People hold up pictures of relatives who died in protests during the January 2011 revolution, at a demonstration outside a military court in Tunis June 26, 2012

(Tunis) – Tunisian efforts to ensure accountability for unlawful killings committed during the uprising four years ago were blighted by legal and investigative problems and failed to deliver justice for the victims, Human Rights Watch said in a report released today. A lengthy process before military courts for ex-President Zine el-Abidine Ben Ali and 57 other defendants accused of causing the deaths of protesters resulted in a life sentence in absentia for Ben Ali, sentences of three years in prison or less for 27 of the defendants and acquittals for the other 25.

To the Tunisian Authorities

Redouble efforts to ensure that one of the main defendants in these trials, the former president Zine El Abidine Ben Ali, is extradited from Saudi Arabia to face justice.
Reform the penal code to include a provision on command responsibility under which civilian officials and security force commanders can be held liable for crimes committed by their subordinates.
Reform Tunisian legislation to restrict the mandate of military justice only to military crimes committed by military personnel and to exclude all cases in which either the defendant or the victim was a civilian.

The 52-page report, “Flawed Accountability: Shortcomings of Tunisia’s Trials for Killings during the Uprising,” analyzes Tunisia’s efforts to bring to justice those responsible for the use of excessive force by police between December 17, 2010, and January 14, 2011, when Ben Ali relinquished power and fled Tunisia. During that period, 132 protesters were killed and hundreds more were injured. In all, 53 defendants were brought to trial in late 2011, including two former interior ministers and senior Interior Ministry officials. But Ben Ali, the principal defendant, was tried in absentia. Due to longstanding legislation that the new authorities failed to amend, the trials took place before military courts.

“While the Tunisian authorities are to be commended for seeking to ensure accountability for the deaths of protesters, the process was marred by serious flaws virtually from start to finish,” said Eric Goldstein, deputy Middle East and North Africa director. “As a result, four years after the uprising, many of the victims are still denied justice.”

The Human Rights Watch report is based on extensive interviews with lawyers, victims’ families, and members of the military justice system, and a close analysis of court documents, including the appeals military court judgment on January 12, 2014.

The 53 accused stood trial before three first instance military courts, whose judgments were then reviewed by the appeals military court under a decades-old law that prevented civilian courts from trying cases against the security forces.

The process had major shortcomings. During the initial investigation phase, the prosecution failed to secure important evidence. The law fails to address the issue of command responsibility, under which civilian, police, and security force commanders can be held liable for crimes committed by their subordinates. Flawed legal reasoning also led the appeals military court to reduce the trial courts’ findings against senior level officials to simple criminal negligence, despite the gravity of the crimes.

The authorities’ failure to pursue vigorously the extradition of Ben Ali from Saudi Arabia, where he had been given refuge, also critically weakened the process. It deprived the prosecution and trial courts the opportunity to question the principal defendant and to examine his role in the killings and those of other senior officials. Despite some reforms in July 2011, the military justice system remains under control of Tunisia’s executive authorities and cannot be considered independent.

In December 2013, months after the military prosecutions had begun, Tunisia’s National Constituent Assembly adopted the Law on Establishing and Organizing Transitional Justice. The law sets out a comprehensive system for addressing past human rights abuses, including by creating a Truth and Dignity Commission and Specialized Judicial Chambers presided over by judges trained in transitional justice to hear cases arising from serious human rights violations. 

The December 2013 law empowers the Truth and Dignity Commission to review the uprising-related cases tried by military courts and refers them to the specialized chambers for retrial. That raises the possibility that defendants who were acquitted or have served their sentences could face retrial for the same crimes.

The reopening of these cases may be a way to address the shortcomings of the military court process and deliver justice for the victims. But retrials should be permitted only if they satisfy international standards for any exceptions to double jeopardy, Human Rights Watch said. Retrials are allowed if new evidence is discovered that points to an individual’s criminal liability for the crime or if a careful review of the previous trials shows that they were not conducted independently or impartially.

Tunisia’s parliament should amend the penal code to include a provision on command responsibility and to curtail the jurisdiction of military courts to exclude all cases in which either the defendant or victim was a civilian, Human Rights Watch said. The command responsibility provision would prevent senior political and military officials from evading accountability for crimes committed by those under their command.

“Tunisian authorities need to press ahead to ensure that their transitional justice mechanisms operate independently and impartially and deliver effective investigations, fair trials, and justice,” Goldstein said.