Tunisia: President Intensifies Attacks on Judicial Independence

Human Rights Watch – (Tunis) –  Tunisian authorities should immediately reinstate judges and prosecutors President Kais Saied arbitrarily dismissed as part of what he called an anti-corruption campaign, and reverse all measures taken to crush judicial independence, Human Rights Watch said today.

The Justice Ministry has refused to reinstate 49 magistrates – a term that includes both judges and prosecutors – despite an administrative court order on August 9, 2022, to do so, a ruling that authorities cannot appeal. Instead, the justice minister appointed by Saied announced the preparation of criminal cases against the dismissed judges. Four of them interviewed separately by Human Rights Watch described the arbitrariness of their dismissal and the efforts by authorities to justify it by formulating criminal charges against them after the administrative court’s ruling.

“These blows to judicial independence reflect the government’s determination to subjugate prosecutors and judges to the executive branch, at the expense of Tunisians’ right to a fair trial before independent and impartial judges,” said Salsabil Chellali, Tunisia director at Human Rights Watch. “The fight against corruption should not be instrumentalized for political purposes and should be carried out in compliance with the rule of law.”

The refusal to reinstate the dismissed magistrates is among the latest moves against the judicial branch that Saied has taken since his power grab on July 25, 2021. That day, the president said he would take over supervision of public prosecution. Then, on February 12, 2022, as part of his purported war on corruption, Saied unilaterally dissolved the High Judicial Council (HJC), a constitutional body mandated to guarantee the independence of the judiciary. He replaced it, through decree no. 2022-11, with a temporary HJC in which all 21 members are appointed, including 9 directly by the president. The same decree-law gave the president the power to intervene in the appointment, career tracks, and dismissal of magistrates.

On June 1, 2022, Saied granted himself, via decree no. 2022-35, the power to unilaterally dismiss magistrates, that is, judges and prosecutors. The same day, in a second decree (no. 2022-516), he fired 57 judges and prosecutors, accusing them of financial and “moral” corruption, and obstructing investigations. On February 12, the authorities arrested two of the judges, who have not been charged yet, media reports said.

Each of the four dismissed judges and prosecutors interviewed by Human Rights Watch said that they learned of their dismissal on June 1, after their names were published in the Official Gazette. In contrast to the procedures normally in place for disciplining judges, none of the four was ever informed of the grounds for dismissal or the evidence against them, or given a hearing or means to appeal, other than to petition the administrative court to suspend execution of the dismissal.

The president even made his decision to fire judges immune from any form of immediate appeal. Decree no. 2022-35 states that criminal prosecution is automatically initiated against the magistrates dismissed under its provisions. The decree does not specify what the criminal charges are. The decree says that magistrates may challenge their dismissals only after courts have issued a final judgment in their criminal cases.

The dismissed magistrates nevertheless appealed their dismissals to the Tunis administrative court, which ruled in favor of 49 of them. However, in another blow to the independence of the judiciary, Saied’s government then ignored the court’s order to reinstate them. The court said their dismissal involved “a violation of the right to a fair trial” and “serious breaches of the right to access to court, the presumption of innocence and the right to defense.” Under domestic administrative law, the ruling by the administrative court is definitive and to be implemented immediately. Six months later, none of the magistrates has been reinstated or had their salary and benefits, including health coverage, restored.

The Ministry of Justice announced in a communiqué on August 14, 2022, that the magistrates removed from office on June 1 faced criminal proceedings. Six days later, the ministry said that the public prosecution was processing 109 files and had opened investigations related to financial, economic, and terrorist crimes, among others.

At the time of their dismissal, none of the 49 magistrates was facing criminal charges and none had been convicted, said Ayachi Hammami, a lawyer who coordinates the Defense Committee for the Dismissed Judges. The criminal investigations were not initiated until after the court’s ruling, he added.

The authorities “are opening investigations against the dismissed judges as an excuse to avoid applying the decision of the administrative court,” Youssef Bouzakher, former president of the HJC, told Human Rights Watch.

Hammami said that investigative judges have submitted a request to the temporary HJC to lift the immunity – a protection from civil and criminal liability – of 13 dismissed judges who are under investigation for terrorism charges. The temporary judicial body is expected to rule on the matter in May, but so far, all 49 judges still have immunity, Hammami said.

The dismissed magistrates aren’t the only Tunisians facing charges in connection with moves by authorities to undermine judicial independence. Hammami faces charges himself for his comments critical of the treatment of the magistrates, for which he could face ten years in prison if convicted.

A lawyer and former minister, Lazhar Akremi, is also facing charges, based on a complaint filed by the justice minister for his criticism of the judges’ arbitrary dismissal in connection with a video he posted on Facebook, Akremi told Human Rights Watch. If convicted, he faces a total of up to four years in prison under Penal Code article 128 for “accusing, without proof, a public agent of violating the law,” and under Telecommunications Code article 86 for “harming others via public telecommunications networks.”

On February 13, the authorities arrested Akremi along with other political and media figures. No charges have been filed against him yet, but a search warrant shared on social media refers to suspicion of a “conspiracy against internal and external state security”.

Three dismissed magistrates and one still in office, in interviews with Human Rights Watch, said they have been subjected to online harassment for at least several months on social media pages deemed supportive of the authorities. Anas Hmedi, who is still serving at the Monastir Court of Appeal, and who is the president of the Association of Tunisian Magistrates (Association des Magistrats Tunisiens, AMT), which opposed the president’s measures, was the subject of a series of defamatory comments on social media pages, in connection with his activities in the AMT.

Hmedi has been summoned several times by the General Inspectorate of the Justice Ministry. The temporary High Judicial Council lifted his immunity in September. He is now being prosecuted based on article 136 of the penal code for “inciting [a judge] by violence, assault, threats, or fraudulent practices to cease performing their individual or collective duties.”

Tunisia’s new constitution, which Saied endorsed and was approved in a national referendum on July 25, 2022, with an official turnout of 30.5 percent, undermines the independence of courts. It has granted the president the ultimate authority to appoint judges, upon nomination by the HJC, and deprives judges of the right to strike.

On January 23, 2023, 37 judges filed individual complaints against the justice minister at the Tunis Court of First Instance for not complying with the administrative court order, based on article 315 of the Penal Code and article 2 of the 2017 anti-corruption law, Hammami said.

“Authorities should immediately stop their attacks on the judiciary and targeting the judges through prosecution and intimidation. They should reinstate the arbitrarily dismissed judges, and ensure that they fully enjoy their rights to freedom of expression, association and assembly,” Chellali said.

Human Rights Watch Interviews with Three Dismissed Magistrates:

Mongi Boulares, public prosecutor at the Court of First Instance of Manouba

Boulares, who has worked as a magistrate for nearly 30 years, was surprised to learn on June 1, while on his way to work, that 57 judges had been dismissed by President Saied and that he was among them.

After his dismissal, Boulares made inquiries at the General Inspectorate of the Justice Ministry and the temporary High Judicial Council and found no prior disciplinary or judicial prosecution. Neither gave him any information about his dismissal. On August 15, an investigation was opened at the Tunis Court of First Instance based on a copy of a complaint from April 2022 against him filed at the General Inspectorate of the Justice Ministry by a former judge who had been prosecuted and imprisoned. The former judge accused him of closing a complaint of torture that he had filed during his incarceration in April 2020.

The investigation against Boulares was opened based on article 31 of Tunisia’s code of penal procedure, which allows the public prosecutor to request – if the complaint is insufficiently detailed – an investigating judge to provisionally open an investigation against an unknown person, until charges can be made, or the person named.

Boulares said he believes the 2022 complaint is merely a pretext to justify a refusal to execute the administrative court’s order to reinstate him. He speculated that the real reason behind his dismissal is the set of “sensitive” cases of corruption targeting state officials on which he says he worked during his career.

Boulares has not been charged. Like the other judges, he no longer receives a salary and is not covered by social security.

Sadok Hachicha, investigating judge at the Court of First Instance of Sousse

The president’s decision is “politically motivated (…) against judges who did not want to follow orders,” Hachicha said. “It is intended to scare the judges, to suppress any independent spirit,” he added.

Hachicha, who had served as a judge for nearly 30 years, is among the 49 that the administrative court ordered reinstated. He said that no one informed him of any charges or investigation against him. The prosecutor’s office in Sousse informed his lawyer that files are being prepared, without further details, Hachicha said.

Hachicha also said he believes that his dismissal is related to the prosecution of Mehdi Ben Gharbia, a prominent businessman who served as minister of relations with the constitutional bodies, civil society, and human rights from 2016 to 2018, and a member of the parliament that Saied dissolved.

Authorities arrested Ben Gharbia in October 2021, at a time when Saied and his newly formed government were campaigning to fight corruption. Ben Gharbia’s corruption case was referred to Hachicha’s chamber in Sousse.

After investigation, Hachicha decided on December 14, 2021, to provisionally release Ben Gharbia and refer him for trial on charges of forgery, fraud, and money laundering. The prosecution appealed this decision to the Accusation Chamber, which ordered Hachicha to reopen the investigation and for Ben Gharbia to remain in provisional detention.

Hachicha said the Inspectorate of the Justice Ministry summoned him six times regarding his handling of the Ben Gharbia case before his dismissal in June 2022. In addition, he faced a smear campaign on social media, accusing him of financial corruption, including in connection with his handling of the Ben Gharbia case.

Youssef Bouzakher, former president of the High Judicial Council and prosecutor at the Court of Cassation

Bouzakher, elected president of the HJC in 2018, was the council leader when it was dissolved in February 2022. On February 7, 2022, security forces shut down the HJC building, preventing him and all members and staff from entering. The then-leader of HJC denounced the dissolution as a “very dangerous and illegal move.”

Bouzakher, among the dismissed magistrates that the Administrative Court ordered reinstated, now faces prosecution in two cases. Based on a complaint from December 2020, he is charged with obtaining an undue benefit in connection with acquisition of a work vehicle for his work as HJC president, an expense provided by the 2019 Finance Law before the election of Bouzakher as permanent president of the HJC, under article 96 of the penal code. Bouzakher said that an investigation in 2021 of this complaint had already cleared him of any wrongdoing.

Bouzakher is also accused of terrorism offenses. The complaint is based on a letter sent to President Saied in November 2021 by a former judge who had been prosecuted and imprisoned. The former judge accused judge Hammadi Rahmani, also dismissed on June 1, of financial corruption and inciting people to rise up against the president, pointing among other things to Rahmani’s Facebook posts criticizing Saied’s power grab. The judge’s letter also accused Bouzakher of corruption and protecting Rahmani, Bouzakher said.

In September 2022, the letter was referred to the Ministry of Justice, which opened a terrorism investigation against Rahmani, Bouzakher, and three other dismissed judges mentioned in the letter, according to Bouzakher. An investigative judge has submitted a request to the temporary HJC to lift Bouzakher’s immunity in this case.

Background

In his speech justifying the dismissal of judges on June 1, President Saied mentioned a female magistrate accused of adultery, an oblique reference to Khira Ben Khalifa, a judge at the Court of First Instance of Sousse.

After the president’s comments about her, the judge faced an online harassment campaign. Personal data and documents related to her case, including the official police report and a so-called virginity test medical examination, were disclosed on social media pages supportive of President Saied, violating her privacy, media reported. Such tests are internationally discredited practices with no scientific validity to “prove” virginity. They violate medical ethics and constitute cruel, degrading, and inhumane treatment that can rise to the level of torture and gender-based violence.

Ben Khalifa was charged with adultery, punishable in Tunisia by five years in prison and a fine of 500 Tunisian dinars (US$160) in December 2020, but on May 16, 2022, the court of first instance of Tunis dismissed the adultery case. Two days later, the prosecutor appealed the court’s dismissal of the adultery charge. An appeals court upheld her acquittal on January 18, 2023.

The United Nations Basic Principles on the Independence of the Judiciary provide that “[i]t is the duty of all governmental and other institutions to respect and observe the independence of the judiciary” (principle 1). Furthermore, “the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason” (principle 2).

General Comment number 32 of the United Nations Human Rights Committee, the experts who provide the definitive interpretation of the International Covenant on Civil and Political Rights, states:

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, before the expiry of the term for which they have been appointed, 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.

According to the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, adopted by the African Commission on Human and Peoples’ Rights in 2005, “Judicial officials facing disciplinary, suspension or removal proceedings shall be entitled to guarantees of a fair hearing including the right to be represented by a legal representative of their choice and to an independent review of decisions of disciplinary, suspension or removal proceedings.”

Human Rights Watch