FOURTH SECTION

DECISION

Application no . 46706/08 Habib IGNAOUA and Others against the United Kingdom

The European Court of Human Rights ( Fourth Section ), sitting on 18 March 2014 as a Chamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , Ledi Bianku , Nona Tsotsoria, Paul Mahoney, Krzysztof Wojtyczek , Faris Vehabović , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 30 September 2008 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant s , Mr Habib Ignaoua (“the first applicant”), Mr Mohammed Salah Khemiri (“the second applicant”) and Mr Ali Ben Zidane Chehidi (“the third applicant”) , are Tunisian national s , 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 .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant s , may be summarised as follows.

1. Background facts

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.”

2. Domestic proceedings

(a) Extradition proceedings before the Magistrates ’ Court

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 28 th 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 .

(b) Extradition proceedings before the Divisional Court

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 K h emais , ordering that he be expelled to Tunisia . He was then removed to Tunisia, despite Rule 39 having been applied by the Court on 2 9 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 receiv ed 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 K h emais ] 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 t erm 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. A n application for a certificate of a point of law of general public importance was dismissed by the Divisional Cour t on 30 September 2008 .

( c ) Habeas corpus proceedings before the Divisional Court

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.

3. The applicants ’ Rule 39 request

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.”

4. Subsequent events

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 a cting 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 applicant s 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.

(a) The second and third applicants

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.

(b) The first applicant

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.

B. Relevant law and practice

1. Extradition Act 2003

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.

2. Pisanu Law

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 state d 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 th e appeal did not suspend the enforcement of the deportation order.

3. European Union Council Framework Decision

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 th e Framework Decision .

42. Recital 13 of the preamble to the Framework Decision provides that n o 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 S tate with without the permission of the extraditing S tate which surrendered the person.

COMPLAINTS

44. The applicant s complained under Article 3 of the Convention that their surrender to Italy under the EAW exposed them to a real risk of being sent onward to Tunisia, where it was accepted that they would be at risk of torture and inhuman and degrading treatment.

45. They further complained under Article 13 that the approach taken by the English courts to the EAW and to their surrender rendered nugatory the theoretical protection offered by English law .

THE LAW

46. The applicants contended that the decision of the English courts to allow their surrender to Italy exposed them to the risk of onward transfer to Tunisia where they would likely be subjected to torture or inhuman and degrading treatment. They relied on Article 3 of the Convention which provides:

“ “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

47. They argued that the compatibility of their surrender with Article 3 had to be assessed at the time of their transfer (citing Cruz Varas and Others v. Sweden , 20 March 1991, Series A no. 201 ). Thus the relevant date in their case was 1 November 2008. By that date, the respondent Government were fully aware of the Italian Government ’ s documented history of expelling to Tunisia individuals in comparable situations to the applicants. They were also aware of the Grand Chamber ruling in Saadi , cited above. Further, it was evident to them from both the Saadi judgment and the pending proceedings in Ben Khemais , cited above, that there was no remedy with suspensive effect in Italian domestic law by which a removal order could be challenged. Finally, they knew that Mr Ben Khemais had been expelled to Tunisia by the Italian authorities while a Rule 39 indication was in place. In all these circumstances, the Divisional Court was wrong to consider the risk of removal “remote” and to place weight on the mutual trust and confidence upon which the EAW was based.

48 . The applicants further submitted that the Court was not precluded from having regard to information which came to light after surrender in assessing the extent of the risk in their case. In this respect they pointed to the deportation of Mr Trabelsi . Although the applicants accepted that the Italian authorities had complied with a number of judgments issued by the Court on 24 March 2009 prohibiting planned expulsions to Tunisia on Article 3 grounds (see for example Bouyahia v. Italy , no. 46792/06, 24 March 2009 ), they contended that the inconsistent practice illustrated that it was “something of a lottery” whether Italy would comply or not with Rule 39 indications.

49. It is clear from the Court ’ s case-law that e xpulsion, extradition or any other measure to remove an alien may give rise to an issue under Article 3, and hence engage the responsibility of the expelling State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09 , § 114 , ECHR 2012 ). It was accepted in the domestic proceedings in the present case that the applicants faced a real risk of torture or inhuman and degrading treatment if returned, at that time, to Tunisia. The question in the domestic proceedings was whether there was a real risk that the Italian authorities would deport the applicants to Tunisia in breach of their Article 3 rights.

50. The indirect removal of the applicants to an intermediary country wh ich is also a Contracting State does not affect the responsibility of the United Kingdom to ensure that the applicant s are not, as a result of its decision to surrender , exposed to treatment contrary to Article 3 of the Conve ntion ( T.I. v. the United Kingdom ( dec. ), no. 43844/98, ECHR 2000 ‑ III ; and K.R.S. v. the United Kingdom ( dec. ), no. 32733/08 , 2 December 2008). In this respect it is noteworthy that pursuant to section 21 of the Extradition Act 2003, the District Judge in the applicants ’ case was required to refuse to authorise surrender if it would not be compatible with the applicants ’ Convention rights (see paragraph 36 above).

51 . In terms of the burden of proof, there is a presumption that the authorities of the receiving Contracting State will respect their international law obligations (see, mutatis mutandis , K.R.S. , cited above; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 345 , ECHR 2011 ). It is therefore for the applicants in the first instance to provide evidence to rebut that presumption in a given case.

52 . S ince the nature of the Contracting States ’ responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, 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 the expulsion . T he Court is not , however, precluded, from having regard to information which comes to li ght subsequent to the expulsion, which may be of value in confirming or refuting the appreciation that has been made by the Contracting Party or the well- foundedness or ot herwise of an applicant ’ s fears ( Cruz Varas and Others , cited above, § 76).

53. In the present case, the applicants have argued that at the time of their surrender to Italy on 1 November 2008 there was incontrovertible evidence that they were at a real risk of being further expelled to Tunisia. Their arguments were fully examined by the District Judge and, on appeal, by the Divisional Court (see paragraphs 6-9 and 12-16 above). There was a further examination of their claims in the context of later habeas corpus proceedings again before the Divisional Court (see paragraphs 18-19 above). In particular, the courts were satisfied that the pre- Saadi practice of expelling to Tunisia could not be considered a reliable indicator of future practice, since the Italian authorities would no doubt consider carefully the implications of Saadi in such cases and would seek to comply with their international law obligations (see paragraphs 7-8, 15 and 19 above). They referred to the mutual trust and confidence underpinning the EAW (see paragraphs 9, 14 and 19 above), and the Divisional Court was not prepared to find that the deportation of Mr Ben Khemais , representing as it did at that time the sole post- Saadi case of deportation, was sufficient to hold that Italy would ignore its duties under Article 3 in the applicants ’ case (see paragraphs 15 and 19 above). Both the judgment of Pill LJ and that of Keene LJ further observed that since the applicants were genuinely being sought to be tried on criminal charges in Italy, and that there was no risk of deportation during the criminal proceedings or while any custodial sentence was being served, the risk of any further deportation to Tunisia was to that extent “remote” (see paragraphs 16 and 19 above).

54. It is clear from the foregoing that far from refusing to give any serious consideration to the applicants ’ complaint, the domestic courts examined the position very carefully, on the basis of expert reports and witness evidence. Both at Magistrates ’ Court level and subsequently on two occasions in the Divisional Court, the judges sought to verify the position of the Italian authorities and to determine the extent of any real risk of onward deportation.

55. In terms of the substance of their decisions, the Court agrees that in so far as the pre- Saadi practice was incompatible with Article 3 of the Convention, it could not be assumed or concluded that the practice would continue once the Saadi judgment had been handed down. It further agrees that the mutual trust and confidence underpinning measures of police and judicial cooperation among EU member States must be accorded some weight. Indeed, this reflects the Court ’ s own general assumption that the Contracting States of the Council of Europe will respect their international law obligat ions (see paragraph 51 above). It is true that the deportation of Mr Ben Khemais could give cause for concern, lending as it does some support to the applicants ’ submission that the Italian authorities were flouting interim measures indicated by the Court in deportation cases. However, like the domestic courts, the Court is not persuaded that the evidence of this sole post- Saadi incident, taken alone, was sufficient to rebut the assumption that Italy would comply with its international law obligations. Indeed, on 7 October 2008, having been made aware of the deportation of Mr Ben Khemais in breach of a previous Rule 39 indication (see paragraph 11 above), the Fourth Section nonetheless refused a request for interim measures to prevent the applicants ’ surrender to Italy. It referred to the possibility for the applicants to make an application against Italy in due course if it seemed that they would be deported in breach of Article 3 of the Convention (see paragraph 21 above). It also expressed its confidence that the Italian Government would comply with its obligations under Articles 3 and 13 of the Convention and its obligation to respect the terms of any interim measures indicated (see paragraph 21 above).

56. It is clear that the refusal to grant the request for interim measures under Rule 39 of the Rules of Court does not preclude the Court from subsequently finding a violation of Article 3. The examination of a Rule 39 request where removal is imminent is carried out as a matter of urgency, without the in-depth consideration given to all the facts of the case, based on all relevant documentation, at the stage of the examination of the merits of the application ( see M.S.S. , cited above, § 355) . However, in the present case the evidence relied on by the applicants to prevent their surrender – Mr Ben Khemais ’ deportation to Tunisia in breach of the Court ’ s own Rule 39 indication – was a specific incident relating to facts peculiarly within the Court ’ s knowledge. Given that the Section itself was not prepared to hold that the breach of the Rule 39 indication in the case of Mr Ben Khemais was sufficient to show a real and immediate risk of treatment incompatible with the Article 3, the domestic courts cannot be faulted for reaching the same conclusion on the basis of exactly the same evidence.

57. The Court further agrees with the Divisional Court that at the time of the applicants ’ surrender to Italy the risk of any onward deportation to Tunisia was relatively remote. In the context of the extradition proceedings, the Prosecutor of the Republic of Italy had given an assurance that it would not further extradite the first applicant without the consent of the United Kingdom; and that extradition was not being sought in order to deport the first applicant to Tunisia (see paragraph 5 above). Indeed, the applicants accepted that the EAW had genuinely been issued to secure their surrender for trial on criminal charges in Italy (see paragraph 12 above). The fact that they were subsequently tried in Italy is confirmation of sincerity of the surrender request. It was accordingly unlikely that any further deportation would be contemplated until the trial had been concluded and any custodial sentence served, which could be some years later. There was every possibility that by the time any deportation was being contemplated by the Italian authorities, the situation in Tunisia would have changed such as to render the applicants ’ deportation compatible with their Article 3 rights. Indeed, this is precisely what has occurred following the regime change in 2012 (see Al Hanchi v. Bosnia and Herzegovina , no. 48205/09, § 42-45, 15 November 2011 ; and Ignaoua and Others v. Italy ( dec. ), no. 22209/09, §§ 27-28, 10 July 2012).

58. Finally, while the Court must base its decision primarily on the facts known at the time of the deportation (see paragraph 52 above), it would be artificial to ignore the fact that the applicants were not, in the event, deported to Tunisia. Nor was any serious attempt made to deport them once the Rule 39 indication against Italy had been made by the acting President of the Second Section (see paragraph 27 above). Notwithstanding evidence of isolated incidents of further deportations of other individuals in breach of Rule 39 of the Convention (see paragraphs 23 and 48 above), subsequent events in the applicants ’ case have confirmed the appreciation of the situation made by the domestic courts.

59. For these reasons, the Court concludes that the applicants have failed to provide evidence rebutting the assumption that, at the time of their surrender to Italy, the Italian authorities would comply with their Convention obligations. It follows that there was no appearance of a violation of Article 3 by the surrender of the applicants to Italy .

60. Fin ally, as regards the applicants ’ Article 13 complaint, the Court reiterates that Article 13 guarantees the availability at national level of a remedy where there is an “arguable claim” of a violation of a substantive Convention provision (see Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131). Having regard to the Court ’ s conclu sions as regards the applicant s ’ complaint under Article 3, it cannot be said that they have an “arguable claim” under th at Articles. Article 13 is therefore inapplicable to their case (see, for example, Menson v. the United Kingdom ( dec. ), no. 47916/99, ECHR 2003 - V ; and P. v. the United Kingdom ( dec ), no. 1529/10, 12 November 2013 ).

61. In conclusion, the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Ineta Ziemele Deputy Registrar President