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A/HRC/WGAD/2018/77

Opinion no. 77/2018 concerning Mr. Sabeur Lajili (Tunisia)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2018-11-23 · en UN

Opinion; Subjects: TUNISIA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.19-00815 (E) 260319 260319

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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-third session, 19–23 November 2018

Opinion No. 77/2018 concerning Mr. Sabeur Lajili (Tunisia)

1.

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

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution

60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 33/30.

2.

In accordance with its methods of work (A/HRC/36/38), on 12 April 2018 the

Working Group transmitted to the Government of Tunisia a communication concerning Mr.

Sabeur Lajili. The Government replied to the communication on 7 June 2018. The State is a

party to the International Covenant on Civil and Political Rights.

3.

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 him or her) (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 Covenant (category II);

(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 on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

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

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

United Nations

A/HRC/WGAD/2018/77

General Assembly

Distr.: General

17 January 2019

English

Original: French

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Submissions

Communication from the source

4.

Mr. Lajili is a Tunisian citizen. Born in 1966, he resided in Tunis prior to his

detention. He is currently being held at El Mornaguia central prison in Tunis. Mr. Lajili is a

Commissioner General of Police and was previously the Director of the National Counter-

Terrorism Unit and the Director of Tourism Security in Tunis.

Arrest and detention

5.

According to the source, Mr. Lajili was arrested on 30 May 2017. He is accused of

undermining State security by forging links with Libyan nationals through a Tunisian

businessman while acting on behalf of the intelligence services within the framework of the

new strategy to combat terrorism and organized crime.

6.

The source alleges that on 23 October 2016, the businessman appeared on a

television programme and reportedly stated that the Head of the Tunisian Government had

threatened to imprison him and have him charged with fraud, embezzlement and money-

laundering. The businessman then reportedly said that the Head of Government “could not

put even a goat behind bars”.

7.

The source explains that on 2 November 2016, the Secretary of the National

Counter-Terrorism Unit filed a complaint with the public prosecution service alleging that

the businessman in question had visited Mr. Lajili at the Unit’s headquarters and asked him

to intervene on behalf of a Tunisian smuggler. The smuggler had reportedly been accused

of conducting money exchange and transfer operations, and taking commission on them, on

behalf of a person detained in Libya who was suspected of involvement in a criminal gang,

organized crime and arms sales funded by Islamic State in Iraq and the Levant (ISIL).

8.

According to the source, on 25 May 2017 the public prosecution service referred the

complaint made by the Secretary of the National Counter-Terrorism Unit to the Prosecutor

of the Military Tribunal for investigation. On 26 May, the Prosecutor of the Military

Tribunal made a submission to the military investigating judge requesting the opening of a

judicial investigation against the businessman and against Mr. Lajili for undermining State

security. On the same date, according to the source, the investigating judge issued a

detention order for the businessman, who had been admitted to the military hospital.

9.

The source also reports that on 29 May 2017, the investigating judge by rogatory

letter requested the Central Investigation Brigade of the National Guard to arrest Mr. Lajili

and to interview the person who had made the complaint and the Director and Head of

Investigations, who is head of department in the same Unit.

10.

On 30 May 2017, Mr. Lajili was questioned at his home and interviewed by the

investigating judge, who also served him with a detention order. The source explains that

Mr. Lajili was arrested by armed officers at 2.15 a.m. and that his lawyer was not present

when the detention order was served.

11.

The source claims that under questioning, Mr. Lajili stated that his superior officer

had instructed him to establish links with a Libyan lawyer through the businessman in

question in order to gather information about Tunisian members of ISIL being held in

Sabrata prison in Libya. These statements were reportedly corroborated by Mr. Lajili’s

superior officer.

12.

According to the source, Mr. Lajili’s lawyer made several applications for his

release pending trial, on 9 June, 10 August and 16 October 2017, and lodged an appeal on

13 June against the decision rejecting the first request. All of these motions were dismissed.

13.

The source further claims that on 19 July 2017, Mr. Lajili’s lawyer filed a complaint

against the investigating judge in charge of the case on the grounds that one of the other

defendants in the case had not been interviewed. In addition, on 21 August, a complaint

was filed with the Supreme Judicial Council against the Procurator-General and the

President of the Ninth Investigating Chamber of the Tunis Court of Appeal, both of whom

were suspected of receiving instructions from the Government to keep Mr. Lajili in

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detention without just cause and of allowing the executive branch to interfere in judicial

matters.

14.

The source alleges that on 27 October 2017, Mr. Lajili’s lawyer requested a meeting

with the Minister of Justice to present a medical report showing that Mr. Lajili required

medical treatment for a tumour at a specialist facility. No response was received.

15.

The source further explains that on 6 November 2017, Mr. Lajili’s lawyer

transmitted to the investigating judge a request for the case to be transferred to the

antiterrorism branch of the judicial police for reasons of lack of jurisdiction over the counts

in question. The request was dismissed, and that decision was appealed on 13 November

before the Ninth Investigating Chamber of the Tunis Court of Appeal. On 6 December, the

Ninth Investigating Chamber transferred the appeal to the Tenth Investigating Chamber,

which is the only body competent to rule on cases falling within the jurisdiction of the

Military Tribunal of First Instance. However, the source indicates that the Procurator-

General of the Tunis Court of Appeal intervened to keep the case before the Ninth

Investigating Chamber, referred the appeal back to it and set the hearing for 13 December

2017.

16.

The source states that on 14 November 2017, Mr. Lajili was admitted to hospital and

underwent surgery. A medical report from July 2017 had recommended that Mr. Lajili’s

tumour should be removed by August 2017 at the latest.

17.

The source also claims that the detention order issued for Mr. Lajili expired on 26

November 2017. Nevertheless, on 28 November Mr. Lajili was discharged from hospital

and returned to El Mornaguia prison.

18.

According to the source, Mr. Lajili’s lawyer filed a complaint of arbitrary detention

with the Tunisian Minister of Justice and the National Authority for the Prevention of

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 1 December

2017. On 2 December, the investigating judge sent an explanatory note to El Mornaguia

prison regarding Mr. Lajili’s continued detention. On 4 December, the detention order was

extended by the military investigating judge, with retroactive effect from 26 November

2017. The source alleges that the following day, the investigating judge served Mr. Lajili

with a new detention order pertaining to a second case, without just cause and without a

lawyer present, in an attempt to regularize his detention.

19.

According to the source, on 7 December 2017 Mr. Lajili’s lawyer filed an appeal

against the investigating judge’s decision to dismiss the application for Mr. Lajili’s release.

20.

The source alleges that Mr. Lajili’s lawyer has serious concerns about the legality of

the proceedings and possible government interference in judicial matters. On 12 December

2017, and pursuant to article 294 of the Tunisian Code of Criminal Procedure, he therefore

made a request for the case to be transferred to another court of appeal for reasons of public

order and a reasonable suspicion of bias. On 13 December, the application for the

proceedings to be suspended until the Court of Cassation had ruled on the request to

transfer the case to another court of appeal was dismissed, as was the application for Mr.

Lajili to be granted provisional release following his surgery.

21.

Lastly, on 15 March 2018 the lawyer submitted a request to the investigating judge

for Mr. Lajili to be allowed an essential post-surgical medical examination, but this was

denied.

Legal analysis

22.

The source argues that domestic remedies are ineffective and that the proceedings

have been excessively lengthy and arbitrarily prolonged. The source alleges that the

investigating judge has displayed a lack of concern with regard to the handling of the case

and compliance with time frames. Although Mr. Lajili appeared before a judge on 30 May

2017, a second suspect in the case was not summoned to testify until two months later.

23.

In this context, the source explains that, in Tunisian legislation, the provision that is

akin to article 9 of the Covenant is article 84 of the Code of Criminal Procedure, which

stipulates that pretrial detention is an exceptional measure. However, there are no facts,

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indications or evidence to support the claims that Mr. Lajili committed or instigated the

commission of any offence or to justify the arbitrary extension of investigation time limits.

24.

In addition, the source asserts that, although the detention order had already expired,

the investigating judge in charge of the case arbitrarily extended it without just cause or any

legal basis. According to the source, it was for that reason that the Prosecutor of the

Military Tribunal split the case into two – Cases No. 4919 and No. 4920, which both

concern the same facts – after the submission. Dividing the case in two would give the

prosecutor greater flexibility to file charges against more individuals with direct or indirect

links to the accused businessman. After the detention order expired, and in order to

regularize the extension of the first detention order issued in connection with Case No.

4919, which would otherwise have been invalid, the investigating judge issued a new

detention order against Mr. Lajili in connection with Case No. 4920. The fact that this was

done without a lawyer present constitutes a violation of article 80 of the Tunisian Code of

Criminal Procedure. In other words, according to the source, the second detention order,

issued in connection with Case No. 4920, was served without Mr. Lajili being questioned

and without his lawyer present, and it relates to events unconnected to him. Moreover, the

source claims that the report resulting from the investigation of the case did not reveal any

incriminating or exculpatory evidence.

25.

In addition, the source alleges that Mr. Lajili has been held in inhuman, degrading

and humiliating conditions, underpinning the procedural defects that have arisen throughout

the process.

26.

Firstly, the source indicates that the investigation that began on 2 November 2016

was launched in response to the insults the businessman had directed at the Head of

Government on television on 23 October 2016. The Secretary of the National Counter-

Terrorism Unit was allegedly encouraged by an adviser to the Head of Government to file

the complaint that led to Mr. Lajili’s arrest. For the source, these circumstances invalidate

the charge laid against Mr. Lajili and render it inadmissible, since it amounts to a settling of

scores between the businessman and the Head of Government.

27.

The source next alleges that, under article 110 of the Tunisian Constitution, the

military courts have jurisdiction over military offences. However, the proceedings against

Mr. Lajili relate to undermining State security, which is an ordinary offence and therefore is

not within the remit of the military tribunals. According to the source, the case was referred

to the military courts because the ordinary courts are overseen directly by the Judicial

Council, which is independent, while the military tribunals fall directly under the executive

branch and would comply with the instructions of the Head of Government, to the

detriment of defendants.

28.

The source also claims that the Procurator-General who received the complaint was

given instructions, and that a motion has been filed requesting his recusal from the case.

The Procurator-General would not in fact be competent to hear direct summonses, whereas

public prosecutors can initiate proceedings. The source notes that the initial complaint that

formed the basis for the investigation was not filed with the Procurator-General until seven

months after the alleged offence. The source concludes that, since there was no urgency and

Mr. Lajili was not caught in flagrante delicto, there is no reason why a senior State official

known for his rigour and patriotism should have been arrested in the circumstances

described above, and that the investigation is a means of settling scores.

29.

Lastly, under article 85 of the Tunisian Criminal Code, the time limit for Mr. Lajili’s

detention has been exceeded. As he was first detained on 30 May 2017, the six months

permitted under article 85 expired on 26 November 2017. A request for his compulsory

release was filed on 4 December 2017 but was dismissed even though the permitted period

had expired. Mr. Lajili has remained in detention on the grounds that the case has been

referred to the Investigating Chamber and that the investigation requires the extension of

his detention order. However, according to the source, there is no provision for these

grounds either in legislation or in case law; on the contrary, under article 85 the

investigating judge is obliged to release Mr. Lajili. The source therefore concludes that the

detention is arbitrary.

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30.

The source also explains that it was against the backdrop of this serious situation of

wrongful detention without legal basis since 26 November 2017 that the investigating judge

went to the prison with a pre-prepared deposition, questioned Mr. Lajili and served him

with a detention order in the absence of his lawyer. The source also indicates that Mr.

Lajili’s state of health does not permit him to remain in detention, particularly since his

recovery has been hindered by a lack of post-operative care.

31.

The source also argues that Mr. Lajili’s right to be presumed innocent has been

violated, since no incriminating evidence or reasonable suspicions to support the charges of

undermining State security have come to light in the course of the questioning,

investigations and interviews with witnesses and experts. The case thus involves abuse of

power, dysfunction in the military judicial system, an unfair trial and arbitrary detention.

32.

In conclusion, according to the source, Mr. Lajili is a victim of violations by the

Tunisian Government under articles 9, 10 and 14 (2) and (3) (a), (b), (c) and (d) of the

Covenant.

Response from the Government

33.

On 12 April 2018, the Working Group transmitted to the Government the

communication containing the allegations outlined above. The Government replied on 7

June, within the 60-day time limit.

34.

The Government first provides a recapitulation of the allegations against Mr. Lajili

and the proceedings in Cases No. 4919 and No. 4920. With regard to Case No. 4919, the

Government explains that the businessman visited Mr. Lajili at his office at the National

Counter-Terrorism Unit outside working hours and that they discussed matters relating to

State security. On that occasion, Mr. Lajili allegedly divulged confidential information. In

addition, the Government alleges that, at the businessman’s request, Mr. Lajili sought to

unduly influence a sensitive case being handled by the Unit, by attempting to arrange the

release of a suspect. According to the Government, the security-related nature of Mr.

Lajili’s work meant that he was not permitted to forge links with foreign nationals. With

regard to Case No. 4920, the Government explains that the national security services had

discovered that a Tunisian businessman had established links with a number of foreign

military and political leaders with a view to influencing political and diplomatic decision

makers in Tunisia. The investigations allegedly revealed that this businessman was

involved in criminal activities.

35.

In connection with Case No. 4919, the Government indicates that, on 26 May 2017,

the Prosecutor of the Permanent Military Tribunal of First Instance in Tunis opened an

investigation against Mr. Lajili, the businessman and any other person shown to have

undermined the external security of the State, committed an act of treason or acted as an

accomplice under articles 32 and 60 bis (1), ter and quater (2) and (4) of the Criminal Code.

On 29 May, the investigating judge issued an instruction to proceed to investigate and arrest

Mr. Lajili. On 30 May, Mr. Lajili was brought before the investigating judge by the Central

Investigation Brigade. The judge conducted a hearing the same day, after first explaining

the offences Mr. Lajili was suspected of and the applicable legislation, and informing him

of his right to be assisted by a lawyer. However, the Government indicates that Mr. Lajili

chose to answer questions without assistance from a lawyer. The Government states that he

admitted that: (a) he had been instructed by the Director-General of the intelligence services

to receive a visit from a Libyan national; (b) the businessman had facilitated the Libyan

national’s entry to Tunisia; and (c) the businessman and the Libyan national had visited his

office late at night to discuss confidential information relating to State security. The

Tunisian Government considers that the Libyan national presents a potential security risk.

36.

The Government then indicates, as reported by the source, that the applications Mr.

Lajili’s lawyer filed requesting his interim release were dismissed.

37.

The Government also explains that, on 6 November 2017, Mr. Lajili’s lawyer filed a

motion requesting the investigating judge, on grounds of lack of jurisdiction over such

cases, to refer the case to the judicial arm of the antiterrorism unit. The investigating judge

dismissed the motion, and an appeal was filed. The Military Indictment Division of the

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Tunis Court of Appeal dismissed the appeal; that decision was upheld by the Court of

Cassation.

38.

The Government then explains that, in connection with the motion requesting a

referral, Case No. 4919 was sent to the Military Indictment Division of the Tunis Court of

Appeal on 19 November 2017. On 2 December, as the case was still before the Military

Indictment Division, the investigating judge wrote to the administration of the civilian

prison to inform it that Mr. Lajili’s detention order continued to be valid.

39.

According to the Government, the investigating judge took the case back from the

Indictment Division on 4 December 2017 and ordered an initial four-month extension of Mr.

Lajili’s detention, to be applied retroactively from 26 November 2017. On 25 March 2018,

the investigating judge extended Mr. Lajili’s detention a second time for a further four

months. On 16 April, the investigating judge closed the investigation and referred Mr. Lajili

to the Military Indictment Division of the Tunis Court of Appeal, where his case will be

tried.

40.

The Government also explains that, in its decision of 22 May 2018, the Military

Indictment Division of the Tunis Court of Appeal found that, pursuant to articles 61 ter (2)

and 62 of the Criminal Code, the charges against Mr. Lajili amounted to the undermining of

the State’s external security during peacetime through recklessness, negligence or non-

compliance with regulations that allegedly gave rise to the disclosure of information

entrusted to him, and that such disclosure could have led to the total or partial revelation or

divulgence of secret information relating to national security. According to the Government,

Mr. Lajili is the main suspect and it has been decided that he will be tried by the Criminal

Chamber of the Tunis Military Tribunal of First Instance. An application for judicial review

of that decision was filed on 29 May 2018.

41.

With regard to Case No. 4920, the Government explains that, on 26 May 2017,

pursuant to article 123 of the Code of Military Justice, a judicial investigation of the

businessman was launched in connection with charges of service in a foreign army during

peacetime. On the basis of the outcome of that investigation, on 5 December the same

charges were laid against Mr. Lajili. A date for his hearing was set the same day, but he

reportedly refused to leave prison to appear before the investigating judge. The judge then

went to the prison to inform Mr. Lajili of the charges being laid against him, the applicable

legislation and his right to be assisted by a lawyer during the hearing. According to the

Government, Mr. Lajili refused to answer questions without his lawyer present. On 25

April 2018, Mr. Lajili was taken from prison to be questioned in the presence of his lawyer.

Mr. Lajili and his lawyer requested that the hearing be postponed. On 30 April, Mr. Lajili

was questioned in the presence of his lawyer, and the investigating judge decided to grant

him interim release. That decision was appealed by the public prosecution service. On 2

May, the Military Prosecutor’s appeal was sent to the Military Indictment Division for

review. The Government states that Mr. Lajili is considered to be free unless the Indictment

Division upholds the Military Prosecutor’s appeal against the decision to release him.

42.

The Government indicates that, contrary to the source’s claims, Cases No. 4919 and

No. 4920 relate to different events.

43.

In connection with the claims regarding the jurisdiction of the military tribunals, the

Government states that this matter has been resolved by the Court of Cassation pursuant to

articles 4 and 5 of the Code of Military Justice and article 22 of Act No. 82-70 of 6 August

1982, the Internal Security Forces (General Regulations) Act. Under these provisions,

because Mr. Lajili was Director of the National Counter-Terrorism Unit at the time of the

offence, he was deemed to be a member of the internal security forces and was therefore

subject to the jurisdiction of the military tribunals. This is also stipulated in article 110 of

the Tunisian Constitution, although military offences are not precisely defined. The purpose,

nature and location of the offence must be taken into account. Article 22 (1) of Act No. 82-

70 provides that cases involving officers of the internal security forces suspected of

committing offences in the performance of their duties fall within the jurisdiction of the

military tribunals when such events relate to duties in the fields of internal or external State

security and the maintenance of public order.

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44.

With regard to the guarantees of a fair trial before the military tribunal and the

tribunal’s independence, the Government claims that all such guarantees are respected in

accordance with article 22 of Act No. 82-70 and inasmuch as it is possible to bring a civil

action and to appeal all decisions of the military investigating judge before the Investigating

Chamber, which is subject to the oversight of the Court of Cassation. The Government adds

that legal assistance was available to Mr. Lajili. In addition, the Government argues that the

procedures before the military tribunals are similar to those of the judicial courts. The same

applies to the powers of the Military Prosecutor’s Office and the investigating judge. Lastly,

the Government contests the allegation of a lack of independence, since the businessman’s

provocation of the authorities and the insults he directed against them do not concern Mr.

Lajili. In addition, appeals against the decisions of investigating judges are lodged with the

Investigating Chamber, which reports directly to the Court of Appeal and, consequently, to

the judicial courts, demonstrating the independence of the military tribunal.

45.

With regard to Mr. Lajili’s continued detention, the Government states that the

decision is lawful and that his detention fulfils the condition provided for in article 85 of the

Code of Criminal Procedure. Although it cannot breach the confidentiality of the

investigation, the Government claims that there are multiple pieces of evidence indicating

that Mr. Lajili committed the alleged offence. His detention is justified by the seriousness

of the offence committed, which is one of the State security offences punishable by the

death penalty. This offence is considered the most serious, and pretrial detention is

therefore necessary to ensure that the investigation is conducted properly, that the accused

does not have any contact with witnesses and that he does not evade justice.

46.

The Government further indicates that the maximum length of pretrial detention is

applicable in this case. Under article 85 of the Code of Criminal Procedure, it may not

exceed 14 months (6 months, plus two extensions of 4 months each). Since Mr. Lajili has

been in detention since 30 May 2017, he must be released on 25 July 2018; he will

automatically be released on that date if he has not appeared before the Criminal Chamber.

47.

Lastly, the Government indicates that, contrary to the allegations made by the source,

Mr. Lajili requested and received medical care at the military hospital in July 2017.

Following the confirmation of the medical diagnosis, surgery was scheduled for 30 August

but he reportedly refused it and was returned to prison on 7 September. As part of the

follow-up, he had access to his medical file and was examined by a specialist doctor on 9

October with a view to undergoing surgery. Mr. Lajili’s lawyer garnered media attention by

describing his condition as serious and potentially life-threatening. The Government reports

that Mr. Lajili underwent a successful operation on 14 November. After the recovery period,

he was returned to prison and monitored by a doctor. The Government claims that there is

no connection between his illness and his detention. With regard to admittance to a private

clinic, the Government states that it informed him in a letter dated 17 April 2018 that, under

article 17 of Act No. 2001-52 of 14 May 2001 on the organization of prisons, the State is

required to provide free medical assistance without preferential treatment. Detainees may

therefore select a public or military hospital of their choice.

Further information from the source

48.

After receiving a copy of the Government’s response, the source submitted

additional information on 9 July 2018.

49.

With reference to the Tunisian Government’s assertion that, owing to the nature of

their work, officials in the security services are not permitted to forge links with foreign

nationals, the source states that, in line with the principle that offences can be punished only

as prescribed by law, criminal convictions should be handed down only in accordance with

clearly defined criminal legislation. The source alleges that the Government has not

specified the legal basis for the charges laid. The importance of security cooperation is well

established, including in the areas of sharing intelligence and making geopolitical and

strategic information available to the Government. Furthermore, the geopolitical context of

the region, particularly since the fall of the Gaddafi regime, necessitates increased vigilance

and prevention work on the part of the Tunisian security services.

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50.

According to the source, the television programme illustrates the threats made by the

Head of Government and his intention to have the businessman arrested and charged with

fraud, embezzlement and money-laundering. The source claims that after the public

prosecution service received instructions to initiate proceedings, it sought to alter the

direction of the case and bring charges that better suited the political circumstances. The

potential victim was then brought before the courts for undermining State security. The

source explains that this is a political offence and describes it as a “catch-all” charge used

as an instrument of repression. The authorities are seeking to quash all opposition. Such

offences are dealt with by specialized courts.

51.

The source alleges that the Government has not indicated the nature of the additional

secondary evidence that led to the arrest and continued detention of the potential victim.

The confidentiality of the investigation cannot be used to justify the withholding of

information, given that the Working Group is bound by the same principle. The

concealment of the truth confirms the arbitrary nature of the detention.

52.

According to the source, following the instruction sent to the military judge by the

investigating judge on 30 May 2017, a search was carried out during the night even though

no evidence had been uncovered and the suspect had not been caught in flagrante delicto.

The investigating judge did not advise the potential victim of his rights and reportedly

informed the Criminal Division that a public defender had been appointed. The victim

should have been held in police custody until a lawyer had been appointed; however,

according to the source, no lawyer was available because of the timing of the hearings. In

the source’s opinion, these moves give rise to cause for concern, especially since the judge

was reportedly instructed by his superiors to have Mr. Lajili placed in custody.

53.

The source reports that the businessman did not at any time offer to facilitate access

to Tunisia for the Libyan lawyer, who, contrary to the Tunisian Government’s claims, was

not subject to any restrictions. According to the source, the purpose of the meeting at Mr.

Lajili’s office was to verify the Libyan national’s credibility and ask him for information

about Tunisians being held in Libyan detention centres who had sworn allegiance to ISIL.

54.

The source alleges that the Ninth Investigating Chamber of the Tunis Court of

Appeal is under the influence of the Procurator-General, who gives his opinion on every

political case. According to the source, applications for release are automatically refused

without grounds. Mr. Lajili’s lawyer filed complaints against the President of the Ninth

Chamber and the Procurator-General of the Court, and requested the recusal of the latter.

55.

The source indicates that the Government did not respond to concerns about the lack

of questioning and the delay in taking a statement from Mr. Lajili’s superior. Furthermore,

according to the source, it appears that the complaint against the Procurator-General has

either not been examined or has been shelved. The source indicates that the change in legal

status from vulnerable witness to accused person relates to Mr. Lajili’s superior rather than

to Mr. Lajili himself. In that connection, the military judge summoned Mr. Lajili’s superior

as a witness without seeking a request from the public prosecution service and served him

with a detention order.

56.

The source states that, although Mr. Lajili’s lawyer applied to the Ministry of Justice

for an accelerated procedure on 27 October 2017, the Ministry did not respond until 17

April 2018, after it had been informed of the submission of the present communication to

the Working Group on 19 March 2018.

57.

The source claims that, contrary to the arguments put forward by the Tunisian

Government, the Court of Cassation did not uphold the decision of the Investigating

Chamber and refused to rule on the merits of the appeal, declaring itself incompetent

without outlining the reasoning behind its decision. The source then indicates that the

Tribunal had no jurisdiction over this case. The Procurator-General allegedly wanted the

Ninth Investigating Chamber to take up the case despite the Tenth Chamber having recently

been awarded jurisdiction. The executive allegedly exerted control over the case through

the Procurator-General.

58.

The source also reports that, contrary to the claims of the Tunisian Government, the

Minister of Justice refused to allow Mr. Lajili to be admitted to a private clinic that would

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provide clean and hygienic post-surgical care. Health-care provision in public hospitals is

inadequate, and specialist recovery care for different illnesses is not available owing to the

large numbers of patients. According to the source, these shortcomings justify Mr. Lajili’s

family’s request to transfer him to a private clinic where he would receive the best care,

which he would pay for himself. The source states that, in addition to rejecting this request,

the Minister of Justice also reportedly refused to allow Mr. Lajili to receive treatment in a

public hospital specializing in his illness. An initial post-operative examination had been

scheduled for February 2018 but was postponed until April because of a strike in public

hospitals. In the source’s view, Mr. Lajili’s health has been jeopardized, especially given

that he has not been allowed the necessary consultation regarding the suitability of

chemotherapy. According to the source, these obstacles to treatment constitute planned

torture on the part of the Tunisian Government.

59.

The source claims that, despite the Tunisian Government’s assertion that the

investigating judge extended the detention orders issued for the other detainees, in fact only

Mr. Lajili’s detention order was extended. The referral of the case to the Investigating

Chamber does not exempt the investigating judge from his obligations under article 85 of

the Code of Criminal Procedure. There can be no derogation from these public policy

provisions, even when detention is extended. Article 85 (3) allows for the extension of

detention, provided that it is justified in the interests of the investigation, that the public

prosecution service is consulted and that the extension is implemented by a reasoned order.

For ordinary offences, only one extension may be granted, for a maximum duration of three

months. The extension request must be presented formally and in writing, complete with

date and signature, and must be accompanied by the opinion of the public prosecution

service and the reasoned order. According to the source, the lack of compliance with these

conditions in the present case proves the arbitrary, discretionary and absolute nature of the

detention. The letter sent to Mr. Lajili on 2 December 2017 allegedly carried no legal

weight since it did not meet all the conditions described above. The extension of Mr.

Lajili’s detention amounts to abduction. The source indicates that the judge retroactively

extended the detention order that expired on 26 November 2017. On 22 May 2017, the

Investigating Chamber allegedly changed the offence with which Mr. Lajili was charged

from treason to divulging military secrets, which is punishable by 5 years’ imprisonment.

The time limits for pretrial detention, as provided for in article 85 of the Code of Criminal

Procedure, were reset as a result of the new charge. The source explains that Mr. Lajili has

currently been detained for 13 months and should be released, given that he has been held

for longer than the 9 months permitted for pretrial detention under article 85.

60.

The source argues that there are no grounds for Mr. Lajili’s detention order, since

the investigations and inquiries conducted at the request of the investigating judge have not

uncovered any evidence relating to the charges filed against him.

61.

According to the source, the Ninth Investigating Chamber of the Tunis Court of

Appeal, which is under the influence of the Procurator-General of the Court, did not rule on

the irregularities raised by Mr. Lajili’s lawyer.

62.

The source alleges that the Government’s response to the allegations regarding the

impartiality of military justice is not convincing and that, on the contrary, it confirms the

political nature of the case and the fact that there are other extrajudicial actors behind it.

63.

The source indicates that the decisions of investigating judges are in theory subject

to appeal before the Investigating Chamber, pursuant to articles 87 and 107 of the Code of

Criminal Procedure. The Investigating Chamber has no oversight of the decisions of the

investigating judge, with the exception of appeals against dismissals of requests for the

release of a detainee or against the remand of a suspect charged with serious offences. The

source alleges that, in practice, the investigating judge did not act of his own accord but

followed arbitrary instructions from his supervisor in collusion with the Prosecutor of the

Military Tribunal and the Procurator-General whose recusal from the case had been

requested. It is also alleged that the judge prolonged the closure of the investigations

excessively, particularly in view of the delay in questioning the complainant and Mr.

Lajili’s supervisor, whose testimony is of crucial importance with regard to statements

made by the potential victim.

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64.

The source claims that, in the opinion of Mr. Lajili’s lawyer, the investigating judge

modified the charges filed by the new Investigating Chamber, No. 36, contending that Mr.

Lajili had not committed treason but rather had intentionally divulged secret information

relating to national security.

65.

The source also contests the refusal by the Ministry of Justice to allow direct family

visits. However, he notes that Mr. Lajili has been allowed limited access to a private clinic,

where he has received a better standard of care.

66.

The source further indicates that, under the new Constitution of 2014, the legislation

invoked as the basis for according jurisdiction over the case to the Military Tribunal cannot

be applied until it has been revised. According to the source, several irregularities are

apparent. The offences have not been updated; furthermore, in the absence of special

derogation, they obstruct the normal work of the internal security forces. The interference

and arbitrary prosecutions are a reflection of the contempt in which the security forces are

now held. The source regrets the delay in the establishment of the Constitutional Court,

which is to be the only body competent to examine whether legislation is compatible with

the Constitution. Lastly, the source also regrets the absence of any reasoning provided by

the Court of Cassation to justify its dismissal of the appeal regarding the preliminary issue

of the lack of competence of the military tribunal.

67.

The source also suspects that the case is a political one: if the serious offence of

undermining State security could have been substantiated, the Procurator-General would

have taken immediate action. However, he did not in fact initiate proceedings until seven

months later. The source considers that the Tunisian Government has not responded to the

question, raised by the source in the communication, regarding the deposition that the

investigating judge prepared before going to the prison to transmit it to the detainee.

68.

According to the source, the investigating judge’s decision to release Mr. Lajili in

the present case can be explained by the pressure exerted on the Tunisian Government by

the Working Group and the media, and the fact that the investigation and hearings have

failed to prove that the accused had any involvement in the case.

69.

The source has continued to keep the Working Group informed of developments in

the case; no new allegations have been raised.

Discussion

70.

The Working Group thanks the parties for their cooperation and presents below its

review of the allegations and the conclusions it has drawn.

71.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the allegations (A/HRC/19/57,

para. 68).

72.

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

number of contradictions in the dates in different documents. However, these contradictions

do not affect the substance of the claims inasmuch as the situation itself is public

knowledge and the source has submitted several consistent pieces of information regarding

Mr. Lajili’s continued detention. The prima facie credibility of the claims is thus

established. The Government has itself provided a chronology of the proceedings that

corroborates the source’s statements and reinforces this credibility. The disagreements

between the parties lie in their interpretation of the situation and in the legal arguments.

73.

Before turning to the categories relevant to the alleged arbitrary detention in this

case, it should be noted that the parties agree that there is a link between the case against

Mr. Lajili and the businessman. Indeed, Mr. Lajili is accused of undermining national

security through his alleged collusion with the businessman. The disagreement between the

parties rests on the businessman’s accusation against the Head of Government being the

explanation for the substance of the criminal case. Despite this disagreement, which lies at

the heart of this case and gives rise to numerous speculations, the Working Group is

nevertheless in a position to issue an opinion on the procedure, which itself does not appear

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11

to be the subject of deep disagreement between the parties, taking into account the aspects

on which the Government has chosen not to comment.

74.

With regard to category I, the source claims that the arrest and detention of Mr.

Lajili lack any legal basis and that his pretrial detention has been prolonged excessively

outside the legal framework.

75.

The source claims that the offence referred to by the Government is vague and a

“catch-all” charge, particularly given that the Government failed to provide any information

to support the charges, citing the need to ensure the confidentiality of the investigation and

protect national security concerns. The Working Group is convinced that the State has a

legal obligation to provide evidence to support its position and must not rely on secret

information that prevents it from communicating with the Working Group. The Working

Group is also aware that factors related to domestic policy are probably involved; however,

it is incumbent on the State to dispel any doubt by being transparent, even if in doing so

certain pieces of evidence need to remain confidential. The Working Group has faced such

a situation before. This argument has even greater weight if the claims of State secrecy

have prevented the accused from accessing the information. However, since the source did

not raise this point, the Working Group will not consider it as an argument against the State.

76.

In addition, and on the same point, the Working Group is not convinced by the

Government’s assertion that Mr. Lajili’s functions did not involve contact with foreign

nationals. The facts as reported by the source appear sufficiently consistent to make a case

that the Government was unable to contest since it did not present evidence to the contrary.

However, the Working Group does not need to go as far as the source suggests and

conclude that there was a conspiracy to falsely accuse Mr. Lajili.

77.

Article 9 of the Covenant requires States to issue a warrant to justify the arrest and

subsequent detention of an individual. It also requires the State to inform individuals of the

reasons for their arrest so that they can exercise their right to challenge its lawfulness.

Given that the State has not provided the Working Group with evidence of such

justification, and that such justification has not been provided to Mr. Lajili, the Working

Group concludes that the State has failed in its obligations in this regard.

78.

The source further claims that the pretrial detention of Mr. Lajili has exceeded the

time limits prescribed by Tunisian law read in the light of international law. The argument

is based on provisions of national law; however, the contradictions between the information

provided by the parties does not allow the Working Group to adopt a position on this

question. Accepting the position of the Government would be the most prudent option.

Unfortunately, even in accepting this position, namely that pretrial detention cannot exceed

14 months (6 months plus two extensions of 4 months each), the Working Group is obliged

to note that the situation in question does not comply with the national guidelines. The

Government claims that a case must be tried within 14 months, as though that would mark

the end of pretrial detention, which should be understood as detention until such time as a

verdict is pronounced in connection with the charges on which the criminal proceedings

rest. If pretrial detention must not exceed 14 months, as the Government claims, an initial

decision on the merits should therefore have been taken during this period. In the present

case, as of 25 July 2018, 14 months after the arrest, the substantive debate had not yet

begun. Furthermore, the Working Group is not convinced that the division of the case into

two cases, for which no clear explanation has been provided by the Government, constitutes

grounds for calculating the duration of pretrial detention differently. It is therefore clear,

even from the Government’s perspective, that the maximum permitted duration of pretrial

detention has been exceeded and that the detention therefore no longer has any legal basis.

This situation, considered in combination with the earlier conclusion, renders Mr. Lajili’s

continued detention without legal basis and therefore arbitrary under category I.

79.

With regard to category III, the source claims that the accused has not had access to

legal assistance at all times, even though the military justice system lacks independence and

the Government’s interference in it has been proven.

80.

In its reply, the Government states that Mr. Lajili allegedly waived his right to have

a lawyer present but provides no evidence to support this claim. When an accused person

waives such an important right, it is essential for the authorities to document it. In the

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present case, the absence of evidence to support the Government’s assertion does not allow

the Working Group to deem it credible. The Group therefore concludes that the accused’s

right to have his lawyer present during his interrogation, as provided for in article 14 (3) (d)

of the Covenant, was violated.

81.

The source maintains that the military justice system is not independent. Allegations

of bias in military justice systems are common, and a number of international law standards

have been developed to govern this specialized type of justice system.1 However, beyond

its general assessment, the Working Group is concerned about the nature of the alleged

offence. On the one hand, the offence is vaguely defined, leaving open the possibility of

imprecise charges that could lead to the misuse of procedures. On the other hand, the

Working Group is not convinced that the offence is of a military nature such that it would

fall under the jurisdiction of a military judge. The Government has not provided sufficient

evidence of the competence of the military judge or of the substance of the alleged offence

and its constituent elements to allay the concerns raised. However, the information reported

by the source shows that this violation has been addressed in the national justice system,

given that the Court of Cassation reportedly declared the military justice system

incompetent to handle the case.

82.

The Government also claims that the accused has acknowledged the facts of the

matter, but this assertion appears to be inaccurate. According to the Government’s own

statements, the accused acknowledged that he had met with the businessman but said that

he had been given instructions to do so. However, the source reports that Mr. Lajili’s

supervisor confirmed that he had issued those instructions. It is therefore incorrect to say

that Mr. Lajili confessed. A confession must match the criminal charge, which is not the

case in this instance. This error is not insignificant, especially in the light of the fact that Mr.

Lajili was not accompanied by a lawyer at all times.

83.

For these reasons, the Working Group finds that there has been a substantial

violation of the right to a fair trial and that Mr. Lajili’s continued detention is arbitrary

under category III.

84.

Lastly, the Working Group is concerned about Mr. Lajili’s state of health and his

reportedly critical condition. 2 The medical documentation provided attests to the

seriousness of his state of health. The refusal to allow Mr. Lajili to have surgery in a private

clinic led him to undergo an operation whose chances of success were compromised by a

number of subsequent factors reported by the source, namely the lack of post-operative

follow-up, the permanent presence of guards in his room, the fact that the lights remained

on at all times, intimidation of auxiliary medical staff, the refusal to transmit the medical

file, poor hygiene conditions and limited family visits. This treatment contravenes rules 43,

58 and 106 of the United Nations Standard Minimum Rules for the Treatment of Prisoners.

A comprehensive investigation of these claims is required. In accordance with its methods

of work, the Working Group refers the present case to the Special Rapporteur on torture

and other cruel, inhuman or degrading treatment or punishment.

1 See the draft principles governing the administration of justice through military tribunals (Decaux

Principles) (E/CN.4/2006/58), the United Nations Basic Principles and Guidelines on Remedies and

Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court

(A/HRC/30/37) and the annual report of the Working Group on Arbitrary Detention published in

2014 (A/HRC/27/48, paras. 66–71).

2 See the urgent appeal of 8 August 2018 (UA TUN 2/2018) (available at:

https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24014),

and the Government’s response on 29 August 2018 (available at:

https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=34309) which details Mr.

Lajili’s medical treatment.

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Disposition

85.

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

The continued deprivation of liberty of Mr. Sabeur Lajili, being in

contravention of articles 9 and 10 of the Universal Declaration of Human Rights and

of articles 9 and 14 of the International Covenant on Civil and Political Rights, is

arbitrary and falls within categories I and III of the Working Group’s methods of

work.

86.

The Working Group requests the Government of Tunisia to release Mr. Lajili

without delay and to take the necessary steps to remedy the material and moral damage he

has suffered by providing reasonable and appropriate compensation in accordance with

article 9 (5) of the Covenant.

87.

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

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

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

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

cooperation of Tunisia in the implementation of this opinion to effectively remedy a

violation of international law.

88.

In accordance with paragraph 33 (a) of its methods of work, the Working Group

refers this case to the Special Rapporteur on torture, for appropriate action.

89.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Lajili and to take appropriate measures against those responsible for the violation of his

rights.

90.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

91.

In accordance with paragraph 20 of its methods of work, the Working Group

requests the source and the Government to provide it with information on action taken in

follow-up to the recommendations made in the present opinion, including:

(a)

Whether Mr. Lajili has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Lajili;

(c)

Whether an investigation has been conducted into the violation of Mr. Lajili’s

rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made

to harmonize the laws and practices of Tunisia with its international obligations in line with

the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

92.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

93.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

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94.

The Working Group recalls that the Human Rights Council has encouraged all

States to cooperate with the Working Group and has requested them to take account of its

views and, where necessary, to take appropriate steps to remedy the situation of persons

arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have

taken.3

[Adopted on 21 November 2018]

3 See Human Rights Council resolution 33/30, paras. 3 and 7.