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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-seventh session, 27 April–1 May 2020

Opinion No. 26/2020 concerning Moncef Kartas (Tunisia)

1.

The Working Group on Arbitrary Detention was established by the Commission on

Human Rights in its resolution 1991/42. 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 42/22.

2.

In accordance with its methods of work (A/HRC/36/38), on 28 October 2019, the

Working Group transmitted to the Government of Tunisia a communication concerning

Moncef Kartas. The Government replied to the communication on 26 December 2019. 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

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General Assembly

Distr.: General

20 July 2020

English

Original: French

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Submissions

Communication from the source

4.

Moncef Kartas is a Tunisian and German citizen born on 23 August 1975. He was a

member of the Panel of Experts on Libya, responsible for monitoring the implementation of

the measures introduced by the Security Council in its resolution 1970 (2011), as an arms

expert from 2 January 2019 to 15 February 2020. He had already been appointed to this

position in May 2016 and August 2017.

a.

Context, arrest and detention

5.

The source explains that, on 26 March 2019, at approximately 6.30 p.m., a group of

unidentified men armed with guns arrested Mr. Kartas in the arrivals hall of Tunis-Carthage

International Airport. Mr. Kartas had just landed there from Berlin as part of a mission of

the Panel of Experts on Libya. Claiming that they were police officers but refusing to

provide proof, one of them took Mr. Kartas’ passport, refused to return it and demanded

that he accompany them to answer questions from the Chief of Police. Although Mr. Kartas

stressed that he enjoyed the privileges and immunities of a United Nations expert on

mission, the man grabbed his telephone from him as he was about to call his contact at the

United Nations and refused to make the call himself in order to verify the status of Mr.

Kartas, who was then taken outside.

6.

The source reports that other unidentified men with assault rifles were waiting

outside, alongside vehicles that were also unidentified, making up a total group of

approximately 12 men. They then took Mr. Kartas to the apartment he was renting in Tunis.

Some of these men were equipped with forensic kits and informed Mr. Kartas that they

were going to carry out a search of his apartment. When Mr. Kartas asked to see a warrant,

the aforementioned man reportedly showed him a sheet of paper while explaining that he

could not disclose the contents to him because other names were listed on it.

7.

According to the source, Mr. Kartas subsequently asked to see a lawyer, but his

request was denied. He unlocked the door to his apartment, which the men thoroughly

searched, opening all the boxes and drawers, and throwing things on the floor. They

reportedly confiscated a large amount of equipment and documents related to the execution

of his mandate as expert and also personal belongings. The men also asked Mr. Kartas

where his safe, his gold and his money were, which he denied possessing, continuing to

protest against the seizure of United Nations property. Among the items seized, for example,

was a device used by Mr. Kartas to follow civil commercial flight paths in order to identify

violations of the United Nations arms embargo against Libya. According to the source, this

device, often used by United Nations experts on mission, is commercially available and is

not suitable for intercepting military or encrypted communications, which was subsequently

confirmed by the United Nations.

8.

The source further submits that, at approximately 10.30 p.m., the armed men took

Mr. Kartas to El Gorjani police station, the operational headquarters of the National

Terrorist Crimes Investigation Unit. Upon his arrival, the men reportedly offered Mr.

Kartas food, pointing out that he could not know when he would be fed again. In fact, Mr.

Kartas was offered no food and only water for the next forty hours. All night long, Mr.

Kartas was moved from office to office for questioning. The interrogations were not

recorded and Mr. Kartas, according to the source, was deprived of sleep with the aim of

frightening and intimidating him. Mr. Kartas continued to recall his status as an expert with

privileges and immunities, with his principal interrogator continuing to tell him that he did

not or no longer enjoyed such immunity, that it did not apply in Tunisia, or that he “did not

care”. Mr. Kartas was questioned about his role as an expert, about aspects of his private

life and about the flight-following device, as well as about Libya and the arms embargo.

9.

According to the source, Mr. Kartas was not informed at any time during that night

of the interrogation of the reasons for his arrest, and no one reportedly showed him proof

that his detention was lawful.

10.

The source went on to say that, at 5 a.m. on 27 March 2019, the principal

interrogator announced to Mr. Kartas that his hearing would begin right then. The

interrogator then refused to speak French, although Mr. Kartas speaks little Arabic, and

threatened him if he uttered a single word in French. After an hour of unrecorded

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questioning, the interrogator reread his partial notes in Arabic, which were then translated

into French by another officer. The translation did not correspond to Mr. Kartas’ statements,

including, for example, references to the sea that had not been made. Mr. Kartas initially

refused to sign these notes in the absence of his lawyer, but was threatened with arrest if he

did not, and, in the end, signed the document written in Arabic.

11.

The source further submits that, at 10 a.m., Mr. Kartas was informed that he was

under arrest, without being informed of the charges against him. Sixteen hours after his

arrest at the airport, he had still not been given access to a lawyer, nor had his family or the

United Nations been informed of his arrest and place of detention.

12.

The source emphasizes that, as of 27 March 2019, Mr. Kartas has been detained at

the Ministry of the Interior detention centre in Bouchoucha and was usually transferred to

El Gorjani during the day for hearings. As of 11 April 2019, Mr. Kartas was transferred to

Mornaguia prison, 14 kilometres from Tunis, until his conditional release on 21 May 2019.

13.

The source reports that, when Mr. Kartas’ formal detention began on 27 March 2019,

he was placed on a chair in a cold and foul-smelling corridor and handcuffed in an

uncomfortable position, in which he was left without food and water all day. He was then

taken for the night to Bouchoucha, where he shared a cell measuring 10 by 18 metres with

20 other detainees, and sometimes as many as 50 on the following nights. After five nights

in this cell, he was transferred to a smaller cell. At the request of his lawyers, Mr. Kartas

was allegedly entitled to an occasional bottle of water, no more than once a day, and to a

change of clothes once every two weeks, but was not entitled to wash. Limited to one meal

a day since 28 March 2019 that were served during his daily interrogations in El Gorjani, he

lost 10 kg during his first two weeks of detention.

14.

On 28 March 2019, the source explains that Mr. Kartas was again handcuffed and

placed in an uncomfortable position in El Gorjani and fed for the first time since his arrest.

He was questioned again and then informed that he would be taken to Sousse, about 150

km south of Tunis, where Mr. Kartas’ father’s house is located. At this stage, Mr. Kartas

had not had access to a lawyer, and no one was informed of his detention until 29 March

2019.

15.

On 29 March 2019, the source reports that the police actually took Mr. Kartas to his

late father’s house in Sousse to conduct a search, still refusing to show a warrant. The

police confiscated Mr. Kartas’ father’s rifle, before returning it to him in the end when he

was released, without submitting it as evidence. Mr. Kartas refused to sign the list of items

seized that day without a lawyer present.

16.

The source further reports that members of the National Terrorist Crimes

Investigation Unit of the Ministry of the Interior were responsible for supervising Mr.

Kartas’ detention. During the first two weeks of his detention, Mr. Kartas was only allowed

to contact his lawyers for a half hour every five days. He had received only a visit of 60

minutes from the National Authority for the Prevention of Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment and a visit of 15 minutes from a

representative of the Office of the United Nations High Commissioner for Human Rights.

17.

The source recalls that the Office of Legal Affairs of the United Nations Secretariat

sent two notes verbales to the Minister for Foreign Affairs, as early as 27 and 28 March

2019, requesting the immediate release of Mr. Kartas and recalling that he enjoyed

immunity. The Resident Coordinator also reiterated on 28 March 2019 that the immunity of

staff members applied wherever they were on mission, even in their home countries. Six

notes verbales were then sent in the course of Mr. Kartas’ detention. The source adds that it

was only after 43 days of detention that the German Consul was able to visit Mr. Kartas.

18.

The source explains that Mr. Kartas was allowed to see his lawyers for the first time

on 30 March 2019. He was able to talk to one of them in an open room for 30 minutes,

before being formally interviewed by the police in the presence of his three lawyers and an

interpreter, whose vocabulary was too limited to accurately transcribe his statements, in

particular with regard to his work and immunity. The hearing lasted more than three hours,

during which Mr. Kartas was questioned about the flight-following device, his start-up

consultancy on rule-of-law and governance issues, and his involvement in obtaining visas

for Israeli professors at a seminar organized in Tunis by Yale University Law School in

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January 2019. Despite frequent interventions by counsel to correct the notes taken by the

interrogators, the notes contained numerous errors.

19.

According to the source, on 11 April 2019, during his first hearing before the

investigating judge of the third division of the Judicial Anti-Terrorism Unit, in the presence

of the Prosecutor, Mr. Kartas was informed for the first time that he was being investigated,

on the following charges:

(a)

Disclosure of national defence secrets to a foreign State or its agents, or

obtaining such secrets by any means with the aim of disclosing them to a foreign State or its

agents, in accordance with articles 60 bis and 60 quater of the Criminal Code;

(b)

Deliberate disclosure of information involving interference in or interception

or audiovisual surveillance of operations, or of the data thereby collected, pursuant to

article 62 of Organic Act No. 2015-26 of 7 August 2015 on the Fight against Terrorism and

the Punishment of Money-Laundering;

(c)

Deliberate obstruction of communications or audiovisual surveillance in

circumstances other than those authorized by law, pursuant to article 64 of Organic Act No.

2015-26;

(d)

Use of radio frequencies without authorization from the National Frequencies

Agency, pursuant to article 82 of the Telecommunications Code.

20.

The source points out that Mr. Kartas was then detained under Organic Act No.

2015-26, which allows the police to detain a person for a period of two weeks with the

Prosecutor’s written authorization, renewable every five days. Mr. Kartas’ detention had

been authorized by the Prosecutor on 1 and 5 April 2019.

21.

During the hearing, despite reminders from Mr. Kartas’ lawyers regarding the

privileges and immunities he enjoyed as a United Nations expert on mission and repeated

requests for his immediate release, the source maintains that the investigating judge

confirmed the charges against Mr. Kartas and authorized his pretrial detention in

Mornaguia prison for the duration of the investigation.

22.

The source further explains that Mr. Kartas was transferred to Mornaguia to a cell he

shared with four inmates and remained there until his conditional release on 21 May 2019.

Throughout his detention, the United Nations continued to seek Mr. Kartas’ release through

notes verbales and several meetings. Furthermore, no request for the waiver of his

immunity had been transmitted to the Secretary-General of the United Nations, although the

Office of Legal Affairs had received a file from the Tunisian Government justifying Mr.

Kartas’ detention. The United Nations has not changed its position regarding its call for

immediate release after reviewing these documents.

23.

On 30 April 2019, the source reports that Mr. Kartas’ lawyers filed a petition

requesting his release, which was ignored by the investigating judge. Mr. Kartas’ lawyers

therefore reported such inaction to the Indictment Division of the Tunis Court of Appeal.

Without setting a date for a hearing beforehand, the Court summoned the lawyers on the

same day, 21 May 2019, and authorized Mr. Kartas’ conditional release. Mr. Kartas left

Tunisia on 22 May 2019 to return to Berlin. The United Nations then sent a further note

verbale to Tunisia requesting the dismissal of the charges against Mr. Kartas, the

recognition of his immunity and the restitution of the confiscated property.

24.

According to the source, the investigation of Mr. Kartas has continued since his

conditional release, preventing him from returning to Tunisia, whether for professional or

private reasons. Mr. Kartas’ personal and professional documents and effects that were

confiscated during the searches are also still in the possession of the Tunisian justice system.

Furthermore, damage has been done to the reputation of Mr. Kartas, whose name has been

publicly and repeatedly associated with accusations of terrorism and espionage.

b.

Legal analysis

i.

Category I

25.

The source recalls that Mr. Kartas is protected by the privileges and immunities

associated with his status as a United Nations expert on mission on behalf of the Panel of

Experts on Libya. The Government has been repeatedly informed by the United Nations

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about the validity of article VI, section 22, of the Convention on the Privileges and

Immunities of the United Nations, whose provisions have been incorporated into Tunisian

law by article 20 of the Tunisian Constitution. His detention is therefore said to be

unconstitutional.

26.

For the source, it is indisputable that Mr. Kartas was an expert on mission,

authorized and funded by the United Nations, whose immunity was not waived by the

Secretary-General. Immunity is also valid in the countries of which the expert is a national.

No request for a waiver of immunity was transmitted by Tunisia to the Secretary-General.

27.

Furthermore, the source adds that Mr. Kartas’ immunity was also violated in that his

luggage and various personal belongings were confiscated, as well as documents relating to

his work for the United Nations.

28.

The source further adds that Tunisia is also a party to the Convention on the Safety

of United Nations and Associated Personnel, article 7 (1) of which provides that United

Nations and associated personnel, their equipment and premises must not be made the

object of attack or of any action that prevents them from discharging their mandate. Under

article 8, if United Nations or associated personnel are captured or detained in the course of

the performance of their duties and their identification has been established, they must not

be subjected to interrogation and they must be promptly released and returned to United

Nations or other appropriate authorities.

29.

The source therefore asserts that the Government of Tunisia has acted in a manner

contrary to the Constitution and its international obligations to protect United Nations

personnel, in particular its experts on mission.

30.

The source also asserts that Mr. Kartas’ arrest, detention and the investigation are

not based on any evidence. The prosecutor did not substantiate the charges against Mr.

Kartas with facts supporting such allegations but built his case on effects and documents

seized during illegal searches. At the hearing on 11 April 2019, Mr. Kartas’ lawyers

demonstrated the lack of a factual basis for Mr. Kartas’ detention, which was nevertheless

upheld by the investigating judge.

ii.

Category II

31.

The source further alleges that Mr. Kartas’ deprivation of liberty constitutes a

violation of his freedom of expression, in particular in view of his position as a United

Nations expert, pursuant to article 19 of the Universal Declaration of Human Rights and

article 19 of the International Covenant on Civil and Political Rights.

32.

According to the source, Mr. Kartas’ expert work consisted in gathering, examining

and analysing information and reporting back on it to the Security Council. He frequently

travelled to Tunisia to investigate potential violations of the sanctions imposed on Libya,

which are sometimes the subject of reports of direct connections between Tunisian financial

institutions and individuals in violation of the arms embargo under Security Council

resolution 1973 (2011).

33.

The source alleges that Mr. Kartas was targeted in order to be prevented from

carrying out his investigations. He was repeatedly questioned about their content and

stopped three weeks before the Panel of Experts on Libya submitted its interim report to the

Security Council, which prevented him from including his final conclusions in the report.

The detention of Mr. Kartas also effectively ended all travel to Tunisia by members of the

Panel of Experts for several months. The Tunisian Government then made no attempt to

justify the violation of Mr. Kartas’ right to freedom of expression by reasons of national

security.

iii.

Category III

34.

Accordingly, the source considers that Mr. Kartas’ right to a fair trial, as protected

by article 10 of the Universal Declaration of Human Rights and article 14 of the Covenant,

has been violated.

35.

According to the source, the fact that the Government did not promptly inform Mr.

Kartas of the charges against him is a violation of article 9 (2) of the Covenant and article

29 of the Tunisian Constitution. Mr. Kartas was informed of this information and of his

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rights 16 days after his arrest. The fact that he received certain information in Arabic was

not sufficient to demonstrate that the Government has fulfilled its obligations, since article

14 (3) (a) of the Covenant specifies that everyone is entitled to be informed promptly and in

detail in a language which he or she understands of the nature and cause of the charge

against him or her. The source adds that the Government should also have informed the

United Nations of the detention of a member of its staff and granted access to the detained

person pursuant to General Assembly resolution 52/126.

36.

The source emphasizes that Mr. Kartas’ right to have access to a lawyer under

articles 9 and 14 (3) (b) of the Covenant has not been respected. In fact, he did not have

access to a lawyer during the first three days of his detention. Even in cases of terrorism,

this time limit must not exceed 48 hours under national law.

37.

According to the source, the judiciary also failed to act independently in this case.

For example, the investigating judge reportedly told Mr. Kartas’ lawyer that he would not

close the case before the national elections in October 2019. Furthermore, the conditional

release of Mr. Kartas was decided by surprise by the Tunis Court of Appeal on the very day

that discussions on his detention were scheduled to take place in the Security Council.

Moreover, Mr. Kartas had to wait 16 days before being seen by an investigating judge,

which deprived him of any means of appeal against his detention, and his petitions for

release were summarily rejected. He was then held in pretrial detention for 40 days, in

violation of article 9 (3) of the Covenant and Tunisian law, which provide that pretrial

detention is to be used as a last resort, as the Tunisian Government did not give any

grounds for such detention. No access to independent judicial remedies was given to Mr.

Kartas, in violation of article 14 (1) of the Covenant.

38.

Finally, the source emphasizes that Mr. Kartas has been denied the right to be

presumed innocent under article 14 (2) of the Covenant and article 11 of the Universal

Declaration of Human Rights. The only evidence presented was gathered during the illegal

searches and seizures of Mr. Kartas’ residences.

39.

Lastly, the source asserts that Mr. Kartas was subjected to inhuman and degrading

treatment in detention, having been kept tied up for several hours in a stress position, in

violation of article 7 of the Covenant, and having been denied access to water and food on

numerous occasions during the first 40 hours of police custody.

40.

In the light of the foregoing, the source asserts that Mr. Kartas’ detention was

arbitrary.

Response from the Government

41.

On 28 October 2019, the Working Group transmitted the source’s allegations to the

Government under its regular communications procedure, requesting it to provide, by 27

December 2019 at the latest, detailed information on Mr. Kartas’ situation and to clarify the

legal provisions warranting his continued detention and its compatibility with the

obligations of Tunisia under international human rights law, especially the treaties ratified

by the State. Furthermore, the Working Group called upon the Government to ensure Mr.

Kartas’ physical and mental integrity.

42.

On 5 December 2019, the Government requested an extension of the deadline for its

response. The extension was granted with a new deadline of 27 January 2020. The

Government submitted its response on 26 December 2019.

43.

The Government explains that Mr. Kartas arrived in Tunis on 26 March 2019 from

Rome on a flight that landed at 5.55 p.m. After presenting his Tunisian passport to the

border police to obtain an entry stamp, Mr. Kartas went to the conveyor belt to retrieve his

luggage, where he was stopped for questioning by officers of the National Terrorist Crimes

Investigation Unit. It should be made clear that the staff of this unit are not under a legal

obligation to wear a uniform. However, the Government points out that the leader of the

squad who carried out the arrest of Mr. Kartas showed his official identification card

attesting to his function.

44.

According to the Government, at no time during the questioning did Mr. Kartas

indicate that he enjoyed privileges or immunities or present any document issued by the

United Nations. Nor did he provide any evidence that he was on mission for a panel of

experts tasked with monitoring the implementation in Libya of the measures decided by the

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Security Council in its resolution 1970 (2011). Mr. Kartas did not object to the search being

carried out and did not request to get in contact with the United Nations services or his

family in Tunisia. In short, Mr. Kartas was arrested in his capacity as a Tunisian citizen

under judicial investigation and following a search warrant issued by the public

prosecutor’s office through the Judicial Anti-Terrorism Unit.

45.

In addition, the Government explained that Mr. Kartas had been made aware that he

was the subject of a judicial investigation and that he had been asked to accompany the

National Terrorist Crimes Investigation Unit for a search of his Tunis apartment. Officials

of the National Investigation Unit informed him of the grounds for this search, namely

information that he was in possession of a device whose operation and use are strictly

prohibited in Tunisia without prior authorization from the competent services under the

Code of Telecommunications. As a result of the search, officers of the National

Investigation Unit seized from Mr. Kartas’ apartment a sophisticated device using

encrypted channels and connected to Internet Protocol addresses abroad that is intended for

wiretapping, identifying civil and military air traffic and detecting low-frequency

communications. All traces of the information processed by this device are instantaneously

erased after they are sent.

46.

On the procedural level, the Government points out that the search order was duly

presented to Mr. Kartas, who, in response, denied that he had a command of the Arabic

language, which was used as the official language in the drafting of that judicial document.

The source’s allegations that officers of the National Terrorist Crimes Investigation Unit

refused to disclose the contents of the search order to Mr. Kartas because other names were

included in it are untenable, since it was a document that had one purpose only and could

not contain other names to that end.

47.

According to the Government, Mr. Kartas did not explicitly request the presence of a

lawyer at his first hearing. He said he had no case to answer. It was only after the

competent judicial authorities had issued an arrest warrant against him that he requested

access to a lawyer. To that effect, it was pointed out to him that he was not entitled to this

right during the 48 hours following the issuance of the arrest warrant, in accordance with

the provisions of article 13 ter of the Code of Criminal Procedure. Once this time limit had

passed, the investigators allowed Mr. Kartas to contact a lawyer.

48.

With regard to the allegations concerning the conduct of the search of Mr. Kartas’

apartment, the Government pointed out that, according to Tunisian law, the premises

searched are automatically secured and the keys to them kept in storage under the name of

the person concerned in the event of arrest. It should be added that no effects or documents

relating to Mr. Kartas’ mission to the United Nations were confiscated by the officers of the

National Terrorist Crimes Investigation Unit.

49.

Mr. Kartas, who was the subject of a custodial arrest warrant issued by the public

prosecutor’s office through the Judicial Anti-Terrorism Unit on 27 March 2019, was

questioned about the provenance of the seized device. He stated that he had acquired it in

Germany from a certain Simon, without giving further details as to the identity and

registered office of the seller. On 5 April 2019, the services of the Ministry of the Interior

sent a letter to the United Nations office in Tunis asking whether it had prior knowledge of

the detained person’s possession of the seized device. There has been no response to this

query to date. Mr. Kartas has been repeatedly questioned about the provenance of this

device and has denied having acquired it in the exercise of his functions and mandate as a

United Nations expert.

50.

The technical assessments carried out on the seized device indicated that it was

intended to intercept all telephone communications, including those between the cockpits

and the control towers, as well as radio communications used in particular by the military

and national security forces. It was also intended to identify aircraft with a high degree of

precision. During the search of the apartment, and in the presence of Mr. Kartas, officers of

the National Terrorist Crimes Investigation Unit found that the device was in operation. It

covered only a limited area of Tunisian territory – a few kilometres around the searched

apartment – and could in no way reach Libyan territory, the object of Mr. Kartas’ mission.

51.

During the search of Mr. Kartas’ apartment in Tunis, he was asked to indicate the

place where he kept his valuables. This was in fact a legal measure taken by police units in

Tunisia in order to avoid any allegations of theft or destruction of property or valuables.

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Such property could, if necessary, be used as evidence in an investigation. The search of Mr.

Kartas’ family home in Sousse was carried out on the basis of a judicial warrant that was

officially presented to him. Accompanied by members of the National Terrorist Crimes

Investigation Unit, Mr. Kartas indicated that he did not have the keys to the family home

and provided the officers of the National Investigation Unit with a telephone number to

request the family’s assistance in obtaining the keys to the front door. As regards the

hunting rifle found in the house searched, it was not one of the items seized because, after

the selection process, it was kept in storage in Mr. Kartas’ name, especially as it did not

constitute evidence.

52.

The Government reiterates that the search was conducted in the presence of Mr.

Kartas, under the supervision of a criminal investigation officer and in the presence of a

small number of officers. The remaining members of the National Terrorist Crimes

Investigation Unit were responsible for ensuring security outside. Mr. Kartas was also

informed of the charges brought against him during his interrogation, in accordance with

Tunisian law.

53.

With regard to Mr. Kartas’ conditions of detention, the Government alleges that in

no way was he deprived of food or water. Mr. Kartas deliberately refused the meal served

three times a day. The interrogation took place in strict compliance with legal rules and

procedures and with full respect for the rights and dignity of the detainee. Thus, the

allegations made by the source on the deplorable conditions under which the detainee was

interrogated are untenable. Mr. Kartas was interrogated in the office of the Chief of Service

of the National Terrorist Crimes Investigation Unit solely during working hours and in the

presence of his three lawyers, who had approved the minutes summarizing the detainee’s

statements. The National Investigation Unit conducting the interrogation provided the

detainee with a French-Arabic translation service by an interpreter under oath throughout

the investigation.

54.

With regard to the allegations concerning Mr. Kartas’ personal hygiene, the

Government points out that he had been allowed to change his clothes regularly and to

freshen up once a day. The conclusions of the interrogation were officially communicated

to the Public Prosecutor of the Judicial Anti-Terrorism Unit who issued a written order for

Mr. Kartas’ pretrial detention. At Mr. Kartas’ request, his lawyer was informed of the

decision to remand him in custody. The investigation was initiated within two weeks of Mr.

Kartas’ arrest, in accordance with the provisions of Tunisian legislation on combating

terrorism and money-laundering. In addition, Mr. Kartas fully exercised his right to bring

an appeal against the decision to remand him in custody and was released by a decision of

the indictment division. To this end, the presumption of innocence and detention safeguards

were strictly observed.

55.

The Government also reports that a delegation from the National Authority for the

Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

and a representative of the High Commissioner’s human rights field office in Tunis paid an

unannounced visit to Mr. Kartas two days after his detention and were briefed on the

conditions of his detention and the interrogation process. They neither noted nor reported

any irregularities or offences relating to police custody. The content of the minutes of the

interrogation is faithful to the statements. All hearings were held in the presence of Mr.

Kartas’ defence counsel and an interpreter under oath. The rules inherent in the

presumption of innocence, the validity of procedures and the inviolability of the home were

strictly observed.

56.

In response to the allegations concerning the applicability of United Nations

privileges and immunities to the case of Mr. Kartas in his capacity as a United Nations

expert, the Government points out that article VI, section 22, of the Convention on the

Privileges and Immunities of the United Nations provides that Experts (other than officials

coming within the scope of article V) performing missions for the United Nations are to be

accorded such privileges and immunities as are necessary for the independent exercise of

their functions during the period of their missions, including the time spent on journeys in

connection with their missions. In the case in question, however, Mr. Kartas did not state at

the time of his arrest that he was travelling to Tunis as part of his duties as United Nations

expert on Libya. Nor did he assert that he was acting in this capacity. On the contrary, Mr.

Kartas merely presented his Tunisian passport. Thus, he was treated as a Tunisian citizen

suspected of committing a terrorist crime, pursuant to Organic Act No. 2015-26. To that

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end, the provisions of the Convention and specifically those of section 22 are not applicable

to Mr. Kartas’ case, either in respect of his person or of his luggage and possessions.

57.

The Government also recalls that the case is pending before the investigating judge,

who ordered a request for judicial assistance from the criminal investigation department.

Mr. Kartas’ lawyers are aware of this and are looking into the file.

58.

The Government concludes by arguing that all the responses provided, which are

substantiated in the present document, confirm that the various judicial proceedings were

conducted in accordance with international rules, while ensuring that the rights and dignity

of the detainee and principle of the independence of the judiciary were upheld.

Further comments from the source

59.

The Government’s reply was forwarded to the source on 15 January 2020 for

additional comments, which the source sent on 29 January 2020.

60.

According to the source, the Government’s reply does not refute and, in fact,

confirms the essential facts of its communication, leaving it unrefuted while ignoring or

distorting the facts.

61.

The source maintains first of all that the Government does not deny that Mr. Kartas

is entitled to immunity under the Convention on the Privileges and Immunities of the

United Nations in his capacity as a member of the Panel of Experts on Libya. Instead, the

Government maintains that Mr. Kartas did not claim immunity at the time of his

questioning when the Tunisian authorities arrested him at the airport. The source claims

that this is legally irrelevant and factually incorrect. Mr. Kartas presented his United

Nations certificate with his Tunisian passport when he arrived at the passport control point.

From the moment the Tunisian authorities arrested him, he repeatedly stated that he was a

United Nations expert on mission with immunity from arrest and detention, to which they

replied that they “did not care”. His friend and business partner who met him at the airport

confirms that the police never identified themselves to either of them, that they confiscated

Mr. Kartas’ identity documents and mobile phone, and that he protested against his arrest

and detention.

62.

According to the source, the Government does not dispute that it was, and still is,

well aware of Mr. Kartas’ immunity. The Government ignores the fact that the Secretary-

General of the United Nations notified it of his appointment to the Panel of Experts on

Libya on 2 January 2019, three months before his arrest. Likewise, the Government does

not take account of the following facts: (a) Mr. Kartas repeatedly informed the Tunisian

authorities of his immunity during the 56 days of his detention; (b) The Government

received nine notes verbales from the United Nations between March and May 2019

reiterating his immunity and requesting his release along with a public statement by the

Spokesperson for the Secretary-General; and (c) his immunity was invoked in the

communication from the source to which the Government replied.

63.

The source alleges that the Government has misrepresented the circumstances of Mr.

Kartas’ detention. For example, the Government claims that Mr. Kartas did not request

access to a lawyer until after the police formally placed him under arrest on 27 March 2019

at approximately 10 a.m., almost 12 hours after he was taken into police custody, his

apartment was searched and the first interrogation was conducted. In fact, Mr. Kartas

requested access to a lawyer immediately after he was detained at the airport and on several

occasions thereafter.

64.

The source also contends that the Government does not deny the essential facts

concerning Mr. Kartas’ detention, particularly the fact that the Government: (a) detained

Mr. Kartas for 16 hours before informing him of the grounds for his arrest; (b) waited three

days to inform his family of his arrest; (c) failed to inform him for 16 days of the charges

against him and to bring him before an investigating judge; and (d) kept him in pretrial

detention for a total of 56 days.

65.

Furthermore, the source asserts that the Government does not offer any facts to

support the allegation that Mr. Kartas was treated as a “Tunisian citizen suspected of

committing a terrorist crime”. The initial search of Mr. Kartas’ apartment by the National

Terrorist Crimes Investigation Unit was allegedly based on a warrant stamped 26 March

2019, the date of his arrest, authorizing a search for “weapons, ammunition, explosives and

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other similar materials, equipment and facilities, documents and correspondence, money,

audio and audiovisual clips, digital publications and data and information relating to

terrorist persons, organizations and activities in his home”, none of which the Government

ever claimed to have found any trace in his apartment. In particular, the terrorist crimes of

which the Government accused Mr. Kartas make no reference to any unlawful use of the

items listed in the search warrant. On the contrary, the Government’s case against him is

based on the presence in his apartment of flight-following equipment used in his work as a

United Nations expert. The Government’s description of the use of the device is, according

to the source, erroneous. The source reiterates that this equipment was not capable of

transmitting data or of interfering with or even monitoring non-civilian frequencies.

Likewise, while the Government asserts that the range of the equipment did not extend to

Libyan territory, the “object” of Mr. Kartas’ mission, it fails to take into account the fact

that Security Council sanctions against Libya apply globally and that the work of the Panel

of Experts on Libya is not limited to Libya’s territorial borders.

66.

The source further refutes the Government by explaining that the United Nations did

indeed inform the Government, in a note verbale dated 10 April 2019, that the equipment in

Mr. Kartas’ possession was intended for use in the performance of his official duties. Mr.

Kartas also told the police on numerous occasions: (a) that the flight-following equipment

and his computer and telephones were work equipment; (b) that its equipment contained

confidential material of the Organization; and (c) that by confiscating it, the police were

violating the privileges and immunities of the Organization.

67.

As to the Government’s reply concerning Mr. Kartas’ immunity, the source argues

that the Government does not contest either Mr. Kartas’ status as a United Nations expert

on mission or the Secretary-General’s decision concerning his functional immunity. On the

contrary, the Government maintains that Mr. Kartas did not claim immunity at the time of

his questioning when the Tunisian authorities arrested him at the airport and that his

immunity was therefore lifted. The Government does not cite any authority in support of

this assertion, and for good reason: that is not how diplomatic immunity works. As a United

Nations expert on mission, Mr. Kartas enjoys diplomatic immunity under article VI, section

22, of the Convention on the Privileges and Immunities of the United Nations and article 20

of the Tunisian Constitution. This includes immunity for official acts, as stipulated in the

Charter of the United Nations and the aforementioned Convention, and “immunity from

personal arrest or detention and from seizure of their personal baggage”. Immunity from

personal arrest is absolute and is not subject to exceptions. This immunity applies

regardless of the fact that Mr. Kartas claimed it in the first minutes of his interactions with

the Tunisian authorities, which he did in fact do. The United Nations informed the

Government of his diplomatic status prior to his arrest and detention and confirmed it on

several occasions thereafter.

68.

The source also argues that the Government has disregarded Mr. Kartas’ immunity

and the corresponding obligations under international law, in particular by maintaining the

charges against him to this day.

69.

Furthermore, the source maintains that the Government does not provide any

meaningful response on the merits of the accusations against Mr. Kartas, which it has not

substantiated. Nor can the Government’s secondary argument that Mr. Kartas had not

properly registered the equipment justify its arbitrary actions. Even if Mr. Kartas had

violated Tunisian regulations on the registration of radio frequencies, which he did not

appear to have done, the Government provided no explanation as to why he was charged

with terrorist crimes and subjected to deprivations of liberty on an exceptional basis as a

result. Five days after the hearing of 11 April 2019, at which the court summarily upheld

Mr. Kartas’ continued detention, his lawyers submitted a written request for his release,

explaining how the Government had failed to prove the charges against him. The

Government has never provided a substantive response.

70.

Lastly, the source argues that the Government does not respond to the argument that

Mr. Kartas’ detention violated his right to freedom of expression. Nor does the Government

deny that it violated international standards of due process by failing to inform him of the

charges against him, denying him access to a lawyer, failing to provide him with an

impartial judiciary, as the court had presumed him guilty, and subjecting him to inhuman

and degrading treatment. In defence of the deplorable conditions in which Mr. Kartas was

detained, the Government notes that he was interrogated in the very office of the Chief of

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Service of the National Terrorist Crimes Investigation Unit and was offered the standard

meal served to the members of this unit, which operates out of El Gorjani. Even if these

statements were true, the Government does not address other conditions of Mr. Kartas’

interrogation, such as the use of stress positions or his ill-treatment in Bouchoucha and

Mornaguia. The National Authority for the Prevention of Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment has not yet submitted its report to the Tunisian

parliament on its visit during Mr. Kartas’ detention, and the United Nations sent a number

of notes verbales requesting his release after a visit by a representative of the High

Commissioner’s human rights field office. The Government’s assertion that these entities

did not identify or report any irregularities regarding his detention is therefore erroneous.

71.

The source concludes that Mr. Kartas’ arrest, detention and continued deprivation of

his rights were arbitrary. He was entitled to immunity as a United Nations expert on

mission; the Government has not proved the charges against him; his deprivation of liberty

stems from the exercise of his freedom of expression as a United Nations expert; and the

Government’s treatment of him violated his rights under the Universal Declaration of

Human Rights and the Covenant.

Discussion

72.

The Working Group thanks the parties for their cooperation in submitting their

written comments in a timely manner.

73.

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 (see

A/HRC/19/57, para. 68).

74.

As a preliminary matter, the Working Group notes that Mr. Kartas was released on

parole on 21 May 2019. However, the Working Group considers it essential to deal with the

complaint in accordance with paragraph 17 (a) of its methods of work, considering that this

case concerns a new issue that plays an important role in international relations and, above

all, in the activities of international organizations. This is the issue of immunity of

individuals working for the United Nations, and this is the first time that such a case has

been brought before the Working Group.

Category I

75.

Central to this case is the status of Mr. Kartas. The source asserts that he had, at the

time of the events, the status of a United Nations expert on mission and that the attendant

immunities and privileges were violated by his arrest and detention for 56 days. The

Government asserts that Mr. Kartas did not disclose his status at the time of his arrest. The

source, for its part, credibly asserts that the officials who carried out the arrest were duly

informed of his status, which they could also have checked with the passports seized from

him. Furthermore, the Government did not explain why he was kept in detention despite the

notification of his status through the various notes verbales from different United Nations

sources produced by the source. The Working Group recalls that Mr. Kartas was first

appointed to the Panel of Experts on Libya in May 2016 (see S/2016/443) and that he was

reappointed in January 2019 (see S/2019/5). On each of these occasions, all Member States,

including Tunisia, were duly notified of the appointment. The Working Group cannot

therefore consider credible the fact that the Government was not aware of such a status.

76.

The Working Group therefore considers that there could be no doubt that Mr. Kartas

was a United Nations expert on mission, since he had been appointed by the Secretary-

General to the Panel of Experts on Libya established pursuant to Security Council

resolution 1973 (2011) adopted under Chapter VII of the Charter. In this resolution, the

Security Council urged all States to cooperate fully with the Security Council Committee

established pursuant to resolution 1970 (2011) concerning Libya and the Panel of Experts.

This provision has been included in each resolution extending the mandate of the Panel of

Experts, the most recent being resolution 2441 (2018). Mr. Kartas travelled to Tunisia to

meet with other experts of the Panel of Experts to conduct their investigations in

accordance with the mandate under the above-mentioned resolutions. Furthermore, the

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Working Group has no reason to doubt that Mr. Kartas showed the authorities his Tunisian

passport and, more importantly, his United Nations expert certificate.

77.

As such, Mr. Kartas was covered by Article 105 of the Charter and article VI,

section 22, of the Convention on the Privileges and Immunities of the United Nations.

Tunisia is a State Member of the United Nations and acceded to the Convention on 7 May

1957. On the basis of the combined reading of these two international provisions, Mr.

Kartas was protected, inter alia, against arrest, detention, search and seizure of his personal

luggage, as well as against any legal proceedings related to his work, anywhere in the world,

including in his country of nationality, in this case Tunisia.

78.

The Working Group recalls that, according to article 9 (1) of the Covenant, no one

may be deprived of his or her liberty except on such grounds and in accordance with such

procedure as are established by law. Therefore, for the deprivation of liberty to be

considered lawful, the procedure must be respected.1 The Working Group stated in this

regard that where the legal order – including the State’s international obligations – requires

the waiver of immunity as a precondition for depriving a person of liberty, this requirement

must be observed. Once immunity has been lifted, the authorities are empowered to order

the arrest and detention of the person concerned. Failure to waive immunity prior to the

arrest of a person enjoying it renders subsequent detention arbitrary, since immunity legally

precludes such a coercive measure. Such detention constitutes a violation, on the one hand,

of the right not to be arbitrarily deprived of liberty provided for in article 9 of the Universal

Declaration of Human Rights and article 9 of the Covenant and, on the other, of the right to

a fair trial in criminal proceedings provided for in article 10 of the Universal Declaration of

Human Rights and article 14 of the Covenant.2

79.

The Working Group has repeatedly looked into the issue of immunities providing

protection against arrest and detention.3 If, for certain reasons, deprivation of liberty is to be

applied to a person protected by immunities, law enforcement officials must first obtain a

waiver or revocation of immunity. If they fail to do so, subsequent arrest and detention are

illegal and without legal basis. The Working Group draws the same conclusion in the case

in question. Not only was the arrest and detention on 26 March 2019 without legal basis,

but this breach was to continue for 56 days despite the fact that the Government was fully

informed of the immunities and privileges enjoyed by Mr. Kartas. As such, the arrest and

detention were therefore arbitrary under category I. The Working Group therefore considers

that it is not necessary to examine the other arguments in this regard.

Category II

80.

The source also affirms that the reason for the arrest and detention is related to the

right to freedom of expression that Mr. Kartas enjoyed in his work. The Government stated

in its reply that Mr. Kartas was in possession of a flight-tracking device, in violation of the

Telecommunications Code, and that that was why he was under the suspicion of the

National Terrorist Crimes Investigation Unit.

81.

The Working Group notes that Tunisia shares a common border with Libya, which

constitutes the geographical centre of the Security Council sanctions, and that the 2018

report of the Panel of Experts on Libya identified certain violations of the sanctions on

Tunisian territory (S/2018/812 and Corr.1). Mr. Kartas informed the authorities that the

device was intended for his work. The United Nations Resident Coordinator reiterated this

position in the note verbale of 10 April 2019 addressed to the Government, explaining that

Mr. Kartas was in possession of equipment that could be used in the performance of his

official duties. This equipment is clearly a main reason why the authorities deprived Mr.

Kartas of his liberty. Again, the Working Group considers that this issue is related to the

immunities of United Nations experts and that this device, which is necessary for his

mission, was also covered by the same immunity. The Working Group further recalls that it

has already rejected the Government’s argument that it was unaware of the immunities and

1 Human Rights Committee, general comment No. 35 (2014) on liberty and security of person, para. 11.

2 Opinion No. 31/2016, paras. 113–114.

3 Opinions No. 36/2017, paras. 79–87; No. 5/2018, para. 36; and 9/2018, paras. 37–39. See also

Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on

Human Rights, Advisory Opinion, I.C.J. Reports 1999, p. 62.

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privileges enjoyed by Mr. Kartas. In these circumstances, the Working Group is not in a

position to reach a conclusion on the existence of a category II violation.

Category III

82.

The Working Group is alarmed by the blatant disregard for the privileges and

immunities that are in place to protect those performing essential work for the United

Nations. Such a violation of international law undermines the ability of the Organization,

through its various organs and agents, to carry out the mandate established in the Charter

and the decisions taken by its organs, in particular the Security Council, as in the present

case. This situation is particularly serious and deserves to be highlighted.

83.

Under category III, the source alleges: (a) that the charges against Mr. Kartas were

not communicated to him promptly; (b) that he was not notified in a language that he could

understand; (c) that he was not given access to a lawyer during the first three days of his

detention and that such access has been unduly restricted thereafter; and (d) that the

Government failed to notify the United Nations of the arrest and detention of Mr. Kartas, in

violation of international law, in particular paragraph 3 (b) of General Assembly resolution

52/126. The source further alleges that the investigating judge lacked independence when

he stated that the case could only be dealt with after the elections.

84.

With regard to the assistance of a lawyer, the Government asserted that Mr. Kartas

could not benefit from this right during the 48 hours following the arrest warrant, according

to national law, and admitted that he had not been provided with a lawyer at the first

hearing, although it stated that Mr. Kartas had not requested one. The Working Group

recalls that it is well established in law that a suspect or accused person has the right to be

represented by a lawyer at all stages of the proceedings, from the moment of arrest and as

soon as possible.4 Not only were the charges against him not disclosed to Mr. Kartas until

11 April 2019, but he was also not allowed to speak to his lawyer for the first three days of

his detention, even though he was interviewed. The Government further stated in its

response that Mr. Kartas had not requested to get in contact with a lawyer but provided no

evidence that the authorities had informed Mr. Kartas of his right to be assisted by a lawyer.

The Working Group takes note of the legal expertise of Mr. Kartas, as well as the

statements of his lawyer and a witness to his arrest. Consequently, the Working Group does

not find the Government’s response credible and concludes that Mr. Kartas’ right to a fair

trial was violated.

85.

The Working Group notes that the source asserts that notification of the charges was

given in Arabic, a language that Mr. Kartas does not understand. However, in a statement

by the witness in support of the source’s arguments, it is stated that Mr. Kartas spoke in

Tunisian Arabic with the persons who arrested him. The Working Group takes note of the

contradiction in the statement of the source and therefore does not draw a conclusion on

this matter.

86.

Lastly, the source alleges that the investigating judge stated that the case could only

be heard after the elections. However, the judicial implications and the relevance to or

impact on the court’s independence in the handling of the case were not brought to the

Working Group’s knowledge. Therefore, the Working Group is not in a position to

determine whether this is a factor that demonstrates a lack of judicial independence.

However, it considers that this position has led to an unjustified delay in the proceedings, in

violation of the right to be tried without undue delay under article 14 of the Covenant.

87.

The Working Group concludes that the violations of the right to a fair trial under

article 10 of the Universal Declaration of Human Rights and article 14 of the Covenant are

of such gravity as to give the arrest and detention an arbitrary character under category III.

4 Human Rights Committee general comment No. 32 (2007) on the right to equality before courts and

tribunals and to a fair trial, paras. 34–37. See European Court of Human Rights, case of Öneryildiz v.

Turkey, application No. 36391/02, judgment of 27 November 2008.

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Disposition

88.

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

The deprivation of liberty of Moncef Kartas, being in contravention of articles 9 and

10 of the Universal Declaration of Human Rights and articles 9 and 14 of the

International Covenant on Civil and Political Rights, is arbitrary and falls within

categories I and III.

89.

The Working Group requests the Government of Tunisia to take the steps necessary

to remedy the situation of Mr. Kartas without delay and bring it into conformity with the

relevant international norms, including those set out in the Universal Declaration of Human

Rights and the International Covenant on Civil and Political Rights.

90.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to accord Mr. Kartas an enforceable right to

compensation and other reparations, in accordance with international law.

91.

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

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

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

rights.

92.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

93.

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 compensation or other reparations have been made to Mr. Kartas;

(b)

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

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

(c)

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;

(d)

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

94.

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.

95.

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.

96.

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.5

[Adopted on 1 May 2020]

5 Human Rights Council resolution 42/22, paras. 3 and 7.