ECtHR - Trabelsi v. Belgium, (Application no. 140/10), 4 September 2014

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Country of Applicant: 
Tunisia
Date of Decision: 
04-09-2014
Citation: 
Trabelsi v. Belgium, (Application no. 140/10), 4 September 2014
Court Name: 
European Court of Human Rights Fifth Chamber
Headnote: 

The ECtHR has unanimously held that Belgium, in extraditing a Tunisian national to the US, where he was under prosecution on charges linked to Al-Qaeda, without any regard to the interim Rule 39 measure issued by the Court suspending the extradition, had violated both Article 3 and Article 34 (right to individual applications)of the ECHR.

Facts: 

Mr Trabelsi, a Tunisian national, currently incarcerated in the US, was sentenced in 2003 by the Brussels Regional Court to ten years’ imprisonment for having attempted to destroy a Belgian military base and having instigated a criminal conspiracy to attack persons and property. During this time, Mr Trabelsi submitted an asylum application in Belgium, which was dismissed in 2009. In 2008, four charges against Mr Trabelsi  for Al-Qaeda-inspired acts of terrorism were transmitted in an arrest warrant by the US authorities to the Belgian authorities. These acts were liable to a sentence of life imprisonment and a fifteen-year term. Acceding to the request of the US authorities on several conditions including the non-enforcement of the death penalty, the non-extradition to a third country, and a possibility of commutation of a life sentence, a Belgian ministerial decree allowing the extradition to the US government was adopted in 2011.

Subsequently, Mr Trabelsi lodged a request with the ECtHR for the indication of an interim measure pursuant to Rule 39 of the Rules of Court with a view to suspending his extradition. The Court acceded to the request and notified the Belgian Government that it should not extradite Mr Trabelsi to the US. Regardless of this, on 24 June 2012, the applicant was taken into custody pending extradition. The applicant filed five unsuccessful applications for release. In October 2013, the applicant was extradited to the United States.

Decision & Reasoning: 

The Court underlined that the imposition of a sentence of life imprisonment on an adult offender was not, in itself, prohibited by any Article of the Convention, provided that it was not disproportionate. However, it confirmed that compatibility with Article 3 required that a sentence should not be irreducible de jure and de facto. Thus, and aligning itself with the Grand Chamber in Kafkaris v. Cyprus, (no. 21906/04), the Chamber assessed whether a life prisoner could be said to have any "prospect of release" and whether national law afforded the "possibility of review" of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner[113].

In the present circumstances the Court held that there had been no concrete assurance that Mr Trabelsi would be spared an irreducible life sentence. Furthermore, despite possibilities to reduce the sentence, the Court reiterated its judgment in Othman (Abu Qatada) v. UK (no.8139/09) by stating that no procedure amounting to a mechanism for reviewing such sentences for the purposes of Article 3 was apparent in US legislation [135]. Thus, the life imprisonment to which Mr Trabelsi might be sentenced could not be described as reducible, meaning that his extradition to the United States had amounted to a violation of Article 3[138].

In an explicit condemnation of Belgium’s breach of the Rule 39 interim measure, the Court, secondly, highlighted that Belgium had "deliberately and irreversibly lowered the level of protection of the rights set out in Article 3 of the Convention which the applicant had endeavoured to uphold by lodging his application with the Court"[150].This, subsequently, had the effect of rendering a violation of the Convention otiose.

Moreover, the Court noted that the individual right of petition is accompanied by an examination of the application in accordance with the Court’s usual procedure, which has been made extremely difficult in the present case where the applicant was held in solitary confinement with "very little contact with the outside world".

Outcome: 

Violation of Articles 3 concerning the applicant’s extradition to U.S.

Violation of Article 34 of the Convention

Violation of Article 3 concerning the detention conditions of the applicant dismissed for non-exhaustion of domestic remedies.

Complaint under Article 6 para 1 inapplicable to the impugned extradition proceedings

 Article 4 of Protocol No. 7 manifestly ill-founded and dismissed in accordance with Article 35 § 4

Subsequent Proceedings : 

In its decision concerning the execution of the judgment, the Committee of Ministers welcomed the request by the Belgian authorities of new diplomatic assurances from the United States authorities. However, the CM invited the Belgian authorities to follow-up this request, and to report of any developments in this respect as well as in respect of the payment of just satisfaction to the applicant.

As to general measures, the CM invited the highest authorities of the State to make the commitment that no deliberate non-compliance with interim measures indicated by the Court will be tolerated. 

Observations/Comments: 

Concurring Opinion of Judge Yudkivska

Judge Yudkivska expresses his hesitations regarding a violation of Article 3 in the present case, despite the fact that he had voted in favour of it. He cited the Court’s decision in Babar Ahmad that "save for cases involving the death penalty, [the Court] has even more rarely found that there would be a violation of Article 3 if an applicant were to be removed to a State which had a long history of respect for democracy, human rights and the rule of law". In addition, he noted that unlike the caseVinter and Others, the applicant in the present case was not yet convicted, making the assessment of a potential irreducible life sentence too remote and abstract. 

In the present case, the risk of ill-treatment derives not from incidents of torture but from the mere idea that his life sentence might appearirreducible to him at the time of sentencing, depriving him of a "right to hope". In this view, the Presidential power to grant pardons as well as the existence of a mechanism to reconsider the justifiability of continued detention de jure and de facto, are sufficient to satisfy the "right to hope" requirement. Based on the above mentioned arguments, he disagrees with the majority that the assurances of the relevant authorities are general and vague.

Finally, he attributes his vote in favour of a violation of Article 3 to the uncertainty deriving from the letter of 11 November 2009 that a Presidential pardon remains "only a theoretical possibility in Trabelsi’s case".

Case Law Cited: 

ECtHR - Eskinazi and Chelouche v. Turkey, Application No 14600/05

Vučković and others v. Serbia (no. 17153/11)

ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99

ECtHR - Conka v Belgium (Application no. 51564/99)

ECtHR - Amrollahi v Denmark (2001) Application no. 56811/00)

ECtHR - Babar Ahmad and Others v. the United Kingdom, Application Nos. 24027/07, 11949/08 and 36742/08

ECtHR - Daoudi v. France, Application No. 19576/08

ECtHR - Einhorn v. France, Application No. 71555/01

ECtHR - Nivette v. France, Application No. 44190/98

ECtHR - Penafiel Salgado v Spain, Application No. 65964/01

ECtHR - Savriddin Dzhurayev v. Russia, Application No. 71386/10, UP

ECtHR - Raf v. Spain, Application No 53652/00, UP

ECtHR - Da Luz Domingues Ferreira v. Belgium, no. 50049/99

ECtHR - Sarria v. Poland (dec.), (no. 45618/09)

ECtHR - Kafkaris v. Cyprus, (no. 21906/04)

ECtHR - Vinter and Others v. United Kingdom [GC] (nos. 66069/09, 130/10 and 3896/10)

ECtHR - Harkins and Edwards v. United Kingdom (nos. 9146/07 and 32650/07)

ECtHR - Baumann v. France, (no. 33592/96)

ECtHR - Iorgov v. Bulgaria (no. 2) (no. 36295/02)

ECtHR - M. S. v. Belgium, (no. 50012/08)

ECtHR - Al-Skeini and Others v. United Kingdom [GC], (no. 55721/07)

ECtHR - Olaechea Cahuas v. Spain, (no. 24668/03)

ECtHr - Schuchter v. Italy, (dec.), (no. 68476/10)

ECtHR - Rushing v. Netherlands (dec.), (no. 3325/10)

ECtHR - Shtukaturov v. Russia, (no. 44009/05)

ECtHR - Toumi v. Italy, (no. 25716/09)

ECtHR - Gestra v. Italy (dec.), (no. 21072/92)
Other sources cited: 
Authentic Language: 
English
State Party: 
Belgium
National / Other Legislative Provisions: 
Belgium - Extradition Act 15 March 1874