HRC Communication 1544/2007 Hamida vs Canada on non-refoulement to Tunisia

Mr. Hamida, a Tunisian national,  was living in Canada arrived in Canada on 2 October 1999, where he claimed refugee status, alleging that he had a well-founded fear of persecution in his country on account of his political opinions. He says that, at the age of 18, he was taken on as an administrative assistant in the security service of the Tunisian Ministry of the Interior. In 1991 he was promoted to the rank of auxiliary police officer and transferred to the Political Security Directorate of the Ministry of the Interior. In the course of his duties, he realized that force was used in the conduct of police inquiries and decided to resort to subterfuge so as not to participate in such acts. After numerous requests he managed to be transferred to another directorate and often found excuses to be absent from work.

In 1993 he was transferred to the Ministry’s detention centre where he was instructed to guard detainees. In March 1996 he disobeyed a strict order from his superiors not to feed detainees by offering some of his meal to a hungry young detainee. For this act, he was disarmed, interrogated, accused of sympathizing with political prisoners and placed under arrest for five months before being dismissed. After his release in August 1996, the author attempted to leave Tunisia, but he was stopped at the airport because he had no exit visit from the Director of the Security Services. He was then placed in detention for one month. On leaving prison he was subjected to very strict administrative surveillance, which required him to present himself twice a day to the security service to sign a surveillance register.

Hamida’s application failed and he was served with an expulsion order inviting him to present himself at Montreal airport on 30 January 2007 for final departure to Tunisia.

The Committee considers that the author has provided substantial evidence of a real and personal risk of his being subjected to treatment contrary to article 7 of the Covenant, on account of his dissent in the Tunisian police, his six-month police detention, the strict administrative surveillance to which he was subjected and the wanted notice issued against him by the Ministry of the Interior which mentions his “escape from administrative surveillance”. These facts have not been disputed by the State party. The Committee gives due weight to the author’s allegations regarding the pressure put on his family in Tunisia.

Having been employed by the Ministry of the Interior, then disciplined, detained and subjected to strict surveillance on account of his dissent, the Committee considers that there is a real risk of the author being regarded as a political opponent and therefore subjected to torture. This risk is increased by the asylum application which he submitted in Canada, since this makes it all the more possible that the author will be seen as a regime opponent. The Committee therefore considers that the expulsion order issued against the author would constitute a violation of article 7 of the Covenant if it were enforced.