Tunis (26 January 2010). On the last day of his official visit to Tunisia from 22 to 26 January 2010, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, issued the following statement:
“I would like to express my appreciation for the cooperation extended to me by the Government of Tunisia. I was able to have open and extensive discussions with many official and civil society interlocutors I had productive meetings with the Ministers of Foreign Affairs and for Justice and Human Rights, with Ministry of Interior officials, judges, parliamentarians and the High Committee on Human Rights and Fundamental Liberties. I also met with representatives of the international community, lawyers, academics and non-governmental organizations, including human rights organizations and organizations of victims of terrorism. regarding the country’s counter-terrorism law and practice. Furthermore, I visited the Bouchoucha police detention facility and the Mornaguia prison where I interviewed several persons suspected of or convicted for terrorist crimes. I wish to thank all my interlocutors, including the detainees, and victims of terrorist acts and their families, for speaking to me. All this allowed me to learn about the situation in order to make an objective assessment of compliance with human rights in the context of counter-terrorism in Tunisia.
Every State has the obligation to protect the life and integrity of its citizens and residents, including from threats emanating from terrorism. At the same time, international human rights norms have to be fully respected, including the rights of persons suspected of being involved in terrorist crimes. Tunisia has repeatedly made commitments to that effect, including by ratifying most international conventions related to human rights or to terrorism. I take the invitation extended to me as a significant step on this way and will report fully to one of the future sessions of the Human Rights Council. Herewith I would like to share some of my key observations at the end of the visit:
Regarding the legal framework, I welcome some recent amendments in the law, in particular the narrowing of the vague provisions regarding incitement, the abolition of “faceless judges” and the strengthening of the safeguards related to the prolongation of “garde à vue”. However, the 2003 counter-terrorism law still contains deficiencies, which, as in many other countries, are rooted in the definition of terrorism: international norms require that all elements of a crime are in explicit and precise terms encapsulated in legal definitions. Article 15 of the International Covenant on Civil and Political Rights; see also E/CN.4/2006/98 As I have systematically emphasized, deadly or otherwise serious physical violence against members of the general population or segments of it should be a central element of any definition of terrorism. This is clearly not the case in Tunisia, where in the majority of cases since 2003 mere intentions are punished, be it in terms of “planning” or in terms of “membership”, the latter often within vaguely defined organizations or groups. I heard of numerous cases of – and saw several – young men whose main “crime” it was to have downloaded or watched certain programs online or having met to discuss some religious issues with others.
I have yet to receive precise statistics from the authorities on the number of terrorism cases tried by Tunisian courts in recent years. However, as terrorism is not an everyday phenomenon in Tunisia, it appears that the scope of application of the terrorism provisions has grown too wide and could be reduced. As in some other countries, I see here a danger of a "slippery slope" which not only results in the 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.
Tunisian law prohibits torture, and the country is Party to the Convention against Torture. Nevertheless, there does not seem to exist a clear provision requiring judges to open investigations ex officio in cases of torture allegations presented in court, to motivate the rejection of a torture complaint or to exclude any evidence or statements obtained under torture. These shortcomings of the legal framework may result in a shield of impunity for those who engage in torture or other ill-treatment.
Gap between law and reality
The most disturbing experience during my mission was the existence of serious discrepancies between the law and what was reported to me as happening in reality. While work towards a full report will continue in cooperation with the Government, I have chosen to speak out about my main concerns:
- It appears, and the authorities have admitted as much, that the date of arrest may be postdated, circumventing the rules about the allowed length of police detention and amounting to secret detention or disappearance of the person;
- The frequent use of confessions as evidence in court without proper investigation into allegations of torture or other ill-treatment;
- The inadequacy of guarantees against torture, such as access to independent medical examinations and access to a lawyer from the moment of arrest, instead of only after the first appearance before the investigative judge;
- The disproportionately low number of prosecutions or other clear findings related to torture, compared to the frequency of allegations.
While Tunisian authorities in many respects operated in the spirit of transparency during my visit, my repeated requests of access to the interrogation facilities of the Judicial Police (namely the Sub-directorate for Criminal Affairs), still known as “Directorate of State Security” were denied. This is all the more troubling, as the allegations of torture or ill-treatment focus on the role of the judicial police in what happens prior to officially registered police custody, during investigation/interrogation, or when a detainee awaiting trial is taken out of the prison for further investigation.
Strategy against terrorism
I am convinced that the multi-dimensional approach to preventing terrorism through social, educational and anti-discrimination measures, as adopted by Tunisia is a good example that is worth exploring further. However, I am concerned that the fruits of these doubtlessly positive policies are easily undermined by violations of the law which, as always, have a counterproductive effect in the fight against terrorism.
I want to reiterate the recommendations addressed to Tunisia by several United Nations human rights mechanisms in the recent past, while encouraging Tunisia to continue on its path of investing in education, addressing social disparities and overall fight against poverty. I look forward to continuing my cooperation with the Government in the coming months in the preparation of a full mission report."
Mr. Scheinin was appointed Special Rapporteur on the promotion and protection of human rights and fundamental freedoms by the United Nations Commission on Human Rights in August 2005. The mandate was renewed by Human Rights Council Resolution 6/28. As Special Rapporteur, he is independent from any Government and serves in his individual capacity.Mr. Scheinin is Professor of Public International Law at the European University Institute.