A/HRC/WGAD/2014/39

GE.15-02281 (E) 200415 210415

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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-first session, 17–21 November 2014

No. 39/2014 (Tunisia)

Communication addressed to the Government on 15 September 2014

concerning Salem Lani, Abdedelwaheb Thabti, Mabrouk Gasser, Elfakhem Elwichi,

Bechir H’rabi, Monji Maiz, Ibrahim Thabti and Saïd Chibli

The Government has not replied to the communication.

The State is a party to the International Covenant on Civil and Political Rights, to

which it acceded on 18 March 1969. The State is also a party to the Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

to which it acceded on 23 September 1988.

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the former Commission on Human Rights, which extended and clarified the Working

Group’s mandate in its resolution 1997/50. The Human Rights Council assumed the

mandate in its decision 2006/102 and extended it for a three-year period in its resolution

15/18 of 30 September 2010. The mandate was extended for a further three years in

resolution 24/7 of 26 September 2013. In accordance with its methods of work

(A/HRC/16/47,

annex),

the

Working

Group

transmitted

the

above-mentioned

communication to the Government.

2.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to the detainee) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

United Nations

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General Assembly

Distr.: General

11 February 2015

English

Original: French

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(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth; national, ethnic or social origin; language;

religion; economic condition; political or other opinion; gender; sexual orientation; or

disability or other status, and which aims towards or can result in ignoring the equality of

human rights (category V).

Submissions

Communication from the source

3.

This is the case, as submitted to the Working Group on Arbitrary Detention.

4.

According to the information received, eight Tunisian nationals belonging to the

Ennahdha party or to the local revolution protection committee were arrested by the

Tunisian authorities, and most of them have reportedly been held in Harboub prison since

November 2012. The persons in question are:

• Salem Lani, born on 14 June 1985;

• Abdedelwaheb (or Abdelwahab) Thabti, born on 1 August 1980;

• Mabrouk Gasser (or Elkassir, Elkasser or Elkaser), born on 21 February 1971;

• Elfakhem (or Elfakhim) Elwichi, born on 19 January 1967;

• Bechir H’rabi (or Harabi or Elharabi), born on 15 September 1968;

• Monji (or Mongi) Maiz, born on 20 March 1986;

• Ibrahim Thabti (or Thebti), born on 12 March 1986;

• Saïd Chibli, born on 3 August 1962.

5.

According to the information received, a peaceful demonstration organized by the

local revolution protection committee and authorized by the public authorities was held on

18 October 2012 in the governorate of Tataouine to protest against the retention of

allegedly corrupt persons in the regional administration and in local government after the

Tunisian revolution of 14 January 2011.

6.

The source reports that the demonstration began in front of the Maison du peuple

(House of the people) with a speech by Saïd Chibli in which he explained the purpose of

the demonstration and underlined its peaceful nature. The demonstrators then headed in a

calm and orderly fashion towards certain locations viewed as strategic. It was not until

around 11 a.m., when they reached the headquarters of the General Agriculture and

Fisheries Union, that events took a different turn.

7.

The source claims that persons inside the building, particularly Lofti Naguedh, Salah

Bouchnak and Ahmed Alhamdi, started to attack the demonstrators with stones and

Molotov cocktails, severely burning several of them. After the riot police fired into the air

to disperse those present, a general panic broke out and the persons inside the Union

headquarters building left it.

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8.

According to the information received, one of these persons, Mr. Naguedh, then

suffered a heart attack. Mr. Chibli reportedly tried to protect Mr. Naguedh, who was taken

to hospital and resuscitated by an emergency doctor using oxygen. His state of health

improved before deteriorating again 15 minutes later. Five doctors and nurses performed

cardiac massage for 35 minutes and used adrenaline injection, electric shock and chest

compressions, which account for the fractures observed in that part of the body. Despite

their efforts, Mr. Naguedh died in hospital as a result of the heart attack. These facts were

noted, and the death from a heart attack confirmed, in a medical report produced by the

Tataouine emergency medical and resuscitation teams.

9.

The source reports that, although the deceased’s medical file disappeared from the

hospital, corroborating accounts show that Mr. Naguedh had suffered two previous heart

attacks, in 2005 and 2006 (he was hospitalized from 4 March 2005 to 9 March 2006: file

Nos. 1744/2005 and 61/2005) and that the medical diagnosis had been heart failure.

10.

The source indicates that, on 21 October 2012, members of the Tataouine General

Union of the National Guard and Union of Rapid Response Group Officers issued a press

release confirming that the demonstration had been peaceful and that they had verified that

the demonstrators were unarmed. They also bore witness to the events and the fact that

some members of the General Agriculture and Fisheries Union had thrown boiling water,

Molotov cocktails and stones at the demonstrators from the balcony of the Union

headquarters, leading some of the demonstrators to throw stones back and attempt to enter

the building.

11.

Eight persons involved in the demonstration were charged with murder and arrested,

despite the defence testimony given by Jilani Dabbabi, a cousin of the deceased, and the

medical certificates and reports, attesting to death from a heart attack, that had been

produced by five different doctors and confirmed by a forensic pathologist. Nevertheless,

the investigating judge sought a second opinion from Dr. Samir Maatoug, who asserted, on

the basis of police and investigation reports and without examining the body of the

deceased, that the death had resulted from acts of violence and not from a heart attack.

12.

According to the information received, on 4 November 2012 the Gorjani unit of the

criminal police arrested Ibrahim Thebti, Mongi Maiz, Bechir Harabi, Elwichi Elfakhim and

Mabrouk Elkaser, without a warrant, in Tataouine, and transferred them to Harboub prison

pending their initial interrogation. On 6 November 2012, Saïd Chibli was also arrested after

being summoned to Gorjani police station in Tunis and given a hearing at the court of first

instance in Tataouine, all of which occurred prior to the hearing of the persons arrested

earlier, on 4 November 2012. Although the investigating judge allegedly ordered their

detention on 9 November 2012, it was not until 16 November 2012 that they were all heard

by the Tataouine court of first instance. After that interrogation, Mr. Thebti and Mr.

Elfakhim were released and then arrested once more following an appeal by the public

prosecutor’s office against this decision.

13.

Abdelwahab Thabti was arrested on 15 December 2012 in Tataouine, given a

hearing on 17 December 2012 and transferred to Harboub prison. Salem Lani was arrested

on 16 January 2013 and had a hearing the following day at the Tataouine court of first

instance before he, too, was transferred to Harboub prison.

14.

The source asserts that these persons were held in a secret location throughout their

detention. Their lawyers were informed that they had been examined by a doctor and were

in good health. According to the source, however, the officers who conducted their hearings

threatened them with life imprisonment, insulted and bewildered them by asking multiple

questions at the same time and made improper gestures, even touching them. Moreover, the

investigating judge reportedly refused to allow their lawyers to be present or to summon

witnesses for the defence.

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15.

According to the information received, on 29 March 2013, the preliminary

investigation was closed and Abdelwahab Thabti and Salem Lani were charged with

premeditated murder, while the other six defendants were charged as accessories to murder.

On 3 April 2013, appeals were lodged by the public prosecutor’s office and the defence

lawyers.

16.

On 23 April 2013, the given bias shown by the judges against the defendants before

they had even been tried, the defence lawyers moved for the court to relinquish jurisdiction

and refer the case to another court.

17.

On 15 July 2013, the indictments chamber of the court of second instance at Sousse

rejected the various appeals and charged the defendants with involvement in a fight leading

to a fatal heart attack.

18.

According to the information received, on 12 August 2013, the Tunisian judiciary

ordered the detainees’ transfer to the Sahel region of Tunisia. They were split into three

groups: Mr. Chibli, Mr. Maiz and Mr. Elharabi were transferred to Messadine prison in the

governorate of Sousse; Mr. Thabti, Mr. Thebti and Mr. Elfakhim were transferred to

Mahdia prison in the governorate of Mahdia; and Mr. Lani and Mr. Elkassir were

transferred to Monastir prison in the governorate of Monastir.

19.

On 24 September 2013, before the Tunis court of cassation, the chief prosecutor of

the Sousse court of second instance appealed the decision of 15 July 2013. The source

states that on 3 January 2014 in the face of pressure, the indictments chamber of Sousse

court of second instance withdrew the charge of manslaughter and requested that the eight

defendants should be sentenced for premeditated murder, as well as for their involvement in

a fight leading to a fatal heart attack.

20.

The source reports that, on 23 January 2013, the indictments chamber of the Sousse

court of second instance decided to reinstate the charge of manslaughter and the detention

order on the basis of the same facts, meaning that the defendants were held for longer than

the maximum permissible period of pretrial detention.

21.

On 25 March 2014, Ms. Lamia Khmiri brought a complaint against the members of

the indictments chamber of Sousse court of second instance for violating the legal

provisions governing pretrial detention, thereby rendering the detentions arbitrary. It is

reported that the case, No. 36081, is currently pending before the Tunis court of cassation,

which has pushed back the dates of its deliberations continuously.

22.

Article 29 of the Tunisian Constitution of 2014 and articles 84 and 85 of the Code of

Criminal Procedure set forth domestic guarantees with regard to detention. The last two

articles provide, inter alia, that the period of pretrial detention for serious crimes may not

exceed 14 months. In the present case, however, the period has been exceeded, as the

persons have been detained since 4 November 2012 (Ibrahim Thebti, Mongi Maiz, Bechir

Harabi, Elwichi Elfakhim and Mabrouk Elkaser); 6 November 2012 (Saïd Chibli); 15

December 2012 (Abdelwahab Thabti); and 16 January 2013 (Salem Lani).

23.

According to the source, the judicial decision of January 2014 to bring new charges

against the petitioners so as to justify a new period of pretrial detention is a clear violation

of domestic provisions. The detention has no legal basis, rendering it arbitrary under

category I of the criteria applicable to cases submitted to the Working Group, in violation

of article 9, paragraph 1, of the International Covenant on Civil and Political Rights.

24.

The source maintains that the deprivation of liberty of these eight persons is also

arbitrary under category III of the criteria applicable to cases submitted to the Working

Group, as these persons were not afforded fair trial guarantees. Moreover, according to the

source, the principles of the presumption of innocence and impartiality were not respected,

since the judges expressed their hostility towards these persons publicly, in violation of

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articles 10 and 11 of the Universal Declaration of Human Rights and article 14, paragraphs

1 and 2, of the International Covenant on Civil and Political Rights. Proof of this lies in the

words of the chief prosecutor of Médenine, who branded the detainees “criminals” before

the preliminary investigation had even begun, prompting the defence to request, in vain,

that the case should be referred to another authority on the grounds of bias by the first

court. It is reported that no action was taken in response to the complaints lodged against

members of the judiciary.

25.

The source reports that the judicial authorities paid attention only to the prosecution

witnesses, disregarding the defence witnesses and marginalizing evidence such as medical

certificates, photos and videos, in violation of article 14, paragraph 3 (e), of the

International Covenant on Civil and Political Rights. In addition, according to the source,

the lack of a committal order, in violation of article 9, paragraph 1, of the International

Covenant on Civil and Political Rights; the obstruction of access to a defence (particularly

owing to the use of secret detention), which violates article 11 of the Universal Declaration

of Human Rights and article 14, paragraph 3 (b), of the International Covenant on Civil and

Political Rights; the methods of interrogation, which violate article 14, paragraph 3 (g); and

the failure to specify individual charges are also proof of the lack of a fair trial.

26.

It follows from the information received that this detention may be arbitrary under

category V because of discrimination based on the fact that these persons were affiliated

with the illegal political movement Ennahdha.

Response from the Government

27.

In a letter dated 15 September 2014, the Working Group transmitted the above

allegations to the Government of Tunisia and requested detailed information on the current

situation of the eight individuals in question and clarification of the legal basis justifying

their detention.

28.

The Working Group finds it regrettable that, to date, the Government has neither

replied to the allegations that have been sent nor requested an extension of the time limit for

doing so in accordance with paragraphs 15 and 16 of the Working Group’s methods of

work.

29.

Despite the Government’s failure to reply, the Working Group considers that it is in

a position to render an opinion on the detention of the eight individuals in question, in

conformity with paragraph 16 of its methods of work and on the sole basis of the

information provided by the source.

Discussion

30.

Upon receipt of the information submitted by the source, the Working Group noted

several contradictions in the spelling of names, the dates of arrest and the number of

persons concerned. The secretariat of the Working Group therefore sought clarification

from the source on 27 June 2014, but to no avail. Nevertheless, these contradictions do not

affect the substance of the allegations, given that the situation is well known and that the

source has submitted numerous consistent pieces of evidence related to the prosecution and

continued detention of the eight persons mentioned by name in the petition. In short, the

prima facie credibility of the claims has been established.

31.

With regard to category I of the arbitrary detention categories, the Working Group

considers that reclassifying the offences does not allow the public authorities to impose a

new period of pretrial detention without taking into account the time already spent in

custody. Consequently, the Working Group concludes that the continuation of the

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individuals’ detention beyond January 2014 (up to the start of the trial) lacks a legal basis

and is therefore arbitrary.

32.

Moreover, the Working Group is deeply concerned at the repeated violations of

basic elements of the right to a fair trial, including the rights of the defence, the integrity of

the proceedings and the impartiality of the court, as established in article 10 of the

Universal Declaration of Human Rights and article 14, paragraph 1, of the International

Covenant on Civil and Political Rights. The reported facts, which have not been denied by

the Tunisian Government, reveal serious breaches in the administration of justice, at least

with regard to these eight persons. The Working Group therefore concludes that the

detention is arbitrary under category III. The case should be referred to the Special

Rapporteur on the independence of judges and lawyers for a more detailed assessment and

the necessary follow-up to ensure that the rule of law is a reality in Tunisia at all times.

33.

Lastly, the facts not contested by the Tunisian Government demonstrate that these

eight persons are being prosecuted for exercising their rights to freedom of opinion,

expression and demonstration, as recognized in article 19 of Universal Declaration of

Human Rights, article 19 of the International Covenant on Civil and Political Rights and the

relevant legal framework, given that the street demonstration had been duly authorized.

There is every indication that their membership of the Ennahdha party is at the very root of

the proceedings against them, with everything being done to incriminate them in an

accidental death in circumstances that would not otherwise allow such culpability to be

established. The Working Group therefore concludes that the detention is also arbitrary

under category V.

34.

The Working Group is also concerned about the treatment of these persons at the

very outset of their detention. A thorough investigation is required into the allegation of ill-

treatment, and the Working Group refers the case to the Special Rapporteur on the question

of torture.

Disposition

35.

In the light of the foregoing, the Working Group renders the following opinion:

The continued deprivation of liberty of Salem Lani, Abdedelwaheb Thabti, Mabrouk

Gasser, Elfakhem Elwichi, Bechir H’rabi, Monji Maiz, Ibrahim Thabti and Saïd

Chibli as from January 2014 is arbitrary, in that it lacks a legal basis in violation of

article 9 of the Universal Declaration of Human Rights and article 9 of the

International Covenant on Civil and Political Rights. The detention is also arbitrary

as the right of these eight persons to a fair trial has not been respected and their

prosecution results from the exercise of their fundamental freedoms, in violation of

articles 10 and 19 of the Universal Declaration of Human Rights and articles 14 and

19 of the International Covenant on Civil and Political Rights. The detention thus

falls under categories I, III and V of the criteria applicable to the consideration of

cases submitted to the Working Group.

36.

The Working Group therefore requests the Government of Tunisia to release Salem

Lani, Abdedelwaheb Thabti, Mabrouk Gasser, Elfakhem Elwichi, Bechir H’rabi, Monji

Maiz, Ibrahim Thabti and Saïd Chibli without delay and to take the necessary steps to

remedy the material and moral injury that they have suffered, including by providing

reasonable and appropriate compensation in accordance with article 9, paragraph 5, of the

International Covenant on Civil and Political Rights.

37.

The Working Group recalls that the Human Rights Council has requested all States

to cooperate with the Working Group, take account of its views and take appropriate steps

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to remedy the situation of persons arbitrarily deprived of their liberty, and to inform the

Working Group of the steps they have taken.1 The Working Group therefore requests the

full cooperation of Tunisia in implementing this opinion in order to provide effective

redress for a violation of international law.

38.

The Working Group refers the allegations of ill-treatment that have been made and

not contested in this case to the Special Rapporteur on the question of torture for

appropriate action.

39.

The Working Group also refers the allegations of judicial bias against the defendants

because of their political affiliation to the Special Rapporteur on the independence of

judges and lawyers for appropriate action.

[Adopted on 18 November 2014]

1 Human Rights Council resolution 24/7, paras. 3, 6 and 9.