TUNIS (21 May 2011) - In conclusion of his visit to Tunisia undertaken on invitation of the Government from 15 to 22 May 2011, Juan Mendez, the UN Special Rapporteur on torture and other forms of cruel, inhuman, degrading treatment or punishment, delivered the following statement:
I would like to express my appreciation to the interim Government for this invitation and for its full cooperation during the visit. I am grateful to all my interlocutors, including the senior State officials, representatives of civil society, lawyers and human rights advocates, detainees, victims of torture and ill-treatment and their families. I would also like to express my gratitude to the OHCHR’s newly established presence in Tunis for its assistance prior to and throughout the mission.
The focus of my mission was threefold: to look at the violations committed during the Ben Ali regime; to assess the abuses committed during the revolution and the first months of the Transitional Government; and to identify measures to be implemented in order to prevent torture and ill-treatment in the future. Regarding the first category, I recommend full and aggressive investigations of all cases, the prosecution of the perpetrators as well as reparations and rehabilitation services for victims. Regarding the second category, the Fact-finding Commission should complete its work as soon as possible; its findings should be followed by investigations and prosecutions when warranted; and victims should receive reparations. Regarding the prevention of torture, constitutional, legislative and administrative reforms are necessary to ensure the establishment of solid safeguards against torture and ill-treatment.
The mission focused, inter alia, on the challenges faced by the ongoing transition in Tunisia which I acknowledge are daunting. At the same time Tunisians are living through a period that is full of promises and hope for a better future. My approach, therefore, has been to look into ways to ensure that the roadmap to justice is laid down at the earliest possible stage but also with some principles of success and long-term stability. It was only possible to receive a sample of testimonies and visit a relatively small number of places of detention and prisons in order to verify allegations. My findings below are therefore generalised and preliminary, pending further study. The purposes of my visit was to assess the situation of torture and ill-treatment since the collapse of the ousted regime; to engage with decision-makers and key actors in order to formulate recommendations to help the interim Government and Tunisian society to ensure justice in times of a successful transition; to promote accountability for past abuses and for other allegations of torture and ill-treatment ensuring that alleged perpetrators are held responsible in conformity with Tunisian and international law.
During my seven-day mission, I met with the Prime Minister, Minister of Justice and Minister of Interior, and other representatives of the provisional Government; the National Commission for investigating the abuses of the recent period until the end of their cause (Fact-finding Commission); the High Instance for the realization of the objectives of the revolution, political reform and transition; the Fact-finding Commission on Corruption and Embezzlement, the judiciary; and civil society. I met victims and their families and visited places of deprivation of liberty in Tunis, Bizerte and Kasserine.
Today Tunisia is living through a period of turbulent change and historical transition from a regime where torture was known to have been practiced by security services with impunity. The current transition represents an excellent opportunity to embark on the effort to establish and institutionalize safeguards needed to prevent torture and ill-treatment from happening in the future. The interim Government assumed its mission after 29 years in which the very foundation of the rule of law and implementation of the absolute prohibition of torture have been absent at judicial and executive levels. The interim Government has therefore come under immense pressure to demonstrate its genuine will and capacity to respond to people’s will to break the cycle of impunity and restore justice for past and recent acts of torture and ill-treatment. As an immediate illustration of its determination and commitment to break with the past, the interim Government has undertaken a number of steps towards ensuring accountability, democratic governance and long-term reforms. Yet, it faces the usual challenges of transition, a crisis of legitimacy and leadership, as well as public scrutiny, growing frustration, disappointment and criticism over delayed delivery of justice. Moreover, the very nature of an interim administration may discourage officials from taking some actions for which they are legally and institutionally responsible. A “wait and see” attitude may be hampering the possibility of delivering bold and aggressive steps in restoring justice. I agree, of course, that structural changes-institutional provisions, fundamental legislation and reorganization of the state approaches-must await the election of a Constituent Assembly legitimized by popular vote. But restoring justice for past abuses, honouring victims and reacting firmly when abuses occur should be seen as the normal function of State institutions and, more importantly, they are urgent measures that can not wait. In addition, I am impressed with the high level of consensus above the political spectrum on the need to abolish torture and ill-treatment, so the actions in that direction (unlike structural reforms) are not dependent on reaching political agreement.
The interim Government has undertaken a series of positive steps, including, considering reforming the State security apparatus and dismantling the so called political police, initiating security sector reforms, reviewing the national legislation in line with international standards, including inter alia removing legal obstacles to reopening the cases of homicide and torture of the past, dismissing a number of high- and mid-ranking officials from the Ministry of Interior and the Ministry of Justice. I am also heartened by the discussions about the establishment of transitional justice mechanisms to address the legacy of past abuses. Encouragingly, the Government has established three advisory commissions.
As different actors acknowledge, the interim Government sees its interim mission as putting the first stones in the foundations of the rule of law. I agree that it has both the opportunity and the duty to play such an historic role. Yet the current political situation is fragile and the roadmap to the implementation of some measures is not clear to outside observers. In addition, even if long term, structural reforms are better left to a new Government with electoral legitimacy, the current government could certainly show the way towards the content of those reforms and start the process of broad, participatory debate about what kind of state Tunisians want to build.
Following my seven-day country visit, I have come to the following preliminary conclusions:
I was told by officials that the practice of torture and ill-treatment has decreased following respective instructions issued by the officials of the security services. This I realized is true as far as the notorious and endemic practice of torture committed during the Ben Ali regime is concerned. However, I have heard credible testimonies regarding beatings of detainees upon arrest or within the first hours of pretrial detention (garde a vue) as well as during interrogation. Such episodes reflect the fact that old habits of police agents are not easily eradicated. Whether they are isolated or more frequent, beatings inflicted as a form of punishment or intimidation reflects complete disrespect for the presumption of innocence and the dignity of persons suspected of crimes. For that reason, every single act of torture is intolerable and ellicits the obligation of the State under international law to investigate, prosecute and punish it. I heard testimonies according to which the safeguards during arrest and detention, such as rules governing warrant, compulsory medical examination upon arrest and transfer, notification to the family, access to a lawyer, interrogation in the presence of witnesses, as well as the right against self-incrimination were not respected in practice. Sadly, some of those testimonies were about events that have taken place after the January 14 Revolution.
For example, I learned that in early May the police reacted heavy-handedly to a demonstration by scores of youths. Riot police clashed with protesters and representatives of the media. I heard allegations of arbitrary arrest, and beating, of a group of young people that included more than 20 minors. Together with about 46 adults, they were arbitrarily detained and taken to a detention center without any access to a lawyer or notification to their families despite clear provisions in the Tunisian law regarding juvenile criminal law and procedure they were set free at 4:00 a.m in one of the most dangerous areas in Tunis. During about 12 hours of detention they were forced to kneel and remain in uncomfortable positions. I welcome the initiative of the Ministry of Interior to issue a statement apologising to "journalists and citizens involuntarily assaulted" and to open an inquiry into these incidents. This goes on to suggest that riot police and law-enforcement bodies engage in ill-treatment and excessive use of force to hold situations under control.
Given the lack of effective safeguards during arrest, persons deprived of their liberty are extremely vulnerable to torture and ill-treatment, moreover, given the legacy of abusive treatment by law-enforcement agents in the past, the lack of sufficiently speedy investigations into allegations of torture and ill-treatment, as well as the use of prosecutions affecting public officials, it can not be said that the culture of impunity no longer prevails, even though the current authorities have undoubtedly and sincerely pledged to respect the law. I have received several allegations of being kicked, beaten and burned with cigarettes. Many of these cases were supported by forensic medical evidence.
I learned from the Ministry of Interior that from 1999 to 2009, there were only seven criminal convictions against law-enforcement and prison officials for acts of torture and ill-treatment out of 246 prosecutions initiated. According to Tunisian law, anyone who claims to have been subjected to torture, can file a complaint either with officers of the Police Judiciaire or the Prosecutor. These mechanisms are inadequate as the complaint is essentially addressed to the same body that is alleged to have perpetrated the ill-treatment. Moreover, under Tunisian legislation, judges are not obliged to exclude any evidence or statements obtained under torture, despite the fact that, as a party to the CAT, Tunisia is internationally obliged to exclude such evidence. This inevitably creates an environment conducive to impunity.
Admissibility of confessions is left to the discretion and appraisal of the judge in accordance with Articles 150 and 152 of the Criminal Procedure Code. I welcome the initiative of the Ministry of Justice to amend the definition of torture contained in the Criminal Code in order to bring it in full conformity with the definition of Article 1 of the CAT and to provide for penalties reflecting the severity of the offense. I also support an initiative to amend the laws to ensure that no statement obtained through torture shall be admitted as evidence in judicial proceedings against the defendant, except in a case presenting torture and to show that the statement was made.
It is my understanding that several agents of security forces attached in the past to the Presidency and to the Ministry of the Interior have not been removed even though they are thought to be at the heart of the serious violations of human rights that took place in the past.
The conditions of prisons and detention centers visited vary from being adequate to unsatisfactory as far as hygienic conditions, availability of medical assistance, access to telephone and the length of family visits are concerned. Medical centers although available, do not seem to be always and adequately equipped. Dental and psychiatric assistance do not presently exist in the detention centers visited.
As far as the investigation launched into the past allegations of torture and recent abuses are concerned, I welcome the establishment of the fact-finding Commission, while recognizing that its function is complementary to judiciary and should be clarified. I heard an explanation about the thorough and comprehensive way in which it has approached its mandate. However, I have learned that the number of prosecutions and initial judicial inquiries related to torture and disproportionate use of force remain low, despite the fact that the Commission’s work does not substitute the role of prosecutors and judges. The slow pace of investigation and general lack of clear signals that these cases are seriously considered provokes frustration and anger among victims and general public. It is encouraging to learn that preliminary monetary compensation has been offered to victims and their families of December and January events. It remains unclear how the amount of compensation was defined as adequate and whether any measures are undertaken to provide the victims and their families with rehabilitation services.
I welcome the initiative of the interim Government to release political prisoners and prisoners of conscience; and to grant conditional release on a case by case basis to those convicted for security related offenses. Many, if not most, of these were convicted in unfair trials, so amnesties and pardons are a partial remedy to the violations they have suffered.
I would like to welcome the commitment expressed by all levels of the Government regarding the abhorrence of torture and its determination to eradicate it. Among my key preliminary recommendations to the Government, I would like to recommend:
- In order to build the people’s confidence in law enforcement institutions, communicate openly and transparently about measures being taken to counter abuses, redress injustices and offer remedies and reparations to the victims of torture and ill-treatment;
- Ensure that the absolute prohibition of torture is introduced in the Constitution as a preambular and as a binding provision;
- As a matter of priority, criminalize torture in full accordance with the definition contained in article 1 of the Convention against Torture, and subject to penalties that appropriately reflect its gravity;
- Amend all legislation to bring it into conformity with Tunisian obligations under international human rights treaties;
- Establish an effective and independent criminal investigation mechanism against alleged perpetrators of torture and bring them to justice;
- Introduce accessible and confidential complaints mechanisms within all places of detention and ensure that any complaints are followed up by independent investigations, and that complainants do not suffer any reprisals;
- Improve safeguards against torture by introducing effective habeas corpus and by providing early access to courts, lawyers and independent medical examinations to all persons in detention;
- Ensure that independent autopsies be conducted following each death in detention. Provide training to the forensic medical services in the medical investigation of torture and other cruel, inhuman or degrading treatment or punishment;
- Ensure the separation of minors from adults and of pre-trial detainees from convicted prisoners;
- Finalise the ratification of the Optional Protocol to the Convention against Torture by depositing the instrument of ratification at the United Nations, and establish effective national mechanisms to carry out unannounced visits to all places of detention;
- Ensure that relevant instructions and principles of prohibition of torture and ill-treatment reach the very end of the command chain and that no law-enforcement agent will be exempted from criminal liability for the acts of ill-treatment or torture committed by them or their subordinates;
- Establish an independent complaints mechanism for detainees subject to torture and ill-treatment;
- Establish a national human rights institution in accordance with the Paris Principles as a minimum standard;
- Ensure comprehensive structural and legislative reforms and independent oversight of the security services to avoid a relapse into past practices and conduct a thorough and fair process review of performance of every law enforcement agent with a view to vetting and disqualifying those known to have committed abuses or allowed them to happen;
- Amend relevant provisions in the Criminal Code and Criminal Procedure Code concerning torture and ill-treatment to bring them in conformity with the Convention Against Torture with respect to inadmissibility in legal proceedings of evidence obtained under torture and incorporate provisions governing investigations of torture and ill-treatment, including ex-officio inquiries into allegations;
- Ensure that independent forensic medical examinations are automatically provided following allegations of abuse and a forensic autopsy is performed following any death in custody;
- Create comprehensive administrative programmes offering redress and reparation services to victims of past violations of the Ben Ali regime with universal coverage and easy access for qualifying beneficiaries; the quantum of reparations should be commensurate with the seriousness of the pain they have suffered;
- Amend the law to ensure immediate access to a lawyer and notification of family during the first hours of the arrest;
- Ensure speedy, impartial and independent investigation into the allegations of deaths caused by the excessive use of force by security forces, allegations of torture and ill-treatment committed during the December and January events and its immediate aftermath. Ensure that those responsible are prosecuted, offer remedies and reparations in the form of adequate compensation and rehabilitation services are awarded to victims;
- Ensure that the interim Government in general, and the Ministry of Interior in particular, are undertaking decisive and persistent steps to ensure that security services and law enforcement bodies are well instructed on interrogation rules and the basic principles on the treatment of detainees;
- Amend legislation and establish relevant infrastructures within the Ministry of Health to provide services for full rehabilitation, redress and compensation of victims of torture and ill-treatment;
- Ensure that the fact-finding Commission’s findings and its recommendations are published and widely disseminated while the confidential information on suspected perpetrators is transferred to the relevant prosecution authorities for further investigation, with a view to ensuring that those who are criminally responsible for human rights violations are brought to justice;
- Ensure that security forces and other law enforcement officers act in line with the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, by giving clear instructions that force may only be used when strictly necessary and only to the extent required for the performance of their duty, and that lethal force may only be used when strictly unavoidable in order to protect their lives or the lives of others;
- Force employed on detainees, whether in garde a vue or in penitentiaries, must be determined exclusively by the behavior of the inmate and then be strictly proportional to the need to prevent him from hurting himself or others;
- Provide training for security services and law-enforcement bodies;
- Enter into agreements with the OHCHR to provide support to the above recommendations through a technical cooperation programme within the framework of the recent MOU signed between the High Commissioner for Human Rights and the Tunisian Government.
I would like to express my appreciation to the Government for inviting me to visit the country and facilitating a successful mission and I look forward to a long-term process of cooperation with the Government to combat torture and ill-treatment.
I wish also to express my gratitude to my team and all those who have contributed to the success of this mission.