TrustHLT/LaCour huggingface dataset:
GR1 (Government): The fact that the criminal proceedings has only recently terminated in the year 2014, and especially that this court has concretely waited for the domestic case to be completed, clearly shows that the respect of the rule of exhaustion was even more necessary to be fulfilled in this present case for the purpose of Article 35 of the Convention.
GR1 (Government): Moreover, the government deeply feels that the time elapsed from the lodging of the application to this court in the year 2009 to the present time, 2015, that is almost six years in all, and mostly the acceleration that this proceedings has had after the delivery of the final domestic decisions in February and March of 2014, is an evident confirmation that the court needed to wait and see how the domestic criminal proceedings would have ended up.
GR1 (Government): In doing so, however, with all due respect to this court, the government believes that the rule under Article 35 of the Convention has been in the practice, overlooked, and not strictly applied.
GR1 (Government): Whereas this precise case deserved an immediate declaration of inadmissibility in consideration of the greatly evident, premature nature of the application.
GR1 (Government): Indeed, it is here recalled that, according to this court's case law, the requirement for the applicant to exhaust domestic remedies is normally determined with the reference of the date in which the application is lodged with the court.
GR1 (Government): And also, that the appeal to the court of cassation is one of the remedies that should be, in principle, respected in order to comply with Article 35.
GR1 (Government): This government has abundantly contested in its previous written observations the applicant's exemption claim on the basis of a purported ineffectiveness of the domestic remedy.
GR1 (Government): At this regard, the government draws the attention on the fact that, according to this court's teaching, the applicant's claim of ineffectiveness of domestic remedy and right to be exempted from the rule of exhaustion should be assessed by the court with an ex ante evaluation.
GR1 (Government): That is, at the time the application was lodged by the applicants, on the basis of the facts and circumstances present at that time.
GR1 (Government): Now, at that time, the applicants based their exception claim for ineffectiveness of the domestic remedy exclusively on the issuing of the Constitutional Court decision No. 106 of 2009,
GR1 (Government): which established the legitimacy of the state secret opposed by the executive branch to some of the evidence acquired by the investigating office.
GR1 (Government): Instead, contrary to what the applicants assert, this decision did not bring, from the start or even after, to a total dismissal of the trial or to denial of justice.
GR1 (Government): On the contrary, the facts show that the final outcome of the trial as a whole has terminated with a judgment in favor of the applicants despite the state secret.
GR1 (Government): At this regard, this party draws the attention of the court on the applicants' contradictory behavior.
GR1 (Government): It is frankly striking that the applicants had from the start invoked the ineffectiveness of the proceedings for the purpose of lodging this application and then continued to use the alleged ineffective domestic remedies until their full termination.
GR1 (Government): Lastly, for the purpose of the government's non-exhaustion plea, it is also maintained that at the time, August 2009, the domestic remedies had not been exhausted even under the civil point of view.
GR1 (Government): It should be noted that with the first instance decision of November 2009, the applicants were awarded considerable sums as provisional compensation of damages, €1 million to Mr. Nazar
GR1 (Government): and €500,000 to Mrs. Ghali,
GR1 (Government): immediately enforceable and assisted by a prejudgment conservative seizure on one of the defendant's assets.
GR1 (Government): Well, it has never been demonstrated by the applicants to have concretely filed a civil suit first to obtain the payment of the provisional compensation amounts immediately payable, and now that the criminal proceedings is over to have final settlement of the damages to which they are entitled.
GR1 (Government): In the light of the above, the government believes to have accomplished the burden of proving that the applicants have not used all domestic remedies available under domestic legislation and strongly insists on its non-exhaustion plea, specifically requesting the court to carefully examine this issue autonomously on the basis of an ex ante criteria of assessment of such plea.
GR1 (Government): The government believes that if the court were to examine the inadmissibility issue jointly to the merits of the application that is in connection of the procedural aspects of violations under Article 3 and 5 of the Convention, then it would be shifting the assessment criteria from an ex ante evaluation of the assessment plea to a post evaluation which involves the final outcome of the domestic remedy.
GR1 (Government): Passing on now to the questions posed for the purpose of this hearing, it is noted that the first three questions concern the substantive aspects of the alleged violations of Article 3 and 5 of the Convention and may be dealt with at the same time in order to avoid unnecessary repetitions.
GR1 (Government): In order to evaluate if, in the present case, the Italian State can be held responsible for the alleged violations to the Convention, it is necessary to carefully verify if the facts as definitely established by the national courts lead to a clear and undisputable involvement of the Italian authorities in the offenses endured by the applicants.
GR1 (Government): Given the seriousness of the violations charged to this government, it is here recalled that the assessment of a State's responsibility for violation of core human rights as these are in issue must be effected with a standard of proof beyond the reasonable doubt.
GR1 (Government): Now regarding the assessment of the factual circumstances of this case, the government also recalls that the court discharges competence to establish the facts of a case and to question the findings and conclusions of national courts with regards to the acquisition, the admissibility, the utilization of evidence in a trial.
GR1 (Government): Thus, as it will be further explained, on the fundamental premise that there has been no violation also of Article VI of the Convention, as a consequence of the assertion and opposition of the State's secret to some of the evidence of the domestic criminal proceedings, the court, accordingly to its jurisprudence, should rely on what definitely established by the national courts, including the Italian Constitutional Court on the State's secret issue.
GR1 (Government): What was then assessed by the domestic trial?
GR1 (Government): Preliminarily, it should be noted that the Office of the Public Prosecutor was able, on the basis of the circumstantial facts of the material time, to initiate an investigation only with respect to the illegal kidnapping of the applicant, Nazar.
GR1 (Government): If appearance of other offenses had resulted at that time, it would have been a precise obligation by law for that office to extend the investigation to other possible committed crimes.
GR1 (Government): And it should be noted that the Milan Prosecutor Office has carried out this inquiry with its usual diligence and particular attention.
GR1 (Government): As a matter of fact, the alleged acts of physical and psychological violence suffered by Mr. Nazar
GR1 (Government): during the phases of the execution of the illegal abduction and after experienced in Egypt have remained unsubstantiated during the Italian criminal proceedings.
GR1 (Government): Nor has the applicant demonstrated any injury or distress causally connected to the unlawful acts recounted.
GR1 (Government): Instead, for the crime of an aggravated abduction officially prosecuted, 26 U.S. defendants were convicted
GR1 (Government): on the basis of a material evidence that had not been covered and could not be coverable, according to the law, with the state secret.
GR1 (Government): That is factual evidentiary material.
GR1 (Government): While the Italian defendants were ultimately dismissed from trial, since, unlike the U.S. defendants,
GR1 (Government): all the evidentiary material collected and brought against them was found to be inadmissible in the trial, as legitimately falling within the scope of the state secret as defined and established by law 2007, number 124.
GR1 (Government): That said, it should be considered as definitely established in the facts by the domestic judicial authorities that there is no judicially verified evidence of the involvement in the abduction crime of the Italian authorities, namely the Italian defendants or others.
GR1 (Government): Consequently, the Italian state cannot be held responsible beyond the reasonable doubt that is on the basis of strong, clear, verified and concordant elements for any of the alleged violations of the human rights here examined, that is, of the unlawful abduction, the rendition, unlawful detention and submission to acts of torture, inhuman or degrading treatment, occurred at any time or anywhere, neither in terms of direct participation and complicity, active conduct, nor in terms of acquiescence and connivance, omissive conduct.
GR1 (Government): In answering the Court's questions, it is expressly asked to make reference to this Court's previous case law on similar matters, specifically to the El-Masri, al-Nashiri and Husayn cases, while this government strongly contests that this present Nazar and Ghali case be compared to these three other cases.
GR1 (Government): Aside from the fact that all four cases deal with the matter of extraordinary renditions, operation, occurred around the same period of time, there are profound differences between those cases and the one here in issue.
GR1 (Government): Firstly, with respect to the substantive aspect, in the El-Masri, al-Nashiri and Husayn cases, the Macedonian and Polish states have been found by the Court on the basis of specific external evidence acquired al-yumde by the Court to have been actively and directly involved in the wrongdoings.
GR1 (Government): In particular, as known to this Court, in these three cases, Macedonian and Polish state agents had been actively involved in the victims' capture and unlawful detention on their premises, as well as in the subsequent rendition to the CIA.
GR1 (Government): Moreover, Polish territory was found to host CIA black sites and to have assured in several occasions special transit procedures to CIA rendition aircrafts.
GR1 (Government): Secondly, these three cases are also very different from the present one under the procedural aspect.
GR1 (Government): As known, in the El-Masri case, the criminal complaint was very rapidly, in two months and a half, rejected by the public prosecutor's office as being unsubstantiated.
GR1 (Government): In the other two cases, on the contrary, the investigation on the unlawful facts was deemed by this Court as unreasonably too long.
GR1 (Government): Things are very different in this present Nazar case, in the Nazar and Ghali case.
GR1 (Government): Under the substantive aspect, it must be considered that, one, the applicant Nazar was captured exclusively by CIA agents.
GR1 (Government): Two, the applicant Nazar was never not even for one moment in the hands of Italian authorities, nor has he been unlawfully detained for some time by Italian authorities, and this is also admitted by the same applicant Nazar.
GR1 (Government): Three, the applicant Nazar was immediately removed by the CIA from Italian territory the same day of the kidnapping, and flown first to Germany, and later that same day with a different aircraft to Egypt.
GR1 (Government): Four, the airport from which the applicant departed is a Yusuf military airport, thus not accessible to Italian authorities, and has never revealed itself to be a regular transit site for the purpose of U.S. Extraordinary Rendition Program.
GR1 (Government): This case is also completely different from the others under the procedural aspect.
GR1 (Government): As said, the Italian state has promptly initiated an investigation on the applicant's disappearance, and performed and concluded criminal proceedings for the crime of illegal abduction, which includes the arbitrary detention.
GR1 (Government): Indeed, despite the assertion and opposition of the state secret, once again to some, not all of the evidence of the trial, the domestic criminal proceeding was indeed capable of leading to the assessment of the crime, to the identification and punishment of those responsible, 26 subjects, as well as to grant the victim elevated compensation of damages suffered.
GR1 (Government): The domestic criminal proceedings was thus complete and effective within the meaning of this Court's definition.
GR1 (Government): The Italian state has not yet been able to make a decision on the execution of this Court's case law.
GR1 (Government): Conclusively, the government responds to the Court's questions regarding the state's responsibility by firmly affirming, no, there is no evidence that proves beyond the reasonable doubt that the Italian authorities have been actively and directly involved in the applicant's unlawful abduction under any account, and the Italian state cannot be held accountable of any of the purported violations of human rights deriving therefrom.
GR1 (Government): Now my colleague, Mr. Giannuzzi,
GR1 (Government): will address the Court with the responses to the last questions.
Päivi Hirvelä (JudgeP): Thank you Mrs. Incutti and then I call Mr. Giannuzzi.
GR2 (Government): With regards to the question regarding the procedural aspects of Article III of the Convention, firstly, it must be remarked that the introduction of the law number 124 of 2007, which has replaced the law number 801 of 1977, has not substantially changed the previous rules regarding the state secret privilege.
GR2 (Government): The new law has not changed the definition of the state secret and its object.
GR2 (Government): The scope of the state secret was also maintained with the only difference that it now refers to the safeguard and protection of national security of the Republic instead of the democratic state.
GR2 (Government): The responding governments observed that the Parliament, in regulating the matters of the state secret privilege, has complied with the well-established case law of Italian Constitutional Court, according to which the rules concerning the matter in question, as stated in its Judgment Number 106, 2009, invoked the supreme interest of the state's security.
GR2 (Government): The continuity between the rules contained in the law of 1977 and those introduced by the law 124, 2007, can be appreciated also from the point of view of procedural regulation of the acquisition, assessment, and utilization of the evidence covered with the state secret.
GR2 (Government): The outcome of the state secret assertion opposition procedure is also the same.
GR2 (Government): If the Prime Minister confirms the state secret and the evidence sealed is essential for the decision-making process, then the judiciary authority must dismiss the defendant from trial for the existence of a state secret.
GR2 (Government): It should be noted that the new law has increased the powers of the judiciary and framed those of the executive power.
GR2 (Government): Firstly, it has expressly introduced by Article 40, modifying Article 202 of the procedural code, that the judiciary can always proceed with investigation on the criminal offense on the basis of other evidentiary materials which are autonomous and independent from those covered with the state secret.
GR2 (Government): This was a principle established by the case law of Constitutional Court and now explicitly stated in the law.
GR2 (Government): Secondly, the new law provides expressly, and this is an absolute novelty, that the state secret can never be opposed to the Constitutional Court.
GR2 (Government): Therefore, in the light of this evident continuity between the two regulations of the state secret while the criminal proceeding initial spending, the introduction of law of 2007 has in any way affected the rules regarding the taking, assessing, and using of that evidentiary material covered or to be sealed with the state secret.
GR2 (Government): Therefore, the new state secret regulation has really non-affected in any way the relevant investigation trial.
GR2 (Government): Consequently, the change in legislation has not in any way impeded, hindered, or obstructed the criminal proceedings, and therefore it cannot result in a violation of the duty under Article 3 of the Convention to ensure an effective investigation into the applicant's allegation.
GR2 (Government): As for the question regarding the consequences of the Constitutional Court judgment number 106 of 2009 and number 24 of 2014, the responding governor recalls entirely what already affirmed in its previous observation and letters to the Court regarding the development of the criminal domestic case.
GR2 (Government): The first decision of the Constitutional Court has set out the principle on the state secret issue that should have applied and respected in the present case.
GR2 (Government): This ruling established that two prime ministers, two presidents of the Council of Ministers, had lawfully covered with the state secret not the material abduction of the applicant in itself, but the relationships between the Italian Secret Service Agency and the foreign Secret Service Agency, as well as the Italian Secret Service Agency's internal organizational structure and its operational directives, interna corporis, even if connected in any way to the abduction of the applicant.
GR2 (Government): At this regard, it must be highlighted that the Constitutional Court has definitely excluded the opposition of the state secret had retroactively overwhelmed the previous investigation activity.
GR2 (Government): It explained that the official opposition of the state secret at a certain time didn't imply an automatic demolition of all the previous investigation activity, but implied that from that moment onwards, the judicial authority had to behave differently with respect to information sealed with the state secret.
GR2 (Government): Moreover, it is underlined that the alleged massive circulation and publicity of the secret information affirmed by the applicants was in any case subsequent to the opposition of the state secret by the executive branch, and therefore no consideration of purported unjustified exercise of the state secret can be affirmed.
GR2 (Government): The Constitutional Court decision number 24 of 2014 criticized the interpretation given by the Court of Cassation and subsequently by the Court of Appeal Milan to its previous ruling number 106-2009, and very explicitly affirmed that it is not for the judicial authorities to trace margins of the state secret different from those set by the executive power. Therefore, despite the decision of the Constitutional Court on the
GR2 (Government): issue of the state secret, the outcome of the criminal proceedings concerning the applicants' abduction in its entirety did not deprive the applicants of their right to access the court under Article 6, paragraph 1 of the Convention.
GR2 (Government): The government also strongly affirms that the Italian state has not violated its duty under Article 3 of the Convention to ensure and effect investigation of the crime of abduction and also on all other applicants' allegations.
GR2 (Government): The government's claim that this Court, applying its well-established jurisprudence on this point, should assess the effectiveness of internal criminal proceedings with reference to the entirety of the remedy and not to a specific procedural issue. It is here also, once again, strongly emphasized that this assertion and
GR2 (Government): opposition of the state secret by the executive branch on some of the elements, which has been found legitimate by two decisions of the Constitutional Court, as well as the introduction of law number 124 of 2007, did not affect the outcome as a whole of the criminal proceedings and thus the applicants' right to a fair trial.
GR2 (Government): As this Court has affirmed in its well-established case law, where the investigation may involve issues of national security, evidence should be disclosed to the party in the proceedings without compromising national security.
GR2 (Government): If disclosure is not possible, the difficulties that disclose it should be counterbalanced in such a way that the party can effectively defend its interests.
GR2 (Government): Indeed, this is our case. Most of the defendants, on the basis of the evidence
GR2 (Government): not covered with the state secret, were punished, and the right to get compensation of damages was granted to the victim. It is to be noted that Italy is actually
GR2 (Government): the only State that has thoroughly investigated and prosecuted the case of unlawful abduction and arrived to a conviction of the offender.
GR2 (Government): Therefore, the responding government reiterates the claim that Italy has fulfilled the procedural aspect of Article III of the Convention.
GR2 (Government): Coming to the execution of the sentence imposed on the convicted SIA agents, the government highlights that the statement that the Italian State did not seek execution appears to be somehow equivocal and misleading.
GR2 (Government): Insofar, it is implied the idea of an arbitrary decision of the Italian authorities aimed at ensuring that de facto impunity of agents who have been judged to be guilty of aggravated abduction. On the contrary, the Italian authority acted in full respect
GR2 (Government): of domestic law provisions regulated the execution methods.
GR2 (Government): First of all, it must be both pointed out that for all the convicted, order for the execution of the sentence within the domestic territory were issued by the General Prosecutor's Office in Milan. Moreover, European arrest warrants were
GR2 (Government): issued by the Italian judicial authorities and were circulated among the EU member States through the Schengen information system.
GR2 (Government): These Italian execution orders and European arrest warrants are still in force.
GR2 (Government): Consequently, whenever any of the convicted SIA agents should enter the territory of a member State of the European Union, that member State would be obliged to arrest that person and to surrender him or her to the Italian authorities.
GR2 (Government): As far as the search of convicted SIA agents outside the European Union is concerned, the MEPRA implies the recourse to the extradition procedure and deserves a different consideration. The extradition procedure is a really
GR2 (Government): significant and time-demanding form of judicial cooperation between States.
GR2 (Government): And so it is perfectly understandable that States tend to regulate it carefully so to ensure the recourse to such a form of cooperation when it appears to prove really effective and justified by the circumstances of the case.
GR2 (Government): Accordingly, the Italian Criminal Procedure Code in Article 720 leaves the last decision to the Ministry of Justice on whether to submit or not a request for extradition. The relevant decision is therefore of
GR2 (Government): political nature. On this ground, in the year 2000, long
GR2 (Government): before the SIA agent's conviction for Mr. Nassar's abduction was ever ruled, the
GR2 (Government): Italian Ministry of Justice released some guidelines providing that the request for extradition should not be submitted in case the penalty to be applied did not exceed four years of imprisonment. The rationale behind this rule is that