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IV. Tunisia—Country of Concern

In Tunisia persons suspected of politically motivated offenses, whether violent or nonviolent, are at risk of torture during police interrogation and have little chance of receiving a fair trial.

Since the early 1990s the government of President Zine el-Abidine Ben Ali has cracked down relentlessly on suspected members of all movements organized around an Islamist political agenda. Tunisian law bans parties based on religion. The government considers the country’s most prominent Islamist movement, an-Nahdha, or “Renaissance,” to be an extremist movement, even though its leaders regularly denounce violence and the party has not been linked to violent acts for at least 15 years.

President Ben Ali’s crackdown on Islamists began in 1990 with mass arrests of an-Nahdha members. In 1992 it put on trial before a military court 279 an-Nahdha leaders and members in connection with an alleged plot to overthrow the government. The courts convicted 265 of the defendants in trials that Human Rights Watch and other human rights organizations criticized as unfair.⁴⁶ Dozens of the men convicted in those trials remain in prison today.

Throughout the 1990s authorities continued to prosecute members of an-Nahdha. Courts imprisoned hundreds for such nonviolent offenses found in Tunisian law as membership in, or attending meetings of, or collecting money for, an “unauthorized association.”

In 1993 authorities amended the Penal Code to define the crime of terrorism as “any infraction in relation to an individual or a collective enterprise whose purpose is to cause harm to persons or property, by intimidation or terror,” as well as “acts of incitement to racial or religious hatred or fanaticism regardless of the means employed.”⁴⁷ Treating an-Nahdha as a movement that preached religious fanaticism, authorities brought terrorism charges against members even though the accusations against them included neither preparing nor carrying out acts of violence. By prosecuting them as terrorists, the judiciary could impose harsher penalties than those available for non-terrorism-related crimes.

Since the mid-1990s authorities have also aggressively prosecuted scores of Tunisians who returned home, either voluntarily or by force, on charges of engaging in terrorist activities abroad. They imprisoned dozens under article 123 of the Code of Military Justice, which gives military courts jurisdiction over civilians charged with serving a terrorist organization that operates abroad. Most of those convicted under this provision received prison terms of at least eight years, even though in most cases the courts did not find them guilty of having committed any act of violence.

In contrast to the civilian courts, the military court verdicts are subject to no appeal on the facts. A defendant can refer a military court verdict only to the Court of Cassation, which can annul a verdict only on the grounds of error in procedure or in application of the law.

In 2003 Tunisia adopted a new terrorism law. Its definition of terrorism, like that of the Penal Code, encompasses“acts of incitement to racial or religious hatred or fanaticism regardless of the means employed,”⁴⁸ thereby leaving open the possibility of prosecuting as terror crimes political opinion or association.

In recent years authorities have rounded up hundreds of youths who are suspected of harboring jihadist sympathies. The majority of those who were subsequently convicted were never accused of having planned or committed specific acts of violence.⁴⁹ According to Tunisian human rights lawyers and organizations, the police have subjected those rounded up in this context to harsher treatment than those rounded up in the mid-1990s.⁵⁰ The authorities have also reportedly routinely abused garde-à-vue detention, or pre-arraignment incommunicado police custody, by holding detainees for longer than the legal limit of six days and subjecting them to various forms of torture and other mistreatment. Plainclothes police who do not identify themselves or present warrants carry out the arrests, and efforts by the family to learn the whereabouts of the suspect are fruitless until after the police have finished interrogating him and have transferred him before an investigating judge.⁵¹

The Practice of Torture in Tunisia

Tunisia in 1988 ratified without reservation the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture),⁵² and the following year added to its Penal Code a robust definition of torture and penalties of eight years in prison for public servants who torture.⁵³

In practice, however, persons arrested on suspicion of involvement in Islamist and other opposition political activities routinely report that the police tortured them during interrogation in order to extract incriminating statements. The Tunisian judiciary is complicit in the practice of torture by ensuring impunity for its practitioners. Tunisian human rights lawyers and organizations report that, with rare exceptions, the courts admit into evidence statements that were coerced, and fail to act on the ample evidence before them that the police tortured detainees and violated many provisions of Tunisian law that are designed to protect the rights of persons in custody.⁵⁴

We know of no case of a Tunisian state official or agent being held accountable for torturing persons held for politically motivated offenses. According to the US State Department Country Reports on Human Rights Practices covering the year 2006, “[Tunisian] authorities did not charge any police or security force official with abuse [of detainees] during the year.”⁵⁵

Detainees report a range of methods of physical and mental forms of torture and ill-treatment. Most common, according to human rights lawyers and organizations, are sleep deprivation; threats to rape the detainee or women family members; beatings, especially on the soles of the feet (falaka), using fists, kicks, and sometimes clubs or electric cables; and tying and suspending detainees from the ceiling or in the “roast chicken” (poulet rôti ) position, either while fully or nearly naked, from a rod that is supported by a table at each end.⁵⁶

Right of Access to a Doctor

The right of access to a doctor whilst in detention is a key safeguard against torture, and also essential to preserving evidence that abuse may have taken place.⁵⁷ Although Tunisian law grants a detainee and his relatives the right to request a medical examination during garde-à-vue detention,⁵⁸ in practice, the police rarely inform detainees of this right. Even when they do, the person in custody is often too afraid to make such a request, fearing an even harsher interrogation in response, human rights lawyers told us.⁵⁹

It is slightly more common for detainees to ask for a medical examination from a judge once they have legal representation. But judges rarely grant the request, even if the detainee bears physical evidence of having been abused, according to Tunisian lawyers. The judges rarely explain their decision to refuse the request, or even note in the trial records that the defendant had filed one.⁶⁰

Violations of the Right to a Fair Trial in Tunisia

The Tunisian judiciary lacks real independence from the executive branch.⁶¹ Whether before a civilian or a military court, defendants in Tunisia face a daunting series of obstacles to obtaining a fair trial, even where the law grants to the defendant strong procedural safeguards.

Right to a Lawyer

The suspect has no right to see a lawyer or anyone else during the period of garde-à-vue police detention, which Tunisian law limits to six days.⁶²

When the police transfer the suspect from garde-à-vue detention to the investigating judge, the latter is obliged to immediately inform him of his right to an attorney, and a corresponding right to refuse to answer questions without a lawyer present.⁶³ Unless the defendant explicitly renounces this right, the investigating judge may not, according to the law, question the defendant without his lawyer present.⁶⁴ According to human rights lawyers handling terrorism-related cases, however, the investigating judges often question defendants in the absence of their lawyers⁶⁵ and without the lawyers being properly notified of the hearing. Defendants also frequently claim that they were not told of their right to a lawyer at this stage of the proceedings.

Although Tunisian law limits garde-à-vue detention to six days, many detainees report being held much longer.⁶⁶ This illegal prolongation of garde-à-vue allows the police more time to interrogate the detainee and also for visible evidence of abuse to fade before his lawyer or the investigating judge sees him.

Right to Confront Witnesses at Trial

Tunisian courts often use written statements made by third parties before the police or the investigating judge as evidence to convict defendants in cases involving security offenses.Defense lawyers can petition the judge to subpoena the third party for questioning, but the judge is not required to grant the petition. The CPP states in article 59 that the investigating judge “has the right” to hear all persons whose testimony he deems useful. In practice, the judge often declines defense requests to call witnesses and, as a result, convicts a defendant without even providing him basic confrontation rights, Tunisian human rights lawyers told Human Rights Watch.⁶⁷

Persons charged under the 2003 Anti-Terror law (see above) face additional obstacles to mounting a fair defense. The law allows the government to withhold from disclosure the identities of witnesses, even central witnesses. Although the defendant may petition the judge for disclosure, a judge’s refusal is not subject to appeal.⁶⁸ In addition, persons convicted in absentia under the 2003 law do not benefit from the suspension of their sentences if they appear before judicial authorities and contest their in absentia conviction.⁶⁹

Efforts to Challenge Coerced Statements

Some defendants during trials seek to describe the abuse they say they endured from interrogators as a way of discrediting signed confessions. In many cases, human rights lawyers say, the judge either cuts off the defendant when he talks about police abuse, or he refuses to instruct the court clerk to enter the defendant’s statement into the official record, or instructs the clerk to use euphemisms to summarize the defendant’s allegations, referring, for example, to acts of “coercion” rather than of “torture.”⁷⁰

Civilians Tried before Military Courts

Trying civilians before military courts raises numerous fair trial issues under international law. The United Nations (UN) Human Rights Committee—the expert body that interprets and monitors compliance with the International Covenant on Civil and Political Rights (ICCPR)—has stated that the trial of civilians by military courts should be very exceptional and occur only under conditions that genuinely afford full due process.⁷¹

Military tribunals in Tunisia do not meet international fair trial standards.⁷²And unlike those prosecuted by civilian courts in Tunisia, persons convicted by military courts are not entitled to an appeal of the facts. They can only appeal the verdict on the grounds of error in procedure of application of the law.