(Tunis) – Tunisia’s use of house arrest for at least 139 people under a November 2015 state of emergency decree has left many facing stigmatization and unable to pursue studies and work, Human Rights Watch said today. The authorities have justified the measures in the context of countering terrorism.
“States of emergency do not give governments a blank check to curb rights,” said Amna Guellali, Tunisia director at Human Rights Watch. “To be legitimate, exceptional measures such as house arrest need to be subject to appeal and time limits.”
Under international standards, house arrests are considered as a form of detention and warrant certain safeguards to be considered lawful, even during a state of emergency. If Tunisian authorities continue to impose house arrest orders under the state of emergency, they should do so only for finite periods, deliver a written copy of the decision, and make it subject to meaningful challenge and judicial review. Each renewal of such detention orders should be subject to approval by a court with the state authorities having to prove the necessity for ongoing detention, considering all the circumstances, including the access to work for the detainee.
On November 24, 2015, Tunisian President Béji Caid Essebsi declared a state of emergency after a suicide bombing in Tunis killed 12 presidential guards and wounded 20 others. It was renewed several times, most recently on September 16, 2016.
Tunisia’s state of emergency is based on a 1978 presidential decree that gives the Interior Ministry the authority to order the house arrest of anyone whose “activities are deemed to endanger security and public order.” The decree adds that the authorities must “provide for the livelihood of the person [placed under house arrest] and his family.” Those Human Rights Watch interviewed said the government had failed to provide them with such support.
Shortly after the initial declaration, the Interior Ministry announced that it had placed 139 people under house arrest, saying that they were either returnees from conflict zones or suspected of links to domestic militant groups such as Ansar al-Sharia, which the government classified in September 2015 as a terrorist group.
Human Rights Watch interviewed 13 people who said they were placed under house arrest. Eleven were placed under house arrest in November 2015, and two in August 2016. Some of those interviewed are charged with terrorism-related offences. However, the house arrest orders have no formal connection to those charges. They are not a form of pretrial judicial control imposed by the courts that are prosecuting them.
Those interviewed said the police provided them at best with vague grounds for the house arrest orders. All 13 said the police had them sign a notification of the decision without letting them keep a copy. The consistency of this refusal indicates that it is a policy rather than the initiative of individual officers.
They said the police ordered them to remain at their homes always. Some had to check in twice a day at the police station. In other cases, police came to their homes daily to check on them.
Human Rights Watch interviewed three persons who said that the authorities had partially lifted their house arrest orders in 2016, allowing them to go between their homes and place of work. Others remain under 24-hour house arrest. It is not clear how many persons are under a partial house arrest nor what criteria the authorities use when they decide to impose partial, as opposed to 24-hour, house arrest orders.
Those interviewed said the restrictions on their movements resulted in lost income or inability to pursue their studies and disrupted their lives. “The problem is that I don’t know when this will end,” said Hamed Bouteraa, who had owned a grocery store. “I am bankrupt, I lost my reputation. My friends and a lot of my relatives avoid me. My clients and neighbors are afraid of me now. It has been 11 months and I am still under house arrest. No one explained to me the reason. When I ask the police, the only response I would get is: ‘You are a suspect.’”
While the police did not provide the written house arrest orders, Hafedh Ghadhoun, a lawyer who is defending many of those under house arrest, could obtain two during court proceedings. One order, from the case of Aymen Karoui, who was charged with violating his house arrest order, is signed by then-Interior Minister Najem Gharsalli. It states that the minister put Karoui under house arrest on November 27, 2015, that he is not allowed to leave his house or change residence, and that violations would be prosecuted under the emergency decree, which provides for up to six months in prison or up to 2,500 dinars fine (US$1,135). The written order provides no justification for confining the person to his home.
The absence of written notification has made it difficult for several of those interviewed to challenge the orders before the administrative court, the judicial authority empowered to review administrative decisions. The court’s rules require the complainant to provide a copy of the administrative decision that they seek to challenge.
However, in at least two recent cases, Tunisia’s administrative court accepted challenges without a written copy. Human Rights Watch reviewed one such decision, dated May 17, suspending house arrest for a man named Mohamed Jilani.
The court interpreted the ministry’s emergency house arrest powers to mean it could confine a person to a certain area and restrict their movement between towns, but not to confine them to their homes because this would be akin to “putting the person in prison, which is a violation of their fundamental rights protected in the Constitution.”
Jilani, who was put under house arrest on November 28, 2015, told Human Rights Watch that the police in his area of Tunis refused to follow the court’s decision and that he was subsequently prosecuted and fined for violating house arrest.
For the accounts by the people under house arrest, an analysis of Tunisia’s legal obligations, and additional details, please see below.
House Arrest Cases
Mohamed Hanachi, 34, unemployed, said that on August 16, 2016, he received a phone call summoning him to the district police station in Ariana, a neighborhood of Tunis. Officers there informed him that he was being placed under house arrest. They told him that they did not know the grounds for the decision, only that these were orders, and refused to allow him to read the written Interior Ministry order. They told him that if he violated the house arrest, he would face jail.
Hanachi believes that the house arrest order stems from being arrested in 2014 and charged with membership in a terrorist organization. He spent one year and four months in Mornaguia prison before an investigative judge in the court specializing in terrorism cases provisionally released him on February 25, 2016. The case is still pending.
Marwen el Chaar, 31, works in the Education Ministry. He said that on August 13, 2016, the Kairouan police summoned him to the district station, where the station commander told him that he was being placed under a “partial” house arrest. He gave el Chaar a paper to read from the Interior Ministry but refused to give him a copy. The paper, as he recalled, stated that he has a “house arrest order” against him, under the state of emergency decree. It said he could not leave the Kairouan governorate. He believes his house arrest order is linked to his past affiliation with Ansar Chariaa, which he said he ended shortly after it was classified as a terrorist organization. He was arrested several times after that, but released without charge. He has no charges pending against him, he said.
Ramzy Abderrahmane Ellafi, 34, said that in November, 2015, police officers from the station in Al Mourouj, a southern suburb of Tunis, informed him that they had received an Interior Ministry order to put him under house arrest. He was only allowed to read the order quickly. When he refused to sign, the station commander threatened to imprison him. Ellafi said he is required to report to the Mourouj police station twice a day, but otherwise must stay at home. After a month, he went to Matmata, in southern Tunisia. Police arrested him there, accused him of breaching the emergency law, and took him to the Ben Arous Court of First Instance in Tunis, where an investigating judge released him without charge. He said that on May 18, 2016, he was arrested again after the police came to check on him and did not find him at home. The investigative judge of the Ben Arous court released him again, without charge. He said:
My life is ruined. I used to work as a baker, in different locations, but now I cannot move without facing arrest. My fiancée decided to break up with me because she could not stand the situation. I cannot talk to my neighbors any more, they consider me a terrorist. And yet there is no case against me in courts.
He believes the house arrest decision is related to run-ins with authorities before the ouster of President Zine el-Abidine Ben Ali. He said he went to study Islamic law at al-Azhar University in Egypt in 2008. After he returned six months later, the police arrested him and held him incommunicado for 18 days in the basement of the Interior Ministry, accusing him of seeking to join terrorist organizations in Pakistan and Egypt. A judge dropped the charges and released him. He said he faced police harassment until the revolution. After Ben Ali was toppled, Ellafi could renew his passport. He went to work in Libya as a baker in a hotel for a month and a half but returned to Tunisia at the end of 2011.
Nizar Rayachi, 37, used to run a small grocery store. On December 26, 2015, the chief of the Sidi Daoud police station in La Marsa, a Tunis suburb, informed him that he was being placed under house arrest and gave him papers to sign but refused to give him a copy. The police chief told him he couldn’t leave his house, except to report to the police station twice a day.
He said that in February, 2016, he asked permission to accompany his wife to Ennfidha airport, about 100 kilometers from Tunis. The police chief refused, but he went anyway. When he returned, the police arrested him and took him to Bouchoucha detention center, in Tunis, holding him for three days. The judge at the first instance court in Tunis fined him 150 dinars (US$68).
He said he believes that the house arrest is related to his past arrests. He was detained from November 2013 to April 2014 after the counterterrorism brigade raided his house and found a book they considered terrorist propaganda. On April 25, 2014, an appeals court acquitted him, finding “no evidence against him,” according to the judgment, reviewed by Human Rights Watch. The cassation court confirmed the acquittal on January 27, 2015.
Rayachi’s lawyer sent a letter to the interior minister in May 2016 asking him to lift the house arrest. As of September 29, he said, he had received no answer.
Farid Rhouma, 41, once owned a trucking company.
On November 28, 2015, the police chief at the station in Hammam Lif, the southern suburb of Tunis where he lives, informed him that he was being placed under house arrest, showing him the arrest order but refusing to give him a copy:
I have no proof whatsoever of my being under house arrest, nothing to support my claims. My office and my company have been closed during my house arrest. Even though I was earning no income, I had to cover my rent and living expenses.
In March, the police informed him that the Interior Ministry had partially lifted his house arrest. He could work but could not leave Hammam Lif without police authorization.
He believes his house arrest is linked to charges brought against him in 2015. He was arrested on June 26, 2015, and charged with membership in a terrorist group under the counterterrorism law. He said he spent almost three months in Mornaguia prison before the investigative judge in the First Instance Court in Tunis closed the case against him.
Oussama Gammoudi, a 23-year-old student at the Higher Institute of Sports and Physical Education in Tunis, said that, on November 28, 2015, a man in civilian clothes knocked on his door, said he was from the National Guard, and gave Gammoudi papers to sign, telling him it was the order for his house arrest. The man refused to let him read the document before he signed it.
Gammoudi said that National Guard agents come to his house daily to make sure he is home: “For eight months now, I am imprisoned in my house. I missed a year of school because of the house arrest. I was supposed to graduate this year.”
Gammoudi said that in February he submitted a written request to the interior minister to lift the house arrest. In March, he filed a petition to annul the decision before the administrative court. He has received no answer to either request.
Hamed Bouteraa, 29, who used to manage a grocery store said that on November 28, 2015, policemen – some in civilian clothes, others in uniform – came to his house in Manouba, a suburb of Tunis, told him to accompany them to the police station, then told him he was under house arrest and was not allowed to leave home without police permission.
He said they gave him documents to sign, which from a quick glance said he was placed under house arrest and would face prison if he disobeyed. The police refused to give him a copy.
Bouteraa said that from November 2015 until February 21, 2016, the police came to his house four times a day to check on him. Since then, they come to check on him at night every one or two days.
He said he believes that the house arrest is related to his activities as the imam in the mosque of his neighborhood:
In 2012, I was an imam at that mosque for less than six months, then I quit. I didn’t do anything extreme.
Hicham Harmi, 36, is an employee in the public administration and lives in Tunis. He said that, on November 28, 2015, police stopped the taxi he was riding in and asked to check his identity card. They took him to Jbal Jloud police station, where they informed him that they had an order to place him under house arrest. When he asked why, one of the policemen mentioned a trip to Turkey he had made in 2015:
I told the policeman that I went through Turkey because Greece had expelled me after my attempt to immigrate there illegally. The policeman replied, “I don't care if you are a harag [illegal immigrant], or if you just set yourself on fire right now.” He handed me three papers to sign and ordered me not to leave my house.
He said that from November 2015 to February 2016, a police car from the station came to his house four times a day to check on him.
He also said that his wife had a miscarriage in December 2015 after a policeman burst into their house.
A policeman got to the second floor of the house without knocking. My wife saw a plain clothes man running toward her in the stairs. He screamed, “Is Hicham here?” She got scared and fell down the stairs. She was pregnant then, and my baby died.
He said that since January 20, the house arrest procedures were eased. The Jbal Jloud police station informed him that he could work again, but told him that he cannot leave Tunis governorate without permission.
Mohamed Ali Ghorzi, 22, works at the Health Ministry. He said that, on December 11, 2015, he woke up to find seven people in civilian clothes at his bedside. They handcuffed him and took him to the police station in Carthage, a Tunis suburb. He said he was interrogated about the time he spent in Turkey in 2013. He told them he went there for a five-day vacation.
They told him the Interior Ministry had put him under house arrest. He signed three papers after briefly reading them. He had to sign in twice a day at the Birsa police station in Carthage. In mid-February, the Birsa station chief informed him that they were easing his house arrest so that he could go to work, but that he would still have to report to the police station twice a day.
“The house arrest damaged my life,” Ghorzi said. “My neighbors see me as a terrorist now. I always feel I can be arrested at any time and lose my job.”
Hedi Hammami, 47, is an ambulance driver. The United States government held him at Guantanamo for eight years. After his return to Tunisia in 2012, he benefitted from a general amnesty law for political prisoners.
He said that police have harassed him since his return from Guantanamo and that he has had to move three times because they urged his landlords to refuse to rent to a “terrorist.”
On December 3, 2015, the police summoned him to the police station in Zouhour, a southern suburb of Tunis, and informed him that he was being placed under house arrest, no longer had the right to work, and had to sign in at the police station at 10 a.m. and 4 p.m. daily. He filed a request to annul the decision before the administrative tribunal on December 14, 2015, and has sent letters to the Interior Ministry asking the authorities to lift the house arrest but has received no answer. He said that in August the district station informed him that he could work but not to travel outside of Tunis and that he no longer has to sign in. But on September 9, the police station called him again and notified him of a new decision from the Interior Ministry that he must sign in once a day.
Aymen Karoui, 34, runs a fish shop in Bou Mhel, a southern suburb of Tunis. He said that in November 2012, he went to Libya to work with an international private company but returned to Tunisia for family reasons on January 14, 2013. When he attempted to return to Libya, in August 2013, the border police prevented him from leaving. He said he tried to cross the border illegally on September 6, 2013, but the National Guard arrested him in Mednine. They took him to the National Guard barracks in L’Aouina, in Tunis, where terrorism suspects are sometimes taken for interrogation. They accused him of belonging to a terrorist cell and attempting to join a terrorist group in Libya. They held him in the barracks for six days, and then took him before the first instance court in Tunis. The investigative judge of the 27th chamber provisionally released him. On September 19, 2013, the investigative judge dropped all charges.
He said that he had opened the fish shop in Boumhel in April, 2014, with a friend, Fares Mahdaoui. On December 24, 2014, when he and Mahdaoui were travelling to a neighboring town to buy supplies, police stopped them and said the men had “travel restrictions” attached to their passports, a procedure police referred to as “S17.”
On November 28, 2015, the National Guard in Boumhel summoned Karoui to their headquarters, and said he was under house arrest. Karoui said he read the order, which stated that he is not allowed to leave his house. He told the police the order would prevent him from working, but the head of the National Guard station told him they would not bother him if he went to his fish shop and that he should ask permission if he wants to go somewhere else. In December 2015, he went to the National Guard station and requested permission to go to the big fish market in Naasen, a neighboring town, but was refused.
He said that on January 30, 2016, the National Guard took him and Mahdaoui to the district National Guard station, and gave them a citation to appear before the first instance court in Ben Arous. He showed Human Rights Watch the court decision, dated February 3, 2016, imposing a 100 dinar fine (US$44) for violating the emergency law. He said he stayed home from work for a month, fearing another prosecution. He said that on September 15, the Boumhel National Guard informed him that the house arrest was being lifted partially, under an Interior Ministry order, which he read, saying he could go to work, but had to obtain permission for any other movement. Karoui said that the house arrest has cut his income by forcing him to close his shop on many occasions.
Fares Mahdaoui, 24, said he went to Syria in October 2012 to join the rebel Free Syrian Army in Idlib governorate. He remained in Syria and Turkey for three months but returned to Tunisia in January 2013 because of the “chaos” in Syria and opened the fish shop with Karoui. He said that on April 16, 2014, the agents from the National Guard district station in Ezzahra came to the shop and arrested him and interrogated him about his trip to Syria. He was then charged and convicted on terrorism-related charges. A court sentenced him on July 7, 2014, to the time served and released him.
He said that on November 29, 2015, the Ezzahra district National Guard told him that he was being placed under house arrest. When he expressed concern about his work, they told him they would not bother him if he went to the fish shop, but would need permission for other movement. In January 2016, the head of the Ezzahra district station summoned him and told him he should stay in his house. In February, the Counterterrorism Unit from Ben Arous took him and Karoui to court, where the judge sentenced them to the 100 dinar fine for “breaking the emergency law.” He stayed home for four months. He said the National Guard informed him the house arrest was partially lifted, in September 2016, and that he is now allowed to go to his shop:
I feel I am in a big prison. I cannot move, I cannot see my extended family or visit my friends. We lost many of our clients. They think we are terrorists. My whole social life is disrupted.
Yassine el Aouni, 37, worked in the Youth and Sports Ministry. He said that in February, 2013, he travelled to the Turkish border with Syria and stayed there for half a year. He said he was arrested upon his return to Tunisia and prosecuted for “illegal crossing of the border.” He spent 27 days in Mornaguia prison, and was released after the Tunis first instance court sentenced him, in August, 2013, to a suspended six-month sentence.
He went back to his job, but on November 27, 2015, the investigative unit of the Manouba National Guard came to his house at around midnight and told him he was being placed under house arrest and not allowed to leave his house. He said they refused to give him a copy of the order or to disclose the grounds. El Aouni said the National Guard came to check on him twice a day for seven months. He asked permission to attend his father-in-law’s funeral on June 3, 2016, but was refused.
He said on February 19, 2016, the Youth Ministry decided to fire him. The decision, which Human Rights Watch reviewed, states that the ministry was dismissing him from his position in the human resources administration for “abandonment of post,” after they had sent him a summons on December 4, 2015, report to work, with which he had been unable to comply because of the terms of his house arrest.
Tunisia’s Legal Obligations
Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which Tunisia has ratified, states that “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”
While the ICCPR does not prohibit countries from imposing house arrests under a legally declared state of emergency, it imposes certain restrictions on its use. According to the General Comment 35 on article 9, made by the UN Human Rights Committee, which interprets the covenant, house arrests are considered as a form of detention and warrant certain safeguards to be considered lawful. It said that liberty-depriving measures, including house arrest, must not be arbitrary and must be carried out with respect for the rule of law and allow a meaningful and prompt judicial review of detention.
Under the ICCPR, governments may restrict certain rights during states of emergency, but only “to the extent strictly required by the exigencies of the situation.” Governments must ensure that any such measures are strictly proportionate to the legitimate aim being pursued, and that they do not impose emergency powers in a manner that is discriminatory or that stigmatizes people of a particular ethnicity, religion, or social group. The right to judicial review of detention cannot be removed, even in a state of emergency.
The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa state that:
Anyone who is deprived of his or her liberty by arrest or detention shall be entitled to take proceedings before a judicial body, in order that that judicial body may decide without delay on the lawfulness of his or her detention and order release if the detention is not lawful.
Article 49 of the Tunisian 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.”