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The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 1 May 2007,
Having concluded its consideration of complaint No. 300/2006, submitted on
behalf of Mr. Adel Tebourski under article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into account all information made available to it by the
complainant and the State party,
Adopts the following:
Decision under article 22, paragraph 7, of the Convention against Torture
1.1 The complainant, Adel Tebourski, a Tunisian national, was residing in
France when the present complaint was submitted and was the subject of a
deportation order to his country of origin. He claims that his forced
repatriation to Tunisia constitutes a violation of article 3 of the
Convention against Torture. The complainant is represented by counsel,
Lucile Hugon, from Action by Christians for the Abolition of Torture (ACAT).
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee brought the complaint to the State party's attention in a note
verbale dated 27 July 2006. At the same time the Committee, pursuant to rule
108, paragraph 9, of its rules of procedure, requested the State party not
to deport the complainant to Tunisia while his complaint was being
considered. The Committee reiterated this request in a note verbale dated 28
July 2006.
1.3 The Committee was informed by counsel that the complainant had been
deported to Tunisia on 7 August 2006.
The Facts as Presented by the Complainant
2.1 In 1985, the complainant left Tunisia for Belgium, where he pursued his
studies. On 26 November 2001, he was arrested in northern France, following
the assassination of Ahmed Shah Massoud on 9 September 2001 in Afghanistan.
Massoud, the leader of the Northern Alliance forces in Afghanistan, was
assassinated by Abdessatar Dahmane and Bouraoui El Ouaer (who also died in
the attack). The trial of the complainant and his alleged accomplices began
in March 2005 before the Paris Criminal Court. The complainant stood accused
of having organized the departure of volunteers for Pakistan and
Afghanistan. His role was confined to procuring false papers such as visas
and passports. He denies any knowledge of the plans of his friend Abdessatar
Dahmane, from whom he had heard nothing in the months leading up to
Massoud's assassination.
2.2 On 17 May 2005, the Paris Criminal Court sentenced the complainant to
six years' imprisonment for "criminal conspiracy in connection with a
terrorist enterprise" and to deprivation of his civil, civic and family
rights for a period of five years. He received a remission of sentence for
good conduct. He held dual French-Tunisian nationality, which he had
acquired in 2000 after marrying a French national in 1995. Pursuant to a
decree of 19 July 2006, he was stripped of his French nationality, and he
was served the same day with a ministerial deportation order, motivated by
"the imperative requirements of State security and public safety". On 22
July 2006, he was released from Nantes prison and taken straight to the
Mesnil-Amelot administrative detention centre.
2.3 On 25 July 2006, the complainant filed an application for asylum in
France. This application was reviewed under the urgent procedure that allows
the French Office for the Protection of Refugees and Stateless Persons (OFPRA)
to take a decision within 96 hours. On 28 July 2006, OFPRA rejected the
asylum application. On the same day, the complainant lodged an appeal
against this decision with the Refugee Appeals Board. This appeal does not
have suspensive effect.
2.4 In an appeal filed on 24 July 2006, the complainant asked the interim
relief judge at the Paris Administrative Court to take interim measures
pending a review of the legality of the ministerial deportation order. In a
ruling dated 25 July 2006, this request was rejected. In an appeal lodged on
26 July 2006, the complainant requested annulment of the ministerial
deportation order. In a ruling dated 4 August 2006, the interim relief judge
rejected the request for a stay of execution of the decision. In an appeal
lodged on 1 August 2006, the complainant requested annulment of the decision
establishing Tunisia as the destination country. In a ruling dated 5 August
2006, the interim relief judge rejected the request for a stay of execution
of the decision, and the complainant was finally deported to Tunisia on 7
August 2006.
2.5 On 17 October 2006, the Refugee Appeals Board turned down the
complainant's appeal, having due regard to the nature and gravity of the
acts committed which, in the Board's view, justify his exclusion from the
status of refugee pursuant to article 1 (F) of the 1951 Geneva Convention.
However, the Board noted that the complainant "could have had reason to fear
that he would be retried for the same offences for which he had already been
convicted and punished, should he return to his country" and "the fact that,
after his deportation to Tunisia, he remained at liberty but had been placed
under close police surveillance without being arrested must be regarded as
evidence of a desire on the part of the Tunisian authorities to disguise
their true intentions towards him, particularly in view of the attention
which this case has attracted in the international media".
The Complaint
3.1 The complainant alleges a violation of article 3 of the Convention. He
cites the Tunisian Criminal Code, the Military Code of Pleadings and
Penalties, and the anti-terrorist law of 10 December 2003, which prescribe
penalties for activities carried out outside Tunisia. He argues that he will
be convicted and imprisoned again for the acts for which he has already
served a sentence in France.
3.2 The complainant argues that terrorism cases involving Tunisian nationals
provoke a particularly strong reaction in Tunisia. Several individuals
convicted under article 123 of the Code of Military Pleadings and Penalties
or the anti-terrorist law of 10 December 2003 have been severely tortured
after being deported by a third country to Tunisia. The complainant cites
several examples of Tunisians who were allegedly subjected to torture or
ill-treatment after arriving in Tunisia. He recalls that many persons
accused of engaging in activities relating to terrorism are often tortured
by the Tunisian authorities in order to extract confessions from them. He
further recalls that conditions of detention in Tunisia are inhuman and
degrading, without giving further details.
3.3 The complainant contends that the Tunisian authorities cannot be
ignorant of his conviction in France, since it was the subject of numerous
press articles. His family in Tunisia contacted two lawyers to try to
ascertain whether proceedings had already been instituted in Tunisia against
the complainant. The two lawyers were unable to obtain this information from
the clerks of the courts concerned.
State Party's Observations on Admissibility and the Merits
4.1 On 18 October 2006, the State party submitted its observations on the
admissibility and merits of the complaint. It argued that it is
inadmissible, because the complainant did not appeal against the decisions
taken by the interim relief judge (see paragraph 2.4 above). Likewise, the
appeals on the substance of the case are still pending before the Paris
Administrative Court and, consequently, the complainant has not exhausted
all domestic remedies.
4.2 On the merits, the State party considers the complaints brought by the
complainant to be manifestly unfounded. At no point did he provide material
and irrefutable evidence of the threats that he would allegedly face upon
return to Tunisia. In the first place, during the procedure prior to the
decision to establish Tunisia as the country of destination, he evinced no
specific arguments that would have led the French authorities to conclude
that his personal security would not be assured in his country of origin.
Secondly, he failed to provide solid evidence to OFPRA when it reviewed his
request for asylum. In its decision of 28 July 2006, that body found that
there was no evidence to suggest that the complainant would face personal
persecution if he returned to a country to which he had in any case returned
several times since 1985.
4.3 The State party invoked the decision handed down by the interim relief
judge at the Paris Administrative Court on 29 July 2006, in which the judge
found that, even if the acts for which the complainant had been convicted in
France could, under a Tunisian law of 10 December 2003, be grounds for
bringing proceedings against him, that circumstance alone could not be
construed as constituting inhuman and degrading treatment, since the
complainant did not risk being sentenced to death and there was no evidence
that the conditions in which he might be detained amounted to inhuman or
degrading treatment. The State party submits that the different French
administrative and judicial authorities to which the complainant applied
conducted a thorough and balanced review of his situation under conditions
free from any form of arbitrariness, in accordance with the requirements of
the Committee. [FN1]
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[FN1] See communication No. 219/2003, G.K. v. Switzerland, Views adopted on
7 May 2003, para. 6.12.
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4.4 The State party emphasizes that, insofar as the complainant was unable
to show that the fears cited in the event of his return to Tunisia were well
founded, there was no justification for deferring the removal from France of
a person who had proved himself highly dangerous to public order. It recalls
that the Paris Criminal Court, in its judgement of 17 May 2005, stressed
that the complainant was highly dangerous because of his subversive
activities. It was because of this manifest danger and the demonstrable
absence of risks in the event of his return to Tunisia that the State party
considered it necessary promptly to remove the complainant from the country,
balancing the imperatives of State security with the guarantees afforded by
the Convention.
4.5 The State party stresses that it intends to respond favourably to
requests from the Committee against Torture for stays of execution, even
though, under rule 108 of the rules of procedure, such requests are not
legally binding on States parties. However, it does consider that where, as
in the present case, requests appear to it to be manifestly unfounded, it
has a responsibility, having ensured beyond reasonable doubt that the
interested parties do not face an individual and proven risk of
ill-treatment, to remove foreigners whose presence poses a grave threat to
public order and national security.
Complainant's Comments on the State Party's Observations
5.1 On 18 December 2006, the complainant recalled that the purpose of the
appeal to the interim relief judge for the imposition of interim measures
was to prevent his deportation to Tunisia. In such a case, a remedy that
remains pending after the deportation is, by definition, pointless. [FN2]
The same argument applies to remedies pending before the Paris
Administrative Court. The very fact that the deportation was carried out
demonstrates the ineffectiveness of these remedies, which cannot thenceforth
be exhausted by the complainant.
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[FN2] See communication No. 195/2002, Brada v. France, Views adopted on 17
May 2005, para. 7.8.
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5.2 Regarding the State party's contention that the complainant did not
provide evidence of the threats that he would face if he returned to his
country of origin, the complainant recalls that the Refugee Appeals Board
recognized, in its decision of 17 October 2006, that he feared persecution.
He further recalls that he provided the French courts with sufficient
evidence to raise serious doubts as to the legality of the deportation
decision.
5.3 Regarding the so-called "demonstrable absence of risks in the event of
his return to Tunisia", the complainant stresses that he frequently has to
call his counsel from a public telephone box. Although he was not arrested
upon or after his arrival in Tunisia, he is under constant surveillance
(wiretapping and being followed). His personal belongings are still being
withheld. He still has no Tunisian identity papers, in spite of his many
attempts to procure some. He has learned from a friend of his brother who
works for the police that an internal message was sent out to all Tunisian
police stations and offices when he arrived in Tunisia, giving instructions
that he should not be arrested under any pretext in the weeks that followed,
probably because of the media attention surrounding the case.
Additional Observations of the State Party
6.1 On 1 February 2007, the State party submitted that the Refugee Appeals
Board's decision of 17 October 2006 merely confirmed the decision taken by
OFPRA on 28 July 2006, denying the complainant refugee status. The Board
noted that "while he did not directly commit terrorist acts, Mr. Adel
Tebourski knowingly participated in their organization". The State party
furthermore informs the Committee that, pursuant to a ruling of 15 December
2006, the Paris Administrative Court dismissed on the merits the
complainant's appeal for annulment of the decision by the Minister of the
Interior establishing Tunisia as the destination country. In that ruling,
the court noted that "the evidence in the case does not show that Mr.
Tebourski, who has been living in Europe since the mid-1980s, is currently
the subject of criminal proceedings brought by the Tunisian authorities".
6.2 In response to the complainant's allegation that the French authorities
refused to deport him to a country other than Tunisia, the State party
recalls that the complainant at no time designated a country that could take
him and to which he could be legally admitted. In these circumstances, he
could only be sent to his country of origin, given that his presence on
French soil constituted a grave threat to public order and the safety and
security of the State.
6.3 The State party informs the Committee that, while no provision of the
Convention requires it to do so, it has nonetheless contacted the Tunisian
authorities, through the diplomatic channel, in order to obtain information
on the complainant's circumstances since his return to Tunisia. The
Committee will be informed of the outcome of this initiative at the earliest
opportunity.
Issues and Proceedings Before the Committee
Consideration of Admissibility
7.1 The Committee ascertained that the communication satisfies the
conditions of admissibility set out in article 22, paragraphs 1, 2 and 5
(a), of the Convention, namely, that it concerns a State party which has
made the declaration under article 22, and that, insofar as it alleges a
breach of article 3 of the Convention against a named and identifiable
individual, it is not anonymous, does not constitute an abuse of the right
of submission to the Committee and is not incompatible with any provisions
of the Convention.
7.2 The Committee also ascertained that the same matter, i.e. France's
failure to comply with article 3 of the Convention by deporting to Tunisia a
person who alleges that he risks being tortured, has not been and is not
being examined under another investigation or settlement procedure.
7.3 Regarding domestic remedies, the Committee noted with interest the
observations of the State party, which considers the complaint to be
inadmissible, because the complainant failed to exhaust all domestic
remedies (cf. paragraph 4.1 above). However, the Committee notes in this
regard that, on 26 July 2006, the complainant lodged a non-suspensive appeal
with the Paris Administrative Court for an annulment of the ministerial
enforcement order. It also notes that, on 1 August 2006, the complainant
appealed to the same court for annulment of the decision by the Minister of
the Interior to establish Tunisia as the destination country. The
complainant also asked the interim relief judge to impose interim protection
measures, which the judge refused to do. On 15 December 2006, the Paris
Administrative Court dismissed the two appeals for annulment. The
complainant could doubtless have appealed this decision before the Paris
Administrative Court. However, given that the expulsion order was executed
on 7 August 2006, the Committee is entitled to find that a remedy which
remains pending after the act which it was designed to avert has already
taken place has, by definition, become pointless, since the irreparable harm
can no longer be avoided, even if a subsequent judgement were to find in
favour of the complainant.
7.4 In light of the foregoing, the Committee considers that it has grounds
to conclude that, from the moment that the complainant was deported to
Tunisia under the conditions in which that took place, it was very unlikely
that the remaining remedies cited by the State party would have given him
satisfaction. The Committee also notes that if the exercise of domestic
remedies is to be effective and not illusory, an individual must be allowed
a reasonable length of time before execution of the final decision to
exhaust such remedies. The Committee notes that in the present case the
complainant was stripped of his nationality by the State party on 19 July
2006, the consequence of which was to make him an immigrant in an irregular
situation who was liable to expulsion. Despite the steps he took (cf.
paragraphs 2.3 and 2.4 above), the complainant was expelled just three weeks
after this decision. All remedies which remain open to the complainant
following his expulsion are by definition pointless. The Committee therefore
declares the complaint to be admissible.
Consideration of the Merits
8.1 The Committee must determine whether, in deporting the complainant to
Tunisia, the State party violated its obligation under article 3 of the
Convention not to 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. The Committee stresses
that it must take a decision on the question in the light of the information
which the authorities of the State party had or should have had in their
possession at the time of the expulsion. Subsequent events are useful only
for assessing the information which the State party actually had or could
have deduced at the time of expulsion. [FN3]
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[FN3] See communication No. 233/2003, Agiza v. Sweden, Views adopted on 20
May 2005, para. 13.2.
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8.2 To justify its refusal to comply with the Committee's decision
requesting it not to deport the complainant to Tunisia while his case was
being considered by the Committee, the State party puts forward four
arguments:
- The danger which the complainant posed to the domestic public order;
- The absence of a risk that the individual concerned would be tortured if
returned to Tunisia;
- The fact that the individual concerned, while opposing his deportation to
Tunisia, did not suggest another host country;
- The non-legally binding character for States parties of protection
measures decided by the Committee pursuant to rule 108 of the rules of
procedure.
In this regard, the Committee affirms that the purpose of the Convention in
article 3 is to prevent a person from being exposed to the risk of torture
through refoulement, expulsion or extradition "to another State where there
are substantial grounds for believing that he would be in danger of being
subjected to torture", regardless of the character of the person, in
particular the danger he poses to society.
8.3 In other words, article 3 of the Convention offers absolute protection
to anyone in the territory of a State party which has made the declaration
under article 22. Once this person alludes to a risk of torture under the
conditions laid down in article 3, the State party can no longer cite
domestic concerns as grounds for failing in its obligation under the
Convention to guarantee protection to anyone in its jurisdiction who fears
that he is in serious danger of being tortured if he is returned to another
country.
8.4 In the present case, the matter having been brought to the Committee's
attention after the alleged or real exhaustion of domestic remedies, even if
the Committee takes into consideration all the comments which the State
party has submitted on this communication, the declaration made by the State
party under article 22 confers on the Committee alone the power to assess
whether the danger invoked is serious or not. The Committee takes into
account the State party's assessment of the facts and evidence, but it is
the Committee that must ultimately decide whether there is a risk of
torture.
8.5 By establishing Tunisia as the destination for the complainant, in spite
of the latter's explicit request not to be returned to his country of
origin, the State party failed to take account of the universally accepted
practice in such cases, whereby an alternative solution is sought with the
agreement of the individual concerned and the assistance of the Office of
the United Nations High Commissioner for Refugees and a third country
willing to receive the individual who fears for his safety.
8.6 The Committee also notes that the Convention (art. 18) vests it with
competence to establish its own rules of procedure, which become inseparable
from the Convention to the extent they do not contradict it. In this case,
rule 108 of the rules of procedure is specifically intended to give meaning
and scope to articles 3 and 22 of the Convention, which otherwise would
offer asylum-seekers claiming a serious risk of torture purely relative, not
to say theoretical, protection.
8.7 The Committee therefore considers that, by expelling the complainant to
Tunisia under the conditions in which it did and for the reasons adduced,
thereby presenting the Committee with a fait accompli, the State party not
only failed to demonstrate the good faith required of any party to a treaty,
but also failed to meet its obligations under articles 3 and 22 of the
Convention.
9. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, concludes that the deportation of the complainant
to Tunisia was a violation of articles 3 and 22 of the Convention.
10. In conformity with article 112, paragraph 5, of its rules of procedure,
the Committee wishes to be informed, within 90 days, of the steps taken by
the State party to respond to these Views, to make reparation for the breach
of article 3 of the Convention, and to determine, in consultation with the
country (also a State party to the Convention) to which he was deported, the
complainant's current whereabouts and the state of his well-being.
[Adopted in English, Spanish, French and Russian, the French text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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