(Tunis) – A Tunisian blogger has been imprisoned after the Tunis military court sentenced him to a three-year term for “defaming the army” and “insulting military high command” through Facebook posts. 

Authorities arrested Yassine Ayari upon his arrival at Tunis-Carthage airport from France on December 24, 2014. On December 25, he appeared before a military judge who informed him that a military court had convicted him in absentia on November 18. In another trial on November 18, the same military court sentenced in absentia Sahbi Jouini, a police union leader, to two years in prison under the same article of the military justice code concerning defamation.

“In a single day, Tunisia’s military court imposed prison sentences on a union leader and a blogger for speech offenses, even though neither was present for his trial,” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. “This is not worthy of the new Tunisia.”

At the December 25 hearing, the judge ordered Ayari’s transfer to Mornaguia Prison to begin serving his sentence. International law applicable in Tunisia prohibits the trial of civilians before military courts. Ayari’s lawyer, Malek Ben Ammar, requested a retrial, which the court scheduled for January 6, 2015. Jouini is provisionally free, pending his retrial. On December 30, the First Instance military tribunal adjourned his case to February 26, 2015.

Ayari, a Tunisian national who lives in France, has sparked controversy with his posts. A supporter of the unsuccessful presidential candidate Moncef Marzouki, Ayari published attacks on the eventual winner of the December 21 vote, Béji Caïd Essebsi. In August and September, Ayari published several Facebook posts criticizing Minister of Defense Ghazi Jeribi for refusing to appoint a new head for military intelligence, and for weakening military institutions. He also made the same allegation that led to the conviction of Jouini, namely that the Defense Ministry had received, but failed to act on, precise advance intelligence about an attack by militants on July 16, 2014, that killed 16 soldiers and wounded another 23 in the Chaambi Mountains area close to the Algerian border.

Article 91 of Tunisia’s code of military justice authorizes up to three years imprisonment for anyone who “commits ... outrages against the flag or the army, offenses against the dignity, reputation or morale of the army, or acts to undermine military discipline, obedience and due respect to superiors or criticizes the action of military hierarchy or the military officers, offending their dignity.”

Ayari’s indictment, prepared by the military investigative judge in the first bureau of the Tunis Military Court and dated November 11, 2014, shows that the investigative judge opened an investigation on the basis of Facebook posts by Ayari from August and September 2014. The investigative judge concluded that Ayari’s posts had defamed the army command and that they could harm the “morale” of the armed forces. In the course of his investigation, the investigative judge interrogated six witnesses, all named in Ayari’s posts, who alleged that Ayari revealed military secrets by disclosing confidential information about their nomination to their positions in the army and that he intentionally harmed their reputation and consequently weakened discipline among the soldiers under their command. The investigative judge charged Ayari with the offenses of “harming the dignity of the army” and of “defaming army high command resulting in undermining military discipline.”

The prosecution of persons for defaming the army or other state institutions is incompatible with Tunisia’s obligations under article 19 of the International Covenant on Civil and Political Rights (ICCPR). 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,” adding that “State parties should not prohibit criticism of institutions, such as the army or the administration.” In its recent ruling Lohé Issa Konaté v. Burkina Faso, the African Court on Human and Peoples’ Rights considered that criminal penalties for acts of defamation were incompatible with the African Charter on Human and People’s Rights.

Tunisia’s 2014 constitution in article 31 protects the right to free speech. Moreover, article 49 of the constitution 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.”

Moreover, trying Ayari and Jouini, both civilians, before a military tribunal violates the norm of international law that military courts should not have jurisdiction over civilians, Human Rights Watch said. The African Commission on Human and Peoples’ Rights, Principles and Guidelines on the right to fair trial and legal assistance in Africa state that military courts should not “in any circumstances whatsoever have jurisdiction over civilians.”

After the ouster of President Zine al-Abidine Ben Ali in January 2011, the interim government overhauled the military justice system. Decree no. 69 of July 29, 2011, introduced many important reforms but did not eliminate the jurisdiction that military courts have over civilians and over non-military offenses committed by military personnel.

Trying a defendant in absentia can undermine some of the defendant’s basic rights to a fair trial, including the right to be present, to be defended by counsel of the person’s choice, and to examine witnesses. International law disfavors but does not prohibit trials in absentia. National systems that maintain the practice should, at minimum, institute procedural safeguards to ensure the defendant’s basic rights. Ayari’s trial in absentia does not seem to meet those standards. While the military court claims it notified him at his known address, his lawyer and family told Human Rights Watch that they had changed their address and that the military court knew about it because they had sent them correspondence on previous litigation relating to damages for the killing of Taher Ayari, Yassine’s father, who was shot dead in May 18, 2011, in an attack by a radical Islamist group. Yassine was immediately sent to prison to serve his sentence pending his retrial, without the opportunity to defend himself in court.

The Tunisian parliament should reform all laws that lead to prison terms for offenses that involve defaming or insulting state institutions. They should also change the mandate of the military tribunals to remove jurisdiction of military courts over civilian defendants.

“Repressive laws like article 91 of the military justice code should have no place in a country where basic human rights are the foundation of its new constitution,” Goldstein said. “As long as such laws remain, those in power can’t resist the temptation to silence criticism and dissent.”