Roger Smith reflects on a bungled attempt by the government to expedite deportations to countries with dubious human rights records


The UK maintains an ambivalence on the absolute ban on torture and ill-treatment contained within the European Convention on Human Rights. It wants to deport people to countries where there is a real risk they will be tortured. As a result, it is probably still licking its wounds after its latest defeat at the European Court of Human Rights over an ill-advised intervention in the case of Saadi v Italy, as mentioned in Joshua Rozenberg’s column last week (see [2008] Gazette, 17 April, 11).


Saadi was convicted in Italy of conspiracy to commit acts of violence in 2005. Almost simultaneously, he was found guilty in his absence by a Tunisian military court of membership of a terrorist organisation and sentenced to 20 years’ imprisonment. The Italian authorities wanted to return Saadi to Tunisia. He did not want to go, and requested political asylum in Italy, arguing that he faced ‘political and religious reprisals’ as well as ill-treatment if returned.



Tunisia has an appalling human rights record. Amnesty International, Human Rights Watch and the US State Department lambasted the country in reports published during 2006 and 2007. The US reported the use of electric shocks, simulated drowning, beatings and sexual assault. The Tunisian government has refused to meet the UN Special Rapporteur on human rights. The European Parliament has condemned the repression of Tunisian human rights activists.



All in all, there was more than enough circumstantial evidence that Saadi was at ‘real risk’ of torture and ill-treatment if he was returned.



The government did not contest the litany of Tunisia’s shame. However, it argued that national security considerations and the behaviour of a potential deportee should operate to lessen the barrier of deportation to a country where torture is endemic. Furthermore, the UK wants to rely on diplomatic assurances against torture and ill-treatment from the country to which a deportee is sent. All these arguments amounted to a rematch of Chahal v UK, which the UK lost in 1998 when the court halted the deportation of a Punjabi nationalist who was at risk of ill-treatment if returned to India.



The only arguably new issue was about assurances. And this was the real point of the intervention. Since Charles Clarke’s 16 months as home secretary, the government has been working up the idea that DWA (deportation with assurances) is a way around the absolute ban on collusion with torturing states. It has actively sought to get this issue before the European Court of Human Rights and had intervened in another case to do so, Ramzy v the Netherlands. It jumped ship to Saadi when it came up first before the European Court.



Saadi was, however, the wrong case to choose. The assurances in Saadi were about as grudging as you can get. The Tunisians would go as far as being prepared to accept the transfer of Saadi ‘in strict conformity with the national legislation in force and under the sole safeguard of the relevant Tunisian statutes’. Not much help there, given the combined condemnation of Amnesty, Human Rights Watch and the US State Department. The Italians, clearly realising that they were in trouble, had another go. Could the Tunisians be a bit more forthcoming? This plea obtained the response that Tunisian laws guaranteed the rights of prisoners and that ‘Tunisia has voluntarily acceded to the relevant international treaties and conventions’.



These are not the kind of guarantees that you would want to rely on for your own personal safety. And, to be fair to the government, it has sought to obtain somewhat more fulsome protection for deportees from the range of undemocratic states with dodgy human rights records around the southern Mediterranean to which it itches to send assorted troublemakers. It has even tried to appoint non-state monitoring organisations – albeit as questionably independent of government as its nominee for Libya, the Gaddafi Foundation – to watch over deportees once they have been sent back.



The European Court noted that, when asked to guarantee that Saadi would not be tortured, the Tunisians simply ‘did not provide such assurances’. Even had they done so, the court reserved its right to decide the weight to be given them, and ‘not much’ was clearly the implication. This raises the question of why the government’s lawyers chose to waste their time and our money on such a case and, having picked such terrible facts, why it was not more careful about how it framed its argument.



There is a substantive as well as procedural point here. The systemic practice of torture by countries such as Morocco, Algeria, Tunisia, Libya and Jordan threatens us all. It is both a symptom of their own instability and a cause of instability for the rest of the world. These regimes simply export their angry and radicalised opponents around the globe. Countries like the UK should take a strong position in defence of human rights – all the more so given the moral abdication of a US administration whose president has just vetoed a Congressional Bill banning torture in CIA interrogations.



Roger Smith is director of the law reform and human rights organisation Justice