EGMR: Forthcoming judgment on Thursday 27 September 2018 – Saidani v. Germany (no. 17675/18)

The applicant, Haykel Ben Khemais Saidani, is a Tunisian national who was born in 1980. The case concerns the applicant’s deportation from Germany to Tunisia.

On 1 August 2017 the Ministry of the Interior of the Land of Hessen ordered the applicant’s deportation because he was deemed to be a “terrorist threat” (Gefährder”), based on his activities for “Islamic State”. A request for interim measures to the Federal Administrative Court by Mr Saidani was rejected in September 2017 on the condition that the Tunisian authorities provided diplomatic assurances. In March 2018 the Federal Administrative Court amended its decision and rejected Mr Saidani’s request altogether. It considered that there was a real risk that he would be sentenced to death or given a life sentence in Tunisia. However, in light of the moratorium on capital punishment and the assurances given by the Tunisian authorities, there was no real risk that Mr Saidani would be executed. Should he be sentenced to death, that sentence would de facto amount to a life sentence as there was information available that every death penalty was sooner or later commuted to a life sentence by way of a Presidential pardon. Subsequently, a person serving a life sentence could apply for review and parole after 15 years in prison.

In May 2018 the Federal Constitutional Court declined to consider a constitutional complaint by Mr Saidani. It endorsed the finding that the applicant, even if he were sentenced to death, would not have a well-founded fear of that sentence being carried out. In so far as the death penalty constituted de facto a life sentence, the Federal Administrative Court had not exceeded its margin of appreciation when it had considered the sentence Mr Saidani could expect in Tunisia to be reducible and that the applicant had a realistic chance of being released after serving a certain period of time in prison. The Tunisian President had previously pardoned persons convicted of terrorist offences. On 7 May 2018 the Court rejected a request by Mr Saidani under Rule 39 of the Rules of Court to stay his deportation to Tunisia.

Relying on Article 2 (right to life), Article 3 (prohibition of inhuman or degrading treatment), and Article 1 of Protocol No. 13 (abolition of the death penalty) Mr Saidani complains that he faced the risk of the death penalty in connection with the terrorism charges and that that penalty would neither be commuted to a life sentence nor be reducible. He alleges in particular that there was not a sufficient mechanism in Tunisia to review and possibly reduce a life sentence given to persons originally sentenced to the death penalty.

Press release ECHR 301 (2018) 20/09/2018

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