The forced expulsion of a foreigner, even ordered by Minister of Interior for danger to public safety, by a member state to the state of nationality constitutes a violation of Article 3 ECHR, relating to the prohibition of torture, where it is likely that the expelled person is subjected in that country to torture, inhuman or degrading treatment.
Ministerial expulsion for danger to public safety is an act referred to the top body of the Ministry of the Interior, and undoubtedly constitutes an expression of the exercise of high administrative discretion: this is also evident from the extremely generic nature of the requirements prescribed by the law, which requires, for the purposes of the adoption of the measure de quo, the deemed possibility that the foreigner's stay in Italy may facilitate terrorist organizations or activities, including international ones.
In this regard, it should be pointed out that, for the purpose of issuing the ministerial order of expulsion, it is not necessary that the existence of the aforementioned danger be ascertained with absolute certainty, it being sufficient that there are well-founded reasons to believe it exists.
(unofficial machine translation)
Regional Administrative Court for Lazio
(Section Prima Ter)
May 17, 2022
on the appeal number 3504 of 2015, brought by MU K, represented and defended by Nicola Canestrini, lawyer, with an address for service at the office **;
against Ministry of the Interior, in the person of the Minister in office, represented and defended by the Attorney General of the State, at whose office he is domiciled ex lege in Rome, via dei Portoghesi, 12;
for the annulment - of the decree of expulsion from the national territory issued by the Minister of the Interior on 15.01.2015.
Having regard to the appeal and its annexes; Having regard to the notice of appearance of the Ministry of the Interior; Having regard to all the acts of the case; Relator in the public hearing on May 17, 2022, Cons. Daniele Dongiovanni and heard for the parties the defenders as specified in the minutes; Held and considered in fact and law what follows.
With the appeal under review, the applicant appealed for the annulment, subject to suspension of execution, of the decree by which the Minister of the Interior, on January 15, 2015, expelled him from the national territory, ordering his repatriation to his country of origin (Pakistan), "having been found to be particularly active in the propaganda activities of the Islamic State through the sharing of videos and proclamations praising jihad."
The applicant, after tracing the stages of his experience in Italy (i.e., that he entered Italy as a minor, that he lives with his family members, that he works regularly, and that he holds an EU long-term resident's permit), put forward the following grounds:
1) violation of the law (Article 13, paragraphs 1 and 3, of Legislative Decree No. 286 of 1998, Articles 3 and 21 octies of Law No. 241 of 1990 and Article 97 of the Constitution); excess of power due to lack of preliminary investigation; erroneous assessment of facts and assumptions; defective and erroneous motivation; misuse of power and pursuit of an end other than that for which the power was granted. The measure is illegitimate for lack of motivation in that it refers to generic statements with mere reference to the rules governing the case under consideration, without giving any account of the investigative activity carried out. Moreover, in the contested measure, there is no indication of the investigative investigations carried out by the administration, since, moreover, this is a subject who is perfectly integrated into the social fabric of the national community of reference, as moreover demonstrated by the possession of the certificate of bilingualism, being a resident of South Tyrol. Likewise, nothing is indicated with reference to the applicant's index of dangerousness, the only parameter that allows the Minister of the Interior to be able to exercise the power of No. 03504/2015 REG.RIC. expulsion; moreover, the vagueness of Article 13, paragraph 1, of Legislative Decree No. 286 of 1998 cannot be overlooked in the part in which it makes a generic reference to danger to public order, without any further specification. No concrete element can be found in the contested measure to arrive at a well-founded judgment of the applicant's danger to public order;
2) violation of Article 19(1) of Legislative Decree No. 286 of 1998 and Article 3 of the ECHR for having ordered the repatriation of a foreigner "who in his own country risks being subjected to violence or persecutory, degrading and inhuman treatment"; failure to state reasons pursuant to Article 3 of Law No. 241 of 1990. In the contested measure, considerations were entirely omitted in relation to the risks to personal safety to which the applicant would be exposed once returned to the country of origin, this in violation of Article 3 of the ECHR and, at the national level, Article 19, paragraphs 1 and 1.1. of Legislative Decree No. 286 of 1998. The aforementioned norms prohibit the expulsion of the person concerned if there is a risk that the person concerned, in the country of destination, may be subjected to inhuman and degrading treatment, as confirmed by numerous rulings of the EDU Court.
The Ministry of the Interior entered an appearance, requesting that the appeal be dismissed. By Order No. 2095/2015, the application for a stay was rejected.
By Order No. 4275/2021, in addition to confidentially requesting the elements of information that led to the adoption of the contested measure, further preliminary inquiries were ordered and, in particular:
- to the Ministry of Foreign Affairs, information on the security situation in Pakistan, both in political terms and from the judicial point of view, and in particular whether the persons accused or otherwise suspected of (glorifying) terrorism, as in the case at hand, are subjected to summary trials lacking the guarantees provided for by the ECHR and - again - whether they risk being sentenced to the death penalty or to torture or inhuman and degrading treatment, in violation of Article 3 of the aforementioned Convention;
- to the applicant and the Ministry of the Interior, clarifications on the situation No. 03504/2015 REG.RIC. contingent of the applicant and, in particular, whether he has returned to Pakistan (and, if so, from what date and in what city or country), his current work position and whether, since his arrival in the country of origin, he has been subjected to summary trials or inhuman and degrading treatment, by reason of the fact that he appears to have been expelled from the national territory as he is considered particularly active in Islamic State propaganda and close to jihadist ideology.
The duties were fulfilled, except with reference to the applicant's situation.
In a memorandum, the appellant, however, insisted that the appeal be upheld, considering the information technology elements acquired at the time by the competent bodies to be insufficient and reiterating the situation of lack of respect for human rights in his country of origin.
By Order No. 10256/2021, the preliminary investigation was reiterated in order to know the applicant's contingent situation.
In a memorandum, the applicant, through his counsel, represented that he was repatriated at the time (in 2015) to Pakistan, that he had been subjected to inhuman treatment and that he still feared for his personal safety; he also attached medical documentation and stated that he was unemployed, doing occasional and always precarious work.
At the public hearing on May 17, 2022, the case was retained by the Board for decision.
1. The first ground is unfounded.
1.1 It should be premised that the expulsion order was issued pursuant to Article 3, Paragraph 1, of Decree Law No. 144 of 2005, converted into Law No. 155 of July 31, 2005, according to which "the Minister of the Interior ... may order the expulsion of the foreigner ... in respect of whom there are well-founded reasons to believe that his or her stay in the territory of the State may in any way facilitate No. 03504/2015 REG.RIC. terrorist organizations or activities, including international ones."
Since this is an act referred to the top body of the Ministry of the Interior, it undoubtedly constitutes an expression of the exercise of high administrative discretion.
This is also evident from the extremely generic nature of the requirements prescribed by the aforementioned Article 3 of Decree-Law No. 144 of 2005, which requires, for the purposes of the adoption of the measure de quo, the deemed possibility that the foreigner's stay in Italy may facilitate terrorist organizations or activities, including international ones.
In this regard, it should be pointed out that, for the purpose of issuing the ministerial order of expulsion, it is not necessary that the existence of the aforementioned danger be ascertained with absolute certainty, it being sufficient that there are well-founded reasons to believe it exists. Moreover, as clarified by administrative jurisprudence (vgs, for all, Cons. Stato, sect. III, September 23, 2015, no. 4471 but also, most recently, Cons. Stato, sect. III, February 27, 2021, no. 1687) with reference to the expulsion ex art. 3, paragraph 1, decree-law no. 144 of 2005 - but with arguments that can be extended to the measure adopted pursuant to art. 13 of legislative decree no. 286 of 1998 - this is a provision that provides procedures fully comparable to the security measures that are adopted for the purpose of prevention and that, having as its purpose to prevent the commission of crimes, does not require that criminal responsibility be proven or even that the crime has already been committed.
In fact, the prerequisite for deportation is only the well-founded reasons for believing that the presence of the foreigner may facilitate terrorist organizations or activities in various ways or, in any case, endanger, through actions, including proselytizing, the security of the state.
And it is, therefore, only this parameter that must be adopted to assess the legitimacy of the measure and, that is, whether it is capable of preventing the concrete possibility of conduct that could endanger the system and its citizens.
1.2 In the present case, the ministerial order refers to the office records from which it emerged that the applicant, on several occasions, consulted and No. 03504/2015 REG.RIC. shared videos and proclamations praising jihad as well as expressed admiration for the participation of European citizens in the conflict in Syria among the troops of the Islamic State; from these elements his closeness to the jihadist cause and the self-proclaimed Islamic State was inferred.
The administration filed documentation in court with "confidential" classification from which the motivational bearing of the contested order was confirmed.
In fact, it emerges from the documentation filed in court that the appellant, on several occasions, has published photos, videos and proclamations praising jihad, carrying out propaganda activities in favor of the Islamic State and expressed admiration for the participation of European citizens in the conflict in Syria between the troops of the Islamic State; it is, indeed, very explicit content from which it is inferable that the appellant is contiguous to the jihadist cause and the self-proclaimed Islamic State.
These circumstances, since they concern preventive measures, for the adoption of which the existence of "well-founded reasons" is sufficient to formulate a judgment of dangerousness of the foreigner insofar as he is considered capable of facilitating terrorist organizations or activities (without the need to prove that said facilitation has actually occurred), constitute an adequate explanation of the assumptions that led the Administration to adopt the contested measure.
The judgment of dangerousness formulated by the Minister, considering the type of conduct engaged in by the petitioner, is therefore free from profiles of manifest unreasonableness or misrepresentation or defect of preliminary investigation, which represent the only flaws that can be reviewed in this court with regard to what has been observed regarding the characteristics and purposes of the measure appealed. In the present case, therefore, the Minister's measure sets forth factual elements that are more than sufficient to provide well-founded grounds for making a judgment of dangerousness against the applicant with particular reference to the risk that he may in any way facilitate terrorist organizations or activities, including international ones, and No. 03504/2015 REG.RIC. therefore threaten the security of the country
1.3 Therefore, the first plea - by which the applicant complained about the lack of motivation regarding the existence of the indicia of dangerousness necessary for the adoption of the contested measure - must be rejected.
2. On the other hand, the second plea, in which the applicant complains that considerations were omitted in relation to the degree of danger to which he would be exposed once repatriated to his country of origin, this in violation of Article 3 of the ECHR and, at the national level, of Article 19, paragraphs 1 and 1.1. of Legislative Decree No. 286 of 1998, is well founded. 2.1
As is well known, Article 19, paragraph 1.1. of Legislative Decree No. 286 of 1998 provides as follows: "Refoulement or expulsion or extradition of a person to a state shall not be permitted if there are reasonable grounds for believing that he or she is in danger of being subjected to torture or inhuman or degrading treatment or if the obligations set forth in Article 5.6 apply. The existence of systematic and gross violations of human rights in that state shall also be taken into account in the assessment of such grounds. Rejection or expulsion of a person to a state shall also not be permitted if there are reasonable grounds to believe that removal from the national territory would result in a violation of the right to respect for his or her private and family life, unless it is necessary for reasons of national security, public order and safety..."
Now, in the face of this provision, which constitutes a concrete application of Article 3 of the ECHR (according to which "No one shall be subjected to torture or to inhuman or degrading treatment or punishment"), in Order no. 4275/2021, the Ministry of Foreign Affairs was asked about the security situation in Pakistan, both in political terms and from the judicial point of view, and in particular whether individuals accused or otherwise suspected of (glorifying) terrorism, are subjected to summary trials lacking the guarantees provided by the ECHR and - again - whether they risk being sentenced to the death penalty or to torture or inhuman and degrading treatment, in violation of Article 3 of the aforementioned Convention.
On this point, the aforementioned Department, in a report filed in court on July 14, 2021, briefly represented the following:
- Pakistan's counterterrorism legislation is primarily based on the "Anti- Terrorism Act" (ATA) enacted in 1997, which, in addition to conferring broad powers on law enforcement agencies (such as, for example, arresting suspects without warrants), provides for the death penalty for terrorism-related crimes;
- according to the ATA, a "terrorist" is considered not only those who commit acts of terrorism but also anyone who "commissions, prepares or instigates" such acts;
- the Special Courts established in that country, in many cases, do not respect the right to a fair trial of the accused;
- the United Nations Committee Against Torture (UNCAT) has expressed concern about the implementation of Pakistan's anti-terrorism legislation, which would severely limit legal safeguards against torture;
- in 2020, after a number of years in which executions were recorded, no death sentences have been carried out in Pakistan, but still at least 49 new death sentences have been issued (including 19 for terrorism); likewise, there are reportedly more than 4,000 people on so-called "death row."
In addition to this, the petitioner, in response to the Section's investigative request, in a note filed in court on March 2, 2022, represented that, after being deported to Pakistan in 2015, he had suffered inhuman and degrading treatment and still feared for his safety.
2.2 Now, in the face of these clear findings, the Collegium believes, at the outcome of the in-depth examination typical of the merits of the case, that the case in question falls within the scope of the aforementioned Article 19, paragraph 1.1. of Legislative Decree No. 286 of 1998.
In this regard, the EDU Court has repeatedly had occasion to emphasize that the forced expulsion of a foreigner by a member state to the state of his or her nationality constitutes a violation of Article 3 ECHR, relating to the prohibition of torture, where it is likely that the expelled person will be subjected in that country to treatment contrary to the aforementioned conventional norm.
For the purposes of this assessment, the Court has reiterated that the type of conduct for which the person to be expelled is held responsible is irrelevant, since from the absolute nature of the principle affirmed by Article 3, it follows that it is impossible to strike a balance between the risk of ill-treatment and the ground invoked for expulsion (for all, EDU Court Case Saadi v. Italy, judgment Feb. 28, 2008, rec. no. 37021, 2006; Abdelhedi v. Italy, judgment Mar. 24, 2009, rec. no. 2638, 2007; Ben Salah v. Italy, judgment Mar. 24, 2009, rec. no. 38128, 2006; Bouyahia v. Italy, Judgment March 24, 2009, rec. no. 46792 of 2006; Darraji v. Italy, Judgment March 24, 2009, rec. no. 11549 of 2005; Hamraoui v. Italy, Judgment March 24, 2009, rec. no. 16201 of 2007; O.c. Italy, judgment March 24, 2009, rec. no. 37257 of 2006; Soltana v. Italy, judgment March 24, 2009, rec. no. 44006 of 2006; Sellem v. Italy, judgment May 5, 2009, rec. no. 12584 of 2008; Ben Khemais v. Italy, judgment Feb. 24, 2009, rec. no. 246 of 2007; Marinai v. Italy, judgment March 27, 2010, rec. no. 9961 of 2010; Adel Ben Slimen v. Italy, judgment June 19, 2012, rec. no. 38435 of 2010).
From the aforementioned pronouncements, we note, in a nutshell, a common principle that does not allow states to fight terrorism at any price, as it would be a paradox to allow the use of instruments that undermine the very values that are instead intended to be defended and that constitute the very foundation of a rule of law.
In this jurisprudential context, the fact that the petitioner is suspected of terrorism turns out to be irrelevant in the assessment regarding the adoption of the expulsion measure, since the assessment regarding the existence of a threat to personal life or the subjection to torture and inhuman and degrading treatment in the country of origin should have prevailed, which instead does not appear to have been carried out in the case at hand.
2.3 Therefore, the second plea must be upheld with the consequent unlawfulness of the decision to expel the petitioner to his country of origin.
3. In conclusion, the appeal should be upheld in the terms described above and, as a result, the contested act should be annulled.
4. For the sake of completeness and for a correct conforming activity of this decision (art. 34, paragraph 1, lett. e, of the cpa), the College considers that it must clarify that the annulment of the contested measure does not automatically entail the applicant's return to Italy, the practicability of which, indeed, in the event that the applicant manifests such an intention, is in any case left to the evaluations of the competent authorities who will have to verify the existence of the necessary requirements for entry and for the same stay on Italian territory.
5. The costs of the judgment should, however, be compensated, due to the outcome of the present case.
The Tribunale Amministrativo Regionale per il Lazio (Sezione Prima Ter), definitively ruling on the appeal, as proposed in the epigraph, upholds it in accordance with the reasons stated in the grounds and, as a result, annuls the contested measure. Costs compensated. Order that this judgment be enforced by the administrative authority. Considering that the conditions set forth in Article 52, paragraphs 1 and 2, of Legislative Decree No. 196 of June 30, 2003, and Article 9(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016, for the protection of the rights or dignity of the interested party are met, directs the Secretariat to proceed to the obscuration of the personal details as well as any other data likely to identify the applicant.
Thus decided in Rome in the council chamber on May 17, 2022 with the participation of the following magistrates: Francesco Arzillo, President Daniele Dongiovanni, Counselor, Extender Raffaello Scarpato, Referee No. 03504/2015 REG.RIC.
THE EXTENSOR THE PRESIDENT Daniele Dongiovanni Francesco Arzillo
THE SECRETARY In case of dissemination omit the generalities and other identifying data of interested parties in the terms indicated.