CYIL 2011

DIPLOMATIC ASSURANCES – The agreement should be monitored effectively by independent and qualified professionals who are allowed to visit the person concerned without prior notice of the authorities of the receiving State. The meetings should be conducted in private and without witnesses. – If the receiving State is a party to the OPCAT, the visits should be carried out by the local National Prevention Mechanism, NPM. – The working group finally suggests that the Danish Government determine the consequences of a breach of such an assurance and urges the Government to explicitly refer to these consequences in the agreement. In Tunisia, torture is prohibited in national legislation. However, despite the prohibition set out in CAT art. 15, information obtained as a result of torture is allowed as evidence before the national courts. 72 The definition of terrorism pursuant to national legislation in Tunisia is broad. 73 There is therefore every reason to believe that the two Tunisians, whose presence in Denmark is perceived as a threat to national security, will also be considered as terrorists in Tunisia – despite the lack of a conviction in this regard. In March 2008, Tunisia was under review pursuant to the recently adopted UN Universal Periodic Review mechanism, the UPR. The review confirmed the impression of Tunisia as a State with a consistent pattern of gross violations of human rights and one where allegations of torture are rarely investigated. 74 This was also demonstrated by NGO’s in the Saadi -case. 75 In this regard, Amnesty International noted that following a large number of unfair trials, persons facing terrorism charges had been sentenced to lengthy prison sentences, and cases of torture and ill-treatment continued to be reported. 76 The ECtHR relied on the reports by Amnesty International and Human Rights Watch. 77 Bearing in mind the reasoning in the case of Saadi , it would be incorrect to require a higher standard of proof where the person is considered to represent a serious danger to national security, since the assessment of the level of risk if the person is returned is independent of such a test. That the situation in Tunisia should have changed drastically unfortunately does not seem convincing. On this basis, the reliance on a diplomatic assurance for this specific case is to be deemed of no value whatsoever. The Danish Government therefore cannot send the two Tunisians to their country of origin, because this would constitute a violation of the principle of non-refoulement . Finally, an additional element should be mentioned if Denmark in the future decides to rely on diplomatic assurances. The struggle against torture is one of 72 Human Rights Committee, Concluding observations, Tunisia , 28 March 2008, para. 12, CCPR/C/ TUN/CO/5. 73 Ibid ., para. 15. 74 Ibid ., para. 11, CCPR/C/TUN/CO/5. See also, Human Rights Council, Universal Periodic Review (UPR), examination of Tunisia 22 May 2008, report 26 June 2008, para. 27-49, p. 13-20, A/ HRC/8/21/add.1. 75 Saadi v. Italy (2008), para. 65-79.

76 Ibid ., para. 65. 77 Ibid ., para 143.

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