(Tunis) – A Tunisian police union leader accused of defaming the army has been sentenced to two years in prison. The military first instance tribunal in Tunis imposed the sentence on Sahbi Jouini on November 18, 2014, after conducting an in-absentia trial without notifying him in advance.

A military prosecutor initially called Jouini to testify as a witness after he stated during a TV talk show that the Defense Ministry had received prior notice about an armed group attack that killed 16 Tunisian soldiers, but had failed to take protective measures. He told Human Rights Watch that the prosecutor changed his status from witness to accused without notifying him. The Tunisian authorities should drop the criminal proceedings against him.

“The proper response by the authorities to Jouini’s accusations is to investigate them,” said Eric Goldstein, deputy Middle East and North Africa director. “By sending the messenger off to prison, the Tunisian authorities are trying to shut down public debate about the Defense Ministry’s conduct and capabilities.”

Jouini said that he did not receive a summons to attend his trial, as the code of criminal procedure requires, and that he learned of his conviction on social media.

He said he had been notified in July to appear before the prosecutor as a witness, and did not know that the military prosecutor had charged him with impugning the reputation of the army, under article 91 of the code of military justice. He has not been detained and is awaiting official notification of the sentence to request the reopening of his trial as he was tried in absentia.

His remarks on a TV talk show followed an attack on July 16 that killed 16 soldiers and wounded another 23 in the Chaambi Mountains area close to Tunisia’s border with Algeria. The attackers apparently were members of an Islamist armed group. On July 17, Jouini declared on Nessma TV that the Defense Ministry had received intelligence information a week in advance that included the date and details of the planned attack, but failed to take steps to protect the soldiers. Defense Minister Ghazi Jeribi denied Jouini’s allegations and said he would file a complaint against Jouini for defaming the army.

The criminal charges against Jouini violate his right to free speech, protected under article 31 of the new Tunisian Constitution and article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Tunisia is a party. In 2011 the United Nations Human Rights Committee (HRC) issued guidance to states parties on their free speech obligations under article 19 that emphasized the high value that the ICCPR places upon uninhibited expression “in circumstances of public debate concerning public figures in the political domain and public institutions.”

The committee also expressed concern about laws that criminalize “disrespect” of government authorities, national flags, and symbols, or protect the “honor” of public officials, and said that states parties should not prohibit criticism of institutions, such as the army or the administration. To ensure robust freedom of expression, state officials and institutions should not be able to file defamation suits, or have such suits filed on their behalf, in response to criticism, the committee said.

The Johannesburg Principles on National Security, Freedom of Expression, and Access to Information, which set out best practices in this area, states in principle 7(b):

 

No one may be punished for criticizing or insulting the nation, the state or its symbols, the government, its agencies, or public officials, or a foreign nation state or its symbols, government, agency or public official unless the criticism or insult was intended and likely to incite imminent violence.

 

The Tunisian parliament, elected on October 26, 2014, should urgently reform all the laws that lead to prison terms for defamation offenses and insulting state institutions. When interpreting laws, judges should rely on article 49, which sets limits on the scope of permissible restrictions to rights and freedoms. This article states that any restrictions imposed on the human rights that the constitution guarantees must not compromise the essence of such rights; must not be imposed except where necessary in a civil and democratic society to protect the rights of others, public order, national defense, public health, or public morals; and that such restrictions must be proportionate to the intended objective.

“The Tunisian authorities need to get to the bottom of Jouini’s claims, but they will not do that by locking him up,” Goldstein said. “On the contrary, the way that the authorities have pursued him may even lead some to attach greater credence to his allegations.”