Human Rights Watch thanks you for the letter sent by your chef de cabinet, Mr. Lotfi ad-Douas, dated May 10, 2007 in response to the letter of April 25 that Human Rights Watch addressed to President of the Republic Zine el-Abidine Ben Ali.
July 24, 2007
Béchir Tekkari
Minister of Justice
Ministry of Justice
31 Blvd. Bab Benat
1006 Tunis, Tunisia
Dear Mr. Minister,
Human Rights Watch thanks you for the letter sent by your chef de cabinet, Mr. Lotfi ad-Douas, dated May 10, 2007 in response to the letter of April 25 that Human Rights Watch addressed to President of the Republic Zine el-Abidine Ben Ali.
The subject of this correspondence (copies attached) is the case of prisoner Daniel Zarrouk, whose release we urged on various grounds, including the fact that he was convicted and sentenced four times for the same offense of belonging to an-Nahdha, an unrecognized political movement.
I address to you now a private letter, in the hope that you can examine the arguments we present here and provide a substantive response. On August 14 we intend to make public this letter, along with any response we receive.
The letter sent by Mr. ad-Douas attempts to explain why Mr. Zarrouk’s multiple convictions relate to distinct actions and therefore do not violate the principle found both in international and domestic Tunisian law that no one shall be convicted more than once for the same deeds (the concepts of non bis in idem/ l’autorité de la chose jugée).
In our view, Mr. ad-Douas presents in his letter points that confirm the opposite of what he is arguing.
Please recall that Mr. Zarrouk has been incarcerated continuously since 1992. All four of his trials and convictions for membership in an unrecognized association (article 30 of law 59-154) took place after he was already in prison and relate to periods before he was in prison.
Mr. ad-Douas writes,
- The crime of maintaining an illegal association is indeed a continuous crime that requires the tracking down and prosecution of the person responsible for it, for all the acts committed prior to his appearance before the court, in order to avoid his being tried more than once for the same actions. This does not, however, preclude his prosecution on a different occasion for persisting in the act of maintaining an illegal organization and his commission of new acts within that context since his previous trial. In such a case, he is considered a repeat offender and such a circumstance cannot be considered a second trial for the same acts that were the object of the first trial.
We agree with Mr. ad-Douas on the principle that a person who has already been convicted for past deeds can be prosecuted again for “new acts within that context since his previous trial.” (However, we oppose laws that penalize membership in unrecognized political associations independent of any cognizable criminal deeds, as noted in our April 25 letter.)
However, this principle does not apply to the facts in the case of Mr. Zarrouk. The written court judgments in his trials make clear that his successive convictions for membership do not apply to acts “since his previous trial” but rather to activities that he allegedly carried out prior to his incarceration and prior to his first conviction for this offense. Thus, Mr. Zarrouk is not someone who was convicted and punished and who subsequently resumed his “illegal” activities. Rather, while in continuous custody, he was hauled repeatedly from prison to court and given prison term after prison term for the “crime” of having belonged to an-Nahdha in the period prior to his arrest.
Furthermore, even if one were to accept the notion of dividing the past into discrete periods in order to prosecute the “crime” of membership multiple times, the courts’ written judgments against Mr. Zarrouk do not distinguish the time periods of his offense in each case, as we noted in our letter of April 25. This lack of temporal precision makes it impossible to determine whether each conviction of Mr. Zarrouk for membership relates to a distinct pre-1992 period from the other convictions.
Mr. ad-Douas’ letter claims that Tunisian courts rigorously apply the principle that no one shall be tried more than once for the same deeds. He points out that Mr. Zarrouk himself benefited from this principle when the Court of Appeals of Tunis on October 29, 1993 acquitted him for membership in an illegal organization (case 18842) on the grounds that another court had already convicted him for this offense on July 27, 1992 (case 72466).
We thank Mr. ad-Douas for informing us that Mr. Zarrouk was acquitted in a fifth trial for membership, but regret that Mr. ad-Douas provided no explanation why Mr. Zarrouk’s second, third and fourth convictions for membership – all of them convictions that were handed down after his incarceration began in 1992 – do not relate to the same pre-1992 activities, in violation of the principle of l’autorité de la chose jugée.
For this reason, and for the reasons stated in our April 25 letter, we once again urge that Mr. Zarrouk – who has now served fifteen years — be released immediately and unconditionally from prison.
More generally, we reiterate our hope that Tunisia’s judiciary will examine seriously and respond substantively to appeals from persons who claim they were unjustly convicted more than once for the same offense. We also hope the judiciary will ensure that in future cases involving defendants who plead l’autorité de la chose jugée 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 await eagerly your response to the points raised in this letter.
Sincerely yours,
Sarah Leah Whitson
Executive Director
Middle East and North Africa division
