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(Tunis) – Tunisian authorities should ensure that the specialized chambers established by the new transitional justice law are truly independent and meet minimum international fair trial standards. The specialized chambers will hear cases of serious human rights abuses, including during the presidency of Zine el-Abidine Ben Ali.

Three years after a popular uprising that ousted Ben Ali, Tunisia has done little to bring to justice those responsible for grave and gross abuses committed under the former president. Those abuses included arbitrary arrests, incommunicado detention, torture, unfair trials, and inhumane treatment of prisoners. Since Ben Ali’s ouster, only a handful of human rights cases have gone to trial, mostly for deaths and injuries inflicted by the security forces trying to suppress the uprising. Of the thousands of reported cases torture prior to 2011, only one has completed trial, resulting in the sentencing of a former minister of interior and other high level security forces to two years in prison.

“The specialized chambers can make a significant contribution to holding people responsible for horrific abuses of the Ben Ali era and providing justice to victims,” said Eric Goldstein, deputy Middle East and North Africa director. “But the specialized chambers will only be worthwhile if the rules of the game ensure that they are effective, independent, and fair.”

The National Constituent Assembly (NCA) took a step forward in December 2013 when it adopted the transitional justice law. Among other things, the law envisaged establishing specialized chambers within the court system to try grave abuses from July 1955 until December 2013. In March 2014, the Justice Ministry set up a technical committee to draft a decree governing how these specialized chambers would function. The transitional justice law, however, gives rise to concerns about the rights of defendants to receive a fair trial before the specialized chambers, Human Rights Watch said.

The draft implementing decree, to be presented to the government in coming weeks, should establish a process for selecting judges that ensures their independence from the executive branch, Human Rights Watch said. It should provide effective investigative units and a prosecution up to the task of prioritizing the potentially huge number of cases to achieve maximum accountability for grave violations while respecting fair trial standards. It should also create a framework for protecting victims, witnesses, and judicial staff from possible intimidation and reprisals.

Tunisia’s Law on Establishing and Organizing Transitional Justice sets out a comprehensive approach to addressing past human rights abuses. In addition to providing criminal accountability via the specialized chambers, it envisages a Truth and Dignity Commission to uncover the truth about abuses in Tunisia from July 1955 through 2013. The law establishes mechanisms for reparations to victims, institutional reform, vetting civil servants, and national reconciliation.

Article 8 establishes the specialized chambers within the courts of first instance in those of Tunisia’s governorates that have appeals courts. It states that judges appointed to these chambers must never have “participated in trials of a political nature” and must receive training in transitional justice.

The law states that the specialized chambers “will have jurisdiction over widespread or systematic human rights violations, including deliberate killing, rape and sexual violence, torture, enforced disappearance, and execution without fair trial guarantees.” The law also gives the chambers jurisdiction over certain types of cases that the Truth and Dignity Commission will refer to it. These include cases of election fraud, financial corruption, misuse of public funds, and forcing people into political exile.

The seven-member technical commission set up by the Justice Ministry at the end of April 2014 has one month to draft the implementing legislation that would govern the specialized chambers. The government will consider the draft, after which the prime minister is expected to issue a decree creating the specialized chambers.

Among the concerns about the law is that it gives the chambers jurisdiction over the “offenses” of electoral fraud and forcing individuals into political exile, which are not criminalized under Tunisia’s penal code or by international law. The NCA should amend article 8 of the transitional justice law to eliminate crimes of election fraud and forced migration for political reasons, to protect people from being prosecuted for actions that were not criminalized at the time of their commission, neither by national, nor by international law, Human Rights Watch said.

In addition, the law suggests that a person could be tried a second time on criminal charges for the same offense, violating one of the basic principles of due process rights enshrined in international law against “double jeopardy.”

The credibility of the specialized chambers starts with the selection process for judges. The decree should adhere to the procedure outlined in the new constitution, Human Rights Watch said. Under the constitution, the Supreme Judicial Council (Conseil Supérieur de la Magistrature) would nominate judges, with the president’s final approval. The implementing decree for the specialized chambers should include procedures for appointing judges and prosecutors consistent with the requirements of independence and impartiality. It should also address all phases of the judicial process, including the investigation, the prosecution, and the trial, and include provisions on protecting victims, witnesses, and judicial staff.

The implementing decree should specify whether the specialized chambers will operate according to Tunisia’s code of penal procedure and what impact, if any, their creation will have on the jurisdiction of the regular court system over cases involving past human rights abuses. The transitional justice law does not address these questions.Nor does it explain whether the jurisdiction of the specialized chambers will trump that of the military justice system, which currently has jurisdiction over abuses by security forces. The NCA should reform Tunisian legislation to restrict the mandate of military justice only to military crimes committed by military personnel.

If the specialized chambers are to try the most serious and systematic human rights violations that involve many perpetrators as well as the state apparatus, legislators should first fill a gap in Tunisia’s penal code concerning command responsibility. This established principle in international law holdssenior officers liable for crimes that their subordinates committed with their explicit or tacit approval. The lack of provisions criminalizing command responsibility in Tunisian law contributed to the military courts’ seemingly light sentences for Ben Ali and senior commanders for their role in commanding the troops that killed scores of protesters during the Tunisian uprising.

Accountability for Past Abuses
After independence in 1956, and until the fall of Ben Ali, Tunisian authorities routinely tried to silence opposition voices. Thousands of Tunisians – union activists, members and leaders of leftist and Islamist parties, and other people with ideological leanings that displeased the authorities – were tortured, beaten by state security forces, and convicted and imprisoned after unfair trials.

During the presidencies of Ben Ali and his predecessor, Habib Bourguiba, the judiciary systematically failed to prosecute abuses by Tunisian officials, allowing a culture of impunity to take hold.

Since 2011, Tunisian authorities have made some strides to prosecute and try human rights violations, most notably those committed during the uprising that toppled Ben Ali, from December 17, 2010, through February 2011. Police responded with excessive force and brutality to protests against the president’s authoritarian rule, killing some 132 protesters and injuring hundreds more.

The trials for these killings started at the end of 2011 in military courts, which have jurisdiction over the military and security force members. Three first instance military courts started investigations in July 2011, and grouped the cases geographically. Group trials in the military tribunals of Tunis and Le Kef started in November and December 2011. The defendants included two former interior ministers, five general directors of the ministry, and several high-level and mid-level security force commanders. The Le Kef military court pronounced sentences on June 13, 2012, and the Tunis court on July 19, 2012.

The appeals military court on April 12, 2014, confirmed Le Kef and Tunis first instance sentencing of Ben Ali in absentia to life in prison for complicity in murder. However, it lowered the sentences for all the other high-ranking officials.

These trials appeared to be generally conducted in a way that respected the rights of defendants. However, several factors undermined the extent to which they were able to hold accountable those believed responsible for unlawful killings. These included the prosecution’s failure to build the evidence to identify the people directly responsible for the crimes, and the lack of penal code articles that would make possible the prosecution of senior officers for responsibility over crimes that their subordinates committed. The government’s failure to press effectively for Ben Ali’s extradition from Saudi Arabia also undermined accountability.

Although Ben Ali’s security forces used torture extensively, the new authorities have, in the three years since Ben Ali’s overthrow, investigated and prosecuted only one torture case. In that case, known as Barraket Essahel case, a military court convicted former Interior Minister Abdallah Kallel and three security officials of “using violence against others either directly or through others,” and sentenced them to two-year prison terms. The case arose from the arrest and detention of 17 senior military officers in 1991 in connection with an alleged plot by the Islamist movement Al-Nahdha against Ben Ali.

The Transitional Justice Law
On December 24, 2013, the National Constituent Assembly (NCA) adopted the Law on Establishing and Organizing Transitional Justice. The law was largely the result of the work of a technical committee set up by the Ministry of Human Rights and Transitional Justice. Most committee members were representatives of Tunisian human rights groups. The United Nations Development Program, the Tunisia office of the UN Office of the High Commissioner for Human Rights, and the International Center for Transitional Justice had observer status and advised the committee. The government endorsed the draft bill and submitted it to the NCA in January 2013.

The law created aTruth and Dignity Commission, with 15 independent members who serve a four-year term, with a possible one year extension. The law mandates the commission to “determine the responsibility of the organs of the State or any other parties” for human rights violations in Tunisia from July 1, 1955, until December 2014, when the law was adopted. 

Under the law, violations include “any gross or systematic infringement of any human right committed by the state’s apparatuses or by groups or individuals who acted in the state’s name or under its protection, even if they did not have the capacity or authority to do so. Violations shall also include any gross or systematic infringement of any human right committed by organized groups.”

The commission will play a major role in setting up a reparation program for the victims, determining the criteria for reparations, and assisting victims in need of urgent assistance such as medical care or social services. The law also provides for the creation of a Fund for the Dignity and Rehabilitation for Victims of Tyranny.

The commission has significant powers. It has access to state archives and judicial files relevant to documenting past abuses and can summon people to testify, or organize confidential or public hearings. It can inspect private and public places, request forensic examinations, and take necessary measures to protect witnesses and the victims. Anyone who refuses to respond to a summons from the commission or obstructs its work could be punished by up to six months in prison. It will be able to refer cases of gross human rights violations to the judiciary, including the specialized chambers, for possible criminal prosecution.

The commission will also mediate cases relating to gross violations of human rights, if it receives a request for mediation from the victim, or from the alleged perpetrator with the victim’s approval. Any perpetrator who requests mediation must acknowledge his guilt and offer a clear apology. In cases of gross violations of human rights, mediation would not lead to a suspension of litigation before the judiciary, including the specialized chambers. However, the law states that the judiciary should take the commission’s mediation into account when deciding penalties.

Structure of the Specialized Chambers
The transitional justice law does not specify procedures for appointing judges to the specialized chambers, only that these courts should have judges who have “never participated in political trials.” Procedures for appointing judges will be crucial to ensure the independence and impartiality of the chambers. The courts should follow the procedure stipulated in the constitution, with nominations by the Supreme Judicial Council (Conseil Supérieur de la Magistrature) with the president’s approval. 

In setting up the specialized chambers, Tunisian authorities should abide by article 14 of the International Covenant on Civil and Political Rights (ICCPR), which states that individuals who face criminal charges are “entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law.”

The UN Human Rights Committee, the authoritative interpreter of the ICCPR, has stated that when creating special jurisdictions, countries must satisfy certain conditions under international law. This is to avoid infringement by these special jurisdictions on the right to “equality before courts and tribunals and to a fair trial.”

The Human Rights Committee states in general comment no. 32 that:

The requirement of competence, independence and impartiality of a tribunal … is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure… and the actual independence of the judiciary from political interference by the executive branch and legislature.

The implementing decree for the specialized chambers should address all phases of the judicial process, including the investigation, the prosecution, and the trial. It should provide adequate staff to investigate effectively the violations that fall within the chambers’ jurisdiction, and to ensure legal representation for the accused, participation of the victims, and protection of victims and witnesses from intimidation and reprisals.

It is important for the implementing decree to specify whether there will be a special prosecutor for each specialized chamber, as the role of the prosecutor’s office will be crucial in initiating criminal proceedings. It should also consider establishing whether there will be a chief prosecutor’s office for the specialized chambers, possibly located in the appeals court of Tunis, the capital. This centralized structure would help ensure a common approach to prosecutorial strategy and coordination among the cases.

Article 8 of the transitional justice law does not spell out the interplay between normal chambers within the courts system and the specialized chambers. Several torture complaints are pending in various courts, most at the investigative level. The implementing legislation should clarify the rules for assigning cases between the ordinary chambers and the specialized chambers. 

Rights of the Defense and Prohibition of Double Jeopardy
Proceedings before the specialized chambers must respect the rights recognized in articles 9 and 14 of the ICCPR, which Tunisia ratified in 1969. Article 14’s paragraph 7 prohibits “double jeopardy.”

The wording of Tunisia’s constitution and transitional justice law both contain provisions that may violate the prohibition of double jeopardy. In its general comment no.32, the Human Rights Committee stated that article 14, paragraph 7 prohibits “bringing a person, once convicted or acquitted of a certain offence, either before the same court again or before another tribunal again for the same offence; thus, for instance, someone acquitted by a civilian court cannot be tried again for the same offence by a military or special tribunal.”

Article 42 states, however,  that the commission shall refer to the public prosecutor the cases in which the commission of gross human rights violations is proven, and in such cases, the invocation of res judicata – a matter already judged – shall not forestall prosecution. In addition, article 148 paragraph 9 of the new constitution appears to indicate that a defendant could be tried twice for the same offense. The article provides that “the state undertakes to apply the system of transitional justice in all its domains and according to the deadlines prescribed by the relevant legislation. In this context the invocation of the non-retroactivity of laws, the existence of previous amnesties, the force of res judicata, and a statute of limitations on a crime or punishment are considered inadmissible.”

When taken together, these provisions of the transitional justice law and the constitution suggest that a person who was tried by a regular court for criminal conduct could face a second trial before the specialized chambers for the same offense.

There are two main exceptions to the prohibition of double jeopardy under international law – when there are new exceptional circumstances, such as the discovery of new evidence, or when the previous proceedings were not conducted independently or impartially in accordance with due process. However these exceptions are not clearly spelled out in the transitional justice law.

The Truth and Dignity Commission – with its broad access to archives and testimony – could indeed discover new facts significant enough that they could arguably justify a second prosecution of someone already tried.

The List of Crimes and the Principle of Non-Retroactivity
Article 8 of the transitional justice law gives the specialized chambers jurisdiction over “gross violations of human rights as specified in international agreements ratified by Tunisia and by this law.” The article gives a non-exhaustive list, including deliberate killing, rape, and any form of sexual violence, torture, enforced disappearance, and execution without fair trial guarantees. The article says the specialized chambers shall also have jurisdiction over cases referred by the Truth and Dignity Commission involving electoral fraud, financial corruption, misuse of public funds, and forcing people to migrate for political reasons.

Electoral fraud and forced migration for political reasons are not criminalized under existing Tunisian law. The original draft law did not mention them, but the NCA added them to target political figures from the former government, some observers believe. Their inclusion seems to violate the principle thatno one can be convicted for an act that did not constitute a crime at the time it was committed (nullum crimen nulla poena sine lege).

Article 15.2 of the ICCPR affirms the principle of non-retroactivity but also asserts:

[n]othing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

Electoral fraud and forced migration for political reasons do not fulfill this condition.

Tunisian legislators should amend the transitional justice law to ensure its compliance with these principles of non-retroactivity, Human Rights Watch said.

Incorporating “Command Responsibility”
The transitional justice law grants the specialized chambers jurisdiction over grave violations of human rights without defining to what level the liability extends. Legislators should revise the penal code or enact new legislation to fully incorporate the principle of command responsibility for international crimes in accordance with international law, Human Rights Watch said.

Tunisian law currently provides that a person can be held criminally accountable only for the direct commission of a crime or for complicity in it. Article 32 of the penal code sets out the meaning of complicity as either facilitating the commission of the crime by aiding, abetting or assisting; giving instructions to commit it; or conspiring with others for a criminal purpose.

Such forms of criminal responsibility do not cover the concept known in international law as command or superior responsibility, which holds a superior liable even when the person did not order the crime or facilitate its commission, but either knew or should have known it was likely to have occurred and failed either to prevent it or to submit it for investigation and prosecution.

The military courts that prosecuted the killings committed during the 2011 uprising revealed the legal obstacles under existing Tunisian law to holding high commanders responsible for the actions of their subordinates. The defense lawyers for the directors general of the security forces largely prevailed in their arguments that the prosecutor’s failure to prove the existence of orders to use deadly force should result in the officials’ acquittal. The lawyers argued that under Tunisian law the crime of complicity in murder, for which the officials were charged, requires proof of an actual act by the accused to assist the murder.

Introducing command responsibility and forms of liability for superiors is desirable in view of the broad temporal and material jurisdiction of the specialized chambers. Prosecuting all of those directly responsible for abuses would risk overwhelming the chambers, while diluting the responsibility of high commanders.

Legislators should revise the penal code to define a crime of command responsibility consistent with international legal concepts, Human Rights Watch said. Such a provision would not violate the principle of non-retroactivity so long as it complied with article 15.2 of the ICCPR, which asserts that the principle is not violated so long as the act or omission in question – whether or not domestic law criminalized it – “at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”

The principle of command responsibility is deemed part of customary international law and is cited widely in international jurisprudence. For example the International Criminal Tribunal for Former Yugoslavia called it “a well-established principle of conventional and customary law.”

The UN Committee against Torture, in its general comment on the Convention against Torture, stated that “[t]hose exercising superior authority – including public officials – cannot avoid accountability or escape criminal responsibility for torture or ill-treatment committed by subordinates where they knew or should have known that such impermissible conduct was occurring, or was likely to occur, and they failed to take reasonable and necessary preventive measures.”

In addition, Tunisia’s membership in the International Criminal Court (ICC) requires it to adopt the principle of criminalizing command responsibility for genocide, war crimes, and crimes against humanity. This would include torture in instances in which the torture in question is so widespread and systematic that it meets the criteria of a crime against humanity. The Rome Statute, which created the ICC, sets out that command responsibility imputes liability to the military commanders or civilian superiors for crimes committed by subordinate members of armed forces or others under their effective control.

Paragraph 24 of the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides:

Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.

Appropriate conceptions of criminal responsibility are necessary for accountability at all levels, including for those whose responsibility extends beyond physical commission of the crime.

Death Penalty
Several of the human rights violations under the jurisdiction of the specialized chambers carry the death penalty under Tunisian law. Article 201 of the penal code states that anyone who commits willful premeditated murder shall be punishable by death. Article 227 states that anyone who commits rape with the use of violence or rapes a child under 10 will face capital punishment. Human Rights Watch opposes the death penalty in all circumstances, as a cruel, inhuman, and degrading punishment.

Military Justice Versus Specialized Chambers
The transitional justice law grants the specialized chambers jurisdiction over gross human rights violations committed in the relevant time period while remaining silent on the potential conflict of jurisdiction between these chambers and the military courts, which have jurisdiction over crimes committed by security forces. Article 22 of law 70 of August 1982 regulating the Basic Status of Internal Security Forces grants military courts jurisdiction over crimes alleged to have been committed by members of the security forces, regardless of who the victims are or the capacity in which the crimes were allegedly committed. Article 22 states that “cases involving agents of the internal security forces for their conduct during the exercise of their duty and linked to internal or external state security, or to the protection of public order […] during public meetings, processions, marches, demonstrations, and gatherings, must be transferred to the competent military courts.”

The risk of conflict of jurisdiction is compounded by the existence of an article in the new constitution stating that “the military tribunals continue to exercise the jurisdiction they have been granted by the current laws until their amendment by the dispositions of article 110 [of the constitution].” This article states that military courts are competent to deal with military crimes. This means that until the revision of the 1982 law and other laws relating to the jurisdiction of the military courts, they should continue to exercise their jurisdiction over security force violations.

Human Rights Watch has long called for restricting military justice to military offenses committed by military personnel. A growing body of jurisprudence from the human rights monitoring bodies urges countries to try military personnel charged with human rights violations in civilian courts. In Suleiman v. Sudan, the African Commission on Human and Peoples’ Rights affirmed that military tribunals should only “determine offences of a purely military nature committed by military staff” and “should not deal with offences which are under the purview of ordinary courts.”

In addition, the principles and guidelines on the right to a fair trial and legal assistance in Africa proclaimed by the African Commission on Human and Peoples’ Rights states, “The only purpose of Military Courts shall be to determine offences of a purely military nature committed by military personnel.” Tunisia is a state party to the African Charter on Human and Peoples’ Rights.

Tunisian lawmakers should revise the relevant legislation to remove from military court jurisdiction all offenses, no matter who is accused of the crime, except those of a purely military nature committed by military staff.

Protecting Victims, Witnesses, and Judicial Staff
Protecting victims, witnesses, and judicial staff is essential for the smooth conduct of proceedings involving grave violations of human rights and international crimes. Victims and witnesses in these cases are very often in a vulnerable position, both physically and psychologically. The implementing legislation should include provisions on protecting victims, witnesses, and judicial staff. As far as Human Rights Watch has been able to determine, Tunisia’s judicial system does not provide for this type of protection. 

The law should provide mechanisms to assess the risks to witnesses and facilitate court appearances and measures to protect the confidentiality, integrity and autonomy of the proceedings while ensuring a fair trial, including the rights of all persons to challenge the evidence and witnesses against them. The legislation should also provide for physical protection and psychological assistance before, during,and after proceedings,as warranted.

The implementing legislation should also include measures to protect judges and prosecutors working on such cases that may involve once-powerful elements of the security apparatus. Judges and prosecutors cannot work independently or impartially if they fear for their safety. In Tunisia, provisions for assuring the security of judicial staff are limited.

The law or decree implementing the specialized chambers should:

  • Determine procedures for appointing judges and prosecutors consistent with the requirements of independence and impartiality. The decree should follow the procedure set up by the constitution for the nomination of judges, that is, on the basis of selections and recommendations by the Supreme Judicial Council;
  • Specify that no one who has been tried by another court shall be tried before the specialized chambers for the same acts except in cases in which significant evidence is discovered that was not available or known at the time of the previous trial, or in cases in whichthe prior proceedings were not conducted independently or impartially in accordance with the norms of due process recognized by international law, and/or were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice;
  • Include provisions on protecting victims, witnesses, and judicial staff; and
  • Define the relationship between the ordinary and specialized chambers and whether the cases of human rights violations that regular courts are examining should be transferred to the specialized chambers.

In addition, Tunisian legislators should:

  • Amend article 8 of the transitional justice law to eliminate crimes of election fraud and forced migration for political reasons, to protect people from being prosecuted for actions that were not criminalized at the time of their commission;
  • Reform the penal code to include a provision on command responsibility consistent with its definition under international law, so that the specialized chambers can consider its applicability to cases brought before it;
  • Reform Tunisian legislation to restrict the mandate of military justice only to military crimes committed by military personnel; and
  • Reform the penal code to eliminate the death penalty, including for offenses within the mandate of the specialized chambers.

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