection against this latter form of ill-treatment should be weighed against the interests of the community as a whole (see paragraphs 12 0 and 12 2 above). Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule (see the case-law cited in paragraph 1 27 above). It must therefore reaffirm the principle stated in Chahal (cited above, § 81) that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State. In that connection, the conduct of the person concerned, however undesirable or dangerous, cannot be taken into account, with the consequence that the protection afforded by Article 3 is broader than that provided for in Articles 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees (see Chahal, cited above, § 80, and paragraph 6 3 above ). Moreover, that conclusion is in line with points IV and XII of the guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism (see paragraph 6 4 above). 139. The Court considers that the argument based on the balancing of the risk of harm if the person is sent back against the dangerousness he or she represents to the community if not sent back is 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. For that reason it would be incorrect to require a higher standard of proof, as submitted by the intervener, where the person is considered to represent a serious danger to the community, since assessment of the level of risk is independent of such a test. 140. With regard to the second branch of the United Kingdom Government ’ s arguments, to the effect that where an applicant presents a threat to national security stronger evidence must be adduced to prove that there is a risk of ill-treatment ( see paragraph 12 2 above ), the Court observes that such an approach is not compatible with the absolute nature of the protection afforded by Article 3 either. It amounts to asserting that, in the absence of evidence meeting a higher standard, protection of national security justifies accepting more readily a risk of ill-treatment for the individual. The Court therefore sees no reason to modify the relevant standard of proof, as suggested by the third-party intervener, by requiring in cases like the present one that it be proved that subjection to ill-treatment is “more likely than not”. On the contrary, it reaffirms that for a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been shown for believing that there is a real risk that the person concerned will be subjected in the receiving country to treatment prohibited by Article 3 ( see paragraphs 12 5 and 13 2 above and the case-law cited in those paragraphs ). 141. The Court further observes that similar arguments to those put forward by the third-party intervener in the present case have already been rejected in the Chahal judgment cited above. Even if, as the Italian and United Kingdom Governments asserted, the terrorist threat has increased since that time, that circumstance would not call into question the conclusions of the Chahal judgment concerning the consequences of the absolute nature of Article 3. 142. Furthermore, the Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment (see Jabari, cited above, § 39) in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof (see paragraphs 1 28 and 13 2 above) before indicating an interim measure under Rule 39 or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion. 143. In the present case the Court has had regard, firstly, to the reports of Amnesty International and Human Rights Watch on Tunisia ( see paragraphs 6 5 - 79 above ), which describe a disturbing situation. The conclusions of those reports are corroborated by the report of the US Department of State (see paragraphs 8 2 -9 3 above). In particular, these reports mention numerous and regular cases of torture and ill-treatment meted out to persons accused under the 2003 Prevention of Terrorism Act. The practices reported – said to be often inflicted on persons in police custody with the aim of extorting confessions – include hanging from the ceiling, threats of rape, administration of electric shocks, immersion of the head in water, beatings and cigarette burns, all of these being practices which undoubtedly reach the level of severity required by Article 3. It is reported that allegations of torture and ill-treatment are not investigated by the competent Tunisian authorities, that they refuse to follow up complaints and that they regularly use confessions obtained under duress to secure convictions ( see paragraphs 68, 7 1, 7 3 -7 5, 8 4 and 8 6 above ). Bearing in mind the authority and reputation of the authors of these reports, the seriousness of the investigations by means of which they were compiled, the fact that on the points in question their conclusions are consistent with each other and that those conclusions are corroborated in substance by numerous other sources ( see paragraph 9 4 above ), the Court does not doubt their reliability. Moreover, the Government have not adduced any evidence or reports capable of rebutting the assertions made in the sources cited by the applicant. 144. The applicant was prosecuted in Italy for participation in international terrorism and the deportation order against him was issued by virtue of Legislative Decree no. 144 of 27 July 2005 entitled “urgent measures to combat international terrorism” ( see paragraph 32 above ). He was also sentenced in Tunisia, in his absence, to twenty years ’ imprisonment for membership of a terrorist organisation operating abroad in time of peace and for incitement to terrorism. The existence of that sentence was confirmed by Amnesty International ’ s statement of 19 June 2007 ( see paragraph 7 1 above ). 145. The Court further notes that the parties do not agree on the question whether the applicant ’ s trial in Tunisia could be reopened. The applicant asserted that it was not possible for him to appeal against his conviction with suspensive effect, and that, even if he could, the Tunisian authorities could imprison him as a precautionary measure ( see paragraph 15 4 below ). 146. In these circumstances, the Court considers that in the present case substantial grounds have been shown for believing that there is a real risk that the applicant would be subjected to treatment contrary to Article 3 of the Convention if he were to be deported to Tunisia. That risk cannot be excluded on the basis of other material available to the Court. In particular, although it is true that the International Committee of the Red Cross has been able to visit Tunisian prisons, that humanitarian organisation is required to maintain confidentiality about its fieldwork ( see paragraph 8 0 above ) and, in spite of an undertaking given in April 2005, similar visiting rights have been refused to the independent human rights protection organisation Human Rights Watch ( see paragraphs 7 6 and 9 0 above ). Moreover, some of the acts of torture reported allegedly took place while the victims were in police custody or pre-trial detention on the premises of the Ministry of the Interior ( see paragraphs 8 6 and 9 4 above ). Consequently, the visits by the International Committee of the Red Cross cannot exclude the risk of subjection to treatment contrary to Article 3 in the present case. 147. The Court further notes that on 29 May 2007, while the present application was pending before it, the Italian government asked the Tunisian government, through the Italian embassy in Tunis, for diplomatic assurances that the applicant would not be subjected to treatment contrary to Article 3 of the Convention ( see paragraphs 51 - 52 above ). However, the Tunisian authorities did not provide such assurances. At first they merely stated that they were prepared to accept the transfer to Tunisia of Tunisians detained abroad (see paragraph 54 above). It was only in a second note verbale, dated 10 July 2007 (that is, the day before the Grand Chamber hearing), that the Tunisian Ministry of Foreign Affairs observed that Tunisian laws guaranteed prisoners ’ rights and that Tunisia had acceded to “the relevant international treaties and conventions ” ( see paragraph 55 above ). In that connection, the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention. 148. Furthermore, it should be pointed out that even if, as they did not do in the present case, the Tunisian authorities had given the diplomatic assurances requested by Italy, that would not have absolved the Court from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention (see Chahal, cited above, § 105). The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time. 149. Consequently, the decision to deport the applicant to Tunisia would breach Article 3 of the Convention if it were enforced. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 150. The applicant alleged that the criminal proceedings against him in Tunisia had not been fair and that his expulsion would expose him to the risk of a flagrant denial of justice. He relied on Article 6 of the Convention, the relevant parts of which provide : “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” 151. The Government rejected that argument. A. Admissibility 152. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 153. The applicant submitted that there was a serious risk of a denial of justice in Tunisia, where the minimal safeguards provided by international law were disregarded. All Tunisians accused in Italy of terrorist activities had had unfair trials after being repatriated. The applicant cited as typical in that respect the case of Mr Loubiri Habib, who had been acquitted of terrorism charges by the Italian courts but imprisoned in Tunisia and deprived of the possibility of seeing his family. Mr Loubiri had succeeded in obtaining “revision” of the Tunisian criminal proceedings which had resulted in his conviction, but the revision proceedings in the Military High Court in Tunis had resulted in a substantial increase in his sentence, from ten to thirty years ’ imprisonment. 154. The applicant further observed that the operative part of the judgment pronouncing his conviction in absentia had been served on his father, Mr Mohamed Cherif, on 2 July 2005. As a result, an appeal was no longer possible. In any event, even supposing that an appeal was possible and that such an appeal could stay execution of the sentence, that would not prevent the Tunisian authorities from imprisoning him as a precautionary measure. Moreover, in view of the serious infringements of political prisoners ’ civil rights in Tunisia, even the theoretical possibility of an appeal out of time could not exclude the risk of a flagrant denial of justice. In addition, it could not be known with certainty whether the court having jurisdiction to hear such an appeal would be a civilian or a military court of appeal. 155. Lastly, the applicant noted that the trial had been conducted in Tunisia in a military court and that the defendant in such proceedings had no possibility of adducing evidence, appointing a lawyer or addressing the court. Moreover, in the present case, neither his family nor his lawyers had been able to obtain a copy of the military court ’ s judgment ( see paragraph 30 above ). (b) The Government 156. The Government asserted that because the file did not contain the original or a certified copy of the judgment against the applicant given in Tunisia it was impossible to check whether the information he had supplied was correct. They further submitted that an expulsion could engage the responsibility of the Contracting State under Article 6 only in exceptional circumstances, in particular where it was apparent that any conviction in the receiving country would amount to a “flagrant” denial of justice, which was not the position in the present case. On the other hand, a Contracting State was not required to establish whether proceedings conducted outside its territory satisfied each of the conditions laid down in Article 6. To rule otherwise would run counter to the current trend, encouraged by the Court itself, of strengthening international mutual assistance in the judicial field. 157. Under the relevant provisions of Tunisian law, a person convicted in his absence was entitled to have the proceedings reopened. The right to a reopening of the proceedings could be exercised in good time and in accordance with the requirements of Article 6. In particular, a person convicted in his absence who was living abroad could appeal within thirty days of the judgment in absentia being served. Where such service had not been effected, an appeal was always admissible and would stay execution of the sentence. Furthermore, the possibility of appealing against a conviction in absentia in Tunisia was confirmed by the declarations of the Director of International Cooperation at the Tunisian Ministry of Justice, which were reassuring on the point ( see paragraph 40 above ). In addition, the applicant had not adduced any evidence that in the light of the relevant rules of Tunisian law there had been shown to be substantial grounds for believing that his trial had been conducted in conditions contrary to the principles of fair trial. 158. Admittedly, in the States party to the Convention, trial before a military court might raise an issue under Article 6. However, in the case of an expulsion, an applicant had to prove that the denial of justice he feared would be “ flagrant ”. Such proof had not been produced in the present case. In addition, in December 2003 Tunisia had amended its domestic provisions relating to terrorist crimes committed by civilians, with the result that military judges had been replaced by civilian judges and an investigating judge took part in the investigation. 159. Lastly, the Government argued that the case of Mr Loubiri, cited by the applicant, was not relevant as an increase of the sentence on appeal was something that could occur even in those countries which were most scrupulously compliant with the Convention. 2. The Court ’ s assessment 160. The Court recalls its finding that the deportation of the applicant to Tunisia would constitute a violation of Article 3 of the Convention (see paragraph 1 49 above). Having no reason to doubt that the Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of expulsion to Tunisia, there would also be a violation of Article 6 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 161. The applicant alleged that his expulsion to Tunisia would deprive his partner and his son of his presence and assistance. He relied on Article 8 of the Convention, which provides : “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 162. The Government rejected that argument. A. Admissibility 163. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 164. The applicant observed that he had a family life in Italy which would be disrupted by enforcement of his expulsion : he had been living with Mrs V. since 1998 and their child had been born the following year. At that time he had already requested a residence permit, which was not issued until 2001. When that permit expired he had tried unsuccessfully to regularise his situation in order to find work. The applicant ’ s child attended school in Italy, which would not be possible in Tunisia, where the applicant himself was at risk of imprisonment or even death. Mrs V. had been out of work for about a year as she suffered from a serious form of ischaemia, which frequently made it necessary for her to be taken into hospital and also prevented her from travelling to Tunisia. The applicant was therefore the family ’ s sole means of financial support. 165. Any allegation concerning the applicant ’ s dangerousness to society had been refuted by his acquittal at first instance on the charge of international terrorism. As matters stood, this was the only judicial decision given in the proceedings against him, since the appeal proceedings were still pending. No new evidence had been adduced by the Government. 166. Moreover, the authorities had many other means to keep an eye on the applicant, expulsion being a measure to be adopted only in extreme cases. In that connection, the applicant pointed out that, since 3 November 2006, he had to report three times a week to a police station in Milan and that he had been forbidden to leave Italian territory ( see paragraph 43 above ). He had always complied with these obligations and had thus been able to obtain the return of his driving licence, which had been withdrawn from him – illegally in his submission – by the vehicle licensing authority ( motorizzazione civile ). ( b) The Government 167. The Government submitted that account had to be taken of the following facts: (a) the applicant ’ s family unit had been created at a time when his presence in Italy was unlawful, as he had had a son by an Italian woman in 1999, whereas the residence permit granted to him for family reasons had not been issued until 29 December 2001; ( b) the child had not attended school for very long in Italy and had had no significant exposure to Italian culture ( he was currently in the second year of primary school), so that he would be able to continue to attend school in Tunisia; ( c) the applicant had never lived with Mrs V. and his son : they had lived in Arluno, until 7 October 2002, when they moved to Milan; the applicant had never lived in Arluno, had often travelled abroad, had been arrested on 9 October 2002 and had married another woman in a Muslim ceremony ( see paragraph 57 above ); and ( d) the unit of family life could be preserved outside Italian territory, given that neither the applicant nor Mrs V. were in work in Italy. 168. The interference in the applicant ’ s family life had a legal basis in domestic law, namely Law no. 155 of 2005. In addition, account had to be taken of the negative influence which, because of his personality and the scale of the terrorist danger, the applicant represented for national security, and of the particular importance which should be attached to the prevention of serious crime and disorder. Any interference with the applicant ’ s right to respect for his family life therefore pursued a legitimate aim and was necessary in a democratic society. 169. In addition, no disproportionate or excessive burden had been imposed on the applicant ’ s family unit. In the context of crime - prevention policy, the legislature had to enjoy broad latitude to rule both on the existence of a problem of public interest and on the choice of arrangements for the application of an individual measure. Organised crime of a terrorist nature had reached, in Italy and in Europe, very alarming proportions, to the extent that the rule of law was under threat. Administrative measures ( such as deportation ) were indispensable for effective action against the phenomenon. Deportation presupposed the existence of “sufficient evidence” that the person under suspicion was supporting or assisting a terrorist organisation. The Minister of the Interior could not rely on mere suspicions but had to establish the facts and assess them objectively. All the material in the file suggested that that assessment, in the present case, had been correct and not arbitrary. The evidence used in the administrative deportation proceedings was the evidence taken in the course of public and adversarial proceedings in the Milan Assize Court. During those criminal proceedings the applicant had had the opportunity, through his lawyer, of raising objections and submitting the evidence he considered necessary to safeguard his interests. 2. The Court ’ s assessment 170. The Court observes its finding that the deportation of the applicant to Tunisia would constitute a violation of Article 3 of the Convention (see paragraph 1 49 above). Having no reason to doubt that the Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of expulsion to Tunisia, there would also be a violation of Article 8 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 7 171. The applicant submitted that his expulsion would be neither “necessary in the interests of public order” nor “grounded on reasons of national security”. He alleged a violation of Article 1 of Protocol No. 7, which provides : “1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed: (a) to submit reasons against his expulsion, (b) to have his case reviewed, and (c) to be represented for these purposes before the competent authority or a person or persons designated by that authority. 2. An alien may be expelled before the exercise of his rights under paragraph 1 (a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.” 172. The Government rejected that argument. A. Admissibility 173. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Arguments of the parties (a) The applicant 174. The applicant submitted that he was lawfully resident in Italian territory. He argued that the condition of “lawful residence” should be assessed by reference to the situation at the time of the deportation decision. When arrested he had a valid residence permit, which expired only because he was in prison. He had subsequently attempted to regularise his situation, but had been prevented from doing so on account of his internment in the temporary holding centre. 175. The applicant ’ s situation could now be regularised, since the terrorism charges had not led to his conviction, he was cohabiting with his Italian partner and son, and was able to work. However, any administrative step he might take was blocked by the fact that he had no document which could prove his nationality and could never obtain one from the Tunisian authorities ( see paragraph 45 above ). 176. The applicant submitted that he was being prevented from exercising the rights listed in paragraph 1 ( a), ( b) and ( c) of Article 1 of Protocol No. 7, whereas his expulsion could not be regarded as “ necessary in the interests of public order” or “grounded on reasons of national security”. In that connection, he observed that the considerations of the Minister of the Interior were contradicted by the Milan Assize Court, which had acquitted him of international terrorism. In any event, the Government had not adduced any evidence of the existence of dangers to national security or public order, so that the decision to take him to a temporary holding centre with a view to his expulsion had been “unlawful”. (b) The Government 177. The Government observed that, according to the explanatory report accompanying Article 1 of Protocol No. 7, the word “lawfully” referred to the domestic legislation of the State concerned. It was therefore domestic legislation which should determine the conditions a person had to satisfy in order for his or her presence within the national territory to be considered “lawful”. In particular, an alien whose admission and stay had been made subject to certain conditions, for example a fixed period, and who no longer complied with those conditions could not be regarded as being still “lawfully” present in the State ’ s territory. Yet after 11 October 2002, a date which preceded the deportation order, the applicant no longer had a valid residence permit authorising his presence in Italy. He was therefore not “an alien lawfully resident in the territory” within the meaning of Article 1 of Protocol No. 7, which was accordingly not applicable. 178. The Government further observed that the deportation order had been issued in accordance with the rules established by the relevant legislation, which required a simple administrative decision. The law in question was accessible, its effects were foreseeable and it offered a degree of protection against arbitrary interference by the public authorities. The applicant had also had the benefit of “minimum procedural safeguards”. He had been represented before the justice of the peace and the Regional Administrative Court by his lawyer, who had been able to submit reasons why he should not be deported. A deportation order had also been issued against the applicant when he was sentenced to four years and six months ’ imprisonment, and hence after adversarial judicial proceedings attended by all the safeguards required by the Convention. 179. In any event, the Government submitted that the applicant ’ s deportation was necessary in the interests of national security and the prevention of disorder. They argued that these requirements were justified in the light of the information produced in open court during the criminal proceedings against the applicant and pointed out that the standard of proof required for the adoption of an administrative measure (a deportation order issued by the Minister of the Interior by virtue of Legislative Decree no. 144 of 2005) was lower than that required to ground a criminal conviction. In the absence of manifestly arbitrary conclusions, the Court should endorse the national authorities ’ reconstruction of the facts. 2. The Court ’ s assessment 180. The Court recalls its finding that the deportation of the applicant to Tunisia would constitute a violation of Article 3 of the Convention (see paragraph 1 49 above). Having no reason to doubt that the Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of expulsion to Tunisia, there would also be a violation of Article 1 of Protocol No. 7. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 181. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 182. The applicant requested in the first place 20,000 euros (EUR) for loss of income. He observed that the deportation order had caused him to fall into an irregular situation, that he had been detained unlawfully in the Milan temporary holding centre for three months and that this had prevented him from carrying on his occupation. 183. In respect of non-pecuniary damage, the applicant claimed EUR 50,000 and suspension and/or annulment of the deportation order. 184. The Government observed that the deportation had not been enforced, so that the applicant, an alien who had contravened the laws of the Italian State and been lawfully detained after 9 October 2002, was not entitled to claim any pecuniary damage or loss of income. 185. On the question of non-pecuniary damage, the Government submitted that there was no causal link between the conduct of the Italian authorities and the sufferings and inconvenience alleged by the applicant. In any event, the applicant had not indicated what criteria had been used for the calculation of the sum claimed. 186. The Court reiterates that it is able to make awards by way of the just satisfaction provided for in Article 41 where the loss or damage on which a claim is based has been caused by the violation found, but that the State is not required to make good damage not attributable to it (see Perote Pellon v. Spain, no. 45238/99, § 57, 25 July 2002). 187. In the present case, the Court has found that enforcement of the applicant ’ s deportation to Tunisia would breach Article 3 of the Convention. On the other hand, it has not found any violations of the Convention on account of the deprivation of the applicant ’ s liberty or the fact that his presence in Italy was unlawful. Consequently, it can see no causal link between the violation found in the present judgment and the pecuniary damage alleged by the applicant. 188. With regard to the non-pecuniary damage sustained by the applicant, the Court considers that the finding that his deportation, if carried out, would breach Article 3 of the Convention constitutes sufficient just satisfaction. B. Costs and expenses 189. The applicant did not request reimbursement of the costs and expenses incurred during the domestic proceedings. He did, however, request reimbursement of his costs relating to the proceedings before the Court, which, according to a bill from his lawyer, amounted to EUR 18,179.57. 190. The Government considered that amount excessive. 191. According to the Court ’ s established case-law, an award can be made in respect of costs and expenses incurred by the applicant only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see Belziuk v. Poland, 25 March 1998, § 49, Reports 1998-II). 192. The Court considers the amount claimed for the costs and expenses relating to the proceedings before it excessive and decides to award EUR 8,000 under that head. C. Default interest 193. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court observed that it could not underestimate the danger of terrorism and noted that States were facing considerable difficulties in protecting their communities from terrorist violence. However, that should not call into question the absolute nature of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention. In the present case, there were substantial grounds for believing that there was a real risk that the applicant would be subjected to treatment contrary to Article 3 if he were to be deported to Tunisia. The Court further noted that the Tunisian authorities had not provided the diplomatic assurances requested by the Italian Government. Lastly, even if the Tunisian authorities had given the diplomatic assurances, that would not have absolved the Court from the obligation to examine whether such assurances provided a sufficient guarantee that the applicant would be protected against the risk of treatment. Consequently, the Court found that the decision to deport the applicant to Tunisia would breach Article 3 if it were enforced.