President Obama’s decision to close the US detention facility at Guantánamo Bay, Cuba, by next January leads Amnesty International to fear that several Tunisians detained there could be forcibly returned to Tunisia where they would be at risk of further, serious human rights violations, including detention without trial and torture. Not surprisingly, reports that the US administration would instead transfer the Tunisian nationals to European countries such as Italy, Spain and Hungary, triggered a vehement reaction of denial by the Tunisian authorities that human rights violations are committed in Tunisia after they had indicated their willingness to receive all the Tunisian nationals held.
A year ago, Amnesty International’s June 2008 report, In the Name of Security: Routine Abuses in Tunisia , described in detail a pattern of gross human rights violations committed by the authorities in the name of security and the fight against terrorism – arbitrary arrests and detentions, with suspects held incommunicado and subjected to torture and other ill-treatment, and enforced disappearance, with impunity by officials of the feared Department of State Security (DSS) of the Ministry of the Interior. Hundreds of others have been convicted on terrorism-related charges in unfair trials and sentenced to lengthy prison terms. According to Amnesty International’s estimates, at least 1,200 people since June 2006 have been sentenced under the 2003 anti-terrorism law. Tunisian activists and lawyers put the estimate at around 2000 sentenced since the adoption of the law. In numerous cases, defendants were convicted on the basis of “confessions” which they allege they made under torture in garde à vue (pre-arraignment detention); courts routinely accept such confessions tainted by torture as evidence without taking any steps to investigate whether they were made freely or extracted under torture or other duress. In many cases monitored by Amnesty International, defendants have been tried more than once, on the same charges, in separate trials and have as a result received more than one sentence.
One year on from the publication of Amnesty International’s report, there has been no significant change in Tunisia and the human rights situation remains dire. The government rejected the findings of Amnesty International’s 2008 report, saying they lacked credibility, and denied that the DSS and other law enforcement officials are allowed to torture and otherwise ill-treat detainees with impunity. However, the government has not disclosed any information indicating that allegations of torture have been independently investigated or about prosecutions of DSS or other officials alleged to have perpetrated torture or other serious human rights violations. They have also failed to put in place adequate safeguards against torture and other ill-treatment for suspects held incommunicado for interrogation in garde à vue detention.
Despite this dismal human rights record, governments of other states, including European countries, have continued to forcibly return Tunisian nationals they suspect of involvement in terrorism-related offences to Tunisia without giving adequate consideration to the risk that they will be exposed to serious human rights violations in the custody of the Tunisian authorities. Such involuntary returns, when there is a serious risk of torture and other serious human rights violations, constitute a breach of the principle of non-refoulement.
At least three Tunisian nationals have been forcibly returned to Tunisia by the Italian authorities since June 2008. This is despite unanimous decisions by the European Court of Human Rights in nine rulings in recent months, each stating that a forcible return to Tunisia would violate Article 3 of the European Convention on Human Rights which prohibits torture and inhuman or degrading treatment or punishment. The decisions, issued in March and May 2009, confirmed the Court’s landmark ruling in February 2008, in the Saadi v. Italy case, where it held that “the deportation of the applicant to Tunisia would constitute a violation of Article 3 of the Convention”.
In its March and May rulings, the Court found that the conditions which applied in Tunisia at the time of the Saadi v. Italy decision had not changed. The Court ruled that “the practices reported – said to be often inflicted on persons in police custody with the aim of extorting confessions – include hanging from the ceiling, threats of rape, administration of electric shocks, immersion of the head in water, beatings and cigarette burns, all of these being practices which undoubtedly reach the level of severity required by Article 3”.
The Court did not accept that Tunisian diplomatic assurances would give effective protection to those threatened with forcible return to Tunisia – something which had been contended by the Italian government. Amnesty International has opposed the very principle of so-called diplomatic assurances as inherently unreliable and practically ineffective. Indeed, what happened to Sami Ben Khemais Essid is a damning demonstration that such ‘assurances’ are not reliable and he should not have been returned to Tunisia. Sami Ben Khemais Essid was arrested upon his return to Tunisia and brought for trial before a military court. While he was not tortured immediately after his return, according to his lawyer, six months after his return and imprisonment and as international attention on his fate decreased, he was taken from the prison where he was serving his sentence to the Ministry of the Interior for interrogation and subjected to torture and other ill-treatment for two days.
Italy is not the only country to have carried out such unlawful returns. Others include Bosnia and Herzegovina, Egypt and Syria.
Amnesty International recognizes the Tunisian government’s responsibility to combat terrorism, but in doing so it must abide by its obligations under international human rights law. Human rights violations, such as incommunicado detention, torture and denial of the right to fair trial, are not acceptable – even when committed in the name of combating terrorism, and the Tunisian authorities should cease such practices immediately and bring to justice Tunisian officials responsible for such abuses.
While such violations continue, other governments, including the USA and those of European countries, must refrain from returning to Tunisia individuals who are suspected of involvement in terrorism or who are wanted by the Tunisian authorities on other security grounds, as such individuals are at risk of torture or other serious violations in Tunisia.
The Tunisian authorities must confront the culture of torture which prevails in the country and stop being in denial. They must ensure that Tunisia is indeed a country where the rule of law prevails, as stated by President Ben Ali, “policy and orientations adopted in Tunisia … protect, promote and defend human rights”.