The Council on Human Rights meets on April 8, 2008 to carry out the Universal Periodic Review (UPR) on Tunisia. AlKarama has thus submitted its contribution, within this framework, on Nov. 20, 2007.
On November 7, 1987, Zine El Abidine Ben Ali, Prime Minister since Oct. 2, 1987, dismissed, because of "senility", the President, Habib Bourguiba and declared himself Head of State. Re-elected twice in 1994 and 1999, he amended in 2002 the Constitution by referendum, which allowed him it to seek new mandates, and thus remain President for life.
Ben Ali has set up a police state, banning any space of free speech and opposition. His regime is characterized by systematic violations of human rights: arbitrary arrests and detentions, torture in prisons, in the premises of the security forces and the headquarters of the Interior Ministry, unfair trials, harassment and criminalization of political activists, defenders of human rights and journalists.
The situation has deteriorated especially after the adoption of the anti-terrorism legislation in 2003. The definition of terrorism is broad and vague enough to allow for the indictment of any opponent because of his political opinions. The Tunisian government has repeatedly violated important principles that it claimed to have committed to respect.
1. The "anti-terrorism" laws
Already in 1993, the Tunisian Penal Code introduced Article 52bis related to terrorism crimes. The definition was so vague that its scope included "crimes of opinion". Members of the non-recognized Ennahda party who never incited violence, were accused of "belonging to an unauthorized association". With this new definition, they were charged with supporting a "terrorist organization". The law also allowed to try this group of suspects before military tribunals.
On 10 December 2003, a new law on "support of international efforts to combat terrorism and the suppression of money laundering" has entered into force. It includes 103 articles based on a definition of terrorism even more vague and restricts the rights of the accused. The 1st instance Court of Tunis has sole jurisdiction over the entire territory, to try cases related to terrorism. In reality it is an exceptional justice sitting in camera, which was established. The time limits were extended, the refusal to testify is penalized, judges protected by anonymity can not be challenged, remedies are limited. It has effectively put in place the principle of preventive justice. The political police gets special powers, including those of the judiciary police. The rights of the defence have been restricted and control over the operation of independent associations has been established.
Dozens of youths from Gafsa and Ariana (suburb of Tunis) were arrested during the summer and fall of 2007 as part of this anti-terrorism law. These are people prosecuted for their commitment and voluntary union work such as the militants of the Progressive Democratic Party (PDP) and the Workers' Communist Party (PCOT), or militants among the unemployed graduates. Jelassi Mohamed Yacine was arrested on September 26, 2007 by plainclothes police officers without a warrant. After spending a week in an unknown location, he was presented on October 3 before the investigating judge of the 1st instance Court of Tunis. Refusing to speak without the presence of his counsel, he was returned to the Court on October 15 and accused of belonging to a terrorist cell. He was then tried under the law of December 10, 2003. Brahmi Wahid, a member of the PDP has been accused of terrorism for expressing his opinions in the two opposition newspapers El Mawqif and Ettariq Al Jadid.
2. Police custody and incommunicado detention
Officials of the State Security systematically violate the provisions of the Code of Criminal Procedure in terms of arrest and search and placing into custody. The rights of defendants are violated throughout the legal proceedings. The hours for arresting suspects (between 06h and 20h) are not met and the officers act without warrants of arrest or search. The period of custody - set at six days in cases related to terrorism - is not observed. But above all it has been noted many times that in order to disguise the excessive length of police custody, which occurs frequently in secret, the minutes are routinely postdated.
Those arrested in connection with the fight against terrorism are often held in custody on the premises of the Directorate of State Security of the Interior Ministry where they are systematically tortured in order to extract statements used against them in their trials.
In the case of Khaled Arfaoui, human rights associations had alerted the public of his arrest on May 16, 2005. The minutes of a preliminary investigation by the police mention the date of May 23, 2005 as the date of arrest. During the 13 days of his detention, he suffered severe torture at the headquarters of the Interior Ministry.
When the police do not find the sought suspect, it may take hostage family members, in order to compel him to surrender or to get information about him. During the eruption of the police into private homes, family members were insulted and beaten. Some family members of those indicted have their passports confiscated. The family of the accused is rarely informed of his arrest and place of his detention. The family eventually learns about his fate once he is brought before a magistrate and transferred to prison, not officially, but through the family of other defendants or by anonymous telephone calls.
The police acts very often without requests issued by the prosecutor's office. During the armed clashes between December 23, 2006 and January 3, 2007 particularly in the southern outskirts of Tunis, nearly a thousand people were arrested. These arrests were announced on January 3, 2007 by a communiqué from the Ministry of Interior. The rogatory letter from the Public Prosecutor about this case was dated January 9, 2007. Dozens of people were held incommunicado for several weeks and brutally tortured. The dates of arrest contained in the minutes were falsified. Thus, in the minutes on the case of Mohamed Amine Jaziri, arrested on December 24, 2006, included the date of January 22, 2007. Ali Arfaoui arrested on December 23, 2006 in Hammam Shatt was officially mentionned as arrested on February 16, 2007.
3. Unfair trials
The Anti-Terrorism Act of 10 December 2003 has been applied for acts dating back to March 2003 thus violating the fundamental principle of non-retroactivity of criminal law. The accusations made by magistrates refer in the majority of cases classified as terrorist to the opinions of the defendants, their convictions and their religious practices and not to material facts likely to qualify any criminal nature.
Very few defendants are assisted by a lawyer during the hearings and particularly during the first appearance. They are not informed of this right. They often face pressures and threats on the part of magistrates to not retract statements made under torture. The rights of the defence have also been severely affected since the enactment of the Terrorism Act 2003. Lawyers can no longer rely on the professional secrecy because of the threat of being criminalised. Access to the criminal file of their client is also limited. The judge makes available to the defense a copy of the dossier which does not include all documents, particularly the minutes of preliminary investigations which will then be used as evidence.
Those accused of activities related to terrorism are often sentenced to heavy prison sentences in unfair trials taking place especially before military courts or before the 1st instance Court of Tunis. The defenders of human rights who have observed many of these trials have found that the accusations of terrorism were not based on criminal acts but relied primarily on the statements and confessions obtained by the police under torture. Despite the fact that the defendants recant their confessions in court and declare that they had been subjected to abuse and torture, the tribunal does not take into account their statements and never orders or requests medical investigations.
4. Torture in prison
Hundreds of political prisoners and prisoners of opinion or accused of links to terrorism languish in prisons where they continue to suffer abuse and ill-treatment in degrading and inhumane conditions of detention. The tortures continue even for convicted prisoners. AlKarama for Human Rights addressed on July 10, 2007 a communication to the High Commissioner for Human Rights and to the President of the International Committee of the Red Cross asking them to intervene on the case of Sayfallah Ben Hassine, held in the Mornaguia prison (Tunis). Mr. Ben Hassine had fled Tunisia in 1987 in the wake of the wave of arrests of activists from the student movement. He had been sentenced in absentia by the Tunis military court to two years in prison for
participating in the protest demonstrations of Tunisian students. Arrested in Turkey in February 2003 he was extradited to Tunisia during the same year. Presented before the Tunis military court, he was sentenced as a result of a grossly unfair trial to 46 years' imprisonment. He has been detained since, according to his family, in extremely difficult conditions and is subject to a special regime of detention. He is confined in a cell of 4 square meters, without sanitation, with no ventilation and no natural light. He has been, on numerous occasions, subjected to torture and ill-treatment for protesting against the inhuman conditions of
Most recently, on October 16, 2007, at the Mornaguia civilian prison, thirty prisoners arrested following the end of armed conflict in December 2006 - beginning in January 2007 (see above) and detained under the anti-terrorist law in 2003, were tortured by prison officers in order to force them to end an indefinite hunger srike. The strike was launched on October 13 to demand an end to ill-treatment and respect for their rights, including the right to a fair trial.
These defendants are subject to special treatment. They are chained, have neither bed nor linen and are daily victims of violence. They are regularly threatened to be transferred to the Interior Ministry if they deny the statements made during police custody. On October 16, 2007, 4th day of their strike, they have been taken from their cells, laid naked and beaten. Jamel Mellakh was suspended from the ceiling and raped with a stick inserted into his anus. An execution operation was simulated : Ramzi Ifa was tied with a rope and blindfolded, with his head in a black bag as he was dragged on the ground.
5. Persecution against defenders of human rights and journalists
Human rights defenders suffer continual harassment, extending to physical attacks by the political police. Some human rights defenders and their families live under constant surveillance, with tapped telephone lines and internet connections disrupted or cut off. Their associations may not hold public meetings, people visiting their premises are intercepted and intimidated by police in civilian clothing etc.
Journalists, for their part, work in an atmosphere of fear. Foreign newspapers are censored and journalists criticising the Government are threatened with dismissal, harassment or the victims of smear campaigns. They cannot hold meetings or cover the activities of independent organisations that might criticise the Government or the President.
Religious freedoms is also severely restricted. Women wearing the hijab and men with beards, dressed in Islamic clothing are routinely harassed. A Ministerial decree of the 1980s banned veiled women from working in schools or the Government. It is still in force. Plainclothes police officers physically assault them, for example by tearing their veils off in the street.
In 1998, the Committee against Torture of the United Nations noted in its consideration of the periodic report of Tunisia "the wide gap that exists between the law and practice with regard to the protection of human rights" . The Tunisian government responded that the allegation "has no effective basis. All reported abuses have been dealt with in administrative and judicial manners, in full accordance with the law."
10 years after these assertions, it is clear that not only the serious violations of human rights have continued but more importantly a legal arsenal has been put in place and expanded to cover them and ensure the impunity of their leaders. As noted by the many national and international human rights organizations, the situation has even sharply deteriorated after the attacks of September 11, 2001 in the United States and especially since the enactment of the anti-terrorism law of 10 December day of the anniversary of the adoption in 1948 of the Universal Declaration of Human Rights by the United Nations).
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