European Court of Human Rights: Rules on absolute prohibition of torture and ill-treatment remain unchanged
"This judgment should serve as a reminder to all states: not only they are not allowed to commit torture themselves, but they are forbidden from sending anyone to countries where they would be at risk of torture or other ill-treatment," said Ian Seiderman, Amnesty International’s Senior Legal Adviser.
The Italian authorities sought to deport Nassim Saadi to Tunisia under the "Pisanu Law" which was originally adopted in 2005 as "an urgent measure to combat terrorism". The Italian authorities argued that he posed a security risk to Italy. The Court found "substantial grounds had been shown for believing that there is a real risk" that Mr Saadi would be subjected to torture or other ill-treatment if he were deported on the basis of reports of Amnesty International and Human Rights Watch, which were deemed by the Court to be credible, consistent and corroborated by numerous other sources.
Amnesty International's research indicates that torture and other ill-treatment by the security forces in Tunisia are widespread. The practices reported, including against people charged with terrorism-related offences, include hanging from the ceiling, threats of rape, administration of electric shocks, immersion of the head in water, beatings and cigarette burns. Allegations of torture and ill-treatment in police custody are not investigated by the relevant Tunisian authorities. "Confessions" extracted under torture may be used as the principal evidence in trials which result in long prison sentences or the death penalty. Consequently, the European Court of Human Rights ruled that sending Nassim Saadi back to Tunisia would violate the Italian government’s obligations under the European Convention on Human Rights.
The United Kingdom had intervened in the case in an attempt to persuade the European Court to change its long-established case-law on the absolute prohibition on torture and other ill-treatment. The Court rejected as "misconceived" the arguments advanced by the UK, with which the Italian government had agreed.
While the Court acknowledged the immense difficulty states face in protecting their communities from terrorist violence, it affirmed that the danger of terrorism "must not however call into question the absolute nature of [the prohibition of torture and other inhuman or degrading treatment or punishment]".
Rejecting the arguments of UK and Italy that the risk of harm faced by the individual should be balanced against any danger posed by the individual the European Court of Human Rights said: "the concepts of risk and dangerousness do not lend themselves to balancing ... [t]he prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return."
"In the current climate, where states are backsliding on the absolute prohibition of torture and other ill-treatment, this unanimous ruling of the European Court of Human Rights is a welcome landmark. It reaffirms that the measures that states take to protect us all from the threat of terrorism must respect human rights and the rule of law", said Ian Seiderman.