(Tunis) – The Tunisian government’s new draft counterterrorism law would permit extended incommunicado detention, weaken due process guarantees for people charged with terrorism offenses, and allow the death penalty, Human Rights Watch said today in a report outlining the concerns sent to Tunisian legislators.

The government sent the bill to parliament on March 26, 2015, following a spate of deadly attacks targeting both Tunisians and foreign visitors. The parliament, which has not yet set a schedule for considering it, should revise the bill to strengthen its protections for human rights.

“While Tunisia should take all reasonable steps to address terrorism and protect public safety, some provisions of the proposed law could lead to serious human rights violations,” said Eric Goldstein, deputy Middle East and North Africa director. “Respect for human rights needs to be at the law’s heart for counterterrorism efforts to succeed.”     

The bill is to replace a current law adopted in 2003. The government of Zine El Abidine Ben Ali tried about 3,000 people on terrorism charges under the current law before he was ousted in early 2011. Many of the cases were brought against people for political dissent, with convictions based on confessions extracted under torture, a United Nations report found.

The proposed law would revise a draft that the government submitted to the National Constituent Assembly (NCA), Tunisia’s parliament, in January 2014. The assembly suspended voting on the draft amid disagreements over its provisions and in advance of legislative elections in October. A Human Rights Watch report found that the earlier draft would have violated a host of human rights and recommended revisions.

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 incommunicado pre-charge detention for up to 15 days with a prosecutor’s consent and without bringing the person before a judge. During that time the suspect would have no access to a lawyer or contact with their family, increasing the risk of torture. Currently, Tunisian law allows authorities to hold suspects – including those accused of terrorism-related crimes – for a maximum of six days.

Second, it would allow a death sentence for anyone convicted of a terrorist act resulting in death though Tunisia has had a moratorium on executions since 1991. Human Rights Watch opposes capital punishment under all circumstances, as a practice unique in its cruelty and finality.

On March 18, armed men attacked the Bardo Museum, next to Tunisia’s parliament building in Tunis, killing at least 22 people, mostly foreign tourists, and injuring more than 47 others. It was the first such mass attack on civilians in Tunisia since gunmen killed 19 people in the Ghriba Synagogue on the island of Jerba on April 11, 2002. Since the uprising that ousted Ben Ali, attacks by armed groups have also killed more than 40 members of Tunisia’s army and other security and armed forces and wounded at least 148.

The latest version of the draft law retains improvements over the 2003 law from the draft debated in the assembly in 2014. These include reparation provisions that would provide support for terrorism victims, including free health care in public hospitals and judicial assistance, and a ban on deporting or extraditing suspects to countries where they would face torture or other inhumane treatment. It would also create a commission headed by a magistrate to devise a comprehensive strategy to address terrorism.

The new version also retains positive provisions of the 2014 draft requiring judicial supervision of surveillance and other activities conducted by Tunisia’s security and intelligence services, including interception of communications and infiltration of groups the government considers terrorists. However, 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.

In addition to the death penalty and the pre-charge detention provision, the draft law retains some of the flaws of the previous draft, Human Rights Watch said. Its broad and ambiguous definition of terrorist activity could permit the government to repress a wide range of internationally protected freedoms. As an example, it could be used to prosecute as a terrorist act a public demonstration that led to “harming private and public property” or the disruption of public services. 

The draft law also allows a judge to permit a witness to give evidence anonymously based not only on security considerations but on whether there may be a risk to the “livelihood” of the witness or the person’s family. This could impose unjustified restrictions on the right of an accused to challenge the evidence against them, undermining the fairness of the proceedings.

The draft law provides exempts lawyers from the penalty of failing to inform the relevant authorities of the facts, information, or intelligence relative to terrorist infractions about which they had knowledge. But the exemption does not apply if the information could “prevent the commission of terrorist acts in the future.” This broad formulation undermines the right to an effective defense for suspects charged with terrorism offenses.

“Tunisia’s efforts to restore the rule of law after the abuses under Ben Ali will take a step backward if the new counterterrorism proposals are adopted in their present form,” Goldstein said. “Abusive measures such as executions and incommunicado detention have no place in the new Tunisia, even to confront these heinous new attacks.”