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(Tunis) – The decision to free a detained newspaper director pending trial was a positive move, but pretrial detention should be the exception rather than the rule, Human Rights Watch said today. A Tunisian judge on February 23, 2012, granted provisional release to the director of the national daily newspaper Attounsiyya after he spent a week in pretrial detention.

The director, Nasreddine Ben Saïda, faces trial on March 8 for offenses against “public morality” over a photo published in his newspaper.

“All governments may set some limits concerning public morality for the media, as long as these are clear and reasonable, but imprisoning journalists before trial is nearly always unacceptable because it threatens freedom of expression for everyone,” said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch.

Authorities arrested Ben Saïda on February 16, along with Habib Guizani, the editor-in-chief, and Mohamed Hedi Hidri, a journalist at the newspaper, over a photo on page one of the February 15 issue that shows a Tunisian-German football star and his girlfriend with his arm covering her bare chest.

The photo of Sami Khedhira with his German model girlfriend, Lena Giercke, had first been published on the German edition of GQ magazine. After the photo appeared in Attounsiyya, it was shared on online social networks that Tunisians widely view. Authorities seized all copies of that edition of the newspaper after they were distributed to newsstands.

Tunisia’s prosecutor general charged Ben Saïda, the newspaper director, with distributing material “liable to cause harm to the public order or public morals” under article 121(3) of the penal code. The other two journalists were freed on February 17 and have not been charged. Ben Saïda faces a prison term of up to five years and a fine of up to 1,200 dinars (US$801) if convicted.

The pretrial detention of the director of Attounsiyya seemed incompatible with the robust affirmations of freedom of expression in the press code that were promulgated by decree-law on November 4, 2011, Human Rights Watch said.

Despite the strong provisions of the press code, authorities are prosecuting Ben Saïda on the basis of an article of the penal code that was enacted under the ousted Ben Ali government, Human Rights Watch said. They resorted to the same article in their continuing prosecution of Nabil Karoui, director of Nessma TV, for airing the animated movie Persepolis.

Article 1 of the new press code provides that “[f]reedom of speech is guaranteed and exercised in accordance with the International Covenant on Civil and Political Rights (ICCPR) and the other relevant conventions ratified by Tunisia.” The press code states that “the only limitations on this freedom are those introduced by the law for the defense of legitimate values regarding the protection of the rights and dignity of others, the preservation of public order and the protection of national defense and order, provided they are necessary and in accordance with the measures applicable in a democratic society, without jeopardizing the right itself.”

While the Tunisian authorities have some leeway to restrict freedom of expression when strictly necessary, imprisoning journalists before trial for reprinting a photo does not meet the press code’s criteria of being “necessary” in restricting the expression in question, Human Rights Watch said. Nor is imprisoning journalists for what they publish, except in the most extreme circumstances, “in accordance with the measures applicable in a democratic society,” since it undermines press freedom, a prerequisite for a democratic society.

In addition, article 13 of the new press code states that “[a] journalist cannot be charged on the basis of an opinion, an idea or information he or she published in accordance with the customs and ethics of the profession, nor can he or she be prosecuted for his work that does not violate this press code.”

Article 9 of the International Covenant on Civil and Political Rights states that pretrial detention must be the exception, rather than the rule. This means that authorities must justify the reasons for such detention on grounds that are compelling, such as that the defendant poses a flight risk, a danger to others, or if freed will attempt to suborn witnesses in the case against him.

“The Constituent Assembly needs to accelerate its review of the repressive Ben Ali-era laws like Penal Code article 121(3),” Whitson said. “While states have an interest in protecting public morals, the Constituent Assembly should ensure that any restrictions in the law are specific and clear, to reduce arbitrary application and allow the widest possible margin for free expression.”

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