HUMAN RIGHTS AND TRANSITIONAL JUSTICE IN TUNISIA

GEUZENPENNING 2013 HUMAN RIGHTS AND TRANSITIONAL JUSTICE IN TUNISIA One step forward, two steps back? Introductory Paper for a meeting on 14 March 2...
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GEUZENPENNING 2013

HUMAN RIGHTS AND TRANSITIONAL JUSTICE IN TUNISIA One step forward, two steps back?

Introductory Paper for a meeting on 14 March 2013 at the Verzetsmuseum, Amsterdam Hosted by Verzetsmuseum & Amnesty International

ON THIS MEETING The Verzetsmuseum and Amnesty International host this debate about transitional justice in Tunisia in honour of Radhia Nasraoui. Two years have passed since the overthrow of the Ben Ali regime. Positive developments notwithstanding, questions remain as to the extent that the Tunisian people have seen accountability for past abuses and assurances that human rights abuses will not be repeated. We will discuss the effectiveness of transitional justi-

RADHIA NASRAOUI

ce measures, the obstacles to establishing truth, justice and reparations, and the role of the international community. In particular, this meeting will consider investigations into the human rights violations committed under the previous regime, investigations of recent cases of torture and other abuse, guarantees for independence of the judiciary, and the bringing to justice of perpetrators.

for the Fight against Torture in Tunisia, which came the Organisation against Torture in

“My name is Radhia Nasraoui. I am married,

Tunisia in 2011. Police violations of human

with three daughters. I have been a lawyer

rights concern both women and men; young

since 1976 and in that capacity participated

people and the not so young, and even on

in the defence of victims of repression

occasion children; and common law and

(persons on the political left, Islamists,

political prisoners. It can be said that torture

Arab nationalists, Salafists, students, trade

is systematic and its objective is to terrorize

unionists, human rights defenders, journalists,

people and induce them to cease exercising

etc.) under Bourguiba and under Ben Ali. The

their rights and freedoms. There has not yet

task of fighting torture has been one of major

been any reform of the security and justice

importance for me, and it remains so since

systems, and there is no political will to put an

this practice has continued after the fall of

end to torture or to restrict its use.”

Ben Ali and under the various subsequent governments. I helped found the Association

Source : Organisation Mondiale contre la Torture, décembre 2012

BACKGROUND On Tunisia, over the years, Amnesty International has documented widespread torture and other cruel, inhuman or degrading treatment or punishment by security forces and the prison administration. Detainees, including political prisoners and those accused under antiterrorism laws, were subjected to such treatment and the risk was higher for those held in incommunicado detention, or in the period of time before being officially recorded as being in detention. The 2011 elections were the direct result of a mass popular uprising that ousted the old regime, triggered protests across the region, and promised greater respect for the rights and freedoms of all Tunisians. However, the very bodies associated with repression, in particular the police, continue to commit human rights violations. In January 2011 Amnesty International published Tunisia: Human Rights Agenda for Change, identifying the key reforms needed to break with the legacy of human rights violations of the past. The recommendations focus in particular on

the relationship between domestic and international law; respect for the rule of law; the principle of non-discrimination; the protection of the rights to freedom of expression, association, assembly, religion and movement; the right to privacy; the independence of the judiciary; the rights to liberty and fair trial; protection of the right to life and from torture and other forms of ill-treatment; an end to impunity; and respect for, and fulfillment of, economic, social and cultural rights. The Tunisian authorities must ensure not only that justice is done, but is also seen to be done for the victims of the uprisings. The Tunisian authorities should suspend all those suspected of human rights violations during the uprisings and ensure that victims and witnesses are protected from any act of intimidation. Amnesty International also urges the Tunisian authorities to fully cooperate with investigations into human rights violations committed during the uprisings, to reveal the truth and ensure that all perpetrators, up and down the chain-of-command, are made accountable.

Three Individual Cases Manal Boualagi

killed 9 january 2011, was walking in the street with her children and a female relative when she suddenly screamed and fell to the ground. She was rushed to Regueb hospital where the doctor ordered her to be transferred to the better-equipped Sfax hospital. She died on the way. Manal’s family filed a complaint for her death in early March 2011 in the Sizi Bouzid court of First Instance. For several months nothing was done with the case until May 2011 when it was decided that all cases related to victims of the uprising were to be transferred to military courts. Manal’s case was transferred to the military court in Sfax in south-east Tunisia. Manal’s family have accused two security officers of being responsible for giving orders to shoot on protesters in Regueb on 9 January and which led to Manal’s death. While one has been questioned by the military court investigative judge and remained free, the other has refused to appear before the court at all. Neither has been suspended from his work and both remained in their positions. Only on 28 January 2013 the military court in Sfax issued its verdict in the case of Manal and of four others who had been killed in Regueb during the uprising. One of the defendants, a commandant in the security forces, who had been detained during the trial was sentenced to ten years in prison on the counts of murder and attempted murder. The other defendant, a lieutenant in the security forces considered a fugitive by the court, was sentenced in absentia to 20 years in prison. Marwan Jamli

19 years old, was shot dead on 8 January 2011 as he took part in a protest in Thala. According to witnesses, he had not been involved in any violent behaviour when he was shot. One bullet hit him in the chest and another in the back. Marwan’s father, Hassan Jamli, told Amnesty International that he did not feel justice had been done, despite the families of those known as the “martyrs of Thala” having co-operated with and provided evidence to the military court in charge of the case. Hassan Jamli said the families had provided a CD with the circumstances of each death, as well as a document they found in Thala police station after police abandoned it which detailed the operations of the anti-riot police (Brigade d’Ordre Public, BOP) in Thala during the uprising. Six months after the events, Marwan’s body was exhumed, as were the bodies of others killed in Thala. Hassan Jamli said that the bullets extracted from Marwan’s body should have led to the identification of the perpetrator. Wajdi Saihi

was shot in Thala on 12 January 2011. Five witnesses had seen the man who shot Wajdi. At 10am that day the Minister of Interior had ordered the security forces to end the shooting, but at 11.45am Wajdi was shot in his right thigh. The hospital did not have the equipment to treat him, so Wajdi was taken by ambulance to Al Jahaoui Hospital in the Kef. He died on the way. Six months after his death, Wajdi Saihi’s body was exhumed and a bullet was extracted. The bullet was presented as evidence before the military court examining his death. Ramzi Saihi told Amnesty International that the Public Prosecutor had requested life imprisonment for the head of the BOP, Moncef Laajimi, for the killings in Thala, but Laajimi was acquitted. However, another officer, Lieutenant-Colonel Bechir Bettibi, was convicted of murder. On 8 January 2012, President Moncef Marzouqi and Prime Minister Hammadi Jebali told the Thala families there would be accountability for abuses during the uprising.

TRANSITIONAL JUSTICE Maaike Voorhoeve, a scholar specialized in transitional justice and Tunisia, noted recently: The implementation of important transitional justice measures [in Tunisia] is obstructed by polemics, which reflect deeply rooted antagonisms between various factions in society, as well as sensitivities with respect to certain transitional justice issues. The current Tunisian political sphere is extremely divided, which was also evidenced by the fact that over 100 political parties registered for the elections on 23 October 2011: the unity that was able to oust Ben Ali made place for an incredibly fragmented society. The division lines between the various fragments are far from clear, and mostly blurred, and cannot be reduced to the simplistic ‘Secularistversus-Islamist’ divide. Under international law, states have an obligation to uphold the right of victims of human rights violations to an effective remedy. This obligation includes four elements: • Truth: establishing the facts about violations of human rights that occurred; • Justice: investigating past violations and, if enough admissible evidence is gathered, prosecuting the suspected perpetrators; • Reparation: providing full and effective reparation to the victims and their families. Among the forms of reparation that may be required in any given case are: compensation; restitution; rehabilitation; and measures of

satisfaction, such as public apologies, public memorials; • Guarantees of non-repetition and changes in relevant laws and practices; and the bringing to justice of those responsible for the violations. In analyzing criminal prosecutions and amnesty as discussed in the work of forty truth commissions established around the world between 1974 and 2010, Amnesty International concluded: “The practice of truth commissions strongly supports the prosecution of crimes under international law. The practice of the majority of truth commissions is firmly in favour of investigations and prosecutions of all crimes under international law:” (Commissioning Justice, 2010). One year after the landmark elections in October 2011 for the National Constituent Assembly (NCA), considered by international observers as the first free and fair elections for decades, the Tunisian authorities have taken a number of steps towards much-needed reform. The NCA was tasked with drafting a new constitution. The 1959 Constitution had been suspended on 23 March 2011 by interim President Fuad Mbazaa pending the election of the NCA, and replaced temporarily with provisional directives on the organization of public authorities. An initial draft was made public in August 2012, but the committees have been unable to meet the one-year deadline for finalizing the text, postponing it until February 2013.

A decree of January 2012 created a Ministry for Human Rights and Transitional Justice. It is tasked with developing strategies to deal with human rights violations committed in the past “based on searching for the truth, judgment and reconciliation in accordance with the principles of transitional justice as adopted at the national level in order to reinforce the democratic transition and contribute to national reconciliation”, as well as guaranteeing and promoting human rights. In April 2012, the Ministry of Justice launched a consultation with civil society and created a Technical Committee including civil society representatives. The Technical Committee undertook a consultation in Tunis as well as in the different regions of Tunisia on the issues of truth, reparations, trials and reforms. The Committee was also tasked with drafting a law on transitional justice to be presented at the NCA by the end of October 2012. It will set out the principles and process for transitional justice in Tunisia. However, it is unclear when a transitional justice mechanism will be put in place to deal with past abuses. Lawyers interviewed by Amnesty International expressed fears that the process was taking too long, and that the ongoing trials relating to violations committed before and during the uprising of December 2010 to January 2011 could be obstacles to the establishment of truth at a later stage. In November 2012 the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of

non-recurrence, Paolo de Greiff, visited Tunisia. In a preliminary conclusion he stated that the focus had been too much on compensation instead of truth-seeking, criminal prosecutions, institutional reforms, and other measures to guarantee non-repetition. He also expressed a serious warning as to the “politicization” of the process favoring some political groupings over others. Perceived lack of progress on reform and transitional justice issues have, on several occasions, turned violent and excessive force has being used by the police. Although at several occasions during 2012 commissions of inquiry have been installed, until now none of them have issued their reports. Public trust in the judiciary and the rule of law is essential for any transitional justice measures to succeed. This can only be established when the Tunisian judiciary, which has routinely failed Tunisians, is able to render justice as an impartial and independent institution and in a manner that effectively protects human rights. The Constitution should, among others, clearly state that the judiciary is fully independent from the executive, and include provisions whereby judges are appointed based on ability, training and qualifications with no discrimination. The law should include provisions of access to all information concerning persons deprived of their liberty, their treatment and conditions of detention; and immediate access, with or without prior notice, to detained persons.

In December 2011, a law adopted by the newly elected NCA on the temporary organization of public powers provides for the creation of an “interim representative body” to replace the CSM.1 However, as of October 2012 no new mechanism was in place following a lack of consensus among NCA members in August 2012 about the nature of such a body. The disagreement was reportedly over whether the new body should be labeled “independent” and whether it would be financially and administratively independent.

significant role in the composition of the proposed new body (although not to the same extent as the CSM).2 A new law must be enacted and it must address the shortcomings of that law and guarantee the full independence of the judiciary from the executive, security of tenure for judges and clarity as to what constitutes grounds for disciplinary proceedings and their right to a review of decisions that affect them in accordance with the UN Basic Principles on the Independence of the Judiciary.

The draft law on the Temporary Judicial Council under debate in August was itself problematic as it lacked safeguards against the arbitrary dismissal or transfer of judges and granted the executive a

1 2

Loi constituante n. 2011-6 du 16 decembre 2011 relative a l’organisation provisoire des pouvoirs publics, Art 22. See Human Rights Watch, “Tunisia : Revise Judiciary Bill”, August 2012: http://www.hrw.org/news/2012/08/06/tunisiarevise-judiciary-bill

Amnesty International reports • Tunisia: One step forward, two steps back? One year since Tunisia’s landmark elections. MDE 30/010/2012. 23 October 2012. • Tunisia: Amnesty International regrets rejection of recommendations regarding decriminalization of defamation, non-discrimination against women and on the basis of sexual orientation, and abolition of the death penalty. MDE 30/009/2012. 20 September 2012. • Tunisia: Submission for consideration by the National Constituent Assembly on the guarantee of political, civil, economic, social and cultural rights in the new Constitution. MDE 30/004/2012. 12 April 2012. • Tunisia: Human Rights Agenda for Change. MDE 30/008/2011. January 2011. • Commissioning Justice: Truth Commissions and Criminal Justice. POL 30/004/2010. April 2010.

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