ECtHR Hears Important Torture Case

On Wednesday, the European Court of Human Rights heard a critically important case, Saadi v. Italy, concerning the European Convention’s absolute prohibition on deporting individuals to states where they face a real risk of torture or ill-treatment. A number of states, the UK foremost among them, are seeking to weaken that prohibition:

The government of the United Kingdom, along with a handful of others, have intervened in the case to support the deportation despite the risk of torture and other ill-treatment. The government of the United Kingdom (UK) is asking the European Court of Human Rights to change its case law which is currently consistent with the universally recognized absolute ban against torture and other ill-treatment. The UK is arguing that the prohibition on torture and ill-treatment should not be absolute for foreign nationals whom a state considers represent a threat to national security and whom it seeks to deport.

Here is some background on the case, courtesy of Amnesty International:

The case of Saadi v Italy is being considered by the Grand Chamber of the European Court of Human Rights on 11 July 2007. In this case Nassim Saadi is claiming, among other things, that the order to deport him from Italy to Tunisia, under the Pisanu law, violates the Italian Government’s obligations under the European Convention on Human Rights.

Nassim Saadi, a Tunisian national residing lawfully in Italy, was convicted in May 2005 and sentenced to a term of imprisonment of four years and six months for criminal conspiracy and forgery. In the same trial he was found not guilty of association with international terrorism. Appeals by both Nassim Saadi and the prosecutor remain pending in the Italian courts.

However, in August 2006, while the appeal was pending, the Minister of Interior ordered Nassim Saadi’s deportation to Tunisia under the Pisanu law. Under this law, a person suspected by the authorities of involvement in terrorism-related activities may be deported on the order of the Minister of the Interior or a Prefect, without having been charged or tried. Appeals of such deportation orders are non-suspensive. The Saadi case is one of a number of cases pending which challenge the application of this law, whose constitutionality is currently under review in Italy.

Among other things, in his case before the European Court of Human Rights, Nassim Saadi claims that he faces a real risk of torture or other ill-treatment and other human rights violations in Tunisia, and thus can not lawfully be returned there. Our organizations have reports that people who have been returned to Tunisia from abroad including from Italy, have been held in incommunicado detention and that they have been subjected to torture or other forms of ill-treatment during their detention. Another Tunisian man, expelled from Italy to Tunisia under the Pisanu Law in early 2007, has reportedly been subject to ill-treatment in detention there.

Saadi v. Italy is just one of many recent attempts to create a “national security” exception to the absolute prohibition on deporting individuals to face torture. Canada, for example, has continually insisted that Article 3 of the Convention Against Torture — which provides that “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” — does not prevent it from deporting individuals who pose a security risk:

[T]he government of Canada maintains that it may deport people to a danger of torture, despite the absolute prohibition contained in Article 3 of the Convention against Torture. They base their position in the Supreme Court of Canada’s failure to recognize the absolute bar to return to torture in Suresh v. Canada ([2002] 1 SCJ 3). In that case, the Court observed that there may be exceptional circumstances which could justify return to torture in certain cases. As a result of the Court’s failure to explicitly uphold the absolute prohibition, Department of Justice lawyers have in a number of cases sought to invoke the generalized “war on terrorism” as exceptional circumstances sufficient to justify refoulement. Further, government lawyers consistently seek to undermine the status of the Convention Against Torture and other human rights treaties to which Canada is a party by arguing that they are not bound to comply with them. (See especially Ahani v. Canada (2002) 208 DLR (4th) 66.)

The Committee Against Torture has criticized Canada’s national-security exception as violating its obligations under CAT, quite rightly pointing out that the absolute prohibition against torture applies “even to individuals who have terrorist associations.” We can only hope that the European Court takes a similarly principled — and equally categorical — stand in Saadi.