Article 32 of the Tunisian Constitution states, "Treaties shall only have the force of law after being ratified. Duly ratified treaties shall have authority over and above [domestic] laws." Tunisia has ratified and published in its official gazette most of the major international human rights instruments, thereby giving them the force of law domestically. This includes the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter the Convention against Torture).
Tunisia's legal system, and in particular its criminal justice system, is based on the French model. Serious criminal cases (including infractions potentially involving prison sentences) are in most instances brought by the state prosecutor general before an investigating judge (juge d'instruction), who examines the evidence brought before him or her, interrogates the defendants, and recommends whether to refer the case to trial. If the case goes to trial, the trial judge, who is a different individual from the investigating judge in the case, is required to newly examine the evidence. Article 50 of the code of criminal procedure states that judges "who handled cases as investigating judges cannot participate in deciding the verdict in those cases." Article 151 states, "The [trial] judge is to base his or her decision only on the evidence introduced during the proceedings and discussed before him orally and in open debate (contradictoirement) among the parties."
The case was transferred on March 3, 1998 to the chief investigating judge (le doyen des juges d'instruction) for the Court of First Instance of Tunis, Noureddine Ben Ayyad, who proceeded to question the accused. The detainees denied before him the contents of their purported confessions to the police, and stated that their records of interrogation (procès verbaux) had been signed under the duress of torture and without their knowledge of the contents. They detailed the methods of torture they said were used, methods that have been well-documented in Tunisia over a number of years.8 Most also stated for the record that the dates of arrest recorded in the statements attributed to them were incorrect, their actual arrest having occurred anything from one day to nearly two weeks earlier. The majority were called to appear before the investigating judge only once, during the course of March 1998; a few had a second appearance in April 1998. They were without exception remanded in custody pending the outcome of the judge's investigation. This was to take over a year.
Radhia Nasraoui, who had been indicted in absentia (she was at the time traveling in Mali and France on a mission for Amnesty International), and Abdel Majid Sahraoui also appeared before the investigating judge and denied the charges against them. Both were released but subjected to restriction orders forbidding them to leave greater Tunis. Hamma Hammami, Samir Taamallah, Abdeljabbar Maddouri, and Fahem Boukaddous were in hiding. Boukaddous was arrested in February 1999 and joined the others in prison, where he remains as of this writing; the other three were tried in absentia with their codefendants.
From March 1998 till April 1999, when the investigating judge formally completed his investigation and transferred the accused for trial, the case received substantial international attention. Human rights organizations called for dropping all charges against the defendants and the release of those in detention. Amnesty International declared them "prisoners of conscience." During their pretrial detention the defendants staged a series of hunger strikes to protest their torture, their continued pretrial incarceration, and the conditions of detention, which included their being held with convicted prisoners and the obstruction of their efforts to continue their studies while awaiting trial. The group that remained in prison after the trial's conclusion staged additional hunger strikes.
Concern about the case revolved around four principal issues:
In November 1998, the U.N. Committee against Torture issued its Conclusions and Recommendations on the second periodic report of Tunisia under the Convention against Torture.9 In this document the committee noted, among other things, that it was "particularly disturbed by the reported widespread practice of torture and other cruel and degrading treatment perpetrated by security forces and the police that in certain cases resulted in death in custody." The committee also expressed concern that the requirement of medical examinations in cases of allegations of torture was not adhered to (paragraph 10).
The allegations made by the detainees in this case were consistent with a pattern established in the reports of various human rights organizations and other parties in recent years. They described arrests by men in plainclothes, a failure to notify families of the arrests,10 and a refusal during the first days of detention to acknowledge the detainees were in custody, the illegal prolongation of incommunicado detention beyond the period allowed by Tunisian law, and the subsequent falsification of arrest dates to cover this up.11 Torture commonly occurs during the illegally extended garde à vue period, which in some cases allows time for the more obvious marks and scars to disappear before the accused appears before the judge.
The Convention against Torture in article 13 provides that any person who alleges that he or she was tortured has the right to have the case "promptly and impartially examined by...competent authorities." The government of Tunisia, in its 1997 report to the U.N. Committee against Torture, highlighted the safeguards provided by domestic law against torture, claiming "it is customary among the Tunisian judicial authorities to order a judicial investigation in all cases where the suspect is a public official, in order to provide every guarantee of due process and fair administration of justice."12
Article 15 of the Convention against Torture states, "Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made." The government of Tunisia's report to the U.N. Committee against Torture states:
Under Tunisian law, a confession obtained from a person against his will may not be used as evidence against him. Article 432 of the Code of Obligations and Contracts stipulates that confessions must be free and lucid; any factors that vitiate consent also vitiate the confession. Article 51 of the Code stipulates that any violence likely to induce either physical suffering or deep mental disturbance or fear of subjecting the victim's person, honour or property to appreciable harm constitute absence of consent. Accordingly, statements obtained from a person through the use of violence or torture may not be used as evidence against him.13
Tunisia also stressed in its report to the committee that article 13bis of the code of criminal procedure "require[s] officers of the judicial police to allow persons in custody to undergo a medical examination if they or one of their relatives so request and to note the request in the judicial record."14 The government also noted that article 103 of the penal code provides:
Any public official who...perpetrates or causes to be perpetrated violence or ill-treatment against any accused person, witness or expert in order to obtain a confession or statement from them shall incur a penalty of five years' imprisonment and a fine....If there were only threats of violence or ill-treatment, the maximum prison term is lowered to six months.
Official claims of institutional safeguards against torture are belied by the refusal of the investigating judge in this case to follow up on the complaints of torture or to order appropriate medical examinations. His conduct follows the pattern noted by the Committee against Torture and can only be seen as negligent in the extreme and a serious violation of defendants' rights.
On August 2, 1999-after the verdicts were reached in this case-new laws took effect in Tunisia that defined the crime of torture, shortened the maximum legal length of garde à vue detention from ten days to three days renewable but once, and enhanced the rights of defendants in garde à vue detention, particularly with respect to the right to request a medical examination and the requirement that the family be informed of the person's detention. If scrupulously enforced, these amendments to the penal code and criminal procedure code would go a long way toward safeguarding detainees from abuse and torture. (See Appendix C.)
Harassment of Human Rights Defenders
The indictment of Radhia Nasraoui in the affair appeared intended to intimidate her and other human rights activists and lawyers. Nasraoui, a prominent human rights defender, is described by the Lawyers Committee for Human Rights as "the victim of a long pattern of official harassment resulting from her position as an outspoken independent critic of the government's human rights record."15 She has been subjected over recent years to suspicious thefts and vandalism of personal and professional property, including the ransacking of her office and theft of all her case files in 1998, unrelenting police surveillance, and harassment and intimidation by police of her clients and ofher daughters Oussaïma and Nadia, aged eleven and seventeen respectively.16 This harassment is in direct violation of the U.N. Basic Principles on the Role of Lawyers:
Governments shall ensure that lawyers a) are able to perform all of their professional functions without intimidation, harassment or improper interference; b) are able to travel and to consult with their clients freely both within their own country and abroad; and c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any actions taken in accordance with recognized professional duties, standards and ethics. (Principle 16.)
Radhia Nasraoui was abroad when the criminal charges were filed against her in Tunis.17 The subsequent judicial orders of March 10 and March 30, respectively prohibiting her from leaving the country and from traveling outside the district of Tunis and the suburban districts of Ariana and Ben 'Arous, impeded her ability to consult with and represent those of her clients and their families present outside the capital area. In January 1999, she left Tunis briefly to attend the funeral of her mother-in-law, after seeking permission to do so from the court and receiving no response. For this a Tunis cantonal court gave her on February 11 a suspended prison sentence of fifteen days and a fine.
In 1994 the U.N. Human Rights Committee had noted with concern "the reports on harassment of lawyers [in Tunisia] who have represented clients accused of having committed political offences and of the wives and families of suspects."18 Recent incidents of persecution of lawyers and others active in the defense of human rights include the arrest in September 1997 of Khemaïs Ksila, vice-president of the Tunisian Human Rights League (Ligue Tunisienne des droits de l'Homme, LTDH), who was sentenced in 1998 to three years' imprisonment for issuing a communiqué criticizing the deterioration of the human rights situation in his country (he was released conditionally after two years' imprisonment);19 the detention and questioning of a number of the founding members of the National Council for Liberties in Tunisia (Conseil national des libertés en Tunisie, CNLT), which has been refused recognition by the Tunisian authorities; and the denial of passports to lawyers Jameleddine Bida, Anouar Kusri, and Nejib Hosni, among others. These developments were protested by various international human rights organizations.20 U.N. bodies have also expressed concern about the harassment of human rights defenders, notably the Committee against Torture, the Working Group on Arbitrary Detention (WGAD), and the 1998 and 1999 sessions of the U.N. Sub-Commissionon Human Rights. The U.N.'s special rapporteur on torture and the Working Group on Arbitrary Detention have both requested permission from the Tunisian authorities to conduct visits to the country but have received no response as of this writing.
Limitations on Freedom of Expression, Association, and Assembly
Reports by human rights organizations document systematic restrictions on freedom of expression, association, and assembly.21 Resolutions and recommendations by U.N. human rights bodies reaffirm these findings. The restrictions include laws that are frequently used against government critics and that provide prison sentences for defaming public authorities or "the public order," spreading "false information," and "inciting" the public to violate the laws; the refusal to grant legal recognition to independent organizations founded by potential critics of government policies, and obstacles placed in the way of public meetings and assemblies when the organizers are politically independent. In addition, all major print and broadcast media adhere scrupulously to the government line and avoid any criticism of it.
The rights of freedom of expression and association are guaranteed by the International Covenant on Civil and Political Rights and other human rights treaties that Tunisia has ratified and that have supremacy over national law. In this case, the detainees were arrested and detained on charges relating to the peaceful exercise of the right to freedom of expression and association. No evidence was introduced to show that any of them had practiced or advocated violence. But, in this and other political trials, the Tunisian courts failed to uphold the principles of international human rights treaties to which Tunisia is a state party when confronted with domestic laws and practices that contradict these principles.
The Judiciary's Lack of Independence and Denial of the Right to a Fair Trial
Tunisia's constitution affirms, in article 12, that "Every accused person shall be presumed innocent until his guilt be proven in accordance with procedures offering him necessary guarantees for his defense." Article 65 states, "The judicial power shall be independent: In the performance of their duties, judges shall be subject to no authority other than that of the law."
Despite these provisions, human rights experts and observers, including the U.N. Human Rights Committee,22 have raised concerns about the influence of the executive branch over decisions by the judiciary, and the lack of respect given the right to a fair trial. In the case at hand, these issues were dramatized most clearly by the fact that neither the state prosecutor general nor the investigating judge responded, as required, to the repeated requests by the detainees and their lawyers for medical examinations23 and for investigations into the allegations of torture and ill-treatment; nor did they allow the defense to present evidence that the arrest dates contained in the police record were false.
8 See, for example, International Federation of Human Rights, Tunisie: des violations caractérisées, graves et systématiques, Rapport alternatif au deuxième rapport périodique présenté par la Tunisie au Comité contre la torture des Nations Unies (Paris: International Federation of Human Rights, November 1998), and reports by Amnesty International, online at <http://www.amnesty.org>.
9 Summary record of the 363rd meeting of the Committee against Torture, held on November 20, 1998, CAT/C/SR.363, December 11, 1998. Tunisia's second periodic report to the Committee against Torture (CAT/C/20/Add.7) had been due on October 22, 1993. The committee expressed its regret that it was received only on November 10, 1997.
The U.N. Rapporteur on Torture, Nigel Rodley, wrote to the government of Tunisia in October 1998 requesting permission to conduct a working visit but had not received a reply as of December 18, 1999.
10 In a speech on March 20, 1999, President Ben Ali proposed amending the penal code to make it compulsory to inform a detainee's family after he or she is taken into custody. This was subsequently adopted into law. See Appendix C.
11 See Amnesty International, State Injustice: Unfair Trials in the Middle East and North Africa, April 1998, p. 21.
12 Second periodic reports of States parties due in 1993: Tunisia, CAT/C/20/Add.7, December 22, 1997, paragraph 72.
14 Ibid., paragraph 141. Emphasis added.
15 Lawyers Committee for Human Rights, Lawyer-to-Lawyer Action Update, April 1999. See also Observatory for the Protection of Human Rights Defenders, Human Rights Defenders on the Frontline: Annual Report 1997-1998, p. 207, and Annual Report 1999, p. 237.
16 Radhia Nasraoui's and Hamma Hammami's third daughter, Sara, was born on the eve of the second hearing of the case; see below. The Lawyers Committee for Human Rights' Action Update of April 1999 called for an immediate end to the harassment of the children. Amnesty International also issued Urgent Actions on the same issue on June 12, 1998 (UA 48/98, AI Index MDE 30/16/98), August 3, 1999 (UA 194/99), and October 21, 1999 (AI Index 30/36/99).
17 Radhia Nasraoui stated in court that she believed the indictment was timed with a view to pressuring her to seek political asylum abroad rather than returning to Tunis. The eleven counts on which she was originally charged entailed a potential maximum sentence of some twenty years.
18 Concluding Observations of the Human Rights Committee: Tunisia, CCPR/C/79/Add.43, November 23, 1994, paragraph 9. The Committee's comments came in response to the fourth periodic report submitted by Tunisia (CCPR/C/84/Add.1) pursuant to article 40 of the International Covenant on Civil and Political Rights. Tunisia's fifth report to the Human Rights Committee, due February 4, 1998, has not yet been submitted.
19 Observatory for the Protection of Human Rights Defenders, Human Rights Defenders on the Frontline: Annual Report 1997-1998, p.202, and Annual Report 1999, p. 238.
20 See, for example, the numerous communiqués issued by the Paris-based Comité pour le respect des libertés et des droits de l'homme en Tunisie, available online at <http: //www.maghreb-ddh.sgdg.org>, Amnesty International, Human Rights Defenders in the Line of Fire (London: Amnesty International, November 1998), AI Index: MDE 30/20/98, "Tunisia: Human Rights Defenders at Risk," a joint statement issued May 26, 1999 by Amnesty International, Committee To Protect Journalists, Human Rights Watch, Lawyers Committee for Human Rights, Reporters sans Frontières, and the Observatory for the Protection of Human Rights Defenders, and a joint letter, dated November 5, 1999, signed by Amnesty International, Human Rights Watch, and Reporters sans Frontières, and addressed to the E.U. foreign ministers on the occasion of the approaching E.U. Association Council meeting with Tunisia, online at <http://www.hrw.org/press/1999/nov/tunisia-ltr-eng.htm>.
21 See Article 19, Surveillance and Repression: Freedom of Expression in Tunisia (London: Article 19, May 1998), Human Rights Watch, Human Rights Watch World Report 2000 (New York: Human Rights Watch, December 1999), and Reporters sans Frontières, Tunisie: Silence, on réprime, 1999, online at <http://www.rsf.fr/carte/mo/rapport/tunisie/tunisie.html>.
22 See, for example, the U.N. Human Rights Committee, comments on the fourth periodic report of Tunisia, cited above. For earlier reports of trial observations in Tunisia, see Middle East Watch (now Human Rights Watch) and the International Human Rights Law Group, Tunisia: Military Courts That Sentenced Islamists Leaders Violated Basic Fair-Trial Norms (New York and Washington: Human Rights Watch and the International Human Rights Law Group, October 1992); Euro-Mediterranean Human Rights Network, Mission d'observation en Tunisie: Rapport à l'occasion du procès en appel de M. Khemaïs Ksila (Copenhagen: Euro-Mediterranean Human Rights Network, 1998); International Federation of Human Rights and the Observatory for the Protection of Human Rights Defenders, "Une détention manifestement arbitraire: rapport d'observation judiciaire au procès de Khemaïs Ksila," La Lettre de la FIDH, July 30, 1998-August 13, 1998, no. 756-758, pp. 16-26.
23 For example, lawyer Anouar Kusri submitted one such request for a medical examination in a letter dated April 25, 1998 to the investigating judge, on behalf of detainee Lotfi Hammami. It noted that Hammami had testified before the investigating judge on March 18, 1998 that he had been tortured into signing his police statement without reading it and was still suffering from injuries to his sexual organs sustained during the torture. The letter noted that Hammami had requested to be seen by a medicalspecialist, but the prison administration referred him instead to a general practitioner. The letter asked the investigating judge to order an examination by a specialist.