Tunisia grants conditional release to more than 3000 political prisoners

For the first time in 20 years Human Rights watch received access to Tunisian prisons. The delegation visited Mornaguia Prison, Tunisia’s biggest facility, on February 1. A Justice Ministry official told Human Rights Watch that prior to President Zine al-Abidine Ben Ali’s ouster, Tunisia, a country of 10.5 million inhabitants, had 31,000 prisoners. One of the first promises made on behalf of the transitional government by Prime Minister Mohamed Ghannouchi was an imminent amnesty for all political prisoners.

The Justice Ministry said that at the time the transitional government took office, slightly more than 500 prisoners were being held for politically motivated offenses. The number was close to the estimate given by the International Association for Solidarity with Political Prisoners, an independent Tunisian human rights organization.

About 150 remain incarcerated, 87 serving sentences under the anti-terrorism law and another 56 awaiting trial, according to a Justice Ministry official. A few additional prisoners are serving politically motivated sentences not under the anti-terrorism law but under the ordinary penal code or military law.

During the events surrounding the president’s ouster, 11,029 prisoners escaped, of whom 2,425 had voluntarily surrendered as of February 3, a Justice Ministry official said. Since then, the judiciary has used its prerogative under the law to release conditionally 3,240 criminal prisoners, some of them first-time offenders who had served half their sentences and others who are recidivists and who were eligible for release after having served two-thirds of their sentences.

A Justice Ministry official said that 128 prisoners convicted under Tunisia’s 2003 anti-terrorism law were among those who escaped and that they have been urged to return to custody. Another 177 serving sentences under the anti-terrorism law were among those released conditionally and another 100 facing trial under that law were freed provisionally.

Nearly all of those still in detention for politically motivated offenses were convicted under the anti-terrorism law. Among this population, almost none were convicted in connection with specific terrorist acts or possession of weapons or explosives. Instead, they were charged with such offenses as “membership in a terrorist organization,” planning to join jihadists in Iraq or Somalia, recruiting others for that purpose, or of having knowledge of crimes and failing to notify the police.

Only two prisoners from the banned Islamist Nahdha party remain in prison: Ali Farhat, 52, and Ali Abdallah Saleh Harrabi, 53, both from the southern city of Douz. Like the majority of Nahdha members imprisoned in the past, they were convicted of nonviolent offenses such as membership in, or collecting funds for, an “unrecognized” association, and attending “unauthorized” meetings. Human Rights Watch met both men at Mornaguia, where they are serving sentences of about six months.

UN report confirms gap between law and reality, torture, secret detentions and police harassment in Tunisia under Ben Ali

The United Nations just published a report on its website which describes the fact-finding mission of the United Nations Special Rapporteur on the protection of human rights while countering terrorism in January 2010. On the basis of the evidence he gathered, he observed a pattern of unacknowledged detention being used vis-à-vis terrorist suspects. During the period of secret detention, terrorism suspects are at high risk of being subjected to torture and ill-treatment. The secrecy that surrounds custody and interrogations by the unit of the “Police Judiciare”, which is in charge of interrogating terrorism suspects (commonly referred to under its previous name “Directorate for State Security”, DSS), renders investigations into abuses improbable and, consequently, leads to a lack of accountability and to impunity. The Special Rapporteur further concludes that the judiciary does not effectively act as a safeguard against these practices, and that the restrictions on access to lawyer during police custody aggravate his concerns. The report will be discussed by the United Nationas Human Rights Council around the 7th of March 2011.

The report is the last official UN report to describe practices under the Ben Ali regime, and it was the first time in more than 15 years that the UN’s special procedures mechanisms visited the country for a fact finding mission.

Mission: no access to Ministry of Interior interrogation facilities
The Special Rapporteur met with the former Minister of Foreign Affairs, the Minister for Justice and Human Rights, Ministry of Interior officials, judges, parliamentarians, lawyers, academics and non-governmental organizations, in addition, he visited the Bouchoucha police detention facility and the Mornaguia Prison, where he interviewed several persons suspected of, or convicted for, terrorist crimes. More significant the Special Rapporteur was denied access to the interrogation facilities of the Sub-directorate for Criminal Affairs of the “Police Judiciaire”, also known as “Directorate of State Security”, DSS, where the overwhelming majority of the allegations of torture or ill-treatment took place.

The abuse of the definition of terrorism

In his assesment of Tunisia’s revised anti-terrorism law, the Special Rapporteur says clearly that the definition of terrorism does not fulfil the legality requirement contained in article 15 of the International Covenant on Civil and Political Rights or article 13 of the Tunisian Constitution. The Rapporteur concludes:

The current wide definition clearly carries the risk of broad application of counterterrorism legislation, which in turn means that the term “terrorism” may become diluted and lose its distinguishing stigma. This may have possibly far-reaching consequences for the rights to freedoms of expression, association and assembly.

According to the SR, the combination of the wide definition of terrorism, combined with the criminalization of preparatory acts of terrorism “allow for targeting as “terrorists” people who simply hold radical and unpalatable views without posing a real danger in terms of planning any violent acts.”

In the view of the Special Rapporteur, it appears that the scope of application of the terrorism provisions in the law has grown too wide and should be reduced. Any anti-terrorism law that is not properly confined to the countering of terrorism within the limits of human rights law is problematic, not only because an overly expansive scope of such a law weakens its own legitimacy and ultimately may prove to be counter-productive, but particularly because it may unjustifiably restrict the enjoyment of human rights pertaining to the exercise of peaceful activities, including dissent and political opposition through legitimate associations. The Special
Rapporteur identified the danger of a ”slippery slope” which not only results in persons being convicted of “terrorism” who do not deserve that stigma, but also endangers the effectiveness of the fight against terrorism by trivializing the phenomenon.

First clear indication of number of persons detained under Tunisia’s anti-terrorism law, and Tunisia’s structure of the internal security forces under the Ministry of Interior

The Special Rapporteur indicates that perhaps one person per day was arrested and/or detained on the basis of the anti-terrorism law. The official statistics that the Special Rapporteur received showed that overall 214 cases have been brought before a court in the seven years since its adoption, in which 1,123 individuals were involved. (So this number does not include people who were never tried.)

Furthermore, the Special Rapporteur received information about a number of cases, where the main “crime” seems to have been to have visited certain countries or even mosques, downloaded or watched certain programmes online, having held prayers together, or having met with others to discuss religious issues.

Regarding the structure of the security forces of the Ministry of the Interior, the Special Rapporteur was expressed concerns about the myriad of agencies that were responsible for countering terrorism.

Elements rendering the practical operation of counter-terrorism policing opaque are the use of several common names for what appears to be the same entity, namely the Subdirectorate of Criminal Affairs, formerly known as “DSS”, standing for the “Directorate of State Security” and the lack of publicly available information on its status and organization.

Back-dating of arrest dates resulting in a pattern of secret detention

Numerous testimonies collected by the SR indicated – and it was admitted by the authorities – that dates of arrest are routinely post-dated, thereby circumventing the rules about the allowed length of police detention and taking detainees out of the protection framework.

When the Special Rapporteur visited Bouchoucha, the police station in Tunis through which terrorism suspects pass before being transferred to pretrial detention, he discovered that all of the 25 detainees whose names were contained in the custody record in relation to terrorist crimes had been brought there by members of the “Police Judiciaire” in the late afternoon or evening and taken out once during the following night for an unspecified period (the officials present during the visit explained that such temporary transfers were indicated in pencil only and erased once the person returned) before finally being transferred before a judge in the morning of the next day. The recorded practice of very short official police custody in terrorism cases is in stark contradiction with reports by detainees and families about interrogations ranging from several days to a number of weeksbefore being brought before a judge. The police officers in Bouchoucha also denied
knowing where the “Police Judiciaire” holds the suspects before bringing them to Bouchoucha for registration into official detention. This pattern appears to be compatible with the many allegations received by the Special Rapporteur that people under investigation are typically in terrorism cases first held in unacknowledged police custody.

In a damning paragraph, the Special Rapporteur highlights that evidence brought to the attention of the Special Rapporteur indicated that suspected terrorists are routinely held in secret in a building of the Ministry of Interior in Tunis.

Detainees allegedly sleep either on the ground floor in rudimentary conditions in a number of cells grouped around a larger room, or in smaller cells in the basement. Interrogations also take place on upper floors. No person from the outside has access to these premises, so detainees are at the mercy of their custodians, which, in itself, puts pressure on them and may constitute inhuman treatment. The authorities, however, continue to deny that the Ministry of Interior detains persons within or close to its official premises. Despite repeated requests, they did not allow the Special Rapporteur access to the interrogation facilities of the Ministry.

The Rapporteur concludes:

On the basis of the evidence gathered, he observed a pattern of unacknowledged detention, operating in the city of Tunis under the interrogation authority of the Ministry of Interior, being used to detain terrorist suspects. During this period that precedes detainees’ official registration in police custody, they are also routinely subjected to torture and ill-treatment and denied access to a lawyer.

Torture and the use of confessions obtained under torture

Numerous cases of terrorism suspects brought to the Special Rapporteur’s attention indicate that ill-treatment and/or torture is perpetrated during initial, unacknowledged police custody or interrogations by what is commonly referred to as “DSS”, in particular if the suspects refuse to confess.

The details of these accounts suggest that these practices occur under the direct control of the Ministry of Interior and possibly even within or next to the premises of the Ministry. According to consistent allegations, suspects are regularly subjected to severe beatings on different parts of the body, including genitals, with fists, cables and batons, kicking, slapping, often combined with stripping of their clothes and suspensions (including in the so-called poulet rôti (“roast chicken”) position), even in ordinary offices of the Ministry. Some reports also described electroshocks and mock-drowning taking place in one particular room in the basement, especially in cases, where suspects resisted to making confessions. Other methods used included extended periods of sleep deprivation, burning with cigarettes, threats with rape, threats to family members and anal rape. The treatment was allegedly perpetrated by plainclothes officers of DSS.

The main purpose of the torture was to extract confessions, and sometimes testimonies about third persons. It normally stopped with the signing of papers that most suspects had not been allowed to read. However, the Special Rapporteur received allegations about instances of reprisals occurring in official places of detention in terms of beatings, threats and solitary confinement, for instance, for prisoners that had made calls for prayer or submitted complaints. In several cases, detainees were transferred from prisons back to the premises of the Ministry of Interior for interrogation and ill-treatment.

The testimonies also indicated that existing safeguards are ineffective in practice. Apart from the fact that the ill-treatment normally happens prior to the registration of police arrest, access to independent medical examinations, although provided for by law upon authorization by a judge, is practically never granted, and can therefore not be considered an effective safeguard. If at all, medical examinations take place months after the illtreatment was perpetrated, and therefore fail to produce evidence that can be used in court. The resulting “lack of proof” is then used by prosecutors and judges to ignore claims about torture and ill-treatment and, on that basis to reject requests for investigations.

No real accountability for torture

While noting the importance of at least some trials and convictions, the Special Rapporteur considers that the number of prosecutions or other clear findings related to torture remains disturbingly low when compared to the frequency and severity of the allegations he received. He is concerned that there are remnants of a climate of impunity within law-enforcement structures. This is all the more troubling in light of allegations that confessions are frequently used as evidence in court. He is therefore concerned that the lack of effective investigations into allegations of torture may have led and continue to lead to unfair trials and illegitimate court judgements, on the basis of which persons may be deprived of their liberty – one of the most severe interferences with fundamental freedoms – for years, sometimes decades. He therefore calls upon the authorities to reopen.

Overall, the Special Rapporteur is concerned that the judiciary appears to fail to act as an effective remedy when it comes to allegations of torture or ill-treatment. Numerous persons indicated that raising such allegations during trial practically never leads to any action by the judges. Unfortunately, the Special Rapporteur’s meetings with judges of the Appeals Court in Tunis did not take away his concern of that protocols that mention torture allegations and other written submissions on the issue are routinely ignored by the court.

This raises serious concerns in terms of the independence of the judiciary, guaranteed by article 65 of the Constitution and the Law No. 29 of 1967, exacerbated by indications thatthe Executive Branch, through the Supreme Council of the Judiciary (which is composed of the President, who is the Chairman, and the Minister of Justice as Vice-chairman, plus a majority of members either representing or appointed by the Executive Branch) controls many aspects of the judiciary, including appointments, promotions, transfers and disciplinary measures.

Clarification of rendition case of Laid Saidi

Concerning Tunisia’s participation in illegal forms of cooperation in counterterrorism, the Special Rapporteur has received allegations that Tunisian authorities were involved in holding a detainee sent to Tunisia by the United States’ Central Intelligence Agency, who was then transferred to other countries. Laid Saidi was reportedly seized in the United Republic of Tanzania, transferred to Malawi, then rendered to Afghanistan and further to Tunisia, where he was held for 75 days before being returned to his home country Algeria (see A/HRC/13/42, para. 133). According to the Government however Laid Saidi had arrived with a “special flight” on the 9 June 2004, where he was presented by four foreign security officials to Tunisian authorities at the airport of Tunis Carthage under the name of Ramzi Ben Fredj. The Tunisian security services conducted an audit and concluded that the person had usurped the identity of the real Ramzi Ben Fredj.

The person then acknowledged that he was actually Laid Saidi. The next day, on the 10 June 2004, Said was sent back with the same special flight to a “foreign country”; he was then still accompanied by the same foreign agents. Similarly, it has been alleged that Tunisian intelligence officials participated in interrogations of terrorist suspects in Afghanistan (see interview with Bisher Al-Rawi, A/HRC/13/42, annex II, case 4). The
Special Rapporteur regrets that, according to his information, the Government of Tunisia has not started any investigation into these allegations.

Harassment of defence lawyers

The Special Rapporteur received a number of allegations regarding obstruction of the work of defence lawyers, e.g. concerning restrictions on access to their clients and their clients’ files, but also about harassment in more general terms, in particular vis-à-vis those who defend terrorism suspects. This can take the form of interference with their correspondence, non-issuance of passports for international travel, but also go further to not allowing them to enter certain places, pressuring family members, etc.

Surveillance reports of Tunisian General Directorate of Public Security shed light on police state and human rights violations, fear of return of Islamism is not warranted

Reporter Hasan Almustafa found a surveillance report after the fall of Ben Ali’s regime in Tunisia which sheds some light on the workings of the police in Tunisia in its ‘fight against extremism’. (English translation here.)

On the basis of administrative order 1120/SAM of 6 October 2002 and a message from the General Directorate of Public Security (27 November 2003) the police were ordered to “crack down on followers of extremist religious groups” by “aborting the attempts of individuals wearing sectarian outfits, bearded men, individuals selling amulets, books, suspect books, activities of the Dawa & Tabligh group, mosques, prayers spaces and activities of Salafis” to organize themself.

The surveillance report in question said that on the basis of these orders a girl was arrested because she was qearing a hijab.

After investigation, [we learned] that she performed her religious duties regularly and she was informed that she needed to stop wearing the sectarian outfit [Hijab]. She acquiesced to said request.

This practice is a clear violation of article 18 of the International Covenant of Civil and Political Rights, which states that everyone shall have the right to freedom of religion. Wearing the hijab in public is not a practice which would be covered by the limitations clause in article 18.3. Tunisia has signed and ratified the ICCPR.

Another document gives some anecdotal proof of a widely reported practice in Tunisia, namely the refusal to hand out passports as a form of ‘punishment’ for individuals who have criticized the regime, even when they’re still abroad. In the document the Tunisian Consul in France asks the Ministry of Foreign Affairs for instruction about issuing a passport to the daughter of a Tunisian man living in France. The document shows the consul asking for instructions on how to proceed with the passport  application given that the little girl’s father is a political refugee in France.

This practice of systematically denying passports or visa to dissidents is again a violation of the ICCPR, more in particular of article 12.

Investigations to start into human rights abuses

The interim government has announced a number of important measures. Initial Prime Minister Mohamed Ghannouchisaid the government was committed to releasing all political prisoners. “We have decided to free all the people imprisoned for their ideas, their  beliefs or for having expressed dissenting opinions,” said Ghannouchi. The new government led by by Mebazaa began releasing prisoners on Wednesday, with one government official saying 1,800 non-political prisoners who had less than six months to serve were freed.

Amnesty International, the London-based rights organisation, praised the release as a positive step, but said the former detainees should receive reparations.

“The Tunisian authorities now need to show that they are really serious about ending the culture of human rights abuses that has existed for over two decades, and begin to rein in the security apparatus that has harassed and oppressed ordinary Tunisians for so long,” Hassiba Hadj Sahraoui, deputy director of Amnesty’s Middle East and North Africa programme, told the Reuters news agency.

However, Al Jazeera’s Nazanine Moshiri, reporting from Tunis, said it was difficult to know how many detainees there had been in the first place.

“We’ve heard earlier in the day that some Islamist ones, belonging to the Muslim Brotherhood, may not have been freed yet, being kept under Tunisian anti-terror laws.”

Most recently Tunisia’s new government says it will recognise all banned political groups, including Islamists, and grant an amnesty to all political prisoners. Rachid al-Ghannouchi, the exiled head of al-Nahda, told Al Jazeera earlier this week that he plans to return to Tunisia. However, the prime minister said he would only be able to do so once the amnesty law is passed because he carries a life sentence for plots against the state.

The new government announced the setting up of three Commissions: two Commissions of Inquiry into human rights abuses and corruption, and one Commission on political  reform. Current Prime Minister Fouad Mebazaa is expected to keep this promise.

The Commission of Inquiry into human rights abuses will look mainly into two related, but separate issues. The first one is the most recent wave of human rights abuses that occured during the crack down of street protests in Tunisia, especially the shoot-to-kill orders in general, and the 35 deaths in the Kasserine region in particular.

Will the revolution lead to Islamism?

The weak response of the Eureopan Union and the linitial silence of the U.S. has partly been blamed on the fact that while Tunisia might had a dictator, at least he was ‘our dictator’. Tunisia was pro-western, anti-Islamism, a beacon against ‘extremism’ as such. Washington and Brussels were willing to entertain autocracy to stave off Islamism.  A Hamas/FIS scenario was feared: if real elections provide Islamist winners, the West is in trouble. (Excellent coverage on the silence of the West here.)

Commentators on the American right are now stepping in to express the same concerns after the revolution took place. Witness troubled Daniel Pipes:

The first worry concerns Tunisia itself. For all his faults, Mr. Ben Ali stood stalwart as a foe of Islamism, battling not only the terrorists but also (somewhat as in pre-2002 Turkey) the soft jihadists in school rooms and in television studios. A former interior minister, however, he underestimated Islamists, seeing them more as criminals than as committed ideologues. His not allowing alternate Islamic outlooks to develop could now prove a great mistake.

Tunisian Islamists had a minimal role in overthrowing Mr. Ben Ali but they will surely scramble to exploit the opportunity that has opened to them. Indeed, the leader of Tunisia’s main Islamist organization, Ennahda, has announced his first return to the country since 1989.

The Weekly Standard is even more troubled:

The fear of Islamism in Tunisia is well founded. The movement has grown steadily since the 1960s, when devout Muslims lashed out at President Habib Bourguiba for drinking a glass of orange juice on television during Ramadan. In 1987, after Bourguiba arrested over 3,000 Islamists, street riots erupted and four Tunisian hotels were bombed. When Ben Ali assumed power later that year, he suppressed the Islamists, but their ideology has only grown more popular over the years.

It is now reasonable to assume that Tunisia’s Islamists may exploit the current unrest to assume power in the country. They can be expected to use the appeal of the mosque, coupled with the financial, political, and paramilitary support of their international sponsors, including Shi’ite Iran and the Sunni Muslim Brotherhood.

Pipes then moves to the second problem:

The second worry concerns nearby Europe, already deeply incompetent at dealing with its Islamist challenge. Were Ennahda to take power and then expand networks, provide funds, and perhaps smuggle arms to allies in nearby Europe, it could greatly exacerbate existing problems there.

(A similar point was made by David Pryce Jones in the National Review)

This is echoed by the Weekly Standards, which says:

If Tunisia fell to the Islamists, it could spark a wave of Islamism across North Africa, and produce unpleasant echoes among the Islamists north  of the Mediterranean, particularly in France and Italy, where large  Tunisian communities reside. It could also trigger a wave of migration
to Europe, if Tunisians flee from Islamist rule.

Pipes moved then to the third problem:

The third and greatest worry concerns the possible domino effect on other Arabic-speaking countries. This fast, seemingly easy, and relatively bloodless coup d’état could inspire globally Islamists to sweep away their own tyrants. All four North African littoral states – Morocco, Algeria, Libya, and Egypt – fit this description, as do Syria, Jordan and Yemen to the east. That Mr. Ben Ali took refuge in Saudi Arabia implicates that country too. Pakistan could also fit the template.

But these assumptions that political Islam will thrust itself into the space vacated by secular authoritarians, miss the point entirely.  As Tom Pfeiffer notes:

“From
Syria to Egypt and Algeria, governments have used the Islamist peril to justify draconian security policies and emergency laws that gnawed at civil liberties and allowed broad powers of search, arrest and imprisonment without trial.

The absence of Islamist slogans from Tunisia’s pro-democracy revolt punches a hole in the argument of many Arab autocrats that they are the bulwark stopping religious radicals sweeping to power”.

Let’s also not forget that the appeal of Islamism in most Arab countries has a ceiling, which well-informed analysts in 2009 put at around 20% of the population, according to The Economist. In Tunisia Islamists were “not able to carry the concerns and longings of the vast majority of Tunisian people, especially the middle class which has chosen freedom and justice”, said Egyptian political analyst Nabil Abdel Fatah.

Leaders of Tunisia’s moderate Islamist Ennahda (Renaissance) movement have said they want to cooperate with the interim government, not overthrow the country’s secular institutions. Hundreds of Ennahda
supporters were put on trial in Tunisia in the 1990s while others fled  to Europe.

In a bid to exploit Tunisia’s unrest, the Algerian-based Al Qaeda in the Islamic Maghreb called on Tunisian youth to join its fighters for training in Algeria. But analysts say the group has negligible support, even in Algeria.

Al-Qaeda analyst Camille Tawil said that while small numbers of angry  young Tunisians might eventually be tempted, it was clear demonstrators  were ordinary people protesting against despotism and the al-Qaeda  appeal would have no impact.

Even in Tunisia, mosques became spaces for political protest and some young Tunisians adopted a language of revolt that took a cue from Salafist groups and Egypt’s Muslim Brotherhood.

“There has been growth in Tunisia of what could be called manifestations of popular piety,” said Michael Willis of Oxford University. “But many Tunisians see that as a protest against the regime, as Ben Ali spoke against headscarves.”

“The Islamist opposition is not what it was 20 years ago,” said Boubekeur. “Many young people don’t even know who Rached Ghannouchi is.”

Elsewhere in the Arab world, moderate Islamists have become part of the political landscape, all touting the values of freedom and democracy, at least in public.

“We hope [Tunisia’s] popular intifada will be crowned by a pluralistic democratic regime that guarantees everyone their rights,” Sheikh Hamza Mansour, head of Jordan’s Islamic Action Front, told Reuters.

Commenting on Tunisia, Morocco’s Justice and Development Party (PJD) said “achieving stability and prosperity is tied to respecting the democratic option and the people’s will”.

Egypt’s Muslim Brotherhood welcomed the overthrow of an autocrat in Tunisia and said many Tunisian problems were also true of Egypt.

The group, which is the country’s biggest opposition force and could rally thousands of supporters according to some analysts, refuses to confront the state on the streets.

Aaron Y. Zelin sums it up in The Atlantic:

The jihadist movement, which has long defined itself as Arab governments’ staunchest and most authentic opposition, had nothing to do with it. Jihadists’ non-involvement in organizing, encouraging, or even participating in the Tunisian protests suggests that the jihadist current has been largely irrelevant to Tunisia’s popular uprising. For as long as jihadists have been in business, one of their main goals has been to overrun an “apostate” Arab leader such as Tunisian President Zine El Abidine Ben Ali. But with the possible exception of Egyptian President Anwar al-Sadat’s 1981 assassination, they never came close. That Tunisia’s protesters succeeded where the jihadists so often fail, and appear not at all driven by anything close to jihadist ideology or even general religious grievances, has left members of the online jihadist community unsure how to respond. The uprising, after all, fulfills a top jihadist goal, but it also rebukes their belief that only violent and pious struggle can bring down a man like Ben Ali.

Although jihadists have been passing around a YouTube video extollingthe creation of a Caliphate in Tunisia, scarcely any Tunisians, and no significant Tunisian organizations, have shown any real interest in replacing Ben Ali with such a government.

Ben Ali calls violence in Tunisia a result of terrorists, but changes his assessment three days later

In a speech to the nation President Ben Ali said on the 11th of January:

Violent incidents, sometimes bloody, which have killed civilians and caused injuries to several officers of the security forces, have been perpetrated by hooded gangs who have attacked during the night, to public institutions and even assaulted citizens at home, in a terrorist act that cannot be tolerated.

Incidents [were] committed at the instigation of parties who have not hesitated to engage our children among the students and unemployed youth. These parties, which incite violence and going out into the street, spreading hollow slogans of despair and fabricating, from scratch, misleading and erroneous information, have dishonestly exploited an incident that we all regret and a state of understandable despondency occurring in Sidi Bouzid, for two weeks.

These incidents are the work of a small group of hostile elements who are offended by the success of Tunisia and who are are filled with resentment and grievance, because of the progress and development achieved by the country, as evidenced by the reports of institutions and international and UN organisations known for their objectivity and impartiality.

These ill-intentioned elements have used the issue of unemployment, exploiting an isolated act of desperation, as happens in all societies and in many situations.

In his speech of yesterday no references to terrorist acts or elements were made anymore, which makes one wonder how easily people are being labelled as ‘terrorists’ in Tunisia. In this speech the President denounced the “acts of violence which were perpetrated by small groups who do not hesitate to rob and assault people. These are crimes, and not acts of protests. The President gave “directives’ to the Minister of Interior in which he orders them to stop ‘using real bullets’ to shoot at the protestors, unless somebody ‘tries to snatch a gun from you [=a police man], or attacks you with a gun or another weapon, and you are forced to defend yourself’. He also vowed not to seek re-election in 2014, and to introduce more press freedom in Tunisian society, allowing opposition figures onto television and lifting bans on formerly censored websites such as YouTube.

What President Ben Ali didn’t promise was an inquiry into the shootings of innocent civilians by the police. The Paris-based International Federation for Human Rightshas tallied 66 deaths since the protests began, and sources told Al Jazeera on Thursday that at least 13 people had been killed in the past two days alone. The death toll includes seven people who committed suicide in protest over unemployment and economic hardships. The rest were reportedly killed by the Tunisian security forces.

Tunisia sentences eight to jail on terror charges

A court sentenced eight Tunisians, two of them refugees in Europe, to up to 12 years in jail on charges of belonging to a militant group and inciting terrorism, a lawyer said. The eight had denied the charges and said their confessions were obtained under torture, lawyer Samir Ben Amor, who is also secretary general of the Association for the Defence of Political Prisoners, told AFP Saturday.

Three of those convicted on Saturday were sentenced to 12 years in jail and included Bilel Beldi and Sami Bouras, who were tried in absentia and are refugees in France and Sweden respectively, he said.

Another was sentenced to two years and the remainder to five years.

They were convicted of belonging to a terrorist group that was not identified and for “incitement to commit terrorist acts”, Ben Amor said.

Bilel Beldi, 31, and Sami Bouras, 35, were jailed in 2003 on similar charges and released on parole in 2006 when they left Tunisia to seek asylum in Europe.

Human rights lawyers say more than 2,000 Tunisians have been jailed or put on trial for “terrorism” in recent years.

Tunisia has been criticised for a decline in political freedoms, with the United States condemning Friday the jailing of television journalist Fahem Boukadous for reporting information deemed threatening to public order.

Tunisians forbidden to contact EU

Al-bab says that Tunisia’s parliament has approved a law which will criminalise human rights activists and others who make contact with “foreign organisations” with the aim of harming the country’s “vital interests and its economic security”. Offenders face up to five years’ jail in peacetime or 12 years in wartime.

The new measure – in the form of an amendment to Article 61a of the penal code – seems to be directed at one “foreign organisation” in particular: the EU. Tunisia is currently seeking “advanced status” with the EU, which among other things would give it preferential trade terms. Various local and international groups have been lobbying against this, on the grounds that Tunisia should improve its human rights performance first. Towards the end of April, representatives from several independent Tunisian NGOs (LTDH, ATFD, CNLT, CRLDHT, FTCR and OLPEC) visited Madrid to lobby to the Spanish presidency:

The purpose of our advocacy mission was to show EU officials that the advanced status claimed by Tunisia in its partnership with the EU should not be given as a reward for dictatorship. Tunisia should devote its efforts to making real progress on its human rights performance and respect for the rule of law, which have seen serious setbacks recently. The lobby was a routine activity, one that followed similar efforts within the Euromed partnership, as enshrined in the Association Agreements signed between the EU and Tunisia in 1998.

The EU, of course, was not unaware of the problem. Responding to Tunisia’s “advanced status” application last March, the EU commissioner responsible for the Tunisia file wrote:

Clearly, the very concept of “advanced status” implies a higher level of ambition in setting common objectives. This level of ambition must apply to all areas: political relations, economic development, trade and investment, social reform, cooperation in justice and freedom, and sectoral cooperation on the economy, energy, and elsewhere. But it must also apply to human rights and the rule of law.

On 11 May, the EU-Tunisia Association Council met in Brussels to explore the application further and issued a statement urging the Tunisian government “to intensify its efforts towards reforms, particularly in terms of pluralism and democratic participation, independence of justice, freedom of expression and association and protection of human rights defenders”.

Apparently infuriated by this, just over a week later, the Tunisian cabinet decided to rush through an amendment to the penal code aimed at preventing any further lobbying by Tunisians. The activists who made representations to the EU have been denounced locally as “traitors” and the regime has hinted that it will hold them responsible if the “advanced status” talks fail.

In remarks quoted by Human Rights Watch, the Tunisian justice minister, Lazhar Bououni, said the prohibition against “harming Tunisia’s vital interests” will be interpreted to include “inciting foreign parties not to grant loans to Tunisia, not to invest in the country, to boycott tourism or to sabotage Tunisia’s efforts to obtain advanced partner status with the European Union”.

Tunisia: Overbroad terrorism offences undermine children rights, says UN Committee

On 11 June, the UN Committee on the Rights of the Child adopted its concluding observations on Tunisia’s implementation of the Convention on the Rights of the Child. The Committee expressed concern that the very broad definition of terrorist acts adopted by Tunisia may have adverse consequences for the protection of children’s rights and may lead to violations.

Specifically, the Committee recommended that Tunisia formulate and adopt a more precise definition of terrorist acts and ensure that persons under 18 years are not held accountable, detained or prosecuted under anti-terrorism laws.

(H/T ICJ)

HRC Communication 1544/2007 Hamida vs Canada on non-refoulement to Tunisia

Mr. Hamida, a Tunisian national,  was living in Canada arrived in Canada on 2 October 1999, where he claimed refugee status, alleging that he had a well-founded fear of persecution in his country on account of his political opinions. He says that, at the age of 18, he was taken on as an administrative assistant in the security service of the Tunisian Ministry of the Interior. In 1991 he was promoted to the rank of auxiliary police officer and transferred to the Political Security Directorate of the Ministry of the Interior. In the course of his duties, he realized that force was used in the conduct of police inquiries and decided to resort to subterfuge so as not to participate in such acts. After numerous requests he managed to be transferred to another directorate and often found excuses to be absent from work.

In 1993 he was transferred to the Ministry’s detention centre where he was instructed to guard detainees. In March 1996 he disobeyed a strict order from his superiors not to feed detainees by offering some of his meal to a hungry young detainee. For this act, he was disarmed, interrogated, accused of sympathizing with political prisoners and placed under arrest for five months before being dismissed. After his release in August 1996, the author attempted to leave Tunisia, but he was stopped at the airport because he had no exit visit from the Director of the Security Services. He was then placed in detention for one month. On leaving prison he was subjected to very strict administrative surveillance, which required him to present himself twice a day to the security service to sign a surveillance register.

Hamida’s application failed and he was served with an expulsion order inviting him to present himself at Montreal airport on 30 January 2007 for final departure to Tunisia.

The Committee considers that the author has provided substantial evidence of a real and personal risk of his being subjected to treatment contrary to article 7 of the Covenant, on account of his dissent in the Tunisian police, his six-month police detention, the strict administrative surveillance to which he was subjected and the wanted notice issued against him by the Ministry of the Interior which mentions his “escape from administrative surveillance”. These facts have not been disputed by the State party. The Committee gives due weight to the author’s allegations regarding the pressure put on his family in Tunisia.

Having been employed by the Ministry of the Interior, then disciplined, detained and subjected to strict surveillance on account of his dissent, the Committee considers that there is a real risk of the author being regarded as a political opponent and therefore subjected to torture. This risk is increased by the asylum application which he submitted in Canada, since this makes it all the more possible that the author will be seen as a regime opponent. The Committee therefore considers that the expulsion order issued against the author would constitute a violation of article 7 of the Covenant if it were enforced.

ECtHR Chamber Judgment in Trabelsi v. Italy

On 13 April, the European Court of Human Rights (ECtHR) issued a judgment (press release in english; judgment in French) condemning Italy for the violation of Article 3 (prohibition of inhuman or degrading treatment) and Article 34 (right of individual petition). In a nutshell the Court held that the expulsion of an Islamic fundamentalist to Tunisia, despite the Court’s indications, placed him at risk of torture or ill-treatment and deprived his application of any useful effect.

Principal facts

The applicant, Mourad Trabelsi, is a Tunisian national who was born in 1969. He had been living in Italy since 1986 with his wife, a Tunisian national, and his three young children, born in Italy. In April 2003 he was arrested on suspicion of criminal conspiracy linked to fundamentalist Islamist groups and of aiding and abetting illegal immigration, and was placed in pre-trial detention.

On 15 July 2006 the Cremona Assize Court sentenced him to ten years and six months’ imprisonment and ordered his deportation once his sentence had been served. The Brescia Assize Court of Appeal acquitted Mr Trabelsi of the charge of aiding and abetting illegal immigration and reduced his sentence to seven years’ imprisonment. That decision was upheld by the Court of Cassation and became final. In November 2008 the applicant was granted a remission of 485 days of his sentence. Meanwhile, the Tunisian courts had also sentenced him, in absentia, to ten years’ imprisonment for membership of a terrorist organisation in peacetime.

At Mr Trabelsi’s request the Court, applying Rule 39 of the Rules of Court (interim measures), indicated to the Italian authorities on 18 November 2008 that, in the interests of the proper conduct of the proceedings before it, the applicant should not be deported until further notice. The Court pointed out that failure by a Contracting State to comply with a measure indicated under Rule 39 could entail a violation of Article 34 of the Convention.

Mr Trabelsi was nevertheless deported to Tunisia on 13 December 2008.

The previous day, the Italian authorities had sought diplomatic assurances from the Tunisian authorities. Replying on 3 January 2009, the Advocate-General at the Directorate-General of Judicial Services in Tunisia assured the Italian authorities that the applicant’s human dignity would be respected, that he would not be subjected to torture, inhuman or degrading treatment or arbitrary detention, that he would receive the appropriate medical care and that he would be able to receive visits from his lawyer and members of his family.

Following an enquiry from the Italian authorities, the Tunisian Ministry of Foreign Affairs indicated in October 2009 that Mr Trabelsi was being detained in Saouaf Prison and was receiving visits from his family and medical treatment.

Complaints

Relying on Articles 3 and 34 and also on Article 8 of the Convention (right to respect for private and family life), Mr Trabelsi complained of his expulsion and its consequences. The application was lodged with the European Court of Human Rights on 20 October 2008.

Decision of the Court

Complaint concerning the risk of torture (Article 3)

Expulsion by a Contracting State could engage the responsibility of that State under the Convention, where substantial grounds had been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 dictated that the person concerned should not be expelled to that country.

Basing its findings on the conclusions it had reached in a previous case (Saadi v. Italy) which were confirmed by Amnesty International’s 2008 report on Tunisia, the Court considered that substantial grounds had been shown for believing that Mr Trabelsi faced a real risk of being subjected to treatment contrary to Article 3 in Tunisia.

It remained for the Court to ascertain, firstly, whether the diplomatic assurances provided by the Tunisian authorities were sufficient to eliminate that risk and, secondly, whether the information concerning Mr Trabelsi’s situation following his deportation confirmed the view of the Italian authorities.

On the first point the Court examined whether, looking beyond the assurances received and the legislation in force, their actual application in Mr Trabelsi’s case was such as to protect him against the risk of treatment prohibited by the Convention. It noted first of all that it had not been established that the Advocate-General at the Directorate-General of Judicial Services had had the power to give assurances on behalf of the Tunisian State. The Court went on to observe that reliable international sources indicated that allegations of ill-treatment were not investigated by the competent authorities in Tunisia and that the Tunisian authorities were reluctant to cooperate with independent human rights organisations. Lastly, the Court noted that neither Mr Trabelsi’s representative before the Court nor the Italian ambassador in Tunisia had been able to visit the applicant in prison, check on his situation and hear any complaints he might have had. Accordingly, the Court could not share the view of the Italian Government that the assurances given offered the applicant effective protection against the serious risk of being subjected to treatment contrary to Article 3.

On the second point the Court reiterated that the existence of a risk of ill-treatment had to be assessed primarily with reference to those facts which were known or ought to have been known to the State in question at the time of the expulsion. The Court was not precluded, however, from having regard to information which came to light subsequently and which might be of value in confirming or refuting the appreciation made by the State concerned of the well-foundedness or otherwise of an applicant’s fears. The Court noted that the Tunisian Ministry of Foreign Affairs had stated that the applicant received regular visits from his family and would be kept under medical supervision. However, although these assertions came directly from the Tunisian Foreign Affairs Ministry, they were not corroborated by medical reports and were not capable of demonstrating that the applicant had not been subjected to treatment contrary to Article 3. In that connection the Court could only reiterate its observations as to the inability of the applicant’s lawyer and the Italian ambassador to visit the applicant in prison and to verify whether his physical integrity and human dignity were indeed being respected.

The Court therefore held that the carrying-out of the applicant’s expulsion to Tunisia had been in breach of Article 3 of the Convention.

Complaint concerning respect for private and family life

In view of its finding of a violation of Article 3, the Court did not consider it necessary to rule separately on this second complaint.

Complaint concerning the failure to comply with the interim measure indicated to Italy (Article 34)

In cases such as the present one where a risk of irreparable damage was plausibly asserted, the object of the interim measure indicated by the Court was to maintain the status quo pending the Court’s determination of the case; the interim measure therefore went to the substance of the application. Furthermore, the Court had already ruled that failure to comply with interim measures was to be regarded as preventing the Court from effectively examining the applicant’s complaint, as impeding the effective exercise of his or her right and, accordingly, as a violation of Article 34.

The present case was no exception. Italy had deported the applicant to Tunisia in the knowledge that the interim measure indicated under Rule 39 was still in force and without even having obtained beforehand the diplomatic assurances to which the Government referred in their observations. In the circumstances, Mr Trabelsi had been unable to set out all the arguments relevant to his defence and the Court’s judgment was in danger of being deprived of any useful effect. In particular, the fact that the applicant had been removed from Italian jurisdiction constituted a serious impediment to the fulfilment by the Government of their obligations (arising out of Articles 1 and 46 of the Convention) to safeguard the applicant’s rights and make reparation for the consequences of the violations found by the Court. That situation had amounted to hindrance of the effective exercise by the applicant of his right of individual petition, which had been nullified by his expulsion.

The Court therefore held that there had been a violation of Article 34.

AI: Tunisia attemps media black-out on human rights violations

Amnesty International has condemned the Tunisian authorities for effectively barring two human rights organizations from presenting their reports on the harassment of former political prisoners to the media this week.

According to Human Rights Watch (HRW), journalists were prevented from attending a press conference on Wednesday 24 March in the capital city Tunis to launch a report on repression of former political prisoners in Tunisia (“A Larger Prison, Repression of Former Political Prisoners in Tunisia”).

Security forces also stopped journalists and human rights activists from attending a press conference on Monday 22 March in Tunis, to launch a report by the International Association for the Support of Political Prisoners (AISPP) on the same issue (“Citizens Under Siege: Administrative Control in Tunisia”).

The incidents coincide with the publication by Amnesty International of a briefing paper, “Freed but Not Free: Tunisia’s Former Political Prisoners”, which highlights the relentless harassment of hundreds of former political prisoners freed after unfair trials and years of prison in harsh conditions.

“Rather than addressing the ongoing concerns raised by national and international NGOs, the Tunisian authorities have opted instead to silence them,” said Hassiba Hadj Sahraoui, Deputy Director of Amnesty International’s Middle East and North Africa programme. “The authorities have shown to the world a reality already well known to Tunisians and have provided this week another demonstration of their ruthless practices”.

“They have denied the NGOs the use of venues or prevented independent journalists from reporting on the two publications and the dire situation of former political prisoners. This shows the government’s unwillingness to face the facts and end the denial that human rights violations are routine in Tunisia.”

According to Amnesty International, former political prisoners in Tunisia are subjected to oppressive police surveillance, required to report regularly to the police and repeatedly called in for police questioning, and re-arrest,  following their release from prison. Some have been denied access to medical care. Many have also been banned from travelling outside Tunisia and are not permitted to move freely within the country.

Amnesty International has urged the Tunisian government to cease the harassment and intimidation of former political prisoners and to allow them to resume their lives as free individuals. The organization has also called for the release of all prisoners of conscience held for the peaceful exercise of their right to freedom of expression.