Human Rights Watch is writing to urge you to release immediately and unconditionally Daniel Zarrouk, who has already served more than 15 years in prison.
April 25, 2007
M. Zine el-Abidine Ben Ali
President of the Republic
Palais de Carthage
Carthage Tunisia 2016
Your Excellency,
Human Rights Watch is writing to urge you to release immediately and unconditionally Daniel Zarrouk, who has already served more than 15 years in prison.
Scrutiny of Mr. Zarrouk’s four convictions leaves no doubt in our mind that Tunisian courts convicted him multiple times for exactly the same offense – membership in the unrecognized Islamist movement an-Nahdha – in defiance of international law and Tunisian’s code of penal procedure, both of which prohibit judging a defendant more than once for an offense for which he has already been definitively convicted or acquitted (the concepts of non bis in idem/ l’autorité de la chose jugée).
Moreover, Human Rights Watch is concerned by reports from Tunisian defense lawyers that Mr. Zarrouk’s plight is not unique among long-term prisoners affiliated with an-Nahdha. It is common, they say, for courts to convict defendants in cases of a political nature more than once for the same offense, thereby lengthening their time in prison.
We consequently hope that your justice minister will instruct the judiciary to carefully examine arguments raised by defendants that they are being tried, or have been convicted, more than once for the same offense.
Here are the facts in Mr. Zarrouk’s case:
Mr. Zarrouk was born on July 23, 1955. A resident of Rades, he worked as a high school teacher of civic and Islamic education, and is the father of three children. Since his incarceration in 1992, authorities have tried Zarrouk four times, convicting him each time of “maintaining” an unauthorized organization, along with other charges. He is currently in Mornaghia prison.
Article 30 of the law on associations (Law 59-154 of 1959) subjects persons who participate in “maintaining or re-establishing, directly or indirectly, associations that lack legal existence” to a punishment of one to five years in prison and a fine of 100,000 dinars, or one of these punishments. While Law 59-154’s Article 30 refers to the offense of “maintaining” an unauthorized organization, the courts in their judgments commonly refer to the offense as “membership” in an unauthorized organization.
In his second, third, and fourth trials, Mr. Zarrouk asked the court to drop the charge of membership because he had previously been convicted of it. Each time, the court rejected Mr. Zarrouk’s argument and imposed additional prison terms totaling four years for this offense, over and above the five-year term imposed on him for this offense in his first trial. The courts imposed a total of more than 20 years of prison on Mr. Zarrouk on this and other charges. We understand that Mr. Zarrouk’s sentences have been commuted and he is now due for release in 2009.
During all of his trials, Mr. Zarrouk steadfastly denied all charges of engaging in or planning violent activities, although he readily admitted to being an activist in an-Nahdha.
As a matter of principle, Human Rights Watch opposes laws that criminalize belonging to or maintaining a political organization—independent of any cognizable criminal deeds, such as committing, attempting or conspiring to acts of violence. We thus view Article 30 of Tunisia’s law on associations as incompatible with internationally recognized principles protecting the right to freedom of association.
Furthermore, we have concerns about the overall conduct of the trials of Mr. Zarrouk and whether they complied with international standards for a fair trial. Tunisian courts have often convicted defendants belonging to an-Nahdha on the basis of statements that the police extracted from the defendants themselves or from third parties using improper coercive measures. Moreover, Mr. Zarrouk and many others have been convicted for nonviolent political activities such as attending “unauthorized” meetings – in violation of their right to freedom of assembly.
Beyond these general concerns, we are alarmed by the way that Tunisian courts have treated maintaining or belonging to an unauthorized organization as a continuous offense, and placed the burden on a defendant facing a second charge for this offense to prove that it pertains to the same set of facts and time interval as a previous charge.
In the chronology of Mr. Zarrouk’s case that follows, we ask that you excuse any slight inaccuracies in our rendering of excerpts from the court judgments. We could not always be sure of the text, owing to its illegibility in many places, errors of spelling and of syntax, and the often brief and elliptical explanations of the court’s reasoning.
A Tunis Court of First Instance convicted Mr. Zarrouk on May 28, 1992 (ruling 20721), giving him five years in prison for maintaining an unauthorized organization, 16 days in prison for attending illegal gatherings, and 15 days in prison for unauthorized collection of funds, plus two years of administrative control after his release from prison.
On July 27, 1992, the Tunis Appeals Court upheld the lower-court ruling (ruling 72466). Its written judgment states, Daniel Zarrouk said he belonged to the Nahdha movement and “was responsible for carrying out studies on behalf of this movement, beginning in 1985” (page two). The court’s written judgment makes no other reference to the period of time during which Mr. Zarrouk belonged to or served the organization.
On June 27, 1992, a Tunis Court of First Instance convicted Mr. Zarrouk once again of “maintaining an unauthorized organization,” and sentenced him to one year in prison (ruling 21610). The Tunis Appeals Court upheld the verdict in this second case on December 11, 1992 (ruling 72922). Its judgment states, Daniel Zarrouk had “belonged to an-Nahdha since 1980 and was appointed a member of an-Nahdha’s bureau, then at the district level in 1985, before being elected a worker in the Tunis area…of this unrecognized and unauthorized movement, as the defendant himself acknowledged during the investigation” (page 1).
The Appeals Court ruling provided no further details about Mr. Zarrouk’s Nahdha membership. Nor did the court address oral arguments made by the defense during the appeals trial that it was trying Mr. Zarrouk for the same offense for which he had just been convicted in another trial.
On January 26, 1994, an Appeals Court, sitting as the Court of First Instance, sentenced Mr. Zarrouk to ten years in prison for “heading a criminal enterprise for the purpose of perpetrating attacks on persons and property” and one year for “maintaining an unauthorized association,” plus two years of administrative control after his release from prison (ruling 18980). The Appeals Court written judgment stated that Mr. Zarrouk admitted that he "belonged to the Nahda movement and resumed his activities in its core after the amnesty that followed “The Change” [i.e., your assuming the Presidency of the Republic in November 1987], and that he was appointed as a supervisor over the Sidi el-Béchir area, and that he attended a meeting in al-Zayatin neighborhood organized by the leader al-Habib al-Louz, who urged those present to devote themselves entirely to resistance and then he attended another meeting … at which it was decided to confront the authorities first by peaceful marches and then by marches at which arms would be carried.” Finally, it said that Mr. Zarrouk had collected money to support the families of an-Nahdha prisoners (pages 11-12).
Among the defense’s arguments before the Appeals Court was that Mr. Zarrouk should be acquitted of “maintaining” an-Nahdha because he had already been twice convicted for this offense. The court rejected this argument, claiming that “nothing proves that the previous convictions concerned the same period of time, the offense of membership being a continuous offense” (page 13).
The Appeals Court thus seems to have placed the burden on the defendant of proving non bis in idem, an unreasonable if not impossible burden since the previous convictions did not delimit the periods that he had committed the offense of membership beyond general references to “beginning in 1985” and “since 1980.”
On May 23, 1995, an Appeals Court, sitting as the Court of First Instance, convicted Mr. Zarrouk—at the time serving his fourth year in prison—in a fourth case (ruling 19630), sentencing him to two years imprisonment for maintaining an unauthorized organization, one year for participation in illegal meetings and four months for the unauthorized collection of funds, plus five years of administrative control after he leaves prison. Mr. Zarrouk was one of 36 alleged Nahdha members charged in this case.
Mr. Zarrouk argued for acquittal on the charge of maintaining/belonging to an-Nahdha, on the grounds that the courts had already convicted him three times for this offense. The court in its written ruling noted that one of the conditions for the defense to successfully win acquittal on the basis of non bis in idem is its ability to show that the membership offenses in the multiple cases are in fact “the same in terms of time and space” (page 19). The Appeals Court thus once again placed the burden on the defense to show that the facts in each case were different. The court itself did not distinguish the period and place of Mr. Zarrouk’s membership in this case from the previous ones and proceeded to convict him a fourth time on the membership charge.
The evidence seems abundant that the courts in Mr. Zarrouk’s second, third, and fourth trials unfairly upheld Mr. Zarrouk’s convictions for the same offense, in violation of the principle of non bis in idem.
The International Covenant on Civil and Political Rights states in Article 14.7, “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” Tunisia’s Code of Criminal Procedure states, in Article 4(5), “Legal proceedings are stopped in the event of a previous judgment.”
We are also concerned by the court’s implication in case 18980 of 1994 that a defendant arguing non bis in idem faces the burden of proving that the new charge of “maintaining” an illegal organization applied to a period for which he had already been convicted of this offense. This peremptory dismissal of the defendant’s argument of non bis in idem contradicts the presumption of innocence, which is a general principle of law. This principle places the burden of proof on the prosecutor, not the defendant, to prove all elements of an offense, including that the offense in question is distinct from earlier adjudicated ones.
This peremptory dismissal also seems to violate Tunisia’s Code of Penal Procedure. The Code’s Article 168(4) requires that a court’s judgment state “the reasoning both in terms of the facts and the law of the decision.” In view of this provision, where the defense raises an objection to a charge under the principle of non bis in idem, a court in rejecting the motion must at minimum make explicit why the new offense and the previous offense are distinct.
As noted above, Tunisian courts have characterized membership in an unauthorized organization as a continuous offense. This characterization suggests to us that it can be prosecuted only once for a period in the past, since it is a single act that continues from the moment the defendant joins the organization, requiring no additional acts on his part. However in Mr. Zarrouk’s case, Tunisian courts seem to have partitioned a period in the past in such a way as to convict him for multiple membership offenses.
By this logic, what is to prevent prosecuting Mr. Zarrouk separately for every single day that he belonged to an “unauthorized” organization?
One of Mr. Zarrouk’s lawyers, Samir Ben Amor of the bar of Tunis, addressed to Minister of Justice Béchir Tekkari a letter dated June 17, 2005, in which he asked for a review of Mr. Zarrouk’s multiple convictions under Article 30 of Law 154/59, to determine whether they violated the principle of non bis in idem. Mr. Ben Amor reports that his letter, registered by the justice ministry under the number 63546, has gone unanswered to this day.
Human Rights Watch also addressed a private letter to Minister Tekkari in Arabic on March 16, 2007, detailing Mr. Zarrouk’s case and requesting evidence that his multiple convictions had been for distinct offenses. Minister Tekkari neither acknowledged nor responded to our inquiry, despite our efforts to follow up.
Although we are not persuaded of the justice of Mr. Zarrouk’s conviction on the various non-membership charges, we wish to note that by 2003 he had already served out the eleven and-a-half years imposed on him for those other charges.
We urge you therefore to grant Mr. Zarrouk his freedom unconditionally and without delay.
We have noted the reasons we oppose the criminalization of mere membership/maintaining of a party that is “unrecognized.” We urge you to initiate a reexamination of this article of the law on associations with a view to bringing it into compliance with international standards governing the right to freedom of association.
With respect to the practice of convicting persons more than once for the same offense, we hope that Tunisia’s judiciary will examine seriously and respond substantively to appeals from persons who claim they were unjustly convicted for the same offense. We also hope the judiciary will ensure that in future cases involving defendants who plead no bis in idem, the courts will impose the burden on the prosecution rather than on the defense of showing that the facts at hand are distinct in time and place from those for which the defendant was previously tried.
We thank you for your consideration and welcome your comments.
Sincerely yours,
Sarah Leah Whitson
Executive Director
Middle East and North Africa division
