CONCURRING OPINION OF JUDGE MYJER, JOINED BY JUDGE ZAGREBELSKY

I voted with the other judges that, if the decision to deport the applicant to Tunisia were to be enforced, there would be a violation of Article 3 of the Convention. I also fully agree with the reasoning which is contained in paragraphs 124 to 1 48 of the judgment.

Still, I would like to add the following remarks.

As far as the procedure is concerned:

The question of principle in Saadi v. Italy , as raised by the intervening g overnment (is there reason to alter and modify the approach followed by the Court in Chahal in cases concerning the threat created by international terrorism ? ), was earlier raised in some other cases which are at present still pending before a Chamber of the Third Section ( Ramzy v. the Netherlands , no. 25424/05 , and A. v. the Netherlands , no. 4900/06). In these cases against the Netherlands , leave to intervene as a third party was granted to the g overnments of Lithuania , Portugal , Slovakia and the United Kingdom and to some non-governmental organisations. These g overnments submitted a joint third-party intervention; separate third-party submissions and a joint third-party submission were filed by some non-governmental organisations.

It then happened that the case of Saadi v. Italy (earlier referred to as N.S. v. Italy ) was ready for decision while the cases against the Netherlands were not. In the Saadi case the Chamber of the Third Section relinquished jurisdiction on 27 March 2007 in favour of the Grand Chamber. In Case-law report 95 of March 2007 (the provisional version, which appeared in April 2007) , mention was made on p. 38 of the N.S. v. Italy case (relinquishment in favour of the Grand Chamber), indicating that this was a case concerning the expulsion of the applicant to Tunisia on grounds of his alleged participation in international terrorism. The same appeared in the final version of Information Note No. 95 on the case-law of the Court, March 2007, which appeared some time later. The g overnment of the United Kingdom requested leave to intervene as a third party in good time.

As far as the question itself is concerned:

Paragraph 137 of the judgment gives the answer in a nutshell: “ T he Court notes first of all that States face immense difficulties in modern times in protecting their communities from terrorist violence ... 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. ”

I would not be surprised if some readers of the judgment – at first sight – find it difficult to understand that the Court by emphasising the absolute nature of Article 3 seems to afford more protection to the non-national applicant who has been found guilty of terrorist - related crimes than to the protection of the community as a whole from terrorist violence. Their reasoning may be assumed to run as follows: it is one thing not to expel non-nationals – including people who have sought political asylum – 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 (see for instance the judgment of 11 January 2007 in Salah Sheek h v. the Netherlands , no. 1948/04 ) or even not to expel non-nationals who fall in the category of Article 1F of the Convention on the Status of Refugees of 28 July 1951 (decision of 15 September 2005 in Bonger v. the Netherlands , no. 10154/04 ) as long as these people pose no potential danger to the lives of the citizens of the State, but it makes a difference to be told that a non-national who has posed (and maybe still poses) a possible terrorist threat to the citizens cannot be expelled.

Indeed, the Convention (and the P rotocols thereto) contain legal human rights standards which must be secured to everyone within the jurisdiction of the High Contracting Parties (Article 1). Everyone means everyone: not just terrorists and the like. The States also have a positive obligation to protect the life of their citizens. They should do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge ( Osman v. the United Kingdom , 28 October 1998, §§ 115-16 , Reports of Judgments and Decisions 1998-VIII ). They have, as was la id down in the preamble of the g uidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism (adopted on 11 July 2002), “ the imperative duty ” to protect their populations against possible terrorist acts. I even daresay that the Convention obliges the High Contracting States to ensure as far as possible that citizens can live without fear that their life or goods will be at risk. In that respect I recall that “ Freedom from Fear ” ranks among the Four Freedoms mentioned in Roosevelt ’ s famous speech.

However, States are not allowed to combat international terrorism at all costs. They must not resort to methods which undermine the very values they seek to protect. And this applies the more to those “absolute” rights from which no derogation may be made even in times of emergency (Article 15). During a high - level seminar on Protecting human rights while fighting terrorism (Strasbourg , 13-14 June 2005) , the former French Minister of Justice Robert Badinter rightly spoke of a dual threat which terrorism poses for human rights : a direct threat posed by acts of terrorism ; and an indirect threat because anti-terror measures themselves risk violating human rights. Upholding human rights in the fight against terrorism is first and foremost a matter of upholding our values, even with regard to those who may seek to destroy them. There is nothing more counterproductive than to fight fire with fire, to give terrorists the perfect pretext for martyrdom and for accusing democracies of using double standards. Such a course of action would only serve to create fertile breeding grounds for further radicalisation and the recruitment of future terrorists.

After the events of 11 September 2001 , the Committee of Ministers of the Council of Europe reaffirmed in the preamble of the above - mentioned guideline s the States ’ obligation to respect, in their fight against terrorism, the international instruments for the protection of human rights and, for the member States in particular, the Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights. Point XII § 2 of the guidelines makes it clear that it is the duty of a State that intends to expel a person to his or her country of origin or to another country not to expose him or her to the death penalty, to torture or to inhuman or degrading treatment or punishment.

The Court found that in this case substantial grounds have been shown for believing that the applicant would risk being subjected to treatment , contrary to Article 3 of the Convention, if he were to be deported to Tunisia .

Then there is only one (unanimous) answer possible.

[1] . Scozzari and Giunta v. Italy [GC], nos . 39221/98 and 41963/98, ECHR 2000 ‑ VIII .