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.26-01413 (E) 030326 030326
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 104th session, 10–14 November 2025
Opinion No. 63/2025 concerning Rached Kheriji (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 60/8.
2.
In accordance with its methods of work, 1 on 10 July 2025 the Working Group
transmitted to the Government of Tunisia a communication concerning Rached Kheriji. The
Government did not reply to the communication within the established time frame. 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).
* Mumba Malila and Miriam Estrada Castillo did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2025/63
General Assembly
Distr.: General
12 February 2026
English
Original: French
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1.
Submissions
(a)
Communication from the source
4.
Mr. Rached Kheriji, known as Rached Ghannouchi, was born in 1941. He is the
elected Speaker of the Assembly of the Representatives of the People of Tunisia and founder
and leader of the country’s main opposition political party, known as Ennahda.
(i)
Context
5.
The source reports that, on 25 July 2021, the President of Tunisia adopted a series of
measures that raised concerns about their compatibility with the Constitution, including the
dismissal of the Head of Government, the suspension of the parliament, the lifting of
parliamentary immunity and the imposition of numerous restrictions on individual and
collective freedoms. The President is also said to have taken it upon himself to legislate by
decree, thereby assuming full executive, legislative and judicial powers. Since then, arrests,
arbitrary detentions and dismissals of senior government and judicial officials by mere
presidential decision have increased, and the authorities are pursuing a policy of persecution
against opponents of the Government, particularly members and leaders of Ennahda.
6.
According to the source, since December 2022, at least 17 current or former members
of Ennahda have been arrested, including Mr. Kheriji. Mr. Kheriji has allegedly been targeted
by the police since he condemned the undermining of the rule of law and advocated a return
to the Constitution and democracy. For example, he was reportedly questioned in connection
with more than ten or so police investigations, most of which were closed without further
action when they were submitted to the public prosecutor’s office.
(ii)
Arrest and trial proceedings
7.
The source reports that, on 17 April 2023, more than 50 officers in civilian clothing
raided Mr. Kheriji’s home. He was arrested without being shown a warrant, and all of his
personal documents, his diaries and his electronic devices were seized. He was then allegedly
taken to an unknown location and deprived of all contact with the outside world, including
his lawyers, for 48 hours.
8.
Two days later, on 19 April 2023, Mr. Kheriji was allegedly seen at the National
Guard barracks in El Aouina. On the same day, he was reportedly brought before the
investigating judge at the court of first instance of Tunis, who questioned him at length about
his public statement concerning the marginalization of opposition political movements,
which he had described as a “plan for civil war”.
9.
The source reports that the investigating judge issued an order for Mr. Kheriji’s
detention after more than nine hours of questioning, on the pretext that his statements
constituted acts aimed at changing the form of the State, inciting people to take up arms
against each other and causing disorder, murder and looting in Tunisia.
10.
On 15 May 2023, while still in detention, Mr. Kheriji was reportedly sentenced in
absentia to 1 year of imprisonment and a fine of 1,000 Tunisian dinars in another case,
involving glorification of terrorism, under article 14 of the counter-terrorism law adopted in
2015. This trial reportedly followed a defamation complaint filed by a police union that had
allegedly interpreted Mr. Kheriji’s tribute to one of the leaders of Ennahda as somebody who
“feared neither the powerful nor tyrants” to be an offence against the security forces. The
source reports that Mr. Kheriji had already been summoned and questioned by the judicial
counter-terrorism unit regarding this case in February 2023, prior to his arrest on 17 April
2023.
11.
According to the source, Mr. Kheriji was unable to receive legal representation during
his trial, as his lawyers were notified of the hearing so late that it was impossible for them to
prepare their client’s defence. When their request to postpone the hearing was rejected by the
court, they reportedly left the courtroom in protest, decrying a blatant violation of due
process. The judge nevertheless proceeded with the case in their absence and delivered a
judgment at first instance.
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12.
On 30 October 2023, the specialized criminal chamber for terrorism cases at the court
of appeal in Tunis upheld the judgment against Mr. Kheriji and increased his prison sentence
to 15 months. The Court of Cassation, noting flagrant procedural irregularities, overturned
the appeal decision and referred the case to another appeals chamber, which nevertheless
upheld the increased sentence of 15 months.
13.
The source explains that, to date, Mr. Kheriji is the subject of at least 12 separate legal
proceedings and has been convicted in 3 of them:
(a)
A case of glorification of terrorism, for stating that an Ennahda leader “feared
neither the powerful nor tyrants”, for which he was sentenced to 15 months’ imprisonment
on appeal;
(b)
A case involving alleged foreign funding during the 2019 elections, in
connection with which he was sentenced to 3 years’ imprisonment;
(c)
The so-called Installingo case, on the pretext of conspiracy against State
security, in which he was sentenced to 22 years’ imprisonment.
14.
The source notes what it considers to be a complete lack of material evidence that
could objectively and credibly support the convictions handed down to Mr. Kheriji. The
source states that these convictions are based solely on anonymous testimony, the origin of
which remains unclear, which cannot be verified by cross-examination and which is not
corroborated by any additional material evidence.
15.
According to the source, systematic use of such anonymous testimony is now a
frequent practice in Tunisian courts, particularly in cases of a political nature. This practice
is supposedly replacing the requirement for material evidence with mere allegations, which
is raising serious concerns about the reliability, credibility and legitimacy of evidence. The
source argues that such an approach violates fundamental principles guaranteeing the right
to a fair trial, in particular the right of all persons charged with a criminal offence to examine,
or have examined, witnesses against them, as established in article 14 (3) (e) of the
International Covenant on Civil and Political Rights. Furthermore, a thorough review of the
facts submitted to the courts reveals profound inconsistencies and internal contradictions that
highlight the manifestly unfounded and arbitrary nature of the accusations made against
Mr. Kheriji.
16.
The source considers that this exploitation of the justice system for the purposes of
political retribution is exacerbated by the fact that Mr. Kheriji’s relatives are also facing
equally abusive prosecutions.
(iii)
Detention
17.
Mr. Kheriji is reportedly being held at Mornaguia Prison. He is reported to be
suffering from Parkinson’s disease, which has purportedly worsened significantly since his
detention, affecting his daily activities, including eating and writing. After he had been
authorized to attend a number of physiotherapy sessions over a period of three months, the
prison administration reportedly discontinued this treatment for no reason. Despite several
requests supported by medical certificates, the prison authorities are said to have consistently
refused to grant him access to the technical resources that he needs to continue writing. His
cell is allegedly subject to extreme temperature variations that are exacerbating his health
condition.
18.
The source notes that Mr. Kheriji’s interactions in prison are solely with individuals
sharing his cell. Furthermore, he has reportedly been strictly prohibited, without objective,
legitimate or proportionate justification, from participating in any group activity, including
prayers. The source is of the view that this isolation is severely limiting Mr. Kheriji’s ability
to enjoy a social environment that meets the minimum requirements with regard to humane
and balanced conditions of detention.
19.
Moreover, under his counter-terrorism detention regime, Mr. Kheriji is entitled only
to visits involving the use of a separation device, which he declines, as he is of the view that
such visits violate his dignity and are humiliating. The source argues that, given Mr. Kheriji’s
advanced age, these restrictions have no objective justification and are disproportionate.
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20.
Lastly, the source reports that Mr. Kheriji has gone on hunger strike three times since
February 2024, notably in support of all political prisoners belonging to the opposition.
(iv)
Legal analysis
21.
The source argues that Mr. Kheriji’s detention is arbitrary and falls under categories I,
II, III and V of the categories defined by the Working Group in its methods of work.2
a.
Category I
22.
The source asserts that Mr. Kheriji’s continued detention is arbitrary and falls under
category I, primarily because he was arrested at his home without a warrant or judicial
proceedings.
23.
The source explains that, in the present case, Mr. Kheriji was arrested on 17 April
2023 at his home by police officers in civilian clothing, without any arrest warrant or search
warrant for the items seized. After his arrest, on the same day, Mr. Kheriji was taken to an
unknown location, before being seen 48 hours later at the barracks in El Aouina. The
authorities refused to disclose Mr. Kheriji’s place of detention to his family during those two
days. His lawyers were unable to find out where he was until 19 April 2023. The source
concludes that Mr. Kheriji’s initial arrest and detention at an unknown location for 48 hours
had no legal basis.
24.
Second, the source reports that Mr. Kheriji was arrested, detained and charged under
the counter-terrorism law, which does not comply with the principle of lex certa.
25.
The source states that, on 26 May 2023, several United Nations experts, including the
former Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism, pointed out in a communication to the Government of
Tunisia that the definition of terrorism in the country’s legislation did not comply with
international law and reminded Tunisia that States should ensure that counter-terrorism
legislation is applied only to criminalize behaviour that is accurately and precisely defined
on the basis of international counter-terrorism instruments and that it is strictly guided by the
principles of legality, necessity and proportionality.3
26.
The source also points out that, during the most recent review concerning Tunisia, the
Human Rights Committee was concerned about the overly broad and imprecise definition of
an act of terrorism and called on Tunisia, in vain, to take the measures necessary to ensure
that its counter-terrorism legislation and practices were in full conformity with its obligations
under the Covenant. 4 The source recalls that the Committee against Torture had also
expressed concerns about the counter-terrorism law and had stated that it should be revised
to reduce the maximum length of police custody in terrorism cases in accordance with
international standards.5 The Committee against Torture also noted with concern that the
assistance of a lawyer could be delayed for up to 48 hours in terrorism cases.6
27.
In the present case, Mr. Kheriji was detained without legal basis, since the legal basis,
namely the counter-terrorism law, does not comply with human rights requirements. In
addition, his detention reportedly lasted for longer than a reasonable minimum period, which,
according to the source, constitutes a violation of international human rights law and is in
itself a form of cruel, inhuman and degrading treatment.
28.
Furthermore, Mr. Kheriji was not permitted to receive visits from his lawyers or to be
assisted by them during his questioning on 19 April 2023.
2 A/HRC/36/38, para. 8 (a).
3 AL TUN 2/2023.
4 CCPR/C/TUN/CO/6, paras. 31 (a) and 32.
5 CAT/C/TUN/CO/3, para. 12 (a).
6 CAT/C/TUN/CO/3, para. 11.
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b.
Category II
29.
The source claims that Mr. Kheriji’s deprivation of liberty was arbitrary and falls
under category II because his detention following his arrest on 17 April 2023 and his
conviction on the pretext of glorifying terrorism resulted solely from the peaceful exercise of
his freedom of expression and opinion.
30.
The source recalls that the suppression of freedom of expression and association in
Tunisia has intensified in recent years, particularly through the introduction of a repressive
legal framework aimed at silencing all dissent. The Human Rights Committee has expressed
concern about this development, noting that anti-terrorism legislation has been used
improperly to criminalize conduct that linked to the exercise of the right to freedom of
expression or peaceful assembly. 7 Against this backdrop of repression, several political
opponents and journalists have reportedly been arrested, prosecuted and convicted under the
counter-terrorism law. In this regard, the source points out that arrest or detention as
punishment for the legitimate exercise of the rights protected by the Covenant, including the
right to freedom of opinion and expression, is considered by the Human Rights Committee
to be arbitrary.8
31.
In this case, Mr. Kheriji is a prominent political figure in the country, particularly in
his capacity as Speaker of the Assembly of Representatives of the People, and was arrested
and prosecuted because of his public political statements, without any evidence that these
could be interpreted as incitement to violence or threats to national security or public order.
Mr. Kheriji merely expressed his views peacefully and exercised his right to freedom of
expression. Therefore, it has not been established in any way that his arrest and deprivation
of liberty were necessary.
32.
The source notes that Mr. Kheriji was questioned only about comments he made at a
public meeting, namely: “To imagine a Tunisia without this or that camp … a Tunisia without
Ennahda, a Tunisia without political Islam, without the left, or any other component, is a plan
for civil war.” No other evidence was used to support the accusations against him. The
questioning was therefore based entirely on acts falling within the scope of his freedom of
expression and opinion and his right to participate in the political affairs of his country as
elected Speaker of the Assembly of Representatives of the People and a founding member of
a political party.
33.
In support of this argument, the source notes that the offices of Ennahda, the leading
political party in the Assembly, were closed throughout the country by the intelligence
services, on the decision of the President, the day after Mr. Kheriji’s arrest, and that all
meetings in these offices were prohibited. The source asserts that this constitutes a violation
of the right to freedom of association – which is protected by article 22 of the Covenant –
aimed at silencing political opposition and, more specifically, the Ennahda Party.
c.
Category III
34.
The source submits that the blatant disregard for international fair trial standards is of
such gravity that Mr. Kheriji’s deprivation of liberty is also arbitrary under category III.
35.
The source recalls that article 9 (3) of the Covenant provides that pretrial detention
must be the exception and not the rule. Detention must also be as brief as possible and subject
to case-by-case assessment.
36.
It was evident that this article was violated during the proceedings against Mr. Kheriji
for glorification of terrorism, because he was arrested following public statements that the
authorities deemed to be “crimes” and placed in pretrial detention without any assessment of
the necessity of such detention or consideration of alternatives to detention, despite his age
and fragile health. According to the source, this demonstrates the political will of the
President to remove Mr. Kheriji from the political scene.
7 CCPR/C/TUN/CO/6, paras. 31 (b) and 45.
8 General comment No. 35 (2014) on liberty and security of person, para. 17.
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37.
Furthermore, the Tunisian authorities prohibited Mr. Kheriji’s lawyers from assisting
him during his questioning on 19 April 2023. Without this legal assistance, Mr. Kheriji lacked
the resources and time necessary to prepare his defence. Furthermore, Mr. Kheriji was
convicted of glorification of terrorism in a trial in which he was not able to be represented,
as his lawyers were notified of the hearing so late that it was impossible for them to prepare
his defence.
38.
Moreover, the source points out that Mr. Kheriji was accused as a result of public
statements he made in his capacity as a political figure and elected Speaker of the Assembly
of Representatives of the People, without the presentation of any material evidence to prove
that he had committed any acts punishable by law. The investigation against him was
conducted in a way that supported only the prosecution’s case, and, prior to his conviction,
his defence team was given no opportunity to call witnesses or challenge the incriminating
evidence presented by the public prosecutor’s office. Mr. Kheriji was found guilty in
complete violation of his right to the presumption of innocence.
39.
The source also points out that, contrary to article 9 (4) of the Covenant, Mr. Kheriji
was deprived of his liberty without having had an effective opportunity to be heard promptly
by a judicial authority in order to challenge the legality of his detention. In this regard, the
source recalls that the right to challenge the legality of detention before a court is a
self-standing human right that is essential for preserving legality in a democratic society, in
addition to being a peremptory norm of international law that applies to all forms of
deprivation of liberty.9
40.
Furthermore, according to the source, the independence of the judiciary is a major
problem in Tunisia. After dissolving the High Council of the Judiciary, which had been
responsible for guaranteeing the proper functioning of the justice system and the
independence of judicial authorities and which had been described by the United Nations
High Commissioner for Human Rights as a major advance “in the consolidation of the rule
of law, separation of powers and the independence of the judiciary in Tunisia”,10 the President
established a new council made up of members whom he had personally appointed. He thus
effectively assumed absolute control of this institution.
41.
The President clearly violated article 14 of the Covenant, which guarantees the fair,
impartial and independent administration of justice, by dismissing more than 50 judges,
whom he accused of corruption and other offences. While their dismissal was suspended by
the Tunisian courts, the judges concerned, who are said to have been subjected to multiple
acts of intimidation, have still not been reinstated in their positions owing to the refusal by
the Government to give effect to the relevant judicial decisions.
42.
In this respect, the source invokes general comment No. 32 (2007) of the Human
Rights Committee, in which the Committee states that judges may be dismissed only on
serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring
objectivity and impartiality set out in the Constitution or the law. The dismissal of judges by
the executive, for example, before the expiry of their term, without any specific reasons given
to them and without effective judicial protection being available to contest the dismissal is
incompatible with the independence of the judiciary.11
43.
In the present case, Mr. Kheriji is dealing with judges who have been directly
appointed by the executive and are thus under its total control. As a result, he has no effective
legal remedies through which he can assert his rights.
9 A/HRC/30/37, paras. 2, 3 and 11.
10 Office of the United Nations High Commissioner for Human Rights, “Dissolution of Tunisia’s High
Judicial Council seriously undermines rule of law in Tunisia – Bachelet”, press release, 8 February
2022.
11 Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts and
tribunals and to a fair trial (CCPR/C/GC/32), para. 20.
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d.
Category V
44.
The source considers that, in light of the facts, it is clear that Mr. Kheriji’s deprivation
of liberty is motivated by a discriminatory factor, namely his disagreement, as leader of a
political party and elected Speaker of the Assembly of Representatives of the People, with
the President of Tunisia.
45.
The source asserts that Mr. Kheriji was targeted by the authorities because of his
critical position regarding the President’s violation of the Tunisian Constitution. According
to the source, since the coup d’état of 25 July 2021, Mr. Kheriji has publicly condemned a
number of human rights violations and advocated for the need to return to the rule of law.
46.
In the present case, Mr. Kheriji’s deprivation of liberty occurred against the backdrop
of repression and a wave of arrests targeting several dissident figures, particularly from the
Ennahda Party.
47.
The source submits that the scope of Mr. Kheriji’s questioning before the investigating
judge and the circumstances of his arrest and unjustified detention confirm the discriminatory
and inherently arbitrary nature of his deprivation of liberty, which therefore falls under
category V.
(b)
Response from the Government
48.
On 10 July 2025, the Working Group transmitted a communication concerning
Mr. Kheriji to the Government, requesting it to provide detailed information about him by
8 September 2025 and to ensure his physical and mental integrity.
49.
On 7 September 2025, the Government requested an extension of the deadline for
response, which the Working Group granted, with 7 October 2025 set as the new deadline.
The Government submitted its reply on 8 October 2025. Therefore, the Working Group
cannot accept the reply as if it had been submitted within the time limit.
2.
Discussion
50.
The Working Group regrets that it did not receive a timely reply from the Government.
In the absence of a timely response from the Government, and on the basis of all the
information available to it, the Working Group has decided to render the present opinion in
conformity with paragraph 16 of its methods of work.
51.
In determining whether Mr. Kheriji’s detention is arbitrary, the Working Group has
regard to the principles established in its jurisprudence to deal with evidentiary issues. If the
source has established a prima facie case for breach of international human rights law
constituting arbitrary detention, the burden of proof should be understood to rest upon the
Government if it wishes to refute the allegations.12 Mere assertions by the Government that
lawful procedures have been followed are not sufficient to rebut the source’s allegations.
(a)
Category I
52.
The source submits that Mr. Kheriji was arrested at his home by police officers in
civilian clothing without an arrest warrant or a search warrant for the items seized at his
home. After his arrest, Mr. Kheriji was taken to an unknown location and held
incommunicado for 48 hours. The authorities refused to inform his family of his place of
detention during that period. His lawyers did not learn of his whereabouts until two days
later. The Government, in its late reply, does not deny these allegations.
53.
The Working Group recalls that article 9 (2) of the Covenant provides that anyone
who is arrested should be informed, at the time of arrest, of the reasons for the arrest and
should be informed promptly of any charges. In order for a deprivation of liberty to have a
legal basis, it is not sufficient that there is a law that may authorize the arrest. The authorities
must invoke that legal basis and apply it to the circumstances of the case.13 This is typically
12 A/HRC/19/57, para. 68.
13 See, for example, Opinions No. 3/2025, para. 7; and No. 61/2024 para. 48.
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done through an arrest warrant or arrest order (or equivalent document).14 The reasons for the
arrest must be provided immediately upon arrest and must include not only the general legal
basis of the arrest, but also enough facts to indicate the substance of the complaint, such as
the wrongful act and the identity of an alleged victim.15 It appears from the submissions of
the source on this point, which the Government does not refute, that this information was not
communicated to Mr. Kheriji. Accordingly, the Working Group notes that article 9 (2) of the
Covenant and article 9 of the Universal Declaration of Human Rights were violated.
54.
Moreover, the Working Group recalls that enforced disappearances are prohibited by
international law and constitute a particularly aggravated form of arbitrary detention.16 By
denying Mr. Kheriji any recognition before the law during the 48 hours following his arrest,
during which time his whereabouts were concealed from his family and lawyers, the
authorities placed him outside the protection of the law, thereby violating his right to
challenge the legality of his detention before a court under articles 2 (3) and 9 (4) of the
Covenant and article 8 of the Universal Declaration of Human Rights, as well as his right to
be recognized as a person before the law under article 16 of the Covenant and article 6 of the
Universal Declaration. In this regard, the Working Group recalls that judicial oversight of
detention is a fundamental safeguard of personal liberty and is essential to protect people
from arbitrary detention and prevent torture.17 The Working Group is therefore of the view
that Mr. Kheriji’s disappearance for 48 hours placed him outside the protection of the law, in
violation of his rights under the above provisions.
55.
The source points out that Mr. Kheriji’s detention lasted for longer than a reasonable
minimum period. The Working Group recalls that it is a well-established norm of
international law that pretrial detention is to be the exception, not the rule.18 Article 9 (3) of
the Covenant provides that it is not to be the general rule that persons awaiting trial are to be
detained in custody, but their release may be subject to guarantees to appear for trial and at
any other stage of the judicial proceedings. It follows that, in the interests of justice, liberty
should be recognized as the principle and detention as the exception. In the present case, in
the absence of any contrary observations from the Government, the Working Group considers
that, by failing to examine the facts of the case to determine that the detention is reasonable
and necessary in the light of all the circumstances, or to consider other preventive measures,
the authorities did not properly justify Mr. Kheriji’s pretrial detention, in violation of
article 9 (3) of the Covenant.19
56.
The source then asserts that Mr. Kheriji was arrested and detained under the
counter-terrorism law, which does not comply with the principle of lex certa, and that his
detention therefore lacks an appropriate legal basis. The source submits that several
United Nations experts, the Human Rights Committee and the Committee Against Torture
have all expressed concerns about this law. In its late reply, the Government argues that the
law complies with international standards and respects constitutional guarantees. It adds that
the recommendations from the universal periodic review concerned only procedural matters
and that the counter-terrorism efforts of Tunisia have been recognized internationally.
57.
The Working Group notes that Mr. Kheriji was convicted of “glorification of
terrorism”: because he had stated that an Ennahda leader “feared neither the powerful nor
tyrants”. However, neither the source nor the Government provided the Working Group with
the text of the relevant provisions or explained how the courts had interpreted this statement
in relation to the law. In the absence of sufficient information on the specific provisions of
14 Human Rights Committee, general comment No. 35 (2014), paras. 23 and 27. See also Opinions
No. 30/2017, paras. 58 and 59; No. 88/2017, para. 27; No. 3/2018, para. 43; No. 30/2018, para. 39;
and No. 79/2022 para. 58. In cases of arrests made in flagrante delicto, the opportunity to obtain a
warrant will typically not be available. See Opinions No. 3/2018, para. 44; and No. 26/2023, para. 67.
15 Opinion No. 85/2021, para. 69.
16 Human Rights Committee, general comment No. 35 (2014), para. 17; and Opinion No. 37/2021,
para. 65.
17 Opinion No. 37/2024, para. 60.
18 Human Rights Committee, general comment No. 35 (2014), para. 38.
19 Ibid.
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the law under which Mr. Kheriji was detained and convicted, and on the manner in which his
statements reflect the constituent elements of the offence, the Working Group cannot reach a
definitive conclusion in this regard.
58.
Nevertheless, in the light of the above conclusions, the Working Group considers
Mr. Kheriji’s detention to be in violation of articles 2 (3), 9 and 16 of the Covenant and
articles 6, 8 and 9 of the Universal Declaration of Human Rights. His detention is thus
arbitrary under category I.
(b)
Category II
59.
The source argues that Mr. Kheriji’s detention on charges of vindication of terrorism
is arbitrary and falls under category II, as it is the result solely of the peaceful exercise of his
freedom of expression and opinion. The source claims that Mr. Kheriji, as Speaker of the
Assembly of the Representatives of the People and a prominent opposition figure, was
arrested and prosecuted for his public political statements and remarks made at a public
meeting that did not constitute calls for violence or threats to national security. The
Government, in its late reply, argues that the prosecution of Mr. Kheriji does not infringe on
the exercise of freedom of expression.
60.
The Working Group notes that Mr. Kheriji was arrested after publicly stating that:
“To imagine a Tunisia without this or that camp … a Tunisia without Ennahda, a Tunisia
without political Islam, without the left, or any other component, [was] a plan for civil war.”
The Government, for its part, explains that Mr. Kheriji was accused of conspiracy to
undermine the internal security of the State and of attempting to overthrow the State and
incite members of the population to attack each other. However, the Government has not
explained how this statement, which appears to warn against the exclusion of groups from
the Tunisian political landscape, constitutes an incitement to violence or a threat to national
security.
61.
Mr. Kheriji was also convicted of glorification of terrorism after stating that an
Ennahda leader “feared neither the powerful nor tyrants”. The Government has not explained
how this tribute to a colleague constitutes glorification of terrorism or a criminal offence
covered by international standards. The mere assertion that statements constitute crimes does
not satisfy the State’s obligation to demonstrate that restrictions on freedom of expression
are necessary and proportionate. 20 The Government has provided no evidence that
Mr. Kheriji’s statements incited violence, discrimination or hostility, constituted a genuine
threat to national security or public order or satisfied the exceptions set out in article 19 (3)
of the Covenant.
62.
Accordingly, the Working Group is of the view that Mr. Kheriji’s arrest and detention
for “glorification of terrorism” resulted from the peaceful exercise of his rights to freedom of
expression and opinion under article 19 of the Universal Declaration of Human Rights and
article 19 of the Covenant. For these reasons, the Working Group concludes that Mr. Kheriji’s
detention falls under category II.
(c)
Category III
63.
The source reports that, after Mr. Kheriji was arrested on 17 April 2023, he was held
incommunicado and deprived of all contact with the outside world, including his lawyers, for
48 hours. The source further claims that, on 19 April 2023, when Mr. Kheriji was brought
before the investigating judge, the Tunisian authorities prohibited his lawyers from assisting
him during questioning. Mr. Kheriji was unable to benefit from legal representation during
the proceedings, as his lawyers were informed of the hearing so late that it was impossible
for them to prepare their client’s defence, and their request for postponement was rejected by
the court. According to the source, the lawyers left the courtroom in protest, but the judge
20 Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and
expression, para. 27; and Opinion No. 55/2025, paras. 88 and 90.
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nevertheless proceeded in their absence and delivered a judgment. The Government, in its
late reply, stated in general terms that legal safeguards were respected, but did not respond
specifically to the source’s allegations.
64.
The Working Group recalls that all persons deprived of their liberty have the right to
legal assistance by counsel of their choosing, at any time during their detention, including
immediately after the moment of apprehension, and such access must be provided without
delay.21 The right to prompt legal assistance is essential to the right to a fair trial as it serves
to ensure that the principle of equality of arms is duly observed. In the present case, the
Working Group is of the view that articles 10 and 11 of the Universal Declaration of Human
Rights and article 14 (3) (b) and (d) of the Covenant have been violated.
65.
The source also raises fundamental concerns about the independence of the judiciary
in Tunisia that are applicable to the proceedings initiated against Mr. Kheriji, as the President
dissolved the High Council of the Judiciary, directly appointed the members of the new
Council and dismissed more than 50 judges who have not been reinstated despite court orders
suspending those dismissals. The source concludes that Mr. Kheriji is dealing with judges
who are under the control of the executive branch and that he has no access to effective
remedies. The Government, in its late reply, asserts that judicial independence is established
at the legal and institutional levels and guaranteed by the Constitution. At the institutional
level, the Government states that the provisional High Council of the Judiciary enjoys
functional, administrative and financial independence and is composed solely of judges.
66.
The Working Group recalls that judicial independence is a sine qua non condition of
the right to a fair trial, as guaranteed under article 10 of the Universal Declaration of Human
Rights and article 14 of the Covenant. The Working Group is particularly concerned about
the numerous reports of an attack on the independence of the judiciary in Tunisia since 2021
which has created a situation in which the right to a fair trial cannot be adequately protected.
In this respect, the Working Group notes the concern expressed by the former High
Commissioner for Human Rights and several United Nations special procedure mandate
holders.22 The Working Group has already addressed these systemic concerns in Opinion
No. 2/2025 concerning Tunisia.
67.
Although the Government states in general terms that the Constitution ensures the
independence of the judiciary and that the provisional High Council of the Judiciary is
independent, it has not responded specifically to the source’s allegations in this regard. In
view of these circumstances and the unrebutted allegations that Mr. Kheriji has been tried by
a structurally compromised judicial system, the Working Group concludes that Mr. Kheriji
has been deprived of his right to be tried by an independent and impartial tribunal, in violation
of article 10 of the Universal Declaration of Human Rights and article 14 (1) of the Covenant.
68.
In view of the foregoing, the Working Group finds that the violations of Mr. Kheriji’s
right to a fair trial are of such gravity as to render his detention arbitrary under category III.
(d)
Category V
69.
The Working Group recalls that it has consistently found discrimination when it has
appeared that persons have been deprived of their liberty specifically on the basis of their
own or perceived distinguishing characteristics or because of their real or suspected
membership of a distinct group.23
21 A/HRC/45/16, paras. 51 and 52; A/HRC/30/37, annex, principle 9 and guideline 8; Basic Principles
on the Role of Lawyers, paras. 16–22; Opinion No. 76/2021, para. 58; Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment, principle 18 (para. 3); and
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules),
rule 61 (para. 1). See also Opinion No. 55/2025, para. 96.
22 See, for the former High Commissioner for Human Rights, “Dissolution of Tunisia’s High Judicial
Council seriously undermines rule of law in Tunisia – Bachelet”, press release, 8 February 2022.
“Tunisia: Presidential decrees undermine judicial independence and access to justice, says UN
expert”, press release, 15 July 2022; and “Tunisia: Interference with the judiciary and harassment of
lawyers must end”, press release, 31 May 2024.
23 Opinion No. 60/2024, para. 71.
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11
70.
The Working Group takes into account a number of non-cumulative factors in order
to determine whether a deprivation of liberty is discriminatory, including: (a) whether the
deprivation of liberty is part of a pattern of persecution against the detained person;
(b) whether other persons with similarly distinguishing characteristics have also been
persecuted; and (c) whether the context suggests that the authorities have detained a person
on discriminatory grounds or to prevent them from exercising their human rights. 24
Furthermore, it has found deprivation of liberty to be arbitrary and to fall within category V
when it was intended to punish members of political groups as a means of repression.25
71.
In the present case, the Working Group notes that Mr. Kheriji has been the subject of
at least 12 separate judicial proceedings, which have resulted in multiple convictions. It also
notes that, since December 2022, at least 17 current or former members of Ennahda have
been arrested. This trend of targeting Ennahda members has been documented by the High
Commissioner for Human Rights, who has repeatedly expressed concern about the repression
of perceived political opponents and called on the Government to end the persecution of
political opponents and activists.26 The Working Group is of the view that the detention of
Mr. Kheriji, as a leader of Ennahda, is aimed at punishing members of political groups in
order to silence their demands.
72.
For these reasons, the Working Group is of the opinion that Mr. Kheriji’s deprivation
of liberty is in violation of articles 2 and 7 of the Universal Declaration of Human Rights and
articles 2 and 26 of the Covenant and is arbitrary under category V.
(e)
Concluding remarks
73.
The Working Group notes with particular concern that Mr. Kheriji is 84 years old and
suffers from Parkinson’s disease, a progressive neurological condition that has worsened
considerably during his arbitrary detention, which has lasted for more than two and a half
years. Although the Government asserts that Mr. Kheriji receives medical care in accordance
with the law and his medical records, it has not responded to specific allegations concerning
the unjustified interruption of physiotherapy sessions, extreme temperature variations in his
cell or his de facto isolation from other prisoners.
74.
In view of these unrefuted concerns regarding his health and conditions of detention,
the Working Group is compelled to remind the Government of its obligation under
article 10 (1) of the Covenant and rules 1, 24, 27 and 118 of the United Nations Standard
Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), namely that all
persons deprived of their liberty must be treated with humanity and with respect for the
inherent dignity of the human person, particularly by being allowed to benefit from the same
standards of healthcare as those available in the community, with older prisoners and
prisoners suffering from chronic illnesses receiving special attention. Taking into account the
gravity of the situation and in accordance with paragraph 33 (a) of its methods of work, the
Working Group refers the present case to the Special Rapporteur on the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health.
3.
Disposition
75.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Rached Kheriji, being in contravention of articles 2, 7,
9, 10, 11 and 19 of the Universal Declaration of Human Rights and articles 2, 9, 14,
19 and 26 of the International Covenant on Civil and Political Rights, is arbitrary and
falls within categories I, II, III and V.
24 Opinion No. 55/2025, para. 115; No. 58/2023, para. 73; and No. 25/2024, paras. 123–127. See also
A/HRC/36/37, para. 47.
25 Opinion No. 50/2024, para. 112.
26 https://news.un.org/en/story/2023/02/1133472; https://www.ohchr.org/en/press-briefing-
notes/2023/02/arrest-perceived-political-opponents-and-civil-society-tunisia;
https://www.ohchr.org/en/press-releases/2025/04/tunisia-turk-says-rulings-conspiracy-case-are-
setback-justice-and-rule-law.
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76.
The Working Group requests the Government of Tunisia to take the steps necessary
to remedy the situation of Mr. Kheriji 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.
77.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Kheriji immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law.
78.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Kheriji and to take appropriate measures against those responsible for the violation of
his rights.
79.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
80.
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. Kheriji has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Kheriji;
(c)
Whether an investigation has been conducted into the violation of Mr. Kheriji’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.
81.
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.
82.
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 of any failure to take action.
83.
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.27
[Adopted on 10 November 2025]
27 Human Rights Council resolution 60/8, paras. 6 and 9.