Submitted by: Mr. Dhaou Belgacem THABTI (represented by the non-governmental
organization Vérité-Action)
On behalf of: Complainant
State party: Tunisia
Date of submission: 1 June 2000
The Committee against Torture, established under Article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 14 November 2003,
Having concluded its consideration of complaint No. 187/2001, submitted to the Committee against Torture by Mr. Dhaou Belgacem Thabti under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into account all information made available to it by the complainant, his counsel and the State party,
Adopts the following:
Decision under article 22, paragraph 7, of the Convention
1. The complainant is Mr. Dhaou Belgacem Thabti, a Tunisian citizen, born on 4 July 1955 in Tataouine, Tunisia, and resident in Switzerland since 25 May 1998, where he has refugee status. He claims to have been the victim of violations by Tunisia of the provisions of article 1, article 2, paragraph 1, article 4, article 5, article 12, article 13, article 14, article 15 and article 16 of the Convention. He is represented by the non-governmental organization Vérité-Action.
1.2 Tunisia ratified the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment and made the declaration under article 22 of the Convention on 23 September 1988.
Facts as submitted by the complainant
2.1 The complainant states that he was an active member of the Islamist organization
ENNAHDA (formerly MTI). Following a wave of arrests in Tunisia, which commenced
in 1990 and was targeted in particular against members of this organization,
he went into hiding from 27 February 1991. On 6 April 1991, at 1 a.m., he was
arrested and severely beaten by the police, who kicked, slapped and punched
him and struck him with truncheons.
2.2 Incarcerated in the basement cells in the Interior Ministry (DST) building
in Tunis and deprived of sleep, the complainant was taken, the following morning,
to the office of the Director of State Security, Ezzedine Jneyeh. According
to the complainant, this official personally ordered his interrogation under
torture.
2.3 The complainant provides a detailed description, accompanied by sketches,
of the different types of torture to which he was subjected until 4 June 1991
in the premises of the Interior Ministry (DST).
2.4 The complainant describes what is customarily known as the "roast chicken"
position, in which the victim is stripped naked, his hands tied and his legs
folded between his arms, with an iron bar placed behind his knees, from which
he is then suspended between two tables. In this position he was subjected to
beatings, in particular on the soles of his feet, until he passed out. The complainant
adds that the policemen inflicting this torture would then bring him round by
throwing cold water over his body and by applying ether to sensitive areas,
such as his buttocks and testicles.
2.5 The complainant also claims to have been tortured in the "upside-down"
position, whereby the victim is stripped, hands tied behind his back and suspended
from the ceiling by a rope tied to one or both of his feet, with his head hanging
downwards. In this position he was kicked and struck with sticks and whips until
he passed out. He adds that his torturers tied a piece of string to his penis
which they then repeatedly tugged, as if to tear his penis off.
2.6 The complainant claims to have been subjected to immersion torture, in which
the victim is suspended upside-down from a hoist and immersed in a tank of water
mixed with soap powder, bleach and sometimes even urine and salt; the victim
is unable to breathe and is therefore forced to keep swallowing this mixture
until his stomach is full. He states that he was then kicked in the stomach
until he vomited.
2.7 The complainant also maintains that he was tortured in the "scorpion"
position, in which the victim is stripped, his hands and feet tied behind his
back, and then lifted by his torturers, face downwards, with a chain hoist,
while pressure is applied to his spine. He states that, in this position, he
was beaten and whipped on his legs, arms, stomach and genitals.
2.8 The complainant also claims to have been subjected to "table torture",
in which he was stripped, made to lie flat on his back or stomach on a long
table, with his arms and legs tied down, and was then beaten.
2.9 In support of his claims of torture and the effects of torture, the complainant
submits a certificate from a Swiss physiotherapist, a report by a neurological
specialist in Fribourg and a certificate of psychiatric treatment from the medical
service of a Swiss insurance company. He also cites an observation mission report
by the International Federation for Human Rights, stating that, during proceedings
initiated on 9 July 1992 against Islamist militants, including the complainant,
all the defendants that were interviewed complained that they had been subjected
to serious physical abuse whilst in police custody.
2.10 The complainant provides a list of persons who subjected him to torture
during this period, namely, Ezzedine Jneieh, Director of DST; Abderrahmen El
Guesmi; El Hamrouni; Ben Amor, Inspector of Police; and Mahmoud El Jaouadi,
Slah Eddine Tarzi and Mohamed Ennacer-Hleiss, all of Bouchoucha Intelligence
Service. He adds that his torturers were assisted by two doctors and that he
witnessed torture being inflicted on his fellow detainees.
2.11 On 4 June 1991, the complainant appeared before the military examining
magistrate, Major Ayed Ben Kayed. The complainant states that, during the hearing,
he denied the charges against him of having attempted a coup d'état, and that
he was refused the assistance of counsel.
2.12 The complainant claims that he was then placed in solitary confinement
in the premises of the Ministry of the Interior (DST), from 4 June to 28 July
1991, and refused all visits, mail, medicine and necessary medical attention,
except for one visit, on 18 July 1991, by Dr. Moncef Marzouki, President of
the Tunisian Human Rights League. The complainant adds that he was not fed properly,
that he was denied the right to practise his religion and that he was once again
subjected to torture.
2.13 From 28 July 1991, when his period of police custody ended, the complainant
was repeatedly transferred between different prison establishments in the country
- in Tunis, Borj Erroumi (Bizerte), Mahdia, Sousse, Elhaoireb and Rejim Maatoug
- which transfers, he maintains, were designed to prevent him having any contact
with his family.
2.14 The complainant describes the bad conditions in these detention facilities,
such as overcrowding, with 60-80 persons in the small cells in which he was
held, and the poor hygiene, which caused sickness: he maintains that, as a result,
he developed asthma and suffered skin allergies and that his feet are now disfigured.
He states that on several occasions he was placed in solitary confinement, partly
because of the hunger strikes he mounted in the 9 April prison in Tunis over
12 days in July 1992, and in Mahdia over 8 days in October 1995 and 10 days
in March 1996, as a protest against the conditions in which he was being held
and the ill-treatment to which he was subjected, and partly by arbitrary decision
of the prison warders. He also stresses that he was stripped naked and beaten
in public.
2.15 On 9 July 1992 the complainant's case was heard by the Bouchoucha military
court in Tunis. He maintains that he was only able to have one meeting with
his counsel, on 20 July 1992, and that it was conducted under the surveillance
of the prison warders. On 28 August 1992, he was sentenced to a term of six
years' imprisonment.
2.16 On completion of his sentence on 27 May 1997, as indicated in the prison
discharge papers he submits, the complainant was placed under administrative
supervision for a period of five years, which effectively meant that he was
placed under house arrest in Remada, 600 kilometres from Tunis, where his wife
and children were living. Four months later, on 1 October 1997, he fled Tunisia
for Libya then made his way to Switzerland, where he obtained political refugee
status on 15 January 1999. In support of his statements, the complainant submits
a copy of the report issued on 10 March 1996 by the Tunisian Committee for Human
Rights and Freedoms, describing his condition after his release, and a certificate
from the Swiss Federal Office for Refugees, on the granting of his political
refugee status. The complainant adds that, after he had fled from the country,
he was sentenced in absentia to 12 years' non-suspended imprisonment.
2.17 Finally, the complainant states that members of his family, in particular
his wife and their five children, have been the victims of harassment (night-time
raids, systematic searches of their home, intimidation, threats of rape, confiscation
of property and money, detention and interrogation, constant surveillance),
and of ill-treatment (the complainant's son Ezzedinne has been detained and
severely beaten) by the police throughout the period of his detention and after
he fled the country, continuing until 1998.
2.18 As to whether all domestic remedies have been exhausted, the complainant
states that he complained of acts of torture committed against him to the Bouchoucha
military court, in the presence of the national press and international human
rights observers. He maintains that the president of the court tried to ignore
him but, when he insisted, replied that nothing had been established. In addition,
the judge refused outright the complainant's request for a medical check.
2.19 The complainant adds that, after the hearing and his return to prison,
he was threatened with torture if he repeated his claims of torture to the court.
2.20 The complainant maintains in addition that, from 27 May 1997, the date
of his release, his house arrest prevented him from lodging a complaint. He
explains that the Remada police and gendarmerie took part a continuing process
of harassment and intimidation against him during the daily visits he made for
the purposes of administrative supervision. According to the complainant, the
mere fact of submitting a complaint would have caused increased pressure to
be applied against him, even to the point of his being returned to prison. Being
under house arrest, he was also unable to apply to the authorities at his legal
place of residence, in Tunis.
2.21 The complainant maintains that, while Tunisian law might make provision
for the possibility of complaints against acts of torture, in practice, any
victim submitting a complaint will become the target of intolerable police harassment,
which acts as a disincentive to the use of this remedy. According to the complainant,
any remedies are therefore ineffective and non-existent.
Substance of the complaint
3.1 The complainant maintains that the Tunisian Government has breached the
following articles of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment:
Article 1. The practices described above, such as the "roast chicken"
position, the "upside-down" position, the "scorpion" position,
immersion torture, "table torture" and solitary confinement, to which
the complainant was subjected, constitute acts of torture.
Article 2, paragraph 1. Not only has the State party failed to take effective measures to prevent torture, it has even mobilized its administrative machinery and, in particular, its police force as an instrument of torture against the complainant.
Article 4. The State party has not ensured that all the acts of torture to which
the complainant has been subjected are offences under its criminal law.
Article 5. The State party has instituted no legal proceedings against those
responsible for torturing the complainant.
Article 12. The State party has not carried out an investigation of the acts
of torture committed against the complainant.
Article 13. The State party has not undertaken any examination of the allegations
of torture made by the complainant at the beginning of his trial; instead, these
have been dismissed.
Article 14. The State party has ignored the complainant's right to make a complaint
and has thereby deprived him of his right to redress and rehabilitation.
Article 15. The complainant was sentenced on 28 August 1992 to a prison sentence
on the basis of a confession obtained as a result of torture.
Article 16. The repressive measures and practices described above, such as violation
of the right to medical care and medicine and the right to send and receive
mail, restriction of the right to property and the right to visits by family
members and lawyers, house arrest and harassment of the family, applied by the
State party against the complainant constitute cruel, inhuman and degrading
treatment or punishment.
State party's observations on admissibility
4.1 On 4 December 2001, the State party challenged the admissibility of the complaint on the grounds that the complainant has neither employed nor exhausted available domestic remedies.
4.2 The State party maintains that the complainant may still have recourse to
the available domestic remedies, since, under Tunisian law, the limitation period
for acts alleged to be, and characterized as, serious offences is 10 years.
4.3 The State party explains that, under the criminal justice system, the complainant
may submit a complaint, from within Tunisia or abroad, to a representative of
the Public Prosecutor's Office with jurisdiction in the area in question. He
may also authorize a Tunisian lawyer of his own choice to submit the complaint
or request a foreign lawyer to do so with the assistance of a Tunisian colleague.
4.4 Under the same rules of criminal procedure, the Public Prosecutor will receive
the complaint and institute a judicial enquiry. In accordance with article 53
of the Code of Criminal Procedure, the examining magistrate to whom the case
is referred will hear the author of the complaint. In the light of this hearing,
he may decide to hear witnesses, question suspects, undertake on-site investigations
and seize physical evidence. He may order expert studies and carry out any actions
which he deems necessary for the uncovering of evidence, both in favour of and
against the complainant, with a view to discovering the truth and verifying
facts on which the trial court will be able to base its decision.
4.5 The State party explains that the complainant may, in addition, lodge with
the examining magistrate during the pre-trial proceedings an application for
criminal indemnification for any harm suffered, over and above the criminal
charges brought against those responsible for the offences against him.
4.6 If the examining magistrate deems that the public right of action is not
exercisable, that the acts do not constitute a violation or that there is no
prima facie case against the accused, he shall rule that there are no grounds
for prosecution. If, on the other hand, the magistrate deems that the acts constitute
an offence punishable by imprisonment, he shall send the accused before a competent
court - which in the present instance, where a serious offence has been committed,
would be the indictment chamber. All rulings by the examining magistrate are
immediately communicated to all the parties to the proceedings, including the
complainant who brought the criminal indemnification proceedings. Having been
thus notified within a period of 48 hours, the complainant may, within four
days, lodge an appeal against any ruling prejudicial to his interests. This
appeal, submitted in writing or orally, is received by the clerk of the court.
If there is prima facie evidence of the commission of an offence, the indictment
chamber sends the accused before the competent court (criminal court or criminal
division of a court of first instance), having given rulings on all the counts
established during the proceedings. If it chooses, it may also order further
information to be provided by one of its assessors or by the examining magistrate;
it may also institute new proceedings, or conduct or order an inquiry into matters
which have not yet been the subject of an examination. The decisions of the
indictment chamber are subject to immediate enforcement.
4.7 A complainant seeking criminal indemnification may appeal on a point of
law against a decision of the indictment chamber once it has been notified.
This remedy is admissible when the indictment chamber rules that there are no
grounds for prosecution; when it has ruled that the application for criminal
indemnification is inadmissible, or that the prosecution is time-barred; when
it has deemed the court to which the case has been referred to lack jurisdiction;
or when it has omitted to make a ruling on one of the counts.
4.8 The State party stresses that, in conformity with article 7 of the Code
of Criminal Procedure, the complainant may bring criminal indemnification proceedings
before the court to which the case has been referred (criminal court or criminal
division of the court of first instance) and, as appropriate, may lodge an appeal,
either with the Court of Appeal if the offence in question is an ordinary offence,
or with the criminal division of the Court of Appeal if it is a serious offence.
The complainant may also appeal to the Court of Cassation.
4.9 The State party maintains that the domestic remedies are effective.
4.10 According to the State party, the Tunisian courts have systematically and
consistently acted to remedy deficiencies in the law, and stiff sentences have
been handed down on those responsible for abuses and violations of the law.
The State party says that, between 1 January 1988 and 31 March 1995, judgements
were handed down in 302 cases involving members of the police or the national
guard under a variety of counts, 227 of which fell into the category of abuse
of authority. The penalties imposed varied from fines to terms of imprisonment
of several years.(1)
4.11 The State party maintains that, given the complainant's "political
and partisan" motives and his "offensive and defamatory" remarks,
his complaint may be considered an abuse of the right to submit complaints.
4.12 The State party explains that the ideology and the political platform of
the "movement" of which the complainant was an active member are based
exclusively on religious principles, promoting an extremist view of religion
which negates democratic rights and the rights of women. This is an illegal
"movement", fomenting religious and racial hatred and employing violence.
According to the State party, this "movement" perpetrated terrorist
attacks which caused material damage and loss of life over the period 1990-1991.
For that reason, and also because it is in breach of the Constitution and the
law on political parties, this "movement" has not been recognized
by the authorities.
4.13 The State party explains that the complainant is making serious accusations,
not genuinely substantiated by any evidence, against the judicial authorities
by claiming that judges accept confessions as evidence and hand down judgements
on the basis of such evidence.
Complainant's comments on the State party's observations
5.1 In a letter dated 6 May 2002, the complainant challenges the State party's
argument that he was supposedly unwilling to turn to the Tunisian justice system
and make use of domestic remedies.
5.2 In this context, the complainant recalls his statements concerning the torture
to which he had been subjected and his request for a medical check made to the
judge of the military court, all of which were ignored and not acted upon, and
his reports of violations of articles 13 and 14 of the Convention against Torture,
as well as his contention that placing him under administrative supervision
impeded due process. According to the complainant, the practice described above
is routinely applied by judges, particularly against political prisoners. In
support of his arguments, he cites extracts from reports by the Tunisian Committee
for Human Rights and Freedoms, the International Federation for Human Rights
and the Tunisian Human Rights League. He also refers to the annual reports of
such international organizations as Amnesty International and Human Rights Watch,
which have denounced the practices described by the complainant.
5.3 The complainant also challenges the explanations by the State party regarding
the possibility of promptly instituting legal proceedings, the existence of
an effective remedy and the possibility of bringing criminal indemnification
proceedings.
5.4 The complainant argues that the State party has confined itself to repeating
the procedure described in the Code of Criminal Procedure, which is far from
being applied in reality, particularly where political prisoners are concerned.
In support of his argument, he cites reports by Amnesty International, Human
Rights Watch, the World Organization against Torture, the National Consultative
Commission on Human Rights in France and the National Council for Fundamental
Freedoms in Tunisia. He also refers to the Committee against Torture's final
observations on Tunisia, dated 19 November 1998. The complainant stresses that
the Committee against Torture recommended, among other things, that the State
party should, first, ensure the right of victims of torture to lodge a complaint
without the fear of being subjected to any kind of reprisal, harassment, harsh
treatment or prosecution, even if the outcome of the investigation does not
prove their allegations, and to seek and obtain redress if these allegations
are proven correct; second, ensure that medical examinations are automatically
provided following allegations of abuse and an autopsy is performed following
any death in custody; and third, ensure that the findings of all investigations
concerning cases of torture are made public and that this information includes
details of any offences committed, the names of the offenders, the dates, places
and circumstances of the incidents and the punishment received by those who
were found guilty. The Committee also noted that many of the regulations existing
in Tunisia for the protection of arrested persons were not adhered to in practice.
It also expressed its concern over the wide gap that existed between law and
practice with regard to the protection of human rights, and was particularly
disturbed by the reported widespread practice of torture and other cruel and
degrading treatment perpetrated by security forces and the police, which, in
certain cases, resulted in death in custody. In addition, the complainant mentions
the decision by the Committee against Torture relating to communication No.
60/1996, Faisal Baraket v. Tunisia. The complainant believes that the State
party's statement regarding the possibility of ensuring an effective remedy
constitutes political propaganda without any legal relevance. He explains that
the cases cited by the State party (para. 4.10) relate to Tunisian citizens
who were not arrested for political reasons, whereas the authorities reserve
special treatment for cases involving political prisoners.
5.5 The complainant also challenges the State party's argument that a Tunisian
lawyer can be instructed from abroad to lodge a complaint.
5.6 The complainant maintains that this procedure is a dead letter and has never
been respected in political cases. According to him, lawyers who dare to defend
such causes are subject to harassment and other forms of serious encroachment
on the free and independent exercise of their profession, including prison sentences.
5.7 The complainant maintains that his situation as a political refugee in Switzerland
precludes him from successfully concluding any proceedings that he might initiate,
given the restrictions placed on contacts between refugees and the authorities
in their own countries. He explains that severance of all relations with the
country of origin is one of the conditions on which refugee status is granted,
and that it plays an important role when consideration is being given to withdrawing
asylum. According to the complainant, such asylum would effectively end if the
refugee should once again, of his own volition, seek the protection of his country
of origin, for example by maintaining close contacts with the authorities or
paying regular visits to the country.
5.8 Lastly, the complainant believes that the State party's comments regarding
his membership of the ENNAHDA movement and the aspersions cast upon it demonstrate
the continued discrimination against the opposition, which is still considered
illegal. According to the complainant, with its references in this context to
terrorism, the State party is demonstrating its bias and any further talk of
ensuring effective domestic remedies is therefore pure fiction. He also stresses
that the prohibition of torture and inhuman or degrading treatment is a provision
which admits of no exception, including for terrorists. (2)
5.9 Finally, in the light of his previous explanations, the complainant rejects
the observation by the State party to the effect that the present complaint
constitutes an abuse of the right to submit complaints.
Additional observations from the State party on admissibility
6.1 On 8 November 2002 the State party again challenged the admissibility of
the complaint. It maintains, first, that the complainant's claims about recourse
to the Tunisian justice system and the use of domestic remedies are baseless
and unsupported by any evidence. It adds that proceedings in relation to the
allegations made in the complaint are not time-barred, since the time-limit
for bringing proceedings in such cases is 10 years. It argues that the complainant
offers no evidence in support of his claims that the Tunisian authorities' customary
practice makes it difficult to initiate prompt legal action or apply for criminal
indemnification. It adds that the complainant's refugee status does not deprive
him of his right to lay complaints before the Tunisian courts. Third, it maintains
that, contrary to the complainant's allegations, it is open to him to instruct
a lawyer of his choice to lodge a complaint from abroad. Lastly, the State party
reaffirms that the complaint is not based on any specific incident and cites
no evidence, and constitutes an abuse of the right to submit complaints.
Committee's decision on admissibility
7.1 At its twenty-ninth session, the Committee considered the admissibility
of the complaint, and in a decision of 20 November 2002 declared it admissible.
7.2 With regard to the issue of the exhaustion of domestic remedies, the Committee
noted that the State party challenged the admissibility of the complaint on
the grounds that the available and effective domestic remedies had not been
exhausted. In the present case, the Committee noted that the State party had
provided a detailed description both of the remedies available, under law, to
any complainant and of cases where such remedies had been applied against those
responsible for abuses and for violations of the law. The Committee considered,
nevertheless, that the State party had not sufficiently demonstrated the relevance
of its arguments to the specific circumstances of the case of this complainant,
who claims to have suffered violations of his rights. It made clear that it
did not doubt the information provided by the State party about members of the
security forces being prosecuted and convicted for a variety of abuses. But
the Committee pointed out that it could not lose sight of the fact that the
case at issue dates from 1991 and that, given a statute of limitations of 10
years, the question arose of whether, failing interruption or suspension of
the statute of limitations - a matter on which the State party had provided
no information - action before the Tunisian courts would be disallowed. The
Committee noted, moreover, that the complainant's allegations related to facts
that had already been reported publicly to the judicial authorities in the presence
of international observers. The Committee pointed out that to date it remained
unaware of any investigations voluntarily undertaken by the State party. The
Committee therefore considered it very unlikely in the present case that the
complainant would obtain satisfaction by exhausting domestic remedies, and decided
to proceed in accordance with article 22, paragraph 5 (b), of the Convention.
7.3 The Committee noted, in addition, the argument by the State party to the
effect that the complainant's claim was tantamount to abuse of the right to
lodge a complaint. The Committee considered that any report of torture was a
serious matter and that only through consideration of the merits could it be
determined whether or not the allegations were defamatory. Furthermore, the
Committee believed that the complainant's political and partisan commitment
adduced by the State party did not impede consideration of this complaint, in
accordance with the provisions of article 22, paragraph 2, of the Convention.
State party's observations on the merits
8.1 In its observations of 3 April 2003 and 25 September 2003, the State party
challenges the complainant's allegations and reiterates its position regarding
admissibility.
8.2 In relation to the allegations concerning the State party's "complicity"
and inertia vis-à-vis "practices of torture", the State party indicates
that it has set up preventive (3) and dissuasive (4) machinery to combat torture
so as to prevent any act which might violate the dignity and physical integrity
of any individual.
8.3 Concerning the allegations relating to the "practice of torture"
and the "impunity of the perpetrators of torture", the State party
considers that the complainant has not presented any evidence to support his
claims. It emphasizes that, contrary to the complainant's allegations, Tunisia
has taken all necessary legal and practical steps, in judicial and administrative
bodies, to prevent the practice of torture and prosecute any offenders, in accordance
with articles 4, 5 and 13 of the Convention. Equally, according to the State
party, the complainant has offered no grounds for his inertia and failure to
act to take advantage of the effective legal opportunities available to him
to bring his case before the judicial and administrative authorities (see paragraph
6.1). Concerning the Committee's decision on admissibility, the State party
emphasizes that the complainant cites not only "incidents" dating
back to 1991, but also "incidents" dating from 1995 and 1996, that
is, a time when the Convention against Torture was fully incorporated into Tunisian
domestic law and when he reports "ill-treatment" that he claims to
have suffered while being held in "Mahdia prison". Hence the statute
of limitations has not expired, and the complainant should urgently act to interrupt
the limitation period, either by contacting the judicial authorities directly,
or by performing an act which has the effect of interrupting the limitation.
The State party also mentions the scope for the complainant to lodge an appeal
for compensation for any serious injury caused by a public official in the performance
of his duties, (5) noting that the limitation period stands at 15 years. (6)
The State party points out that the Tunisian courts have always acted systematically
to remedy deficiencies in the law on acts of torture (see paragraph 4.10).
8.4 As for the allegations of failure to respect guarantees relating to judicial
procedure, the State party regards them as unfounded. According to the State
party, the authorities did not prevent the complainant from lodging a complaint
before the courts - on the contrary, he opted not to make use of domestic remedies.
As for the "obligation" of judges to ignore statements made as a result
of torture, the State party cites article 15 of the Convention against Torture,
and considers that it is incumbent on the accused to provide the judge with
at least basic evidence that his statement has been made in an unlawful manner.
In this way he would confirm the truth of his allegations by presenting a medical
report or a certificate proving that he had lodged a complaint with the public
prosecutor's office, or even by displaying obvious traces of torture or ill-treatment
to the court. However, the State party points out that although, in the case
relating to Mr. Thabti, the court had ordered a medical check for all the prisoners
who so wished, the complainant voluntarily opted not to make such a request,
preferring to reiterate his allegations of "ill-treatment" to the
court, for the purpose of focusing on himself the attention of the observers
attending the hearing. The complainant justifies his refusal to undergo the
medical examination ordered by the court on the grounds that the doctors would
behave in a "compliant" manner. The State party replies that the doctors
are appointed by the examining magistrate or the court from among the doctors
working in the prison administration and doctors who have no connection with
it and who enjoy a reputation and integrity above all suspicion. Lastly, according
to the State party, the complainant did not deem it necessary to lodge a complaint
either during his detention or during his trial, and his refusal to undergo
a medical examination illustrates the baselessness of his allegations and the
fact that his actions form part of a strategy adopted by the "ENNAHDA"
illegal extremist movement in order to discredit Tunisian institutions by alleging
acts of torture and ill-treatment but not making use of available remedies.
8.5 Concerning the allegations relating to the trial, according to the State
party, although the complainant acknowledges that two previous cases against
him in 1983 and 1986 were dismissed for lack of evidence, he continues nevertheless
to accuse the legal authorities systematically of bias. In addition, contrary
to the complainant's allegations that during his trial and during questioning
the examining magistrate attached to the Tunis military court denied him the
assistance of counsel, the State party points out that Mr. Thabti himself refused
such assistance. According to the State party, the examining magistrate, in
accordance with the applicable legislation, reminded the complainant of his
right not to reply except in the presence of his counsel, but the accused opted
to do without such assistance, while refusing to answer the examining magistrate's
questions. Given the complainant's silence, the magistrate warned him, in accordance
with article 74 of the Code of Criminal Procedure, that he would embark on examination
proceedings, and noted this warning in the record. Concerning the complainant's
claim that he was found guilty on the sole basis of his confession, the State
party points out that, under the last paragraph of article 69 and article 152
of the Code of Criminal Procedure, a confession on the part of the accused cannot
relieve the judge of the obligation to seek other evidence, while confessions,
like all items of evidence, are a matter for the independent appreciation of
the judge. On that basis, it is a constant of Tunisian case law that an accused
cannot be found guilty on the sole basis of a confession. (7) In the case in
question, the basis for the court's decision, in addition to the confessions
made by the complainant throughout the judicial proceedings, was statements
by witnesses, testimony by his accomplices and items of evidence.
8.6 Concerning the allegations relating to prison conditions, and in particular
the transfers between one prison and another, which the complainant considers
an abuse, the State party points out that, in keeping with the applicable regulations,
transfers are decided upon in the light of the different stages of the proceedings,
the number of cases and the courts which have competence for specific areas.
The prisons are grouped in three categories: for persons held awaiting trial;
for persons serving custodial sentences; and semi-open prisons for persons found
guilty of ordinary offences, which are authorized to organize agricultural labour.
According to the State party, as the status of the complainant had changed from
that of remand prisoner to that of a prisoner serving a custodial sentence,
and bearing in mind the requirements as to investigations in his case or in
other similar cases, he was transferred from one prison to another, in accordance
with the applicable regulations. Moreover, the conditions in which the complainant
was held, wherever he was held, were in keeping with the prison regulations
governing conditions for holding prisoners in order to ensure prisoners' physical
and moral safety. The State party also considers baseless the complainant's
allegations improperly equating the conditions in which he was held with degrading
treatment. It points out that prisoners' rights are scrupulously protected in
Tunisia, without any discrimination, whatever the status of the prisoner, in
a context of respect for human dignity, in accordance with international standards
and Tunisian legislation. Medical, psychological and social supervision is provided,
and family visits are allowed.
8.7 Contrary to the allegations that the medical consequences suffered by the
complainant are due to torture, the State party rejects any causal link. Moreover,
according to the State party, the complainant was treated for everyday medical
problems and received appropriate care. Lastly, following an examination by
the prison doctor, the complainant was taken to see an ophthalmologist, who
prescribed a pair of glasses on 21 January 1997.
8.8 Concerning the allegations that he was denied visits, according to the State
party the complainant regularly received visits from his wife Aicha Thabti and
his brother Mohamed Thabti, in accordance with the prison regulations, as demonstrated
by the visitors' records in the prisons in which he was held.
8.9 Concerning the allegations relating to administrative supervision and the
social position of Mr. Thabti's family, according to the State party, the administrative
supervision to which the complainant was subject after having served his prison
term, and which he equates with ill-treatment, is in fact an additional punishment
for which provision is made in article 5 of the Criminal Code. The State party
therefore considers that the punishment cannot be regarded as ill-treatment
under the Convention against Torture. Lastly, contrary to the complainant's
allegations, the State party maintains that the complainant's family is not
suffering from any form of harassment or restrictions, and that his wife and
his children are in possession of their passports.
Observations by the complainant :
9.1 In his observations dated 20 May 2003, the complainant sought to respond
to each of the points contained in the above observations by the State party.
9.2 Concerning the preventive arrangements for combating torture, the complainant
considers that the State party has confined itself to listing an arsenal of
laws and measures of an administrative and political nature which, he says,
are not put into effect in any way. To support this assertion he cites reports
prepared by the non-governmental organization "National Council for Fundamental
Freedoms in Tunisia" (CNLT). (8)
9.3 In relation to the establishment of a legislative reference system to combat
torture, the complainant considers that article 101 bis of the Code of Criminal
Procedure was adopted belatedly in 1999, in particular in response to the concern
expressed by the Committee against Torture at the fact that the wording of article
101 of the Criminal Code could be used to justify serious abuses involving violence
during questioning. He also claims that this new article is not applied, and
attaches a list of the victims of repression in Tunisia between 1991 and 1998
prepared by the non-governmental organization "Vérité-Action". He
also points out that the cases cited by the State party to demonstrate its willingness
to act to combat torture relate only to accusations of abuse of authority and
violence and assault, as well as offences under the ordinary law, and not to
cases of torture leading to death or cases involving physical and moral harm
suffered by the victims of torture.
9.4 Concerning the practice of torture and impunity, the complainant maintains
that torturers do enjoy impunity, and that in particular no serious investigation
has been carried out into those suspected of committing crimes of torture. Contrary
to the claims made by the State party, he states that he endeavoured to lodge
a complaint with the military court on several occasions, but that the president
of the court always ignored his statements relating to torture on the grounds
that he had no medical report in his possession. According to the reports prepared
by CNLT, the court heard from the various accused and their counsel a long account
of the atrocities committed by the officials of the State security division.
According to the complainant, from among the total number of 170 prisoners scheduled
to be tried before the Bouchoucha military court, the prison authorities selected
only 25 to be given medical checks by military doctors. He claims that he was
not informed of this check when he was being held in remand, but learned of
it only in court. According to the complainant, the president ignored the fact
that the other accused had not had medical checks, and it is false to claim
that he himself freely opted not to demand one. When apprised of this fact,
the president simply ignored the objections of the prisoners and their counsel,
including the complainant, in flagrant breach of the provisions of the law relating
to the prisoners' right to a medical report and their constitutional right to
be heard, as the CNLT report confirms. According to the complainant, this is
proved by the State party's acknowledgement that during the hearing he raised
allegations of ill-treatment. In addition, according to the complainant, whereas
a State governed by the rule of law should automatically follow up any report
of a criminal act which may be regarded as a serious offence, the Tunisian authorities
have always contented themselves with dismissing the claims as "false,
contradictory and defamatory", without taking the trouble to launch investigations
to determine the facts in accordance with the requirements of Tunisian criminal
procedure. The complainant considers that his allegations are at the very least
plausible in terms of the detail of the torture he suffered (names, places and
treatment inflicted), but the State party contents itself with a blanket denial.
The complainant did not mention torturers because of their membership of the
security forces, but because of specific and repeated attacks on his physical
and moral integrity and his private and family life. The initiation of an investigation
designed to check whether a person belonging to the security forces has committed
acts of torture or other acts does not constitute a violation of the presumption
of innocence but a legal step which is vital in order to investigate a case
and, if appropriate, place it before the judicial authorities for decision.
In relation to appeals before the courts, the complainant considers that the
State party has confined itself to repeating the description of legal options
open to victims set out in its previous submissions without responding to the
last two sentences of paragraph 7.2 of the decision on admissibility. He reiterates
that the theoretical legal options described by the State party are inoperative,
while listing in support of this conclusion cases in which the rights of the
victims were ignored. He points out that the case law cited by the State party
relates to cases tried under ordinary law and not to prisoners of opinion.
9.5 Concerning the complainant's inertia and lack of action, he considers that
the State party is inconsistent in holding that acts of torture are regarded
as serious offences in Tunisian law and accordingly prosecuted automatically,
while awaiting a complaint by the victim before taking action. He also re-emphasizes
his serious efforts described above to demand a medical examination and an investigation
into the torture he had suffered. With particular reference to a report prepared
by CNLT, (9) he mentions the circumstances surrounding the medical examinations
of 25 prisoners, carried out with the aim of giving an appearance of respect
for procedural guarantees, and the lack of integrity of the appointed doctors.
(/10) He points out that video recordings were made of the hearings in the Bouchoucha
military court, which could then be replayed to check each complainant's statements.
9.6 Concerning the allegations relating to the trial, the complainant points
out, first, that the dismissal of proceedings against him in 1983 and 1986 took
place in a political context of détente (in 1983 and 1984, the phased release
of the leaders of the Mouvement de la Tendance Islamique, which became ENNAHDA
in 1989) and the legitimization of a new regime (a presidential amnesty was
proclaimed after the 1987 coup d'état), and illustrated the fact that the courts
were dependent on the executive branch (as shown in reports prepared by non-governmental
organizations). (11) Second, in relation to his refusal of the assistance of
counsel, the complainant provides the following corrections and produces a report
prepared by CNLT. (12) Appearing before examining magistrate Ayed Ben Gueyid,
attached to the Tunis military court, the complainant reiterated his request
to be assisted by a court-appointed lawyer or one instructed by his family.
The complainant designated Mr. Najib ben Youssef, who had been contacted by
his family. This lawyer advised him to consult Mr. Moustafa El-Gharbi, who was
able to assist the complainant only from the fourth week of the trial onwards,
and was able to pay him only one or two visits in the 9 April prison, under
close surveillance by prison guards. In response to the complainant's request
for the assistance of a lawyer, the military examining magistrate replied "No
lawyer", prompting the complainant to say "No lawyer, no statement".
Following this declaration, the complainant reports that he was violently beaten
by military policemen, in a room next to the office of the military examining
magistrate, during a break which was imposed and ordered by the magistrate.
The complainant was then placed in solitary confinement in the 9 April prison
in Tunis for two months. Following this punishment, the examining magistrate's
file was missing from the first hearing attended by the complainant, a matter
which the complainant explained to the president of the court by describing
what had happened before the military examining magistrate.
9.7 Concerning the allegations relating to his confession, the complainant maintains
that his confession was extracted under torture, and, citing the reports of
CNLT, states that such methods are used in political trials and sometimes in
trials involving offences under ordinary law. Concerning the testimony of the
prosecution witness Mohamed Ben Ali Ben Romdhane, his fellow prisoner, the complainant
states that he does not know this person, and that he was not among the 297
persons who were tried in Bouchoucha court, and calls on the State party to
produce the transcript of the testimony provided by this person, together with
the court file, to make it possible to check whether the court took its decision
on the basis of a confession obtained as a result of torture. According to the
complainant, the reference to this witness is pure invention on the part of
the torturers. Secondly, the complainant points out that, even if a prosecution
witness had appeared, the accused should have had an opportunity to challenge
his testimony or to confront him, which did not happen.
9.8 Concerning the conditions in which he was held, and concerning visits, the
complainant considers that the State party has once again confined itself to
brief and general observations in response to his plentiful, specific and substantiated
evidence. He explains that he was transferred for purposes of punishment, and
not for any matter related to cases pending before the courts, and in that connection
provides the following chronology:
6 April 1991 Arrested and held in the basement of the Interior Ministry; 13
May 1991, transferred to Mornag prison incommunicado.
4 June 1991 Handed over to the political police to sign the transcript of the
interrogation, without being informed of its content; handed over to the military
examining magistrate, then at 11 p.m. transferred to the 9 April prison in Tunis,
where he was held until the end of November 1991 (including two months in solitary
confinement).
1 December 1991 Transferred to Borj Erroumi prison in Bizerte (70 kilometres
from his family home).
4 July 1992 Transferred to the 9 April prison in Tunis, where he was held until
15 September 1992; this period corresponded to that of the court hearings.
28 August 1992 Sentenced to six years' non-suspended imprisonment and five years'
administrative supervision.
15 September 1992 Transferred to Borj Erroumi prison in Bizerte, where he was
held until 4 July 1993.
4 July 1993 Transferred to Mahdia prison (200 kilometres from his home), where
he was held until 19 September 1993.
19 September 1993 Transferred to Sousse prison (160 kilometres from his home),
where he was held until 4 April 1994.
4 April 1994 Transferred to Mahdia prison, where he was held until the end of
December 1994.
End of December 1994 Transferred to 9 April prison in Tunis; interrogated and
tortured at the Interior Ministry for four consecutive days.
End of December 1995 Transferred to Mahdia prison; hunger strike from the middle
to the end of February 1996 to support a demand for better prison conditions.
End of February 1996 Transferred to El Houerib prison in Kairouan (250 kilometres
from his home) following his hunger strike.
20 March 1996 Transfer to Sousse prison; three weeks' hunger strike in January
1997 to support a demand for better prison conditions.
7 February 1997 Transferred to Rejim Maatoug prison (600 kilometres from his
home, in the middle of the desert).
27 February 1997 Transfer to Sousse prison.
27 May 1997 Released, placed under administrative supervision for five years
and house arrest at Nekrif-Remada (630 kilometres from his family home).
1 October 1997 Fled Tunisia.
9.9 The complainant explains that each time he was transferred, his family was
obliged to spend two or three months ascertaining his new place of detention,
since the prison administration provided such information only very sparingly.
According to the complainant, the purpose of these transfers was to deprive
him of the psychological and moral support of his family, and thus to punish
him. He points out that the prison entry and exit logs can confirm his claims.
He explains that denial of visits constituted a form of revenge against him
each time he sought to exercise a right and took action to that end, for example
in the form of a hunger strike. In addition, the complainant's family found
it difficult to exercise the right to visit him because of the many transfers,
the remoteness of the places of detention and the conditions imposed on the
visitors - the complainant's wife was ill-treated to make her remove her scarf,
and guards were permanently present between two sheets of wire mesh about one
metre apart separating her from the complainant.
9.10 Concerning the allegations relating to the provision of care, the complainant
repeats that he was denied the right to consult a doctor to diagnose the consequences
of the torture he had suffered, and draws the Committee's attention to the medical
certificate contained in his file. Concerning the treatment cited by the State
party, the complainant points out that the medical check was carried out three
weeks after his hunger strike, that glasses were prescribed for him when he
was in danger of going blind, and that they were supplied only after a delay
of about two months.
9.11 In relation to administrative supervision, the complainant considers that
any punishment, including those provided for in the Tunisian Criminal Code,
may be characterized as inhuman and degrading if the goal pursued is neither
the "rehabilitation of the offender" nor his reconciliation with his
social environment. He explains that he was forced to undergo administrative
supervision 650 kilometres from his family home, in other words placed under
house arrest, which was not stipulated in his sentence. He adds that each time
he reported to the police station to sign the supervision log, he was ill-treated,
sometimes beaten and humiliated by the police officers. According to the complainant,
who produces a CNLT report, (13) administrative supervision serves only to bolster
the police's stranglehold over the freedom of movement of former prisoners.
9.12 Concerning the situation of his family, the complainant records the suffering
caused by the police surveillance and various forms of intimidation. He mentions
that his eldest son was repeatedly slapped in front of his brothers and mother
at the door of their home when he returned from school, and questioned at the
regional police station about what his family was living on. In addition, the
members of the family received their passports only after the complainant arrived
in Switzerland on 25 May 1998 and was granted asylum. And the first members
of the family received their passports only seven months later, on 9 December
1998.
9.13 In relation to the ENNAHDA movement, the complainant maintains that the
organization is well known for its democratic ideals and its opposition to dictatorship
and impunity, contrary to the State party's explanations. In addition, he challenges
the accusations of terrorism levelled by the State party.
9.14 Lastly, according to the complainant, the State party is endeavouring to
place the entire burden of proof on the victim, accusing him of inertia and
failure to act, seeking protection behind a panoply of legal measures which
theoretically enable victims to lodge complaints and evading its duty to ensure
that those responsible for crimes, including that of torture, are automatically
prosecuted. According to the complainant, the State party is thus knowingly
ignoring the fact that international law and practice in relation to torture
place greater emphasis on the role of States and their duties in order to enable
proceedings to be completed. The complainant notes that the State party places
the burden of proof on the victim alone, even though the supporting evidence,
such as legal files, registers of police custody and visits, and so on, is in
the sole hands of the State party and unavailable to the complainant. Referring
to European case law, (14) the complainant points out that the European Court
and Commission call on States parties, in the case of allegations of torture
or ill-treatment, to conduct an effective investigation into the allegations
of ill-treatment and not to content themselves with citing the theoretical arsenal
of options available to the victim to lodge a complaint.
Consideration of the merits
10.1 The Committee examined the complaint, taking due account of all the information
provided to it by the parties, in accordance with article 22, paragraph 4, of
the Convention.
10.2 The Committee took note of the State party's observations of 3 April 2003
challenging the admissibility of the complaint. It notes that the points raised
by the State party are not such as to prompt reconsideration of the Committee's
decision on admissibility, notably owing to the lack of new or additional information
from the State party on the matter of the investigations voluntarily carried
out by the State party (see paragraph 7.2). The Committee therefore does not
consider that it should review its decision on admissibility.
10.3 The Committee therefore proceeds to examine the merits of the complaint,
and notes that the complainant alleges violations by the State party of article
1, article 2, paragraph 1, article 4, article 5, article 12, article 13, article
14, article 15 and article 16 of the Convention.
10.4 Article 12 of the Convention, the Committee notes that article 12 of the
Convention places an obligation on the authorities to proceed automatically
to a prompt and impartial investigation whenever there is reasonable ground
to believe that an act of torture or ill-treatment has been committed, no special
importance being attached to the grounds for the suspicion. (15)
10.5 The Committee notes that the complainant complained of acts of torture
committed against him to the Bouchoucha military court at his trial from 9 July
1992 onwards, in the presence of the national press and international human
rights observers. It also notes that the State party acknowledges that the complainant
reiterated his allegations of ill-treatment several times before the court,
in order, according to the State party, to focus the attention of the observers
attending the hearing. The Committee also takes note of the detailed and substantiated
information provided by the complainant regarding his hunger strikes in the
9 April prison over 12 days in July 1992 in Tunis, and in Mahdia over 8 days
in October 1995 and 10 days in March 1996, as a protest against the conditions
in which he was being held and the ill-treatment to which he was subjected.
The Committee notes that the State party did not comment on this information,
and considers that these elements, taken together, should have been enough to
trigger an investigation, which was not held, in breach of the obligation to
proceed to a prompt and impartial investigation under article 12 of the Convention.
10.6 The Committee observes that article 13 of the Convention does not require
either the formal lodging of a complaint of torture under the procedure laid
down in national law or an express statement of intent to institute and sustain
a criminal action arising from the offence, and that it is enough for the victim
simply to bring the facts to the attention of an authority of the State for
the latter to be obliged to consider it as a tacit but unequivocal expression
of the victim's wish that the facts should be promptly and impartially investigated,
as prescribed by this provision of the Convention. (16)
10.7 The Committee notes, as already indicated, that the complainant did complain
of ill-treatment to the Bouchoucha military court, and resorted to hunger strikes
in protest at the conditions imposed on him. Yet notwithstanding the jurisprudence
under article 13 of the Convention, the Committee notes the State party's position
maintaining that the complainant should have made formal use of domestic remedies
in order to lodge his complaint, for example by presenting to the court a certificate
proving that a complaint had been lodged with the office of the public prosecutor,
or displaying obvious traces of torture or ill-treatment, or submitting a medical
report. On this latter point, to which the Committee wishes to draw its attention,
it is clear that the complainant maintains that the president of the Bouchoucha
court ignored his complaints of torture on the grounds that he had no medical
report in his possession, that the complainant was informed only during his
trial of the medical checks carried out on a portion of the accused during remand,
and that the president of the court ignored his demands for his right to a medical
report to be respected. On the other hand, the State party maintains that the
complainant voluntarily opted not to request a medical examination although
the court had ordered such examinations for all prisoners who wished to undergo
one. The Committee refers to its consideration of the report submitted by Tunisia
in 1997, at which time it recommended that the State party should ensure that
medical examinations are provided automatically following allegations of abuse,
and thus without any need for the alleged victim to make a formal request to
that effect.
10.8 In the light of its practice relating to article 13 and the observations
set out above, the Committee considers that the breaches enumerated are incompatible
with the obligation stipulated in article 13 to proceed to a prompt investigation.
10.9 Finally, the Committee considers that there are insufficient elements to
make a finding on the alleged violation of other provisions of the Convention
raised by the complainant at the time of adoption of this decision.
11. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention, is of the view that the facts before it disclose a violation
of articles 12 and 13 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment.
12. Pursuant to rule 112, paragraph 5 of its rules of procedure, the Committee
urges the State party to conduct an investigation into the complainant's allegations
of torture and ill-treatment, and to inform it, within 90 days from the date
of the transmittal of this decision, of the steps it has taken in response to
the views expressed above.
__________________________
[Adopted in English, French, Russian and Spanish, the French text being the original version. Subsequently to be issued also in Arabic and Chinese as part of the Committee's annual report to the General Assembly.]
Notes
1. The examples cited by the State are available for information in the file.
2. The complainant also refers to communication No. 91/1997, A. v. Netherlands, concerning which the Committee against Torture upheld the complaint of a Tunisian asylum-seeker who was a member of the opposition because of the serious risk that he would be tortured if he returned to Tunisia.
3. This includes instruction in human rights values in training schools for the security forces, the Higher Institute of the Judiciary and the National School for training and retraining of staff and supervisors in prisons and correctional institutions; a human-rights-related code of conduct aimed at senior law enforcement officials; and the transfer of responsibility for prisons and correctional institutions from the Ministry of the Interior to the Ministry of Justice and Human Rights.
4. A legislative reference system has been set up: contrary to the complainant's allegation that the Tunisian authorities have not criminalized acts of torture, the State party indicates that it has ratified the Convention against Torture without reservations, and that the Convention forms an integral part of Tunisian domestic law and may be invoked before the courts. The provisions of criminal law relating to torture are severe and precise (Criminal Code, art. 101 bis).
5. Under the Administrative Court Act of 1 June 1972, the State may be held responsible even when it is performing a sovereign act if its representatives, agents or officials have caused material or moral injury to a third person. The injured party may demand from the State compensation for the injury suffered, under article 84 of the Code of Obligations and Contracts, without prejudice to the direct liability of its officials vis-à-vis the injured parties.
6. Administrative Court - judgement No. 1013 of 10 May 1003 and judgement No. 21816 of 24 January 1997.
7. Judgement No. 4692 of 30 July 1996, published in the Revue de Jurisprudence et Législation (R.J.:L); judgement No. 8616 of 25 February 1974 R .J .L . 1975; and judgement No. 7943 of 3 September 1973 R.J.L 1974.
8. « Le procès-Tournant : A propos des procès militaires de Bouchoucha et de Bab Saadoun en 1992 », October 1992 ; "Pour la réhabilitation de l'indépendance de la justice», April 2000- December 2001.
9. Available for information in the file.
10. "The role played by some of the doctors was no less serious, in the sense of what they did during the torture by assisting the torturers [to assess] the state of the victim and the degree of torture the victim could bear […] information gathered from the torture victims or from analyses carried out in which famous doctors knowingly concealed the truth about the causes of the injuries suffered by the accused during episodes of physical torture" - CNLT report, October 2002.
11. International Commission of Jurists, report on Tunisia, 12 March 2003.
12. Available for information in the file.
13. Available for information in the file.
14. Guide to Jurisprudence on Torture and Ill-Treatment - Article 3 of the European Convention for the Protection of Human Rights, Debra Long (APT); Ribitsch v. Austria; Assenov v. Bulgaria.
15. Communication No. 59/1996 (Encarnación Blanco Abad v. Spain).
16. Communications No. 6/1990 (Henri Unai Parot v. Spain) and No. 59/1996 (Encarnación Blanco Abad v. Spain).