I am writing to express Human Rights Watch’s deep concern over the expulsion of Sami Ben Khemais Essid to Tunisia. Essid was expelled on the evening of June 3, 2008, from Fiumicino airport, under an expedited procedure for national security removals. Essid had been scheduled to appear in a Milan courtroom that day for a preliminary hearing on terrorism charges. It is our understanding he is now in Mornaguia prison pending retrial for a series of absentia convictions in Tunisia. At this writing we do not have information about his physical well-being.
Human Rights Watch is deeply disturbed that the Italian government would expel Essid despite a request by the European Court of Human Rights to suspend any measure to transfer Essid to Tunisia pending their review of his case. The European Court communicated an order for interim measures on behalf of Essid in March 2007, after Essid alleged that his expulsion to Tunisia would expose him to treatment in violation of article 3 of the European Convention on Human Rights (ECHR). It is our understanding that the Court sent a letter dated June 2, 2008, in which it reminded the Italian government of its international obligations and the standing nature of the interim measures.
The Grand Chamber of the European Court clearly established in its 2005 decision Mamatkulov and Askarov v. Turkey, that a breach of interim measures constitutes a violation of the ECHR. In that case, the Court found that Turkey had hindered the effective right of application, guaranteed under article 34 of the Convention, of two Uzbek men when it breached interim measures and precipitously extradited them to Uzbekistan. The court concluded that,
A failure to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant’s complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34. 1
In addition to its commitments as a party to the ECHR, Italy has clear obligations under the United Nations Convention against Torture and the International Covenant on Civil and Political Rights. Under these international instruments, torture and ill-treatment are prohibited and no person can be transferred to another country where he or she is at risk of torture or ill-treatment (the nonrefoulement obligation). The ban on torture and refoulement is absolute. It applies to all persons without consideration of their status or alleged crimes, and irrespective of the nature of the transfer, including extradition, expulsion, deportation, and rendition.
In cases where individuals may face a risk of torture or ill-treatment, full compliance with the nonrefoulement obligation requires states to provide for a review by an independent, impartial body of the decision to remove. In order to constitute an effective remedy, this review must take place before the person is transferred.
It is our understanding, Minister Maroni, that you ordered Essid expelled on May 31, 2008, under the expedited procedure created by Law 155 of 31 July 2005 (“Pisanu Decree”) which explicitly denies the right to a suspensive appeal to those subject to removal on national security grounds.2 In May 2007, the UN Committee against Torture (CAT) issued its concluding observations on Italy’s fourth periodic report and expressed concern “at the immediate enforcement of these expulsion orders, without any judicial review, and…that this expulsion procedure lacks effective protection against refoulement.”3 Since 2006, the European Court of Human Rights has issued interim measures on behalf of a number of Tunisians, including Essid, who Italy had sought to expel under this expedited procedure.
Italy’s disregard for its international human rights obligation is particularly disturbing in light of the European Court’s recent decision in the case of Saadi v. Italy. On February 28, 2008, the Grand Chamber of the Court ruled that Italy’s efforts to deport Nassim Saadi, a Tunisian national, would violate article 3 of the ECHR. It is our understanding that after the Saadi ruling, the European Court informed the Italian government that it would decide a handful of similar cases pending before the court, including that of Essid, in a manner consistent with the Saadi judgment, and recommended that Italy seek friendly settlements in those cases.
We understand that the Italian government may have acted to expel Essid in light of his likely imminent release from pre-trial detention. Having been convicted in February 2002 of membership in a terrorist organization and sentenced to six-and-a-half years in prison, Essid was indicted on new terrorism charges in 2005. He was remanded into pre-trial detention in June 2007 on the eve of his scheduled release from prison. It is our understanding that Essid had been held the maximum amount of time permitted in pre-trial detention for the charges against him and would have been released.
We recognize that Italy has the right to remove foreign nationals it can demonstrate represent a threat to national security. However, it must do so in a way that comports with its international human rights obligations. Italian law provides for an alternative to removal in the form of compulsory residence (“obbligo di soggiorno”) and special police supervision.4
We request as a matter of urgency that the Italian authorities refrain from deporting any other Tunisian nationals whose cases come under the Saadi umbrella until the European Court of Human Rights has fully reviewed their applications. Moreover, we request that the Italian authorities inform us of any information it has received regarding Essid’s treatment in Tunis, use its good offices to encourage Tunisia to allow Essid’s Italian lawyers to visit him in prison, and commit to sending a representative to monitor the next hearing on his case in Tunis on July 2 and any other hearings or a retrial that may occur in the future.
Europe and Central Asia Division
Manfred Nowak, UN Special Rapporteur on Torture
Thomas Hammarberg, Council of Europe Commissioner for Human Rights
Martin Scheinin, UN Special Rapporteur on Counterterrorism and human rights
European Court of Human Rights Registrar
2 Law no. 155 of 31 July 2005, convering into law, with amendments, Decree no. 144 of 27 July 2005, on urgent measures to combat international terrorism, article 3.
3 United Nations Committee against Torture, Italy: Conclusions and Recommendations, CAT/C/ITA/CO/4, May 18, 2007, p.5, para. 12, http://www.ohchr.org/english/bodies/cat/docs/AdvanceVersions/CAT.C.ITA.C... (accessed August 23, 2007).
4 Law 1423 of 27 December 1956.