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Information Note on the Court’s case-law 193

February 2016

Nasr and Ghali v. Italy - 44883/09

Judgment 23.2.2016 [Section IV]

Article 3

Torture

Effective investigation

Extradition

Torture and inhuman and degrading treatment resulting from applicant’s extraordinary rendition under CIA programme: violations

Degrading treatment

Inhuman treatment

Acute mental suffering and anxiety caused by extraordinary rendit ion of applicant’s husband under CIA programme: violation

Facts – The applicants are a married couple. The first applicant, an Egyptian national, lived in Italy and obtained refugee status there. He was suspected of terrorist offences, and in February 2003 was abducted in a Milan street and handed over to CIA agents in an “extraordinary rendition” operation. He was subsequently moved to Egypt, where he was detained in secret and subjected to violent interrogation. He was not heard of again until his release in April 2004. He was rearrested by the Egyptian authorities some twenty days later and was detained until February 2007. Three days after her husband’s abduction the second applicant reported his disappearance to the police. Although the prosecuting auth orities reacted promptly, the withholding of information by the Italian intelligence agency (SISMi) meant that they were unable to obtain any information until April 2004. As a result of the investigation, twenty-six United States nationals and two Italian citizens were found to be responsible and were convicted. However, the convictions of the Italian nationals were quashed on grounds of State secrecy. As to the US citizens, only one of them was made the subject of an extradition request. Those proceedings were still pending at the time of adoption of the European Court’s judgment.

Law

(a) Admissibility – The Government raised a preliminary objection of failure to exhaust domestic remedies. The Court noted that the domestic courts had ordered twenty-six US citizens and two Italian citizens, jointly and severally, to pay damages to the applicants. However , the criminal convictions of the SISMi agents had been quashed on grounds of State secrecy, which could also have been invoked in possible civil proceedings. Accordingly, in practice, none of the Italian agents implicated in the events could have been fou nd liable in the Italian civil courts for the damage sustained by the applicants.

The only persons legally liable from whom it would have been possible to claim the sums already awarded, or the damages awarded subsequently, were the twenty-six convicted U S nationals, who had left Italy on unspecified dates and had since been declared by the Italian authorities to be “untraceable” and then to have “absconded”. Despite the requests of the prosecuting and judicial authorities to that effect, the Minister of J ustice had decided not to seek the extradition of those twenty-six individuals or to have a wanted notice issued concerning them. To date, only one of the persons convicted had been arrested for a short period, and the extradition proceedings were still pe nding at the time of adoption of the Court’s judgment.

The attitude of the Italian executive authorities towards the convicted US citizens had substantially compromised – or even reduced to nothing – the applicants’ prospects of obtaining compensation from the persons responsible.

Conclusion : preliminary objection dismissed (unanimously).

(b) Merits – Article 3

(i) Procedural aspect with regard to the first applicant – In contrast to the cases previously examined by the Court, the domestic courts had conducted an in-depth investigation in the present case which had made it possible to reconstruct the events. Tribute had to be paid to the work of the courts, which had done their utmost to “establish the truth”. Hence, the present case essentially raised two issues: the quashing of the convictions of the Italian SISMi agents and the lack of adequate measures to enforce the sentences passed against the US agents.

The evi dence that was ultimately disregarded by the courts on the ground that the Constitutional Court had found it to be covered by State secrecy had been sufficient to convict the accused. Given that the information implicating the SISMi agents had been widely circulated in the press and on the Internet and had therefore been in the public domain, it was difficult to discern how invoking State secrecy had been apt to preserve the confidentiality of the events once the information in question had been disclosed. The executive’s decision to invoke State secrecy had resulted in the SISMi agents avoiding conviction. Accordingly, despite the high calibre of the work carried out by the Italian investigators, judges and prosecutors, the investigation had not satisfied t he Convention requirements in this regard.

With regard to the US agents who had been convicted, the Government conceded that only one extradition request had been made in relation to them, which had yielded no results. Furthermore, the President of the Rep ublic had pardoned three of the persons concerned, including the agent who had been the subject of extradition proceedings. Here again, despite the efforts of the Italian investigators, judges and prosecutors, the convictions handed down had remained ineff ective owing to the attitude of the executive. The legitimate principle of “State secrecy” had clearly been invoked in order to ensure that those responsible did not have to answer for their actions. As a result, the investigation, despite being effective and thorough, and the trial – which had identified the persons responsible and had convicted some of them – had not produced their natural outcome, namely “the punishment of those responsible”. Ultimately, therefore, those concerned had acted with impunity . This was all the more deplorable in a situation such as that in the present case, which concerned two countries that had signed an extradition treaty. On this point also, the domestic investigation had failed to satisfy the requirements of the Convention .

Conclusion : violation (unanimously).

(ii) Substantive aspect with regard to the first applicant – It was not necessary to examine every aspect of the treatment meted out to the applicant during his abduction, his transfer abroad and his ensuing detentio n, or the physical conditions in which he had been held. The cumulative effects of the treatment to which he had been subjected – as described in detail in his written statements, confirmed by a medical certificate and deemed credible by the Italian courts – were sufficient to find that the treatment had attained the degree of severity required by Article 3.

It had at the very least been foreseeable for the Italian authorities, who had cooperated with the CIA agents, that the applicant’s abduction by the CI A would be the prelude to serious ill-treatment. Moreover, the SISMi had been informed, by May 2003 at the latest, of the fact that the applicant was being held in Egypt and being interrogated by the Egyptian intelligence services. Accordingly, the Italian authorities had known or ought to have known that this operation would expose the applicant to a real risk of treatment proscribed by Article 3. In those circumstances, the likelihood of a violation of that Article had been particularly high and should ha ve been considered as inherent in the applicant’s transfer. The Italian authorities had therefore had a duty to take the appropriate measures to ensure that the applicant, who came within their jurisdiction, was not subjected to acts of torture or to inhum an or degrading treatment or punishment. However, they had not done so.

These findings were all the more valid given that the applicant had been granted refugee status in Italy.

Conclusion : violation (unanimously).

(iii) Substantive aspect with regard to the second applicant – The second applicant had received no news of her husband until April 2004, that is to say, more than fourteen months after his abduction. She had thus been left in a state of anguish, as she was aware that her husband had been detain ed and had received no official information concerning him. It was true that the police and the prosecuting authorities had reacted promptly. Nevertheless, they had initially been misled by the CIA agents as to the applicant’s whereabouts and what had beco me of him. Furthermore, it was clear that the Italian security services had been informed from the outset about what had happened to the applicant; however, they had kept that information from the police and the public prosecutor’s office. The relevant doc ument had come to light following a search of the SISMi premises ordered by the public prosecutor. As a result of this deliberate manipulation of crucial information concerning the applicant’s abduction, and the obstructive tactics of the SISMi agents acti ng in cooperation with their CIA counterparts, the second applicant had been left for a prolonged period without any explanations as to what had become of her husband. The uncertainty, doubt and apprehension experienced by the second applicant over a lengt hy and continuous period had caused her severe mental suffering and distress.

Conclusion : violation (unanimously).

The Court also found, unanimously, violations of Articles 5 and 8 of the Convention and of Article 13 taken in conjunction with Articles 3, 5 and 8 with regard to the first applicant. In the case of the second applicant it found, unanimously, a violation of the procedural aspect of Article 3, a violation of Article 8 and a violation of Article 13 taken in conjunction with Articles 3 and 8.

Arti cle 41: EUR 70,000 to the first applicant and EUR 15,000 to the second applicant in respect of non-pecuniary damage.

(See Husayn (Abu Zubaydah) v. Poland , 7511/13 , and Al Nashiri v. Poland , 28761/11 , judgments of 24 July 2014 summarised in Information Note 176 ; and El-Masri v. the former Yugoslav Republic of Macedonia [GC ], 39630/09, 13 December 2012, Information Note 158 ; see also the Factsheets on Secret detention sites and Terrorism )

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