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FOURTH
SECTION
CASE OF AL HANCHI v. BOSNIA AND HERZEGOVINA
(Application
no. 48205/09)
JUDGMENT
STRASBOURG
15
November 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Al Hanchi v. Bosnia
and Herzegovina,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
George Nicolaou,
Ledi
Bianku,
Vincent A. De Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 18 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48205/09) against Bosnia and
Herzegovina lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Tunisian citizen, Mr Ammar
Al Hanchi (“the applicant”), on 19 August 2009.
- The
applicant was represented by Mr K. Kolić and Vaša prava,
a local non-governmental organisation. The Bosnian-Herzegovinian
Government (“the Government”) were represented by their
Agent, Ms M. Mijić.
- The
applicant alleged, in particular, that his deportation would expose
him to the risk of treatment contrary to Article 3 of the Convention
and that his detention amounted to a breach of Article 5 § 1 of
the Convention.
- On 10 December 2009 the President of the Fourth Section
of the Court decided, in the interests of the parties and the proper
conduct of the proceedings, to indicate to the Government that the
applicant should not be expelled to Tunisia until 15 January 2010
(Rule 39 of the Rules of Court).
- On 12 January 2010 a Chamber of the Fourth Section of
the Court decided to give notice of the application to the
Government. It also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1) as well as
to extend the interim measure mentioned above pending the
Constitutional Court’s decision on the applicant’s
application for interim measures and for a period of seven days
following notification of that decision to the applicant.
- On 2 February 2010 the Chamber decided to extend the
interim measure of 10 December 2009 until further notice.
- In
the light of the change of regime in Tunisia, on 8 March 2011 the
Chamber decided that the parties should be invited to submit further
written observations on the admissibility and merits of the
application (Rule 54 § 2 (c) of the Rules of
Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in Tunisia in 1965. He arrived in Bosnia and
Herzegovina during the 1992-95 war and joined the foreign mujahedin.
The mujahedin phenomenon is explained by the International Criminal
Tribunal for the former Yugoslavia in the HadZihasanović and
Kubura judgment,
IT-01-47-T, §§ 411-18, 15 March
2006, as follows:
“411. Witnesses for both the Prosecution and
Defence agreed that the foreign mujahedin began to arrive in Zenica
and Travnik during 1992, particularly in the second half of the year.
412. At that time, the borders of the RBiH (Republic of
Bosnia and Herzegovina) were controlled by the organs of Republika
Srpska or HVO authorities, which made it very difficult for the RBiH
legal authorities, more specifically the MUP (Ministry of the
Interior), to control the entry and movements of foreigners in the
RBiH. Foreign mujahedin reached Bosnia via the Republic of Croatia
and via Herzegovina where the HVO had established power. They
frequently arrived as members of humanitarian organisations and did
not register with the RBiH authorities.
413. Most of the foreign mujahedin came from the
countries of North Africa, the Near East and the Middle East, i.e.
Algeria, Afghanistan, Saudi Arabia, Qatar, Egypt, Iran, Pakistan,
Tunisia, Turkey and Yemen. Some also came from European countries,
but how many is not known.
414. Foreign mujahedin were easily recognisable by their
traditional clothing and dark complexion. They had long beards and
wore turbans or hats. Some wore camouflage uniforms or parts of
camouflage uniforms, while others wore long white robes. There were
also those with scarves around their head and neck. Most of them did
not know the Bosnian language and spoke only Arabic. The foreign
mujahedin carried automatic rifles and rocket launchers. Some had
sabres or long knives. Some witnesses recognised the insignia the
foreign mujahedin wore on their shoulders.
415. According to the evidence characterising the
position of the foreign mujahedin, the term ‘mujahedin’
refers to Muslims fighting a jihad, or holy war. The foreign
mujahedin went to Bosnia in order to help their Muslim brothers
defend themselves against the Serbian aggressor and intended to leave
the country once peace had been re-established. According to these
same sources, the foreign mujahedin also wanted to spread their
beliefs, which they felt were the most faithful expression of Islamic
texts.
416. Most foreign mujahedin in Central Bosnia seem to
have arrived as members of humanitarian organisations. Defence
witnesses agreed that during the first phase they were involved in
humanitarian activities. They provided quite significant aid to the
local Muslim population, particularly food, and organised classes in
religious instruction.
417. Starting in the second half of 1992 when conflicts
broke out in Central Bosnia, foreign mujahedin became fighters. They
furnished the local population with weapons and uniforms and provided
military training. As explained below, the foreign mujahedin took
part systematically in combat side by side with the ABiH.
418. Given their humanitarian involvement, the foreign
mujahedin initially enjoyed a degree of trust and had the support of
the local population. Young men, even minors, joined them. ABiH
soldiers deserted their own units to join the ranks of the foreign
mujahedin, especially in order to benefit from their material
support. Some of the mujahedin married girls from the region. Over
time, however, the foreign mujahedin tried to promote their view of
fundamental Islam. They ordered the Bosnian women to cover their
heads, condemned the consumption of alcohol and insisted that the
local Muslims practice their religion. The foreign mujahedin burst
into cafés and restaurants that served alcohol and if they saw
a woman or young girl dressed in what they considered inappropriate
fashion, they voiced their strong opposition. As a result of this
rigid attitude, relations between the foreigners and the local
population deteriorated.”
- Although he had never been given citizenship or a
residence permit in Bosnia and Herzegovina, on 28 December 1995 the
applicant obtained a national identity card on the basis of a forged
decision of 15 February 1992 granting citizenship to a certain Marvon
Mufti (that national identity card was revoked in 2002). In 1997 the
applicant married a citizen of Bosnia and Herzegovina. They have two
children, born in 1998 and 2000. It would appear that the applicant
never returned to Tunisia after the 1992-95 war.
- On
24 April 2009, during a random check, the Aliens Service of the
Ministry of Security found that the applicant was an illegal
immigrant in Bosnia and Herzegovina and placed him in Istočno
Sarajevo Immigration Centre for deportation purposes. On 14 May 2009
he lodged an application for judicial review through his counsel, but
the application was ultimately rejected as out of time. The initial
detention period was extended on a monthly basis. Each of the
extension orders was then upheld by the Court of Bosnia and
Herzegovina (“the State Court”) and some of them by the
Constitutional Court. Appeals concerning the remaining extension
orders are still pending before the Constitutional Court.
- On 19 May 2009 the Aliens Service established that the
applicant was a threat to national security, ordered his deportation
and prohibited his re-entry for a period of five years. It relied on
secret intelligence reports. On 22 June 2009 the Ministry of Security
upheld the decision. On 10 November 2009 the State Court, having
assessed the secret evidence, also upheld the deportation order. An
appeal is pending before the Constitutional Court.
- On 24 July 2009 the applicant claimed asylum. He
maintained that Tunisian citizens who had joined the foreign
mujahedin during the war in Bosnia and Herzegovina were treated in
Tunisia as suspected terrorists and were subjected to ill-treatment.
He added that Tunisian authorities had visited his family and had
enquired about him shortly after the opening of his deportation
proceedings. The applicant could not explain, however, how those
authorities had learned about his activities in Bosnia and
Herzegovina. The applicant submitted a statement by Mr Kousri, a
Tunisian human-rights activist, asserting that a certain Badredine
Ferchichi had been sentenced by a Tunisian military tribunal to three
years’ imprisonment for having fought in the war in Bosnia and
Herzegovina.
- On 27 July 2009 the Asylum Service interviewed the
applicant with the help of an interpreter since the applicant did not
speak any of the official languages of Bosnia and Herzegovina. It
also had regard to reports of the United States Department of State,
Amnesty International and Human Rights Watch on Tunisia, which
mentioned many cases of ill-treatment meted out to suspected
terrorists. The practices reported included hanging from the ceiling,
threats of rape, administration of electric shocks, immersion of the
head in water, beatings and cigarette burns. Allegations of
ill-treatment were reportedly not investigated by the Tunisian
authorities.
- On
7 August 2009 the Asylum Service refused the asylum claim. It held
that it had not been shown that the applicant would indeed be treated
in Tunisia as a suspected terrorist and that he therefore did not
face a real risk of being subjected to ill-treatment. The statement
concerning the situation of Mr Badredine Ferchichi was not admitted
to the file because the applicant had failed to provide a translation
into an official language of Bosnia and Herzegovina. On 10 November
2009 the State Court upheld that decision. An appeal is pending
before the Constitutional Court.
- On
3 December 2009 the applicant lodged an application for interim
measures with the Constitutional Court asking that his deportation be
stayed pending the Constitutional Court’s decision on the
merits of the case.
- Removal directions for 10 December 2009 at about 2
p.m., issued on 8 December, were served on the applicant on 10
December at about 10 a.m. The applicant immediately applied for
interim measures with the Court and the President of the Fourth
Section of the Court granted an interim measure the same day at about
1 p.m. (see paragraphs 4-6 above).
- On
12 January 2010 the Constitutional Court refused the applicant’s
application for interim measures. The decision was notified to the
applicant on 1 February 2010.
- The
applicant is still in Istočno Sarajevo Immigration Centre.
II. RELEVANT DOMESTIC LAW
A. Secret Data Act 2005
- The
Secret Data Act 2005 (Zakon o zaštiti tajnih podataka,
Official Gazette of Bosnia and Herzegovina nos. 54/05 and 12/09)
entered into force on 17 August 2005. Section 5 of that Act provides
that the judges of the State Court and the Constitutional Court have
access to all levels of secret data without any formalities (such as
security clearance or special authorisation), if such access is
required for exercising their duties.
B. Aliens Act 2008
1. Eligibility for international protection (refugee
status and subsidiary protection) and for leave to remain on
humanitarian grounds
- The
Aliens Act 2008 (Zakon o kretanju i boravku stranaca i azilu,
Official Gazette of Bosnia and Herzegovina no. 36/08) entered into
force on 14 May 2008. Section 105 thereof provides that a refugee is
an alien who, owing to a well-founded fear of being persecuted for
reasons of race, religion, nationality, political opinion or
membership of a particular social group, is outside his or her
country of nationality and is unable or, owing to such fear, is
unwilling to avail himself or herself of the protection of that
country, or a stateless person, who, being outside the country of
former habitual residence, is unable or, owing to such fear, is
unwilling to return to it. The same provision defines a person
eligible for subsidiary protection as an alien who does not qualify
as a refugee but in respect of whom substantial grounds have been
shown for believing that he or she would face a real risk of the
death penalty or execution, torture or inhuman or degrading treatment
or punishment in the country of origin or in the country of habitual
residence, or there is a serious, individual threat to a civilian’s
life or person by reason of indiscriminate violence in situations of
international or internal armed conflict, and who is unable, or,
owing to fear, is unwilling to avail himself or herself of the
protection of that country.
The
principle of non-refoulement is incorporated in section 91 of
the Act, which reads as follows:
“An alien shall not be returned or expelled in any
manner whatsoever to the frontiers of territories where his or her
life or freedom would be threatened on account of race, religion,
nationality, membership of a particular social group or political
opinion, regardless of whether or not the person concerned has been
granted international protection. The prohibition of return or
expulsion (non-refoulement) shall also apply to persons
in respect of whom there is a reasonable suspicion for believing that
they would be in danger of being subjected to torture or other
inhuman or degrading treatment or punishment. An alien may not be
returned or expelled to a country where he or she is not protected
from being sent to such a territory either.”
Pursuant
to section 118 of the Act, an alien whose claim for international
protection has been refused will nevertheless be granted leave to
remain on humanitarian grounds, if his or her removal would breach
the principle of non-refoulement. However, the alien concerned
must be placed in detention if it has been established that he or she
constitutes a threat to public order or national security.
2. Deportation order and removal directions
- An
appeal against a deportation order suspends deportation (section 87
of that Act). A claim for international protection and an application
for judicial review against a refusal of such a claim equally suspend
deportation (sections 92, 109(9) and 117 of that Act). Pursuant to
section 93 of that Act, once an alien has become expellable, removal
directions are issued within seven days. An appeal against removal
directions does not suspend deportation.
3. Detention for deportation purposes
- Pursuant to section 99(2)(b) of that Act, an alien
must be detained if it has been established that he or she
constitutes a threat to public order or national security. Sections
100(3) and 102 of that Act provide that an initial detention order is
valid for thirty days, but it may be extended any number of times for
up to thirty days at a time. The total period of detention, however,
may exceed 180 days only in exceptional circumstances, such as if an
alien prevents his or her removal or if it is impossible to remove an
alien within 180 days for other reasons.
III. INTERNATIONAL TEXTS
A. Concerning Bosnia and Herzegovina
- The
General Framework Agreement for Peace, which put an end to the
1992-95 war in Bosnia and Herzegovina, was initialled at a military
base near Dayton, the United States, on 21 November 1995 and signed
in Paris, France, on 14 December 1995. It entered into force on the
latter date.
- Pursuant to Article III of Annex 1A to that Agreement,
all foreign forces, including individual advisors, freedom fighters,
trainers, volunteers, and personnel from neighbouring and other
States, irrespective of whether they were legally and militarily
subordinated to any of the local forces, had to be withdrawn from
Bosnia and Herzegovina by 13 January 1996.
B. Concerning Tunisia
- As to the situation in Tunisia before the recent
change of regime, see Saadi v. Italy [GC], no. 37201/06, §§
65-93, 28 February 2008.
- The Parliamentary Assembly of the Council of Europe
has recently looked at the situation in Tunisia after the change of
regime (document no.12624 of 1 June 2011). The pertinent part of the
explanatory memorandum reads as follows:
“12. For several weeks after the revolution of 14
January 2011, the political situation in Tunisia remained very
unstable. The first provisional government, formed by the former
Prime Minister Ghannouchi on 17 January with the participation of
representatives of the ‘legal’ opposition parties (the
few political formations that existed under the former regime) and
independents, succeeded in making a number of decisions tending
towards democratisation. But that government soon found itself under
pressure from the demonstrators, who demanded the resignation of
ministers who had served under Ben Ali.
13. At the same time, the political forces close to the
former regime, from Ben Ali’s RCD party (Constitutional
Democratic Rally) and the security services, tried to stir up trouble
in the country in order to shift the transition process towards a new
authoritarianism under the guise of ‘controlled’
political liberalisation.
14. Faced with these attempts, the elements in favour of
democratic change, particularly the unions and the active members of
civil society, continued to exert pressure on the provisional
government through demonstrations. They also began to form a National
Council to Defend the Revolution, which demanded the calling of a
constituent assembly and the dissolution of all institutions
inherited from the Ben Ali era, namely Parliament, the RCD and the
political police.
15. At the beginning of February, the two Chambers of
Parliament passed a law allowing the Interim President, Fouad
Mebazaa, to govern by legislative decree. Parliament was then
suspended and dissolved. Moreover, on 19 February the Interim
President issued a legislative decree declaring an amnesty for all
political prisoners.
16. Among the main decisions of the Ghannouchi
government should be noted the banning of the old ruling party, the
RCD, as well as the establishment of a commission to reform texts and
institutions which was supposed to prepare the democratic
transformation of the country.
17. Mention should also be made of the dissolution of
the Ministry of Communication (which it would be more accurate to
call the ministry of propaganda and censorship) and a degree of
liberalisation of the media. Reform of the press still remains to be
carried out, however. Indeed, we have been informed that
non-governmental organisations (NGOs) encounter problems if they want
to obtain radio frequencies.
18. On 27 February, the second government presided over
by former Prime Minister Ghannouchi was forced to resign as a result
of pressure from the protesters. The new transition government,
headed by Mr Beji Caïd Essebsi, had no members who had been
close to the Ben Ali regime and positioned itself as a cabinet of
technocrats whose objective was to guarantee calm and stability
during the transition period.
19. On 3 March, the Interim President set 24 July 2011
as the date for elections to a Constituent Assembly by direct
universal suffrage according to a new electoral code. A specific body
called the Higher Authority for Realisation of the Objectives of the
Revolution, Political Reform and Democratic Transition was set up to
prepare the elections to the Constituent Assembly. Mr Yadh Ben
Achour, former Dean of the Tunis Faculty of Legal, Political and
Social Sciences, who had resigned from the Constitutional Council in
1992 and was an opponent of the Ben Ali regime, was appointed
president of the new body.
20. The Higher Authority, which is composed of 161
members, many of whom are representatives of the political world and
civil society, as well as professional lawyers, prepared and
submitted to the government in mid-April draft laws on the
organisation of the elections and on the electoral commission.
21. In addition, two other independent commissions of
inquiry were set up in order to shed light on corruption, the
misappropriation of funds by the former regime and abuses committed
by the security forces during the events of December 2010-January
2011.
22. On 7 March 2011, the Minister for the Interior
announced the dissolution of the State Security Service and the
political police.
23. There now seems to be relative, if fragile,
political and institutional stability in Tunisia, enabling the
provisional authorities to be fairly optimistic about the possibility
of preparing the elections. The authorities have, however, let it be
known that they may be postponed if all the conditions for a ballot
that complies with democratic standards are not met.
24. The fragile nature of the stability was demonstrated
by the events of 5 May, which were provoked by statements by the
former Tunisian Minister of the Interior, Farhat Rajhi, who announced
a ‘military coup d’état’ was being
prepared in the event of the Islamists’ winning the elections.
The government condemned these statements, calling them an attack on
public order. The demonstrations that followed this incident turned
into a riot, with young Tunisians demanding the resignation of the
transitional government and ‘a new revolution’. The
police had to use teargas and then weapons in order to quell the
riot. Several shops and houses were looted. On 7 May, the authorities
introduced a curfew in Tunis. Some 600 people were arrested. The
curfew was lifted on 18 May 2011.”
27. On
21 May 2011, in conclusion of his visit to
Tunisia undertaken on invitation of the Government, Juan Mendez, the
UN Special Rapporteur on torture and other forms of cruel, inhuman,
degrading treatment or punishment, delivered the following statement:
“...
The interim Government has undertaken a series of
positive steps, including, considering reforming the State security
apparatus and dismantling the so-called political police, initiating
security sector reforms, reviewing the national legislation in line
with international standards, including inter alia removing
legal obstacles to reopening the cases of homicide and torture of the
past, dismissing a number of high- and mid-ranking officials from the
Ministry of Interior and the Ministry of Justice. I am also heartened
by the discussions about the establishment of transitional justice
mechanisms to address the legacy of past abuses. Encouragingly, the
Government has established three advisory commissions.
...
I was told by officials that the practice of torture and
ill-treatment has decreased following respective instructions issued
by the officials of the security services. This I realised is true as
far as the notorious and endemic practice of torture committed during
the Ben Ali regime is concerned. However, I have heard credible
testimonies regarding beatings of detainees upon arrest or within the
first hours of pre-trial detention (garde a vue) as well as
during interrogation. Such episodes reflect the fact that old habits
of police agents are not easily eradicated. Whether they are isolated
or more frequent, beatings inflicted as a form of punishment or
intimidation reflects complete disrespect for the presumption of
innocence and the dignity of persons suspected of crimes. For that
reason, every single act of torture is intolerable and elicits the
obligation of the State under international law to investigate,
prosecute and punish it. I heard testimonies according to which the
safeguards during arrest and detention, such as rules governing
warrant, compulsory medical examination upon arrest and transfer,
notification to the family, access to a lawyer, interrogation in the
presence of witnesses, as well as the right against
self-incrimination were not respected in practice. Sadly, some of
those testimonies were about events that have taken place after the
January 14 Revolution.
For example, I learned that in early May the police
reacted heavy-handedly to a demonstration by scores of youths. Riot
police clashed with protesters and representatives of the media. I
heard allegations of arbitrary arrest, and beating, of a group of
young people that included more than 20 minors. Together with about
46 adults, they were arbitrarily detained and taken to a detention
centre without any access to a lawyer or notification to their
families despite clear provisions in the Tunisian law regarding
juvenile criminal law and procedure they were set free at 4:00 a.m.
in one of the most dangerous areas in Tunis. During about 12 hours of
detention they were forced to kneel and remain in uncomfortable
positions. I welcome the initiative of the Ministry of Interior
to issue a statement apologising to ‘journalists and citizens
involuntarily assaulted’ and to open an inquiry into these
incidents. This goes on to suggest that riot police and
law-enforcement bodies engage in ill-treatment and excessive use of
force to hold situations under control.
Given the lack of effective safeguards during arrest,
persons deprived of their liberty are extremely vulnerable to torture
and ill-treatment, moreover, given the legacy of abusive treatment by
law-enforcement agents in the past, the lack of sufficiently speedy
investigations into allegations of torture and ill-treatment, as well
as the use of prosecutions affecting public officials, it can not be
said that the culture of impunity no longer prevails, even though the
current authorities have undoubtedly and sincerely pledged to respect
the law. I have received several allegations of being kicked,
beaten and burned with cigarettes. Many of these cases were supported
by forensic medical evidence.
I learned from the Ministry of Interior that from 1999
to 2009, there were only seven criminal convictions against
law-enforcement and prison officials for acts of torture and
ill-treatment out of 246 prosecutions initiated. According to
Tunisian law, anyone who claims to have been subjected to torture can
file a complaint either with officers of the Police Judiciaire
or the Prosecutor. These mechanisms are inadequate as the complaint
is essentially addressed to the same body that is alleged to have
perpetrated the ill-treatment. Moreover, under Tunisian legislation,
judges are not obliged to exclude any evidence or statements obtained
under torture, despite the fact that, as a party to the CAT, Tunisia
is internationally obliged to exclude such evidence. This inevitably
creates an environment conducive to impunity.
Admissibility of confessions is left to the discretion
and appraisal of the judge in accordance with Articles 150 and 152 of
the Criminal Procedure Code. I welcome the initiative of the
Ministry of Justice to amend the definition of torture contained in
the Criminal Code in order to bring it in full conformity with the
definition of Article 1 of the CAT and to provide for penalties
reflecting the severity of the offense. I also support an initiative
to amend the laws to ensure that no statement obtained through
torture shall be admitted as evidence in judicial proceedings against
the defendant, except in a case presenting torture and to show that
the statement was made.
It is my understanding that several agents of security
forces attached in the past to the Presidency and to the Ministry of
the Interior have not been removed even though they are thought to be
at the heart of the serious violations of human rights that took
place in the past.
The conditions of prisons and detention centres visited
vary from being adequate to unsatisfactory as far as hygienic
conditions, availability of medical assistance, access to telephone,
and the length of family visits are concerned. Medical centres
although available, do not seem to be always and adequately equipped.
Dental and psychiatric assistance do not presently exist in the
detention centres visited.
As far as the investigation launched into the past
allegations of torture and recent abuses are concerned, I welcome the
establishment of the fact-finding Commission, while recognising that
its function is complementary to judiciary and should be clarified. I
heard an explanation about the thorough and comprehensive way in
which it has approached its mandate. However, I have learned that the
number of prosecutions and initial judicial inquiries related to
torture and disproportionate use of force remain low, despite the
fact that the Commission’s work does not substitute the role of
prosecutors and judges. The slow pace of investigation and general
lack of clear signals that these cases are seriously considered
provokes frustration and anger among victims and general public. It
is encouraging to learn that preliminary monetary compensation has
been offered to victims and their families of December and January
events. It remains unclear how the amount of compensation was defined
as adequate and whether any measures are undertaken to provide the
victims and their families with rehabilitation services.
I welcome the initiative of the interim Government to
release political prisoners and prisoners of conscience; and to grant
conditional release on a case by case basis to those convicted for
security related offenses. Many, if not most, of these were convicted
in unfair trials, so amnesties and pardons are a partial remedy to
the violations they have suffered.
I would like to welcome the commitment expressed by all
levels of the Government regarding the abhorrence of torture and its
determination to eradicate it...”
28. On
26 May 2011, at the conclusion of his official
follow-up visit to Tunisia, the United Nations Special Rapporteur on
human rights and counter-terrorism, Martin Scheinin, gave the
following statement:
“...
Since my last visit to Tunisia in early 2010, the world
has witnessed how the negation of human rights by oppressive regimes,
including under the pretext of countering terrorism, can bring
together a critical mass of people from very different walks of life
to pursue their aspirations for a free and democratic society and a
Government that respects human rights. Tunisia has become a symbol of
this lesson.
My mandate focuses on the protection of human rights
while countering terrorism. In this context I have seen initial steps
that indicate a break with Tunisia’s past. I was pleased to
hear that many of my interlocutors confirm that the abusive
anti-terrorism law of 2003 has not been used since the events of 14
January, including against the Tunisian people that demanded change.
However, in Al Mornaguia Prison I learned that individual judges
sometimes still order persons detained under the 2003 law. This now
mostly dormant law did not do what it was supposed to do. It did not
provide more security to the Tunisian people, but was used as a tool
of oppression against any form of political or other dissent. The
Transitional Government has acknowledged this by adopting an amnesty
law covering those who were convicted or held under this law. In
order to provide the Tunisian people with the security they deserve,
I offer the assistance of my mandate to replace the 2003 law with a
proper legislative framework which regulates Tunisia’s
anti-terrorism efforts in line with international conventions and
protocols on countering terrorism, while fully respecting human
rights and fundamental freedoms. The global threat of terrorism is
real and can only be responded to through properly targeted and
lawful measures, instead of using the notion of terrorism to suppress
dissent.
In my previous report I expressed grave concern about
the activities of various entities of the security apparatus, and the
secrecy and impunity in which they operated. My report singled out
the Directorate for State Security as a crucial entity that was
responsible for activities of torture and arbitrary and even secret
detention. I commend therefore the abolishment of this entity by the
Transitional Government. However, in my previous report I also
highlighted the lack of publicly available information on several
security organs of the Tunisian State. This secrecy was an important
element that contributed to the shield of impunity under which these
actors could operate. All security organs’ functions and powers
must be regulated by publicly available laws. Such transparency
avoids not only the creation of myths about what these agencies do,
but also ensures accountability of these agencies if they commit
illegal acts. In this context I have noted statements that the
‘political police’ in Tunisia has been abolished. Such a
‘police’ did not exist in the law, but it was used as
term by the public, and now also by officials, to describe those
elements in the security organs related to the Ministry of the
Interior that were responsible for cracking down on political and
human rights activists and other dissent.
Changes in the way Tunisia’s security organs
operate should not be limited to slogans, but should result in
concrete measures. The first steps have been taken to establish
accountability for those who attacked the demonstrators in January of
this year. I welcome this positive development, but want to stress
that in order to look truly forward towards a new Tunisia, it has to
come to terms with dark remnants of its past. During my first visit
in 2010 the existence of secret facilities in the premises of the
Ministry of the Interior was flatly denied. This time officials at
the Ministry of the Interior agreed to show me the former secret
detention facilities. However, some officials still denied the use of
Ministry offices as interrogation and torture rooms. I learned that
until now 60 security officials have been arrested, 7 persons in the
highest ranks prosecuted, and 42 officials forced to retire, or went
into retirement voluntarily. Tunisia should continue to investigate
ex officio allegations of torture and illegal detention, often
committed under the pretext of the fight against terrorism.
Investigating, prosecuting and trying those responsible for the
crimes in question can also help rebuilding trust between the
population and the security forces in the country.
While I commend Tunisia’s decision to ratify the
International Convention against Disappearances, the Optional
Protocols to the Convention against Torture and the Covenant on Civil
and Political Rights, and the Rome Statute of the International
Criminal Court, I must emphasise that these promises turn into real
rights only when implemented by depositing the international
instrument of accession. Further, I call for rapid measures to
strengthen the independence of the judiciary which as of today has
not lived up to its task to secure compliance with the law, including
human rights. I was also disappointed to learn that the most
important safeguard against abuse in police custody, effective access
to a lawyer of one’s own choice from the moment of arrest,
including presence in every interrogation, is not yet in place.
These are the preliminary findings of my follow-up
mission. A full report will be presented to the United Nations Human
Rights Council in 2012...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant alleged that his deportation to Tunisia would expose him to
the risk of treatment contrary to Article 3, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government maintained that the application should be rejected as
premature as the case was still pending before the Constitutional
Court.
- The
applicant replied that an appeal to the Constitutional Court was not
an effective domestic remedy for the purposes of Article 35 § 1
of the Convention as it lacked automatic suspensive effect. He
referred to Čonka v. Belgium, no. 51564/99,
ECHR 2002 I; Gebremedhin [Gaberamadhien] v. France, no.
25389/05, ECHR 2007 II; and Abdolkhani and Karimnia v.
Turkey, no. 30471/08, ECHR 2009 ....
- The Court reiterates that, although the prohibition of
torture or inhuman or degrading treatment or punishment contained in
Article 3 of the Convention is absolute, applicants invoking that
Article are not for that reason dispensed as a matter of course from
exhausting domestic remedies that are available and effective (see
Bahaddar v. the Netherlands, 19 February 1998, § 45,
Reports of Judgments and Decisions 1998 I, and Jabari
v. Turkey (dec.), no. 40035/98, 28 October 1999). It would not
only run counter to the subsidiary character of the Convention but
also undermine the very purpose of the rule set out in Article 35 §
1 if the Contracting States were to be denied the opportunity to put
matters right through their own legal system. That being said, in
view of the importance which the Court attaches to Article 3 of the
Convention and the irreversible nature of the damage which may result
if the risk of ill-treatment materialises, the effectiveness of a
remedy for the purposes of Article 35 § 1
imperatively
requires that the person concerned should have access to a remedy
with automatic suspensive effect (see M.S.S.
v. Belgium and Greece [GC], no. 30696/09, § 293, 21 January
2011, and the cases cited therein).
- In the present case, it is obvious that an appeal to
the Constitutional Court does not have automatic suspensive effect.
While the Court is mindful of the fact that the Constitutional Court
may stay deportation, as an interim measure, an application for
interim measures is not of itself suspensive. In addition, the
Constitutional Court is not required to decide such applications
before the actual deportation of the person concerned, as evidenced
in this case (the applicant lodged an application for interim
measures with the Constitutional Court on 3 December 2009, his
deportation was scheduled for 10 December 2009 and the Constitutional
Court decided that application on 12 January 2010). Accordingly,
where an applicant seeks to prevent his or her removal from Bosnia
and Herzegovina to a territory where he or she allegedly faces a risk
of ill-treatment contrary to Article 3, an
appeal to the Constitutional Court cannot be considered to be an
effective remedy in preventing removal before a final decision of
that court. The Government’s objection must therefore be
dismissed.
- The
Court notes that this complaint is neither manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention nor
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- In
his application and his observations of July 2010, the applicant
claimed that he would be treated in Tunisia as an Islamist and a
suspected terrorist because of his association with the foreign
mujahedin in Bosnia and Herzegovina, the fact that he had been
declared a threat to national security in Bosnia and Herzegovina and
his long beard. He submitted that Islamists and suspected terrorists
were, as a group, systematically exposed to serious violations of
fundamental human rights, including ill-treatment, in Tunisia. He
relied on reports of the United States Department of State, Human
Rights Watch and Amnesty International on Tunisia which were along
the lines of those referred to in paragraph 25 above. He also
submitted the statement by Mr Anouar Kousri mentioned in paragraph 12
above and a statement by a French human-rights activist, Ms Luiza
Toscane, claiming that all Tunisian citizens who had fought in the
1992-95 war in Bosnia and Herzegovina had been arrested and some of
them tortured immediately upon their return to Tunisia. It
specifically named the cases of Mr Bouhouche, Mr Selmi, Mr
Hajjam, Mr Ferchichi and Mr Mouelhi. Lastly, the applicant argued
that his case was surely known to Tunisian authorities since they had
been notified of his deportation and most likely of the fact that he
was regarded as a threat to national security in Bosnia and
Herzegovina. His name had appeared in many media reports, some of
them linking the applicant to terrorist groups.
- In
their observations of May and September 2010, the Government stated
that the applicant’s allegations were vague, unsubstantiated
and on occasion contradictory. While accepting that suspected and,
even more so, convicted terrorists faced a real risk of being
subjected to ill-treatment in Tunisia, the Government submitted that
the applicant had failed to establish that he would indeed be treated
as one. The present case should therefore be distinguished from the
cases of Sellem v. Italy, no. 12584/08, 5 May 2009, and Saadi
v. Italy, cited above, which concerned convicted terrorists. The
Government argued that the domestic authorities had rigorously
examined the applicant’s case: they had taken into account
relevant reports and had assessed the secret evidence against the
applicant. The Government also confirmed that the Tunisian
authorities had been notified on 26 November 2009 of the
plan to deport the applicant in the near future.
- In
his further observations of March 2011, the applicant argued that
owing to political instability, the unchanged anti-terrorism law, the
ingrained culture of violence and impunity within the security forces
and the judiciary directed at Islamists, and the dire prison
conditions, a real risk of ill-treatment remained for Islamists who
were deported to Tunisia, despite the recent changes in that country.
- In
their further observations of March 2011, the Government stated that
the situation in Tunisia had radically improved since the recent
change of regime and that the applicant no longer faced any risk of
being subjected to ill-treatment in that country.
- It is the Court’s settled case-law that as a
matter of well-established international law and subject to its
treaty obligations, including those arising from the Convention, a
Contracting State has the right to control the entry, residence and
expulsion of aliens (see, among many other authorities, Üner v. the
Netherlands [GC], no. 46410/99, § 54, ECHR 2006 XII).
The right to asylum is also not contained in either the Convention or
its Protocols (Salah Sheekh v. the Netherlands, no. 1948/04, §
135, 11 January 2007). Expulsion by a Contracting State may, however,
give rise to an issue under Article 3, and hence engage the
responsibility of that State under the Convention, where substantial
grounds have been shown for believing that the person concerned, if
expelled, faces a real risk of being subjected to ill-treatment. In
such a case, Article 3 implies an obligation not to expel the person
in question to that country (see Saadi v. Italy, cited above,
§ 125). Given that the prohibition of torture or inhuman or
degrading treatment or punishment is absolute, the conduct of
applicants, however undesirable or dangerous, cannot be taken into
account (ibid., §§ 127 and 138).
- The
assessment of the existence of a real risk must be rigorous (see
Chahal v. the United Kingdom, 15 November 1996, § 96,
Reports 1996 V). As a rule, it is for applicants to
adduce evidence capable of proving that there are substantial grounds
for believing that, if the measure complained of were to be
implemented, they would be exposed to a real risk of being subjected
to treatment contrary to Article 3 (N. v. Finland,
no. 38885/02, § 167, 26 July 2005). Where such
evidence is adduced, it is for the Government to dispel any doubts
about it. The Court will take as its basis all the material placed
before it or, if necessary material obtained proprio motu. It
will do so, particularly when an applicant – or a third party
within the meaning of Article 36 of the Convention – provides
reasoned grounds which cast doubt on the accuracy of the information
relied on by the respondent Government. The Court must be satisfied
that the assessment made by the authorities of the Contracting State
is adequate and sufficiently supported by domestic materials as well
as by materials originating from other reliable and objective sources
such as, for instance, other Contracting or non-Contracting States,
agencies of the United Nations and reputable non-governmental
organisations (NA. v. the United Kingdom, no. 25904/07, §
119, 17 July 2008).
- If
an applicant has not yet been deported when the Court examines the
case, the relevant time will be that of the proceedings before the
Court (Saadi v. Italy, cited above, § 133). A full and ex
nunc assessment is called for as the situation in a country of
destination may change in the course of time. While the historical
position is of interest in so far as it may shed light on the current
situation and its likely evolution, it is the present conditions
which are decisive and it is hence necessary to take into account
information that has come to light after the final decision taken by
domestic authorities (see Salah Sheekh, cited above, §
136).
- Accordingly,
in the present case the Court must examine whether the applicant, if
deported to Tunisia, would face a real risk of being subjected to
treatment contrary to Article 3, despite the recent changes in that
country.
- As
noted by the Parliamentary Assembly of the Council of Europe and UN
Special Rapporteurs, the process of democratic transition in Tunisia
is in progress and steps have already been taken to dismantle the
oppressive structures of the former regime and put in place elements
of a democratic system: notably, security forces widely accused of
human-rights abuses during the former regime, including the State
Security Service, were dissolved; an amnesty was granted to all
political prisoners, including those who had been held under the
controversial anti-terrorism law; and a number of high- and
mid-ranking officials from the Ministry of Interior and the Ministry
of Justice were dismissed and/or prosecuted for past abuses (see
paragraphs 26-28 above).
- While
it is true that cases of ill-treatment are still reported, those are
sporadic incidents (see paragraph 27 above); there is no indication,
let alone proof, that Islamists, as a group, have been systematically
targeted after the change of regime. On the contrary, all the main
media have reported that Mr Rachid Ghannouchi,
a leader of the principal Tunisian Islamist movement
(Ennahda), was able to return to Tunisia after twenty or so years in
exile and that on 1 March 2011 the movement in question was allowed
to register as a political party. It should also be emphasised that
on 29 June 2011 Tunisia acceded to the Optional Protocol to the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, setting up a preventive system of regular
visits to places of detention, as well as to the Optional Protocol to
the International Covenant on Civil and Political Rights, recognising
the competence of the Human Rights Committee to consider individual
cases. This shows the determination of the Tunisian authorities to
once and for all eradicate the culture of violence and impunity which
prevailed during the former regime.
- Having
regard to the foregoing, the Court considers that there is no real
risk that the applicant, if deported to Tunisia, would be subjected
to ill-treatment. Therefore, his deportation to Tunisia would not
violate Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant also contested the lawfulness of his detention pending
deportation on account of its duration. He relied in that regard on
Article 5 § 1 of the Convention, the relevant
part of which reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.”
- The
Government contested that argument.
- The
Court reiterates that Article 5 § 1 (f) of the Convention does
not demand that the detention of a person against whom action is
being taken with a view to deportation be reasonably considered
necessary, for example to prevent his committing an offence or
fleeing. In this respect Article 5 § 1 (f)
provides a different level of protection from Article 5 § 1 (c).
All that is required under this provision is that deportation
proceedings are in progress and prosecuted with due diligence (see
Chahal, cited above, §§ 112-13, and Saadi v. the
United Kingdom [GC], no. 13229/03, § 72, ECHR
2008 ...).
- Turning
to the present case, the period under consideration started on 24
April 2009 when the applicant was placed in an immigration centre
with a view to deportation. In a period of less than eight months,
the domestic authorities then issued a deportation order, examined
the applicant’s asylum claim at two levels of jurisdiction and
issued removal directions. The Court does not consider this period to
be excessive. Although the applicant has remained in custody until
the present day, the period since 10 December 2009 must be
distinguished because during this time the Government have refrained
from deporting the applicant in compliance with the request made by
the Court under Rule 39 of the Rules of Court (see Chahal,
cited above, § 114). The Court reiterates in that regard that
the Contracting States are obliged under Article 34 of the Convention
to comply with interim measures indicated under Rule 39 (see
Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and
46951/99, §§ 99-129, ECHR 2005 I).
- That
being said, the implementation of an interim measure following an
indication by the Court to a State Party that it would be desirable
not to return an individual to a particular country does not in
itself have any bearing on whether the deprivation of liberty to
which that individual may be subject complies with Article 5 § 1
(see Gebremedhin, cited above, § 74). In other words, the
domestic authorities must still act in strict compliance with
domestic law (ibid., § 75). The Court notes that it has been
established by the domestic authorities that the present applicant
constitutes a threat to national security (see paragraph 11 above).
His detention has accordingly been authorised and is indeed mandatory
pursuant to section 99(2)(b) of the Aliens Act 2008 (see paragraph 22
above). Furthermore, the initial detention period has been extended
on a monthly basis, as envisaged by domestic law.
- Having
regard to the above, the Court concludes that the deportation
proceedings, although temporarily suspended pursuant to the request
made by the Court, have nevertheless been in progress and in strict
compliance with domestic law (compare S.P. v. Belgium (dec.),
no. 12572/08, 14 June 2011; contrast Ryabikin v. Russia, no.
8320/04, § 132, 19 June 2008, and Abdolkhani and Karimnia v.
Turkey, no. 30471/08, § 134, ECHR 2009 ...). Since
there is no indication that the authorities have acted in bad faith,
that the applicant has been detained in unsuitable conditions or that
his detention has been arbitrary for any other reason (see Saadi
v. the United Kingdom, cited above, §§ 67-74), this
complaint is manifestly ill-founded and must be rejected pursuant to
Article 35 §§ 3 (a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
- The
applicant further complained of the unfairness of the deportation
proceedings. He relied on Article 6 § 1 of the Convention, the
relevant part of which reads as follows:
“1. In the determination of his civil
rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law...”
- The
Court reiterates that decisions concerning the entry, stay and
deportation of aliens do not involve the determination of an
applicant’s civil rights or obligations or of a criminal charge
against him for the purposes of Article 6 § 1 (see Maaouia v.
France [GC], no. 39652/98, §§ 36-40, ECHR 2000 X).
This complaint is accordingly incompatible ratione materiae
and must be rejected pursuant to Article 35 §§ 3 (a) and 4
of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant further complained that the decision to expel him and to
prohibit his re-entry for five years amounted to a breach of his
right to respect for his family life. He relied on Article 8 of the
Convention, which provides:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Court observes that this complaint was not included in the initial
application, but was raised in the applicant’s observations of
July 2010 (in his initial application, the applicant raised a
complaint under Article 8 of the Convention only with regard to his
detention pending deportation). It was thus not raised early
enough to allow an exchange of observations between the parties (see
Melnik v. Ukraine, no. 72286/01, §§ 61 63,
28 March 2006; Maznyak v. Ukraine, no. 27640/02, §
22, 31 January 2008; Kuncheva v. Bulgaria, no.
9161/02, § 18, 3 July 2008; Lisev v. Bulgaria,
no. 30380/03, § 33, 26 February 2009; and Tsonyo Tsonev
v. Bulgaria, no. 33726/03, § 24, 1 October 2009).
Nevertheless, the Court does not have to decide whether it is
appropriate to take this matter up separately at this stage as the
complaint is in any event inadmissible for the following reasons.
- The
Court has earlier established that an appeal to the Constitutional
Court of Bosnia and Herzegovina is, in principle, an effective remedy
for the purposes of Article 35 § 1 of the Convention (Mirazović
v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006, and
Alibašić v. Bosnia and Herzegovina (dec.), no.
18478/08, 29 March 2011). Since this complaint is still pending
before that court and the Convention does not require
that an applicant complaining about his or her deportation under
Article 8 should have access to a remedy with automatic suspensive
effect (in contrast to such complaints under Article 3, see
paragraphs 32-33 above), the complaint is premature. It
must therefore be rejected pursuant to Article 35 §§ 1
and 4 of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the Court has examined the other complaints submitted by the
applicant. However, having regard to all the material in its
possession, and in so far as these complaints fall within the Court’s
jurisdiction, it finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 (a) and 4 of the Convention.
VI. RULE 39 OF THE RULES OF COURT
- In
accordance with Article 44 § 2 of the Convention, the present
judgment will not become final until (a) the parties declare that
they will not request that the case be referred to the Grand Chamber;
or (b) three months after the date of the judgment, if reference of
the case to the Grand Chamber has not been requested; or (c) the
Panel of the Grand Chamber rejects any request to refer under Article
43 of the Convention.
- The
Court considers that the indication made to the Government under Rule
39 (see paragraphs 4-6 above) must continue in force until the
present judgment becomes final or until the Panel of the Grand
Chamber of the Court accepts any request by one or both of the
parties to refer the case to the Grand Chamber under Article 43 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 3 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there would be no violation of
Article 3 of the Convention in the event of the applicant’s
deportation to Tunisia;
- Decides to continue to indicate to the
Government under Rule 39 of the Rules of Court that it is desirable
in the interests of the proper conduct of the proceedings not to
expel the applicant until such time as the present judgment becomes
final or further order.
Done in English, and notified in writing on 15 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
