December 12, 2011
International politics are never far away in cases dealing with the extradition of individuals to third countries. In the case of Al Hanchi v. Bosnia and Herzegovina the European Court of Human Rights was confronted with an extradition of a so-called foreign mujahedin to Tunisia. Until now, the Court had a clear stance. The deportation of individuals with such a profile to Tunisia entails a risk of ill-treatment. (see e.g. Saadi v. Italy) In the aftermath of the Arab Spring the Court is however reconsidering this position.
The applicant, Mr. Al Hanchi, left his home country Tunisia to join the foreign Mujahidin in Bosnia and Herzegovina during the 1992-95 war. During that period Mr. Al Hanchi was not the only one to cross the Mediterranean Sea to fight in the Bosnian war. The Court refers to a judgment of the ICTY in which this phenomenon is explained:
“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.” (ICTY, Hadžihasanović and Kubura , 15 March 2006, § 415; cited in §8 of the judgment)
However, Al Hanchi did not leave the country after the war, but married a Bosnian national with whom he got two children. In April 2009, during a random check, the authorities discovered that the applicant was an illegal immigrant, and he was subsequently held in an immigration centre in view of a possible deportation. In May 2009, the Aliens service established that the applicant constituted a threat to the national security and ordered his deportation. Also, the applicant was prohibited to re-enter the country during a period of five years.
The applicant unsuccessfully claimed asylum. He alleged that due to his involvement in the foreign mujahedin, he would be treated as a suspected terrorist in Tunisia, meaning that he would be subjected to ill-treatment. His claim was rejected by the national authorities, on the ground that he did not sufficiently show that he would be treated as a suspected terrorist and that he would be subjected to ill-treatment.
The Court examines whether the applicant would face a real risk of being subjected to ill-treatment if deported to Tunisia and it concludes that there is no such risk and that a deportation would thus not violate article 3 of the convention.
Referring to reports of the Parliamentary Assembly of the Council of Europe and UN Special Rapporteurs the Court finds that:
“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 ” (§43)
These findings clearly indicate that a new climate is being created in Tunisia with a clear will to break with the practices of the former regime and to evolve towards respect for fundamental human rights. According to the Court this is also confirmed by the fact that Tunisia acceded to several important human rights instruments such as the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as to the Optional Protocol to the International Covenant on Civil and Political Rights.
The question remains whether these developments have led to a change of the practice of systematic ill-treatment by the regime (see e.g. Saadi v. Italy) and whether the applicant in the present case, whom the Bosnian authorities consider to be a threat to national security because of his mujahedin past, does not run such a risk anymore.
The absence of such risk is not completely clear. The Court itself recognizes that cases of ill-treatment are still reported, but concludes that those cases “are sporadic incidents” and that “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”.(§44)
While it is true that none of the reports referred to in the case establish that people with the applicant’s profile are particularly targeted, it might be a bit early to state that a risk of ill-treatment is non-existing. Although these reports are in a sense optimistic about the changes, the rapporteurs take a vigilant and more nuanced position towards the future. The UN Special Rapporteur on torture and other forms of cruel, inhuman, degrading treatment or punishment, Juan Mendez, refers for instance to “credible testimonies regarding beatings of detainees upon arrest or within the first hours of pre-trial detention … 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, beating inflicted as a form of punishment of intimidation reflects complete disrespect for the presumption of innocence and the dignity of persons suspected of crimes” and he further states that “it cannot be said that the culture of impunity no longer prevails, even though the current authorities have undoubtedly and sincerely pledged to respect the law”. (§27) The UN rapporteur on Human Rights and counter terrorism Martin Sheinin, also observes “initial steps that indicate a break with Tunisia’s past”. Although the famous anti-terrorism law of 2003, the law that was used in the past against so-called Islamists, is officially not been used anymore according to some interlocutors, the rapporteur learned that individual judges sometimes still order persons detained under this law. The rapporteur concludes that “[c]hanges in the way Tunisia’s security organs operate should not be limited to slogans, but should result in concrete measures” and that “in order to look truly forward towards a new Tunisia, it has to come to terms with dark remnants of its past”. (§28)
The Court is convinced by “the determination of the Tunisian authorities to once and for all eradicate the culture of violence and impunity which prevailed during the former regime.” (§44) This determination is undoubtedly present, but the above mentioned reports show that the flowers sown by the Tunisian people during the Arab spring are not yet fully flourishing. Although it is very positive that the Court recognizes the positive and historical evolutions that are occurring in Tunisia in the aftermath of the Jasmine revolution, the question here is whether the Court’s enthusiasm is not premature.