On April 3, 1999, the investigating judge formally concluded his investigation into the case, which was assigned docket number 1/78301. His sixty-six-page decision (la clôture de l'instruction) uncritically reproduced the statements attributed by the police to the detainees in which they purportedly confessed to and implicated one another in activities of the Union of Tunisian Communist Youth and the PCOT. The activities described revolved around obtaining, reading, and discussing PCOT literature, recruiting others into the groups, and stimulating protest activities against the present government. There were no allegations of violent activities, actual or planned.
The investigating judge's report also noted that all of the detained defendants had repudiated before him the entire contents of those statements. It did not, however, record or give consideration to their claims of having been tortured and coerced into signing statements while under police interrogation, or the claims that the recorded arrest dates were false. It similarly made no reference to demands by the accused and their lawyers that these claims be investigated, by such means as medical examinations of the detainees, the examination of the police detention registers, and calling witnesses to the arrests to give statements.
The investigating judge appeared to rely primarily on the disputed statements attributed to the defendants by the police, and on the literature allegedly confiscated from some of the detained. That printed material, which formed the basis for the charges of incitement, spreading "false information," and defamation on which eighteen of the defendants were ultimately convicted, was never presented in court or shown to the defendants at any stage of the judicial process. The defense lawyers were permitted to view it in the chambers of the investigating judge but were not permitted to remove or photocopy it, and their requests that the court produce it for examination during the trial went unanswered.
The investigating judge's report gave no indication that, in the year that had passed since the accused had appeared before him, any further investigation had been conducted into the case. There was no record of efforts to corroborate information, summon witnesses for direct questioning, or any other procedure of establishing the veracity of statements denied by the accused on grounds of torture.
The detained accused were remanded in detention until trial. As for the two defendants who had been free pending trial, charges against Abdel Majid Sahraoui were dropped and the restriction order against him was lifted, and all of the charges against Radhia Nasraoui were dropped except that of "assisting in the holding of meetings of an association inciting hatred." The substance of that charge was an accusation that she had allowed her office to be used by certain of the accused (who happened to be her clients, individually, in other pending cases) to meet with her husband, Hamma Hammami, to discuss political matters relating to the PCOT and its student wing. (In her trial morethan one year later, Nasraoui flatly denied the charge.) The investigating judge ordered that the travel restrictions imposed on Nasraoui one year earlier be maintained until her trial.
The case was transferred to the Tunis Court of First Instance's Correctional Division, as warranted by the investigating judge's decision to file the charges as délits rather than as more serious crimes, as they had been originally presented.24 The charges, which are set out in Appendix A of this report, remained quite grave in that they entailed maximum sentences of between twenty and twenty-four years in prison for all but two of the defendants.
Under article 84 of the code of criminal procedure, pretrial detention (détention préventive) is an "exceptional measure," a notion consistent with international standards.25 Article 85 states it is to be used only when it "seems necessary as a security measure to prevent new offenses, to guarantee execution of the sentence or as a means of ensuring the integrity of the investigation." President Ben Ali underscored this principle in a speech delivered on July 31, 1996 before the Higher Council of the Magistracy, when he exhorted judges to "exercise greater attention before authorizing preventive detention of defendants, considering that it is an exceptional measure and that the rule should be freedom of the accused..."26
Under article 85 of the code of criminal procedure, the maximum period for which a person can be held in pretrial detention on charges limited to délits is nine months, and for a crime fourteen months. By the time the judge completed his investigation, the defendants had already been in detention for between eleven-and-a-half and thirteen-and-a-half months. Even though the charges had been reduced to délits and all of the defendants in custody had already spent well over the legal limit of nine months in pretrial detention for délit charges, the judge remanded them all back to custody pending their trial.
A further point of concern was that the defendants were charged with "acts of incitement to hatred or to racial or religious fanaticism" under the penal code's article 52bis, which defines these as "terrorist" offenses and thus an aggravating circumstance for the other charges. A conviction under this article restricts the judge's discretion in sentencing and imposes on all offenders a mandatory five-year period of "administrative control" following their release from prison.27 Since article 52bis was added to the penal code in November 1993, it has been used often toimprison suspected dissidents who have neither used nor advocated violence. Invoking article 52bis serves to taint as violent "terrorists" those imprisoned for activities relating to the exercise of freedom of expression and association. (The defendants in this case were all ultimately convicted, but not under the provisions of article 52bis.)
For a number of reasons, including the presence among the defendants of well-known human rights lawyer Radhia Nasraoui, the grave accusations against the accused, and the grossly unfair procedures, the trial attracted international attention. A wide range of human rights organizations and lawyers associations sent observers to attend the trial.28 In addition, the president (bâtonnier) of the Paris Bar Council, Maître Dominique de la Garanderie, was mandated by the Observatory for the Protection of Human Rights Defenders to act alongside Tunisian defense lawyers on behalf of Radhia Nasraoui. Several members of the Moroccan and Algerian bars also came with the intention of joining in the defense but they, like Maître de la Garanderie, were prevented by the court from doing so, despite agreements on reciprocity and cooperation in judicial affairs between Tunisia and the other states. The court's justification for this refusal, which appears in its written judgment (see Appendix B), was assailed by defense lawyers. Representatives of diplomatic missions also attended various sessions of the trial, including representatives of Belgium, Canada, France, the Netherlands, Sweden, the United Kingdom, and the United States.
The trial also attracted attention in Tunisian civil society, although Tunisian media ignored it completely, in keeping with its approach to human rights violations at home.29 The trial audience included members of the Tunisian Human Rights League, the National Council on Liberties in Tunisia, and the Tunisian Association of Democratic Women (Association tunisienne des femmes démocrates, ATFD). Over one hundred of Radhia Nasraoui's colleagues signed on as co-counsels in her defense. The Tunisian Bar Council officially assigned members to the defense team for Nasraoui, herself a council member. The Tunisian Association of Young Lawyers (Association Tunisienne de Jeunes Avocats) also officially provided lawyers to assist in the defense of Nasraoui and the other defendants.
For their part, various branches of the Tunisian security forces were tasked with the close and conspicuous surveillance of the international observers in addition to their ongoing surveillance of Tunisian human rights lawyers and defenders.
24 Tunisian law specifies three categories of offenses, which are, from the least to the most serious: mukhalafa (infraction in French), junha (délit in French), and jinaya (crime in French). The characterization of an offense affects, among other things, the jurisdiction in which the charges must be heard, the maximum penalty, and the length of pretrial detention permitted. Cases of mukhalafa or junha, which together correspond roughly to "misdemeanors" in English, are tried by the court of first instance and may subsequently go to the court of appeal and, in the last instance, to the court of cassation. The latter rules only on errors or misapplication of the law and does not reexamine the facts of the case. Cases of jinaya, the more serious category of offenses, are tried by the criminal chamber of the court of appeal; no appeal can be lodged but the defendants may seek a review of the case by the court of cassation.
25 Article 9(3) of the ICCPR states that "it shall not be the general rule that persons awaiting trial shall be detained in custody..." Principle 39 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988)) provides:
Except in special cases provided for by law, a person detained on a criminal charge shall be entitled, unless a judicial or other authority decides otherwise in the interest of the administration of justice, to release pending trial subject to the conditions that may be imposed in accordance with the law. Such authority shall keep the necessity of detention under review.
26 "President Ben Ali Calls on Judges to Avoid Pre-Trial Delays," Tunisia Online, July 31, 1996.
27 Article 52bis of the penal code states:
The perpetrator of an offense defined as terrorist shall be subject to the penalties provided for the offense itself. The penalties cannot be reduced by more than one-half.
Any offense connected to an individual or collective enterprise whose objective is to cause harm to persons or property, through intimidation or terror, shall be considered terrorist.
Acts of incitement to hatred or to racial or religious fanaticism, regardless of the means used, shall be treated in the same way.
The imposition of administrative controls for a period of five years is compulsory. The various penalties shall not be served concurrently...
28 These included, besides the organizations issuing the current report, the Euro-Mediterranean Network for Human Rights, the Arab Organization for Human Rights, the International Commission of Jurists, the Swiss League of Human Rights, the Turkish Association for Human Rights, the International Bar Association, l'Association des Avocats Européens Démocrates, l'Union Internationale d'Avocats, l'Association des Juristes Progressifs, l'Association Libre d'Avocats, la Fédération Nationale des Unions de Jeunes Avocats (France), bar associations from Morocco, Barcelona and Madrid (Spain), and Agen, Haut-de-Seine, and Paris (France). The Euro-Mediterranean Human Rights Network issued a report on the trial, Torture, Arbitrary Detention and Unfair Trial in Tunisia: The Trial against Radhia Nassraoui and Twenty Co-Defendants (Copenhagen: EMHRN, November 1999). The Fédération Nationale des Unions de Jeunes Avocats (France) also issued a report on its trial observation. It may be obtained from the organization's web site, <http://www.fnuja.fr>, or from the author, Maître Laurence Morisset, 7 bd. Palissy, B.P. 166, 47300 Villeneuve-sur-Lot, France, fax 33.(0)220.127.116.11, e-mail: <laurence.MORISSET@wanadoo.fr>. French lawyer Daniel Soulez-Larivière, who observed the trial on behalf of Amnesty International, described the July 10 hearing in "Le `Crime' de Radhia Nasraoui," Le Nouvel Observateur, July 22, 1999.
29 In 1994, the U.N. Human Rights Committee criticized limitations of freedom of opinion and expression, noting provisions of the press code that give rise to self-censorship of the media. In June 1997 the Tunisian affiliate of the World Association of Newspapers (a trade association of publishers) became the first to be expelled from membership for having failed to work to defend freedom of the press. See Human Rights Watch, Human Rights Watch World Report 1998 (New York: Human Rights Watch, 1997), p.353.