Tunisian lawyers who are increasingly determined to defend human rights and expose the absence of an independent judiciary are under attack from state authorities. Their activism is evident in the revitalized national Bar Association and in the creation of new human rights groups over the past fifteen months.
On March 13, the leadership of the Bar Association announced, after being received the previous day by Justice Minister Béchir Tekkari, that it would postpone until March 28 the start of a series of protest measures in order to test the government’s commitment to addressing its concerns. Those concerns include the physical assaults by plainclothes police against several lawyers in December, and the failure of the courts to examine the complaint submitted by the Bar Association on behalf of the victims. On March 10 the Bar Association had announced that the protest measures would start on March 13 and later culminate in public rallies, work stoppages, and a one-day strike.
The Bar Association is itself facing a politically motivated lawsuit. It was filed in response to a successful one-day nationwide lawyers strike called in February 2002 by the Bar Association leadership to protest violations of defendants’ rights to a fair trial. The latest session in the Bar Association’s trial took place on February 25, 2003, and was attended by numerous observers, including one sent by Human Rights Watch.
In addition, several lawyers are among those human rights activists whom plainclothes police keep under constant surveillance, a practice that violates the right to non-interference and privacy. It also hurts the lawyers financially by scaring away potential clients.
Most of the lawyers recently targeted are active in two new groups that authorities have refused to legally recognize, the Tunisian Center for an Independent Judiciary (Centre Tunisien pour l’Indépendance de la Justice, CTIJ) and the International Association for the Support of Political Prisoners (Association Internationale de Soutien aux Prisonniers Politiques, AISPP).
Physical attacks on lawyers
The recent spate of physical attacks on human rights lawyers began at 1:30 p.m. on December 11, 2002, when CTIJ founder Mokhtar Yahyaoui was about to enter the building on rue Charles de Gaulle in downtown Tunis that houses the law office of Noureddine Bhiri and of his wife Saïda Akremi. Bhiri is a CTIJ executive committee member and Akremi is secretary-general of the AISPP.
The aggressor, a heavy-set man in plainclothes, grabbed Yahyaoui and, shouting insults, dragged him around the corner where two other men were waiting. Yahyaoui grabbed the iron grating of a storefront and screamed while the three men kicked and punched him. The three assailants fled after a crowd began gathering. Yahyaoui’s injuries, as documented later in a medical report, included bruised limbs and ankles and a bloody nose.
This assault is not the first suffered by Yahyaoui. On April 5, 2002, after leaving a pro-Palestinian rally in Tunis, police forced him into a car without explanation and then, twenty kilometers from Tunis, dropped him off at the side of the road.1
Yahyaoui’s troubles began soon after he became the first sitting judge to speak out on the absence of independent judiciary in Tunisia. In a July 6, 2001 open letter to President Zine el-Abidine Ben Ali, Yahyaoui, then president of the tenth chamber of the civil court of first instance of Tunis, wrote:
[judges] render verdicts dictated to them by political authorities and enjoy no discretion to exercise any objectivity or critical scrutiny….A class of opportunists and courtiers have taken complete control over the Tunisian justice system; they have come to constitute a veritable parallel justice system, one located outside all legal norms….Mr. President, your constitutional responsibilities oblige you to take decisions that bring about the removal of all interference with justice and with the institutions of the State…2
After issuing this open letter, Yahyaoui was subjected to anonymous threats, surveillance, travel restrictions, interruption of phone service, and other forms of harassment that intensified after he announced the creation of the CTIJ in December 2001. On December 29, 2001, the Judicial Disciplinary Council dismissed Judge Mokhtar Yahyaoui from the bench for “insulting the honor of the judiciary” and violating his “professional duties” and his “obligation of professional reserve.” Yahyaoui’s appeal of his dismissal is pending before an administrative tribunal.
On December 10, 2002, the day before the most recent assault against him, Yahyaoui had signed a communiqué urging an end to the long-term solitary confinement of twenty-three political prisoners, some of whom had been held in isolation for over ten years. Yahyaoui had signed the appeal on behalf of the AISPP, which he had co-founded a month before.
On December 13, plainclothes policemen assaulted a number of lawyers at the entrance to the building that houses the Bhiri-Akremi law office. The identity of the assailants was apparent from the manner in which they operated openly and in large numbers, singling out lawyers for attack or for barring entry to the building. They did so for a couple of hours, in the middle of a workday and on a busy downtown street, without triggering the intervention of uniformed police.
Bhiri and Akremi were themselves beaten as they were getting out of their car in front of the building, in the company of their two children. The youngest boy, who is thirteen years-old, was hit in the face. Akremi was taken in an unmarked car to a police station and held several hours for questioning before being released.
Plainclothes policemen also beat AISPP member Lassad Jouhri, who was present at the building. He was treated later that day at Habib Thameur Hospital for his injuries, as noted in a medical report. Jouhri, an ex-prisoner who is disabled, had also been assaulted on August 28, 2002, when five men confronted him in downtown Tunis, broke one of his crutches and beat him with it. The men refused to identify themselves to Jouhri. However, when ordering a uniformed policeman not to intervene, they identified themselves as security agents.
On December 13, shortly after the detention of Akremi, plainclothes police also assaulted other lawyers who arrived at the building housing her office, including Abderraouf Ayadi, secretary general of the National Council on Liberties in Tunisia (Conseil National pour les Libertés en Tunisie, CNLT). They later turned away lawyers who tried to reach the office after hearing about the morning’s events. These included Mokhtar Trifi, president of the Tunisian Human Rights League (Ligue Tunisienne de défense des droits de l’Homme, LTDH) and Youssef Rezgui, president of the Tunisian Association of Young Lawyers (Association Tunisienne des Jeunes Avocats, ATJA). Rezgui was punched and slapped on the face, resulting, according to his medical report, in a perforated eardrum, loss of hearing, and cuts on the face.
In separate incidents that day, two other founding members of the AISPP, lawyers Samir Ben Amor and Samir Dilou, were detained for several hours and questioned. Dilou was beaten upon his arrest and later obtained a medical certificate confirming injuries consistent with blows to the head.
The next day, police detained Yahyaoui and brought him to the Ministry of Interior, where he was held five hours for interrogation. Yahyaoui said later that the questions focused on his activities within the AISPP. The association remains legally “unrecognized” because authorities have prevented its founders from filing the papers required by the Law on Associations to obtain legal status. Yahyaoui, Akremi, and the other founders tried on November 14, 2002, to file the papers, but the clerk at the office of the Tunis governorate (which is part of the Interior Ministry) refused to accept or issue a receipt for them, as the Law on Associations requires.3
On November 22, 2002, police detained for several hours the AISPP’s president, lawyer Mohamed Nouri, as well as Noureddine Bhiri and questioned them about the activities of the AISPP.
The CTIJ also remains “unrecognized” fifteen months after Yahyaoui and its other founders encountered a similar refusal on December 26, 2001, by officials of the Tunis governorate, to accept the association’s constitutive papers and issue them a receipt.
Tunisia’s two most prominent human rights organizations, the LTDH and the CNLT, are also in legal limbo. On March 2, 1999, the interior minister rejected the CNLT’s effort to obtain legal recognition, stating only that the CNLT did not fulfill some of the conditions specified by the Law on Associations. He did not elaborate or specify which conditions had not been met.
The CNLT submitted an appeal on April 29, 1999, before an administrative court, pursuant to Article 5 of the Law on Associations. It has also remained active after declaring its “determination to exercise openly and serenely the freedom granted to it by the constitution of the Republic” and by international human rights instruments.4
In an interview published in Le Monde on April 6, 2001, then-Human Rights Minister Slaheddine Maâoui stated, “The CNLT applied in 1999 as an association, whereas its aims were those of a political party. So it received a refusal with an explanation.” But three years after the CNLT appealed the refusal it is still waiting for the administrative court to examine the case.
Under Article 30 of the Law on Associations, persons convicted of participating in an “unrecognized” association are subject to sentences of one to five years in prison and a fine of between one hundred and one thousand dinars (the equivalent of about U.S. $60-600). On December 30, 2000, Moncef Marzouki, a former CNLT spokesperson, was convicted of this charge along with spreading “false” information and given a one-year prison sentence, later reduced on appeal to a suspended sentence.
The LTDH, for its part, is in defiance of a June 2001 appeals court order to nullify the election of its outspoken executive committee and hold new elections by June 2002. The ruling was issued in response to a suit that – like the case filed against the Bar Association’s national council – was filed over procedural issues by members of the organization. But the circumstances surrounding the lawsuits show that the government saw them as a means of curbing the newly-elected, independent-minded leaderships of both the LTDH and the Bar Association.5 The LTDH remains active. While authorities have taken no steps to enforce the June 2001 court ruling against its executive committee, the ruling continues to hang over it.
The Bar Association Defends against a Civil Suit and Files a Criminal Complaint
On December 26, 2002, the national council of the Bar Association filed a criminal complaint on behalf of the lawyers who had been assaulted on December 13, as well as those, including Bhiri, Akremi, Nouri, and Radhia Nasraoui, whose offices are subject to constant surveillance, to the detriment of their business. To date, no action has been taken on their complaint, logged under the court file number 7061799/2002.
On February 16, 2003, the council convened a special session in Tunis to examine the latest developments. It issued a resolution denouncing “vigorously the physical and other attacks perpetrated by members of the police against members of the legal profession” and protesting “against the refusal by the prosecutor’s office … to proceed with the complaint filed on December 26 on behalf of lawyers who were the victims of such attacks.” The association’s resolution called for “establishing a commission composed of the justice ministry, the Bar Association, and the Tunisian Human Rights League in order to conduct an inquiry into these assaults.” It also announced the intention to stage a graduated series of protests, starting with the wearing of red armbands and escalating to a rally of all lawyers in front of the justice ministry and a one-day work stoppage.
The Bar Association’s relations with the government have been strained since the election as bar president on June 17, 2001, of Bechir Essid, a well-known opposition figure and ex-political prisoner. Under his leadership, the association’s previous docility has given way to frequent denunciations of state-imposed obstacles to the ability of lawyers to mount an effective defense in political trials.
After police used unprecedented strong-arm methods inside a courtroom during the trial of dissident Hamma Hammami and two codefendants on February 2, 2002, the Bar Association national council called a one-day nationwide protest strike for February 7, 2002. The call to strike was adhered to by most of the 3,500 lawyers belonging to the Bar Association.
The government reacted sharply to the strike. At a press conference held on February 7, 2002, Justice Minister Béchir Tekkari said the strike was “illegal” and indicated that a number of lawyers were preparing a legal challenge to it.
About the time that the justice minister made these remarks, six members of the Bar Association filed a civil suit asking the court to declare illegal the Bar Association’s strike call, on the grounds that it violated the Law Governing the Organization of the Legal Profession (Law 89-87 of September 7, 1989).
The plaintiffs, most or all of whom are affiliated with the ruling Democratic Constitutional Rally party (Rassemblement Constitutionnel Démocratique, RCD), termed the strike a violation of their basic freedoms, including their right to work. They also said that one of their interests in the case was a desire to avoid sanctions that the Bar Association could impose on its members who defied a call to strike.
Association President Essid has indicated publicly that the association had no intention of disciplining lawyers who did not follow the strike order. The plaintiffs have nevertheless declined to drop their suit.
The plaintiff’s legal argument focuses on where the power resides for calling a lawyers strike. They maintain that Article 62 of Law 89-87 provides a list of the national council’s powers that is exhaustive. Since the power to call a strike is not explicitly mentioned, that power must reside instead with the association’s general assembly. The complaint asked the court to rule that the national council of the Bar Association lacked the authority to declare a lawyers strike, a ruling that could undermine the power of the bar’s leadership.
The national council has responded by pointing out that the powers enumerated in Article 62 are not exhaustive and that the right to strike had always been recognized as a prerogative of the council, as shown by the fact that no legal challenge had previously been mounted to strikes called by the council pursuant to Article 62. The national council argues that the lawsuit is political in character, noting that the justice minister had announced that such a suit was in preparation.
A Tunis appeals court scheduled the case for April 2, 2002. 6 At that hearing, the respondents obtained a postponement in order to prepare the defense. Since then, the case has been postponed six more times, mostly if not always at the request of the plaintiffs. On February 25, 2003, it was postponed until April 22.
International observers have attended each hearing in the case. On February 25, 2003, observers attending the session included Paris judge Pierre Lyon-Caen on behalf of the International Commission of Jurists (ICJ), the International Federation for Human Rights and Avocats sans Frontières; Thomas Braun representing the Brussels Bar Association; and Vincent Asselineau representing the Bar of Paris. Diplomats from the embassies of the United States, Great Britain, Switzerland, and the Netherlands were also present. Human Rights Watch’s observer, Swiss attorney Alain Werner, spent two days in Tunis and attended the trial without encountering any obstacles to his work.
Not all foreign observers have been granted access, however. The day before the hearing, authorities at Tunis-Carthage airport barred Dutch lawyers Jan Hofdÿk and Willem Van Manem from entering the country. These two members of the Amsterdam bar had come to observe the trial. A third lawyer from the Amsterdam bar, Bernadette Ficq, was allowed entry but decided to return home with her banned colleagues instead. In September 2002, some fifty Dutch lawyers had planned to fly together to Tunis in order to attend an earlier session of the trial, but authorities refused to permit their plane to land.
Mokhtar Yahyaoui, meanwhile, remains banned from leaving the country. On February 21, authorities refused to let him travel to Cairo to attend a conference organized for February 21-24 by the Arab Center for the Independence of the Judiciary and the Legal Profession. Yahyaoui, who holds a valid passport, has been refused permission to travel since the Minister of Justice signed an order in November 2001 stating that, owing to the demands of his position as a judge, Yahyaoui could not absent himself from work in order to travel at that time. Yahyaoui has since been prevented from leaving the country several times even though since December 2001 he has been relieved from his duties as a judge.
Recommendations
Human Rights Watch urges the government of Tunisia to:
- End the physical assaults on lawyers and human rights activists, and pursue vigorously the complaint filed by the Bar Association with the State Prosecutor on December 26, with the objective of identifying and prosecuting the perpetrators of the assaults that took place on December 11 and 13;
- Grant legal recognition to all human rights organizations whose application for legal status is pending, including the National Council on Liberties in Tunisia, the Center for the Independence of the Judiciary in Tunisia, and the International Association for Support of Political Prisoners;
- Lift the arbitrary travel ban on Mokhtar Yahyaoui and allow him, and all other Tunisian human rights defenders, to exercise their right to travel;
- Abide by the Declaration of the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by the U.N. General Assembly on December 9, 1998, which states in Article 5:
For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels:
To meet or assemble peacefully;
To form, join and participate in nongovernmental organizations, associations or groups;
To communicate with non-governmental or intergovernmental organizations.
- Abide by the Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, notably, Articles:
16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
23. Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the
administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by
reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.
24. Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.
1 Plainclothes police have resorted to such short-term abductions previously against human rights defenders. On December 15, 2000, they intercepted Omar Mestiri of the National Council on Liberties in Tunisia (Conseil National pour les Libertés en Tunisie, CNLT) as he and others were attempting to deliver a human rights petition to the Ministry of Public Health. They forced him into a car and dropped him outside the village of Mejaz el-Bab, some fifty kilometers from Tunis.
2 Under Tunisian law, Ben Ali, as president of the Republic, presides also over the High Judicial Council. A French translation of Yahyaoui’s letter to him, which was written in Arabic, can be found in Avocats sans frontières and l’Observatoire pour la protection des défenseurs des droits de l’Homme (a joint program of the International Federation for Human Rights and the World Organization against Torture) “Tunisie: l’affaire Yahyaoui, le combat d’un homme pour l’indépendance de la justice,” May 2002, http://www.fidh.org/magmoyen/rapport/2002/tnobs04f.pdf [retrieved March 12, 2003].
3 Article 3 of the Law on Associations (Law 59-154 of November 7, 1959, as amended) states that persons wishing to form an association must submit to the office of the governorate a statement containing various information about the association and its founders. In return, a receipt is provided. After depositing the documents, the new association is deemed to enjoy legal status unless the Ministry of Interior refuses it, with the motive provided, within three months. Thus, issuance of the dated receipt proves deposit of the documents and starts this three-month countdown.
4 See CNLT communiqué of May 31, 1999, “Pour l'abrogation de la loi sur les associations.”
5 See Human Rights Watch and the International Federation for Human Rights, “Tunisia: A Lawsuit against the League, An Assault on All Human Rights Activists,” A Human Rights Watch Report, vol. 13, no.3(E), April 2001, http://www.hrw.org/reports/2001/tunisia/index.htm [retrieved March 13, 2003].
6 Law 89-87’s Article 71 provides that appeals of Bar Association decisions are to be heard before the Court of Appeals in the appropriate jurisdiction.
