This report analyzes Tunisia’s draft counterterrorism law and assesses to what extent the proposed law conforms to international human rights standards.
An initial version of the draft law was submitted to the National Constituent Assembly (NCA), Tunisia’s parliament, by the Council of Ministers in January 2014. The NCA suspended voting on the draft amid disagreements over its provisions and in advance of legislative elections in October 2014. The new government submitted a new draft on March 26 to the parliament that was elected on October 26, 2014.
The new draft comes amid a spate of violent attacks by extremist groups targeting both Tunisians and foreign visitors, including the March 18 attack against tourists at the Bardo Museum in Tunis that killed 21 foreigners and one Tunisian.
The bill is intended to replace the counterterrorism law currently in force that was adopted in 2003 (the law on supporting international efforts to fight terrorism and to eradicate money-laundering). That law was criticized both for its broad definition of terrorism and provisions undermining the right to a fair trial, and for the way that the government of ousted president Zine el-Abidine Ben Ali was able to use it to prosecute dissenters for peaceful activities.
From a human rights perspective, the new draft is worse than the 2014 draft in two aspects. First, it would allow police to hold suspects in pre-trial incommunicado (garde-à-vue) detention for up to 15 days with a prosecutor’s consent. During that time the police would not have to present the suspect to a judge or allow him or her contact with a lawyer or family member. This makes the suspect more vulnerable to torture and ill-treatment because the isolation reduces the chance that a third party will detect such abuses. Currently, Tunisian law allows authorities to hold suspects—including those accused of terrorism-related crimes--in garde-à-vue for a maximum of six days.
Second, it introduces capital punishment for terrorist acts that lead to death. Neither the 2003 law, nor the previous draft provided for the death penalty.
The new draft of the law also retains some of the flaws contained in the January 2014 draft:
- It contains a broad and ambiguous definition of terrorist activity that could permit the government to repress a wide range of internationally protected freedoms.
- It includes as “terrorism crimes” acts such as “harming private or public property” and harming “resources and infrastructures, transportation means, communication networks, information and computer systems or public facilities” that could lead to criminalizing political dissent or minor acts of violence during social protests.
- The draft’s vague terminology on apology of terrorism means that people could be prosecuted for using a term or symbol that is deemed supportive of terrorism, regardless of whether it was likely to result in any concrete action.
- However the latest version of the draft law also retains some of the improvements introduced in the 2104 draft. These include:
- Reparation provisions that would provide support for terrorism victims, including free health care in public hospitals and judicial assistance.
- A ban on deporting or extraditing suspects to countries where they would face torture or other inhumane treatment.
The creation of a commission headed by a magistrate to devise a comprehensive strategy to address terrorism, oversight of surveillance and other activities conducted by Tunisia’s security and intelligence services.
However, with regard to judicial oversight of the security and intelligence services, there remain serious flaws in the draft counter terrorism law. Rather than placing surveillance decisions under the exclusive oversight of independent judges, it extends the power to order such measures to prosecutors, who under Tunisian law are linked to the executive branch. Furthermore, the draft law would give judges overly broad discretion to close hearings and to hear anonymous witnesses. It would also undermine the right to an effective defense by obliging lawyers of suspected terrorists to reveal information about their clients. In addition, the draft does not offer sufficient judicial oversight over exceptional police powers to interfere with privacy in anti-terrorism operations.