His Excellency Noureddine Bhiri
Minister of Justice
Ministry of Justice
31 Boulevard Bab Bnet, 1019, Tunis
Dear Minister Bhiri,
I would like to start by thanking you for kindly receiving a Human Rights Watch representative in your office on December 3, 2012, and discussing a wide range of topics of mutual concern.
At that meeting our representative, Amna Guellali, made a request to access the case files of ten judges dismissed following your decision dated May 28, 2012, and the subsequent confirmation decree of July 2, 2012.
Our representative had in her possession an authorization from each of the ten dismissed judges authorizing her to view their files and the evidence in the possession of the ministry for their dismissal. We would like to reiterate our request to access the files of these ten judges in order to check their allegations that the ministry denied them an opportunity to defend themselves, dismissed them on spurious grounds, and continue to deny them access to the incriminating material.We intend to publish this letter along with any pertinent information we receive from you by January 7, 2013.
On October 29, Human Rights Watch published a press release saying that the decision of the executive branch to dismiss 75 judges was unfair and arbitrary. Human Rights Watch has interviewed ten of the dismissed judges about how their cases were handled. All described unfair disciplinary proceedings thatignored the minimal requirements for a fair and transparent process and violated international standards designed to safeguard the independence of the judiciary.
The ten dismissed judges Human Rights Watch interviewed said that their superiors telephoned on May 28 to inform them that their names were on a list of dismissed judges. They had not previously been contacted by the justice ministry and did not know the grounds for their dismissal.
In addition, the judges said that there was no independent review of the dismissal decisions, which were taken by an internal commission consisting only of five ministry inspectors. The dismissed judges said they had no access to their files and did not have an adequate hearing.
They said that the procedures also lacked clear criteria for dismissal. The judges said that even after their hearings they did not know the exact grounds for their dismissal or what evidence the minister had for dismissing them.
In a press release dated November 1, 2012, the Ministry of Justice accused Human Rights Watch of issuing its statement without seeking comment or information from the Ministry of Justice. However, when the Human Rights Watch representative on December 3 showed you the written authorizations the judges had given her, you refused to allow her access to the material.
The initial apparent infringement of the judges’ rights to a fair hearing is thus compounded by the lack of transparency of the ministry, who denied not only the judges but also Human Rights Watch access to the information, despite an express authorization from the judges themselves. In addition, at least two of the judges say they sent letters in July 2012 to your ministry requesting the minutes of their hearing before the internal commission as well as the evidence in possession of the ministry. To date they have not received any answers to their request.
We wish to reiterate that international human rights standards impose an obligation for the state to ensure that the determination as to whether the particular behavior or the inability of judges constitutes a cause for removal is made pursuant to a fair hearing following an appropriate procedure that respects their right to defend themselves and know the case against them.
According to the Principles and Guidelines on the Right to a Fair trial and Legal Assistance in Africa, adopted by the African Commission on Human and Peoples’ Rights in 2005, “Judicial officials facing disciplinary, suspension or removal proceedings shall be entitled to guarantees of a fair hearing including the right to be represented by a legal representative of their choice and to an independent review of decisions of disciplinary, suspension or removal proceedings.
General Comment number 32 of the United Nations Human Rights Committee, the experts who provide the definitive interpretation of the International Covenant on Civil and Political Rights, states that:
Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary.
According to the UN Basic Principles on the Independence of the Judiciary adopted by General Assembly resolutions 40/32 of November 29, 1985, “A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing.” In addition, the Basic Principles state that judges may be suspended or removed only for reasons of incapacity or behavior that renders them unfit to discharge their duties.
Article 8 of the The Universal Charter of the Judge (Approved by the International Association of Judges, an international NGO grouping more than 78 national associations of judges,on 17 November 1999) states that a “judge cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure.”
Thus, the statement of the ministry of justice in its above mentioned press release that“the dismissal decision is among the prerogatives of the Chief of Government and … is taken by the latter whenever he deems a judge unable to fulfill the minimum conditions for the exercise of his duties” is inconsistent not only with international standards but also with the Tunisian law of 1967, which sets up minimum guarantees for the dismissal procedure, including the right of the judge to be heard by the disciplinary commission of the High Judicial Council, their right to have access to their file and to have the assistance of a lawyer of their choice.
In addition, the existence of an appeal procedure before the administrative tribunal cannot be an excuse for the initial unfair treatment of the judges.
The procedures applied in the disciplinary system affect the independence of judges.
The threat of dismissal, and the uncertainty of the grounds on which a judge can be dismissed, affects the capacity of all judges to act independently.
A system of judicial discipline that is reliable, predictable, fair and protected from arbitrariness is essential in order to protect judges from undue interference.
As noted above, we shall make this letter public in coming weeks, and commit to include in it pertinent information that you are able to provide us about the judges’ files by January 7, 2013.
Thank you for your consideration.
Sarah Leah Whitson
Middle East and Northern Africa Division
Human Rights Watch
Annex I. Interviews of dismissed judges
Moncef Zghab, who had been an investigative judge in the first instance court of Manouba, said that when he appeared before the commission the inspectors did not give him access to his file. “The chief inspector said that I was accused of receiving commissions from land sales, but they did not have any evidence,” he said. “I gave them a detailed account of my earnings. However, they kept me on the list of the dismissed judges.”
Habib Zammali, who had been a counselor in the criminal section of the first instance court of Gabes, described the same commission procedures to review the complaint against him. A colleague had taken a photo of him drinking a beer at a picnic with friends, he said. “I received notification of my dismissal through a phone call from the deputy prosecutor of my court. The [commission] general inspector told me I was accused of drinking alcohol and that they received an anonymous letter with a photo of me drinking alcohol.” Tunisia has no law prohibiting judges from drinking alcohol in their private lives.
Khalfallah Al-Riahi, who had been deputy president in the first instance court of Zaghouane, told Human Rights Watch that the inspectors based his dismissal on an incident in 1999, when he was a judge in Ain Drahem. A colleague who took Al-Riahi’s place in a 1999 trial when he went on vacation was negligent with some files, he said.
“When I came back to work, my superior put the blame on me,” he told Human Rights Watch. “In 2005 the disciplinary council at the ministry of justice reprimanded me for dereliction of duty. Since then I never had any problem at work. When I went to the commission at the ministry of justice [in 2012], I asked them the reasons for my dismissal. They said it’s for the dispute you had in 1999.”
Nizar Ghozlani, who served as a district judge (juge cantonal) in Jendouba, told Human Rights Watch that the review commission told him he was being dismissed because he owed debts to a private company. On April 26, 2012, the justice ministry sent him a warning, saying he should pay the debts. “I collected the money from my parents, neighbors and friends and paid all my debts, and the company dropped the complaints,” he said. “This is the only reason they gave me for my dismissal.” The commission spent only 10 minutes with him, he said, and did not give him access to his file or the allegedly incriminating material.
Chokri Ben Sadok, who worked as deputy president of the first instance tribunal of Jendouba, said that on May 28 he received a phone call from the general prosecutor of the appeals court in Le Kef informing him that his name was on the list. He did notexpect it at all and was never called before to the judicial inspection for any wrongdoing. When he went to the commission set up by the Ministry of justice, they told him he was dismissed for administrative corruption, without showing any proof of their allegations.
Mohamed el Bejaoui, who worked as a judge for 32 years and was last appointed as a counselor in the appeals court in Le Kef, said that the commission gave him three reasons for his dismissal: “using his position as a judge in order to bribe people; administrative corruption and a complaint pending against him since 2007”. However they did not give him any further detail on the evidence they have, he said.
Bechir Ennajah, who was president of a criminal division at the appeals court in Mednine, said that when the minister of justice announced that he will dismiss 82 judges, he did not expect his name to be on the list. On May 28, he went to the tribunal and presided his sessions normally. However, on Wednesday May 30, his superior at the tribunal informed him that his name was on the list. When he went to the commission at the ministry of justice, they had only a sheet of paper on which the charges were written. They informed him that the motive for his revocation was unjustified wealth. He asked them for the evidence in their possession but they did not have any. He said he gave the commission all the proof of his income and details of his bank account. He also showed them the mortgage he got from the bank to buy a piece of land and build his house.
Moez Bessaidiused to be a social affairs judge in the district court of Beja. He said on Tuesday 29, a friend of his told him his name was on the list. He went to the ministry of justice and met with the director of cabinet who said he cannot confirm the news. On Wednesday 30 he received a phone call from the ministry informing him that his name was indeed on the list. When he went to the commission, the inspector general informed him that he is accused of two things: that a person of his acquaintance had complained before the ministry in 2008 accusing him of not paying him a debt, and the second on a judgment he issued against a businessman who did not pay his workers and who complained to the ministry later.
Mohamed Attafi, who worked as the president of the criminal division in the appeals court in Le Kef, said that he still does not understand the motivations behind his decision. He said in 1997 he received a reprimand from the disciplinary council of the High judicial council because he did not denounce on time a check fraud with his name.
Imed Lekhdhiri, deputy president of the court of first instance in Gasserine, said that he had never been called before by the ministry or by the high judicial council for any wrongdoing. When he went to the commission set up by the ministry of justice, they told him he was accused of favoritism towards certain lawyers as well as administrative and financial corruption. However, he said when he asked them to provide the proof in their possession for such accusations, they were unable to do so.
Nouri Qtata, former advisor at the criminal division of the appeals court in Gabes, said that he got a phone call from his superior at the tribunal informing him of his revocation. When he went to the commission, they told him he was revoked for a wrongdoing going back to 1992 and for which he had already been punished and suspended from his work for three days.