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强迫失踪问题委员会审议突尼斯的报告（部分翻译）
审议突尼斯
2016年3月8日
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日内瓦（2016年3月8日）——强迫失踪问题委员会今天结束了对突尼斯关于其如何落实《保护所有人免遭强迫失踪国际公约》条款的首份报告的审议。
负责联络宪法机构和民间社会以及人权事务的卡迈·曾杜比（Kamel Jendoubi）呈报报告时表示，2011年以来，突尼斯政府致力于根据国际标准和国际人权法（包括落实《公约》充足框架的条款）制定其法律框架。《过渡时期司法法》已制定了过渡时期司法体系并设立了真相和尊严委员会来调查1955年7月以来犯下的罪行和人权侵犯行为。虽然强迫失踪并未被定义或作为独立罪行被纳入国家刑事立法，类似强迫失踪的行为已在《刑法》和其他文书中被定罪。委员会首次建议中提出的关于将强迫失踪刑罪化的新法律正在起草阶段。
对话期间，询问的核心点是关于强迫失踪的法律草案。专家们还问到了真相和尊严委员会及其机制、资金、与过渡时期司法特别法庭的关系以及它在解决强迫失踪罪方面的记录。受到特别关注的是军事法庭以及军事和民事法庭处理案件的差异。2013年后发生的强迫失踪罪行的诉讼时效问题已经得到了解决，可以看到直到2013年发生的罪行如何落入真相和尊严委员会的管辖范围内。还提到了《公约》的非刑事条款的直接适用性。专家们还想了解受害者的定义、保护受害者的框架以及为协助失踪受害者而专门采取的措施。
最后，曾杜比先生重申突尼斯将继续根据国际标准制定其法律框架。第一步将是通过将强迫失踪刑罪化的法律。他还提醒称，鉴于突尼斯正处于过渡阶段且机制景观处于早期阶段，许多程序和人权做法需要调整，这可能需要额外的时间。
委员会主席埃马纽埃尔·德科（Emmanuel Decaux）称其希望届会期间的详细建议将有助于突尼斯官员起草未来的法律并制定加强《公约》落实所需要的措施。代表团应在未来48小时内提交对余下问题的书面答案。
突尼斯代表团由负责联络宪法机构和民间社会以及人权事务的部长担任团长，包括来自外交部、内政部、检察长办公室以及突尼斯常驻联合国日内瓦办事处代表团的代表们。
委员会将在今天下午3点举行下一次公开会议，讨论布基纳法索的首份报告（CED/C/BFA/1）。
报告
突尼斯的首份报告可在此阅读。
Presentation of the Report
KAMEL JENDOUBI, Minister responsible for liaison with constitutional bodies and civil society and for human rights issues, affirmed that Tunisia had demonstrated firm political will in fulfilling its international obligations. Since the 2011 revolution, Tunisia had gone through the process of emancipation, ratifying the International Convention on the Protection of All Persons from Enforced Disappearance, the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the Optional Protocol to the International Covenant on Civil and Political Rights as well as the Rome Statute of the International Criminal Court. The domestic law was in line with the international human rights law and the 2014 Constitution had been founded on consensus. The preamble to the Constitution guaranteed respect for human rights and freedoms.
Tunisia had developed its legislative system to respond to the problem of enforced disappearances. While enforced disappearances had not been defined or incorporated in the national criminal legislation as a separate offence, acts similar to enforced disappearances had been criminalized under the Criminal Code and other instruments. The Organizational Act No. 53 introduced a system of transitional justice, by calling for accountability to prior violations of human rights. The Truth and Dignity Commission had been established to investigate complaints of enforced disappearances, refer complaints to courts of first instance and the court of appeals. Its mandate had been covering the period from 1 July 1955 to the date of issuance of the Organizational Act.
An initial draft law on enforced disappearances had been produced in 2014 as a result of a participative and collaborative approach that included meetings with civil society and creation of a specialized legislative group. Subsequently, a technical committee had been created to revise the draft law, taking into account the recommendations from the Committee on Enforced Disappearances. Parallel to that, trainings for technical committee’ members had been organized by the Office of the High Commissioner for Human Rights in Tunisia.
Mr. Jendoubi informed that no case of enforced disappearances had been recorded since the Revolution. The Higher Committee on Human Rights and Fundamental Freedoms, which had been established as a national human rights institution, was not in line with the Paris Principles, so a new statute had been drafted that would make the mandate of the Higher Committee on Human Rights and Fundamental Freedoms in conformity with the Paris Principles. A bill to amend certain provisions of the Code of Criminal Procedure had been drafted to strengthen the rights of detainees, by reducing the custody period to 48 hours and requiring the presence of a lawyer during the preliminary investigation.
The Tunisian Government was appreciative of the international support it had been receiving over the years. In 2016, Tunisia would also submit reports to the Committee Against Torture and the Committee on Economic, Social and Cultural Rights. The Government had embarked on a crucial phase of legislative reforms in the past few years, investing significant efforts in the overall democratization and rule of law, and positive developments had indeed taken place, as testified by the 2015 Nobel peace prize.
Questions by Experts
SUELA JANINA, Committee Member and Country Rapporteur for Tunisia, praised the legal developments in Tunisia which were reflected in the ratification of the international conventions but also in the adoption of the Constitution and laws establishing transitional justice and the Truth and Dignity Commission.
Further information was required on the procedures explained in the report on the recognition of the competence of the Committee in relation of Articles 31 and 32. What did those procedures foresee and what was the framework for the recognition of the Committee’s competence?
A question was raised on the application of the Convention in the national legal system. Seeing how there was still no law on enforced disappearances, was the lack of knowledge of judges the only obstacle for implementing the Convention, or were there more substantive barriers?
According to the new draft law on enforced disappearances, what would the role of Higher Committee on Human Rights and Fundamental Freedoms be? Would it be substituted or upgraded?
The delegation was asked for additional information on investigations against military superiors.
The Article 29 of the Constitution allowed for derogations of rights in exceptional circumstances related to the situations of war or internal instability. What were the rights that could be derogated and under which legal provisions, an Expert inquired.
What had happened with the draft law on criminalizing enforced disappearances? The Committee had been informed that the initial draft law had been withdrawn, but what was the reason for it, and for how long could the adoption of that law be prolonged?
An explanation was requested on the reasons for qualifying an enforced disappearance as a crime against humanity. Clarifications were asked on penalties, in relation to Article 7: what were the minimum and maximum penalty? What were the aggravating or mitigating circumstances for the crime?
MOHAMMED AL-OBAIDI, Committee Member and Country Rapporteur for Tunisia, warned about the possibility of an overlap between the crimes committed between 1 July 1955 and when the Organizational Act entered into force, and the crimes that could be considered under the new law. It remained unclear what crimes the new law would extend to and what the statutory limitations would be. Question was raised on when it would be considered that the crime had ended.
Would military legislation be reviewed when the new bill was drafted? How would the competence of military courts be reviewed and what was the line that separated the roles of military and regular law/competence?
The Expert asked about the treatment of those accused of committing a crime of enforced disappearances who belonged to military circles. Were they suspended, and what disciplinary methods were taken against those persons? How was the current legislation in Tunisia addressing those questions?
An update was needed on three cases which had been on-going for several years and that were included in the report. Had the cases been referred to the courts in the meantime?
A question was also raised on the protection of witnesses.
In the absence of a law that criminalized enforced disappearances, if the court was only following international standards and the Convention, would that lead to the application of the Convention retroactively, even in the period before Tunisia had acceded to the Convention?
Were there additional cases of enforced disappearances, apart from those stated in the report? How was the Truth and Dignity Commission functioning and funding?
More information was also needed on relevant training programmes.
What had been the follow-up mechanism on implementing the decisions of the Truth and Dignity Commission, and how would it work once the Truth and Dignity Commission’s mandate expired, another Expert asked.
Taking into account that only a small part of denouncements on enforced disappearances would arrive to courts in general, was there any other institution in the Government or within the Truth and Dignity Commission that was in charge of keeping the record on enforced disappearances?
Another Expert inquired what was happening to foreigners who had attempted to cross the Mediterranean and had been returned to Tunisia. Which authority was registering them upon return?
Replies by the Delegation
On the matter of recognizing competence of the Committee to receive and consider individual and inter-State communications under Articles 31 and 32, the delegation explained that the Tunisian State indeed had the intention to recognize the Committee’s competence. That would be achieved by the draft declaration to be be submitted to the Cabinet in the near future, and later to the Parliament.
Regarding the Higher Committee on Human Rights and Fundamental Freedoms, the delegation explained that this was a constitutional body which has been envisaged by the Chapter 6 of the Constitution. Seeing how the new committee had to be in line with Paris Principles, a national consultative process had been launched and the draft bill would be submitted to the Cabinet, and, subsequently Parliament. Once the bill had been ratified, the new committee would replace the Higher Committee on Human Rights and Fundamental Freedoms. The new Committee would submit reports following the visits to the detention centres, and draft recommendations and guidelines for an improvement of conditions in those centres.
As for the reasons for withdrawing the bill, a delegate said that the decision had been taken to review the bill following the Committee’s comments and the consultations with civil society representatives. A technical committee had been set up in 2015 to revise the draft and trainings had been held so that Committee members would be more knowledgeable on the relevant international instruments in that field.
A delegate explained that nothing prevented prosecution against military superiors.
Regarding the minimum and maximum penalties and aggravating circumstances, it was stated that the matter had been regulated in detail by the relevant article of the Criminal Code.
Follow-up Questions by Experts
SUELA JANINA, Committee Member and Country Rapporteur for Tunisia, raised again the question of penalties. The initial draft law envisaged a death penalty. Would that type of sentence also be present in the amended law version?
Several questions were asked about the Truth and Dignity Commission. Did it have the necessary financial and staffing resources to perform its role? Its mandate was for four years, with a possibility of extension for another year. Was there a time limit for specialized chambers for cases that were introduced by the Truth and Dignity Commission? Alternatively, what would happen once the Truth and Dignity Commission mandate had expired? The Law on transitional justice was unclear on the role of Truth and Dignity Commission and on the specialized chambers on transitional justice.
MOHAMMED AL-OBAIDI, Committee Member and Country Rapporteur for Tunisia, asked for further clarifications on the direct invoking of the Convention.
What had been the role of the civil society in developing the new draft law? Moreover, did the delegation agree that it could have been better to wait for the final recommendations from the Committee and then proceed with the revision?
Had any court directly invoked any provision of the Convention, asked the Expert.
Another Expert asked the delegation about the continuous nature of the crime of enforced disappearances.
Replies by the Delegation
A general response on the institutional landscape in Tunisia was provided, in order to reply to several questions raised by the Experts. The institutional set up was still in its developing stages, and there was no Constitutional Court yet. There had been an institution of limited competence that assessed the constitutionality and the Law on Constitution Court was in place, but no institutions had been set up yet. Overall, there were six independent institutions that needed to be set up.
The delegation emphasized that the Government had been taking a strongly participatory approach, so all legislation had gone through the consultative process, collecting civil society’s input, but also that of international organizations, even before draft laws were submitted. Throughout the consultative process, continuous assistance had been provided by the international community.
The Truth and Dignity Commission had sufficient financial means allocated for its work. The budget of the Truth and Dignity Commission had been approved by the Parliament, and the independence of the institution was guaranteed. The Truth and Dignity Commission had been set up by a law in 2013, determining the length of the mandate of four years with a possibility of an extension for an additional one year. The mandate of the Truth and Dignity Commission was undoubtedly ambitious - to investigate the crimes during the period of over half a century. Nonetheless, the Commission had been working on a vast number of cases and had managed to produce concrete results.
To answer all the questions on the initial draft law, the delegation provided clarifications on its drafting process. It was explained that the initial draft law had never been submitted to the Parliament. It was only mentioned in the report submitted to the Committee, and since there were numerous suggestions by the Committee members, the initial draft law had now been withdrawn from the procedure. In the meantime, a technical committee has been established to revise the initial draft law.
As for the continuous nature of the crime of enforced disappearances, the delegation reiterated that no case of enforced disappearances had been recorded since 2011.
The three cases stated in the report all dated to the pre-Revolution period, and they had been investigated by the Truth and Dignity Commission. The authorities had been cooperating with the Special procedures branch of the Office of the High Commissioner for Human Rights and working groups.
Regarding the case of Walid Hosni, a delegate stated that it had been assigned to the court of first instance. Family members had requested information and they had been received on numerous occasions. A hotline had been established to find additional information and calls had been monitored to better investigate the case. Poster of the missing person had also been disseminated at the INTERPOL office in Tunis.
As for the competencies of military courts, it was explained that enforced disappearance was not criminalized as a separate offense, but those crimes were punishable under the Criminal Code, so military courts could be competent if the perpetrators were military officers. Thus, military acts were referred to military courts, though in practice no such cases had been recorded.
Questions by Experts
MOHAMMED AL-OBAIDI, Committee Member and Country Rapporteur for Tunisia, noted the tragic terrorist attacks that had taken place in Tunisia on 7 March, expressing his condolences and hope that continuing legal reform in the country would act as a deterrent against future attacks.
Question was asked about the draft law on the right of asylum. How could it be ensured that the principle of non-refoulement was applied to all persons requiring international protection? Delegation was asked for assurances that no person would be returned to their country of origin if they risked persecution.
The Expert asked about the criminal procedure reform that would come into effect in July 2016. It was unclear for how long the pre-trial detention could last before a person was brought before the judge. How could it be ensured that legal protection was ensured during initial provision detention, or during the extended period?
Regarding the detention, it was noticed that family members had often been unable to receive information on the whereabouts of detainees, most notably in cases when persons had been detained under the charges of terrorism. Seeing how family members were entitled to receive information, what sanctions had been foreseen for the failure of police officers to transmit information to family members?
On the deprivation of liberty at migrant centres, were all the data collected about migrants? The data that the Committee obtained had shown that the records were often incomplete, so the delegation was asked to provide assurance that the situation would improve.
How had the protection of personal data been defined under the law and who had access to the information?
What was the statute of limitations for crimes committed after 2013, asked the Expert.
How was the military crime defined? There had been an overlap between military crimes and crimes that had military characteristics, a distinction that had been very important seeing how the crime of enforced disappearances had not been a military crime.
On liability for carrying out orders of superior officers, question was asked whether there had been a possibility that an official could ignore the order of a superior. Was that concern something that the new law would address?
The Anti-corruption Convention also included witness protection. Was there a possibility, if Tunisia acceded to that Convention, that the same principle could be applied?
SUELA JANINA, Committee Member and Country Rapporteur for Tunisia, asked whether there had been remedies against refusal of the police to provide information to family members on persons that were deprived of liberty. Were there only administrative sanctions in place?
A comment was raised on the definition of victim under the current legal framework. The Law on Transitional Justice provided for reparations for victims, but the Law had a limited scope. As for the general legal framework in the country, including the Code of Criminal Procedure, very limited protection had been granted to victims. The system of reparation that was envisaged under the Law on Transitional Justice was satisfactory, but it had been lacking in the remaining legal framework.
The Expert opined that specific trainings on provisions of the Convention were needed for prosecutors, judges and police officers.
It was mentioned that the Fund for dignity of the victims of tyranny had been established. Was the fund available and ready and who was in charge for distributing the allocations to victims? In addition, had there been any specific programmes for protection of victim children and women, who were particularly vulnerable?
Question was raised on persons who had disappeared and lost their legal status. What kind of certificate did the courts issue in those cases - was it a death certificate, or a certificate on disappearance? That was a very important matter, since declaring the person dead or dissipated had different repercussion for inheritance.
The point of non-derogatory provision of the Convention was raised and hope was expressed that the new law on criminalising enforced disappearances would contain clear provisions that protection of all persons from enforced disappearances would not be derogated.
The clarification was needed on the Counter-terrorism law, seeing how it envisaged that person could be detained for fifteen days without access to lawyer.
Regarding the abduction of children, an Expert asked whether the future bill for criminalizing enforced disappearances would specifically elaborate that matter. Had there been any cooperation with other countries for search of children that might have disappeared in other countries?
Replies by the Delegation
The delegation warned about the danger that terrorism was presenting to the region, shedding light on the continuing problems in Libya and cautioning about the flight of refugees from Libya.
On the direct applicability of the Convention in non-criminal provision, it was stated that although judges could use those provisions, they could not be applied, which was why Tunisia had been preparing the bill on criminalizing the enforced disappearances.
As for the criminal liability of superior officers, the Criminal Code did not preclude that. The liability could be foreseen in the Criminal Procedure reform.
Turning to the continuous nature of crime of enforced disappearances and statute of limitations, the delegation stated that admissibility of cases after 2013 was the sole jurisdiction of the specialized chamber of the transitional justice, so they were the institution applying the statute of limitations to individual cases.
Concerning the competencies of military courts, an elaborate response was provided on the structure and organization of military courts in Tunisia. Following the Revolution, two decrees had been issued regarding the legal on proceedings in the military. A new code had been established for military judges, providing all the safeguards that were available to civil judges. Military judges had usually been recruited from civil courts and had undergone intensive trainings for military courts. The military courts applied procedures from the penal code that were applied by the civil courts as well. The Constitution specified that the sphere of competence of military courts would be military crimes.
The delegation responded that the Tunisian judicial system undertook investigations where security officers had been involved. The police inspectorate was also capable to initiate administrative investigations. If there had been signs that police officers had been involved in human rights violations, they would be immediately suspended.
As for the protection of witnesses, the Code of Criminal Procedure had not established a general system for protection, but it would do so. Tunisia had acceded to the Anti-Corruption Convention.
On the matter of retroactivity, it was explained that the principle that had been utilized was the non-retroactive application of the Law, so the individuals could only be punished for crimes committed after the adoption of the law.
As concerns the trainings of judges in specialized chambers, the Protocol of understanding had been signed and a specialized course had been organized for judicial officials and magistrates. The course that had been organized in cooperation with Office of the High Commissioner for Human Rights in Tunisia had been attended by 130 magistrates. Another training had been scheduled for this year was and its focus was on the Article 8 of the Convention.
Regarding the participation of victims in investigations and proceedings, the delegation stated that the Truth and Dignity Commission was currently in the stage of hearing from the victims. Once this had been completed, the Commission would start a series of investigations. Therefore, it would be premature to asses at this stage how victims were participating in the proceedings. What could be said now was that the Law on Transitional Justice was clear that participation of victims was essential for obtaining the full truth on the crimes committed.
Regarding the status of foreigners, the delegation said that national security forces had undertaken to combat illegal migration but also to protect vulnerable migrants.
The concern of non-refoulement in the draft law on asylum was taken into account and would need to be consisted within the provisions of the Convention.
Regarding the role of Code of Criminal Procedures and the access to legal aid of those that had been accused of terrorism, the code of military procedure and pre-established procedures applied in those cases. The custody period had been envisaged for 48 hours, and it could only be extended once for 24 hours. In cases of serious offences, the extension could be 48 hours. Guarantees of protection had been made during the custody period and the legislation required all law enforcement officers to keep an official register on detainees. The register was monitored by a senior officer, and available to judges upon request. The officers had been fully respecting the identity of the person in custody and had been in charge of informing the family. The Office of the Inspectorate in the Ministry of the Interior conducted visits to ensure that everything was in place. If it had been found out that officers were not adhering to rules, they would be suspended. Once the Ministry of the Interior scheduled visits to detention centres to assess the conditions for detainees, the visits could not be refused by directors of detention centres, unless when there was a national emergency.
Regarding the information of the Committee that family members were not informed about detainees, the delegation argued that the practice showed the opposite. The police chief would immediately inform the family and relatives, particularly in the case of foreign nationals. To ensure that informing was conducted in proper manner, the Government had been working closely with the International Committee of the Red Cross and conducted trainings on all related elements.
Questions on migrants and refugees and personal properties would be answered in written in due course, said a delegate. The same would be done for the question of child abduction, cooperation with third parties in resolving child abduction and specialized assistance measures towards women and children.
The delegation said that the legal status of disappeared persons was regulated in the Personal Status Code.
Regarding the question of sanctions in cases where family members were not provided with information, the delegation said that administrative punishments were in place, but there were no criminal sanctions.
The Tunisian law did not provide a definition of a victim. However, after the Revolution, that notion had been appearing in new legislation, including in the Organizational Law No. 53.
A detailed answer on compensation measures used by the Truth and Dignity Commission and the structure of the Fund for rehabilitation of victims would be submitted in written in due course.
There was no specific definition of military crimes in the jurisprudence or in the law. However, the technical committee that was reviewing the military code had been assessing the current legislation with the view of producing a definition in a clear-cut way.
The delegation noted that special emphasis was put on cooperation between the Ministry of the Interior and United Nations in the field of human rights protection and fight against terrorism. A United Nations task force had visited Tunisia the previous year to assess the measures in place, and the recommendations from the visit were fully taken into account.
Concluding Remarks
MOHAMMED AL-OBAIDI, Committee Member and Country Rapporteur for Tunisia, expressed his gratitude to the delegation for the detailed responses they provided and praised the efforts of the Tunisian Government to improve all the issues that were enlisted, even in the midst of the current circumstances. He recognized the credibility, ability and genuine desire of the members of the delegation to address the concerns. Sufficient clarifications were received and the Committee was pleased with the constructive dialogue.
SUELA JANINA, Committee Member and Country Rapporteur for Tunisia, affirmed that many positive changes had occurred in the past few years, leading towards a new framework that would tackle the problem of enforced disappearances. The country should continue in the same direction, particularly in the area of transitional justice which was considered as a role model in the region. The work of the Truth and Dignity Commission was of invaluable importance and should continue and intensify. While there might not be currently a record of enforced disappearances since the Revolution, the prevention mechanisms had to be created as well as the administrative and legal infrastructure to implement the obligation stemming from the Convention.
KAMEL JENDOUBI, Minister in charge of relations with constitutional bodies, civil society and human rights, expressed his thanks for all the points raised, as it had been a useful learning experience. He reiterated that the Government had been investing efforts needed to reform the Tunisian State and the institutions, as well as to reinforce the application of the international human rights legal mechanisms. Tunisia was in a transition period, building its institutions and independent constitutional bodies, but it had already delivered some positive solutions. Mr. Jendoubi stated that the delegation was looking forward to reading concluding observations, and that they will be drawing from the recommendations to devise necessary measures to enhance the implementation of the Convention. The Law on criminalizing enforced disappearances would be adopted soon and it would be consistent with international good practice.
EMMANUEL DÉCAUX, Chairperson of the Committee, thanked the members of the Tunisian delegation. The delegation entered the spirit of the constructive dialogue and made solemn promises. The recommendations that were presented would assist in drafting the future law on criminalizing enforced disappearances and establishing the national human rights commission in line with the Paris Principles. It was hoped that the cooperation between the Committee and the State party on urgent appeals would continue.
报告
突尼斯的首份报告可在此阅读。
Presentation of the Report
KAMEL JENDOUBI, Minister responsible for liaison with constitutional bodies and civil society and for human rights issues, affirmed that Tunisia had demonstrated firm political will in fulfilling its international obligations. Since the 2011 revolution, Tunisia had gone through the process of emancipation, ratifying the International Convention on the Protection of All Persons from Enforced Disappearance, the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the Optional Protocol to the International Covenant on Civil and Political Rights as well as the Rome Statute of the International Criminal Court. The domestic law was in line with the international human rights law and the 2014 Constitution had been founded on consensus. The preamble to the Constitution guaranteed respect for human rights and freedoms.
Tunisia had developed its legislative system to respond to the problem of enforced disappearances. While enforced disappearances had not been defined or incorporated in the national criminal legislation as a separate offence, acts similar to enforced disappearances had been criminalized under the Criminal Code and other instruments. The Organizational Act No. 53 introduced a system of transitional justice, by calling for accountability to prior violations of human rights. The Truth and Dignity Commission had been established to investigate complaints of enforced disappearances, refer complaints to courts of first instance and the court of appeals. Its mandate had been covering the period from 1 July 1955 to the date of issuance of the Organizational Act.
An initial draft law on enforced disappearances had been produced in 2014 as a result of a participative and collaborative approach that included meetings with civil society and creation of a specialized legislative group. Subsequently, a technical committee had been created to revise the draft law, taking into account the recommendations from the Committee on Enforced Disappearances. Parallel to that, trainings for technical committee’ members had been organized by the Office of the High Commissioner for Human Rights in Tunisia.
Mr. Jendoubi informed that no case of enforced disappearances had been recorded since the Revolution. The Higher Committee on Human Rights and Fundamental Freedoms, which had been established as a national human rights institution, was not in line with the Paris Principles, so a new statute had been drafted that would make the mandate of the Higher Committee on Human Rights and Fundamental Freedoms in conformity with the Paris Principles. A bill to amend certain provisions of the Code of Criminal Procedure had been drafted to strengthen the rights of detainees, by reducing the custody period to 48 hours and requiring the presence of a lawyer during the preliminary investigation.
The Tunisian Government was appreciative of the international support it had been receiving over the years. In 2016, Tunisia would also submit reports to the Committee Against Torture and the Committee on Economic, Social and Cultural Rights. The Government had embarked on a crucial phase of legislative reforms in the past few years, investing significant efforts in the overall democratization and rule of law, and positive developments had indeed taken place, as testified by the 2015 Nobel peace prize.
Questions by Experts
SUELA JANINA, Committee Member and Country Rapporteur for Tunisia, praised the legal developments in Tunisia which were reflected in the ratification of the international conventions but also in the adoption of the Constitution and laws establishing transitional justice and the Truth and Dignity Commission.
Further information was required on the procedures explained in the report on the recognition of the competence of the Committee in relation of Articles 31 and 32. What did those procedures foresee and what was the framework for the recognition of the Committee’s competence?
A question was raised on the application of the Convention in the national legal system. Seeing how there was still no law on enforced disappearances, was the lack of knowledge of judges the only obstacle for implementing the Convention, or were there more substantive barriers?
According to the new draft law on enforced disappearances, what would the role of Higher Committee on Human Rights and Fundamental Freedoms be? Would it be substituted or upgraded?
The delegation was asked for additional information on investigations against military superiors.
The Article 29 of the Constitution allowed for derogations of rights in exceptional circumstances related to the situations of war or internal instability. What were the rights that could be derogated and under which legal provisions, an Expert inquired.
What had happened with the draft law on criminalizing enforced disappearances? The Committee had been informed that the initial draft law had been withdrawn, but what was the reason for it, and for how long could the adoption of that law be prolonged?
An explanation was requested on the reasons for qualifying an enforced disappearance as a crime against humanity. Clarifications were asked on penalties, in relation to Article 7: what were the minimum and maximum penalty? What were the aggravating or mitigating circumstances for the crime?
MOHAMMED AL-OBAIDI, Committee Member and Country Rapporteur for Tunisia, warned about the possibility of an overlap between the crimes committed between 1 July 1955 and when the Organizational Act entered into force, and the crimes that could be considered under the new law. It remained unclear what crimes the new law would extend to and what the statutory limitations would be. Question was raised on when it would be considered that the crime had ended.
Would military legislation be reviewed when the new bill was drafted? How would the competence of military courts be reviewed and what was the line that separated the roles of military and regular law/competence?
The Expert asked about the treatment of those accused of committing a crime of enforced disappearances who belonged to military circles. Were they suspended, and what disciplinary methods were taken against those persons? How was the current legislation in Tunisia addressing those questions?
An update was needed on three cases which had been on-going for several years and that were included in the report. Had the cases been referred to the courts in the meantime?
A question was also raised on the protection of witnesses.
In the absence of a law that criminalized enforced disappearances, if the court was only following international standards and the Convention, would that lead to the application of the Convention retroactively, even in the period before Tunisia had acceded to the Convention?
Were there additional cases of enforced disappearances, apart from those stated in the report? How was the Truth and Dignity Commission functioning and funding?
More information was also needed on relevant training programmes.
What had been the follow-up mechanism on implementing the decisions of the Truth and Dignity Commission, and how would it work once the Truth and Dignity Commission’s mandate expired, another Expert asked.
Taking into account that only a small part of denouncements on enforced disappearances would arrive to courts in general, was there any other institution in the Government or within the Truth and Dignity Commission that was in charge of keeping the record on enforced disappearances?
Another Expert inquired what was happening to foreigners who had attempted to cross the Mediterranean and had been returned to Tunisia. Which authority was registering them upon return?
Replies by the Delegation
On the matter of recognizing competence of the Committee to receive and consider individual and inter-State communications under Articles 31 and 32, the delegation explained that the Tunisian State indeed had the intention to recognize the Committee’s competence. That would be achieved by the draft declaration to be be submitted to the Cabinet in the near future, and later to the Parliament.
Regarding the Higher Committee on Human Rights and Fundamental Freedoms, the delegation explained that this was a constitutional body which has been envisaged by the Chapter 6 of the Constitution. Seeing how the new committee had to be in line with Paris Principles, a national consultative process had been launched and the draft bill would be submitted to the Cabinet, and, subsequently Parliament. Once the bill had been ratified, the new committee would replace the Higher Committee on Human Rights and Fundamental Freedoms. The new Committee would submit reports following the visits to the detention centres, and draft recommendations and guidelines for an improvement of conditions in those centres.
As for the reasons for withdrawing the bill, a delegate said that the decision had been taken to review the bill following the Committee’s comments and the consultations with civil society representatives. A technical committee had been set up in 2015 to revise the draft and trainings had been held so that Committee members would be more knowledgeable on the relevant international instruments in that field.
A delegate explained that nothing prevented prosecution against military superiors.
Regarding the minimum and maximum penalties and aggravating circumstances, it was stated that the matter had been regulated in detail by the relevant article of the Criminal Code.
Follow-up Questions by Experts
SUELA JANINA, Committee Member and Country Rapporteur for Tunisia, raised again the question of penalties. The initial draft law envisaged a death penalty. Would that type of sentence also be present in the amended law version?
Several questions were asked about the Truth and Dignity Commission. Did it have the necessary financial and staffing resources to perform its role? Its mandate was for four years, with a possibility of extension for another year. Was there a time limit for specialized chambers for cases that were introduced by the Truth and Dignity Commission? Alternatively, what would happen once the Truth and Dignity Commission mandate had expired? The Law on transitional justice was unclear on the role of Truth and Dignity Commission and on the specialized chambers on transitional justice.
MOHAMMED AL-OBAIDI, Committee Member and Country Rapporteur for Tunisia, asked for further clarifications on the direct invoking of the Convention.
What had been the role of the civil society in developing the new draft law? Moreover, did the delegation agree that it could have been better to wait for the final recommendations from the Committee and then proceed with the revision?
Had any court directly invoked any provision of the Convention, asked the Expert.
Another Expert asked the delegation about the continuous nature of the crime of enforced disappearances.
Replies by the Delegation
A general response on the institutional landscape in Tunisia was provided, in order to reply to several questions raised by the Experts. The institutional set up was still in its developing stages, and there was no Constitutional Court yet. There had been an institution of limited competence that assessed the constitutionality and the Law on Constitution Court was in place, but no institutions had been set up yet. Overall, there were six independent institutions that needed to be set up.
The delegation emphasized that the Government had been taking a strongly participatory approach, so all legislation had gone through the consultative process, collecting civil society’s input, but also that of international organizations, even before draft laws were submitted. Throughout the consultative process, continuous assistance had been provided by the international community.
The Truth and Dignity Commission had sufficient financial means allocated for its work. The budget of the Truth and Dignity Commission had been approved by the Parliament, and the independence of the institution was guaranteed. The Truth and Dignity Commission had been set up by a law in 2013, determining the length of the mandate of four years with a possibility of an extension for an additional one year. The mandate of the Truth and Dignity Commission was undoubtedly ambitious - to investigate the crimes during the period of over half a century. Nonetheless, the Commission had been working on a vast number of cases and had managed to produce concrete results.
To answer all the questions on the initial draft law, the delegation provided clarifications on its drafting process. It was explained that the initial draft law had never been submitted to the Parliament. It was only mentioned in the report submitted to the Committee, and since there were numerous suggestions by the Committee members, the initial draft law had now been withdrawn from the procedure. In the meantime, a technical committee has been established to revise the initial draft law.
As for the continuous nature of the crime of enforced disappearances, the delegation reiterated that no case of enforced disappearances had been recorded since 2011.
The three cases stated in the report all dated to the pre-Revolution period, and they had been investigated by the Truth and Dignity Commission. The authorities had been cooperating with the Special procedures branch of the Office of the High Commissioner for Human Rights and working groups.
Regarding the case of Walid Hosni, a delegate stated that it had been assigned to the court of first instance. Family members had requested information and they had been received on numerous occasions. A hotline had been established to find additional information and calls had been monitored to better investigate the case. Poster of the missing person had also been disseminated at the INTERPOL office in Tunis.
As for the competencies of military courts, it was explained that enforced disappearance was not criminalized as a separate offense, but those crimes were punishable under the Criminal Code, so military courts could be competent if the perpetrators were military officers. Thus, military acts were referred to military courts, though in practice no such cases had been recorded.
Questions by Experts
MOHAMMED AL-OBAIDI, Committee Member and Country Rapporteur for Tunisia, noted the tragic terrorist attacks that had taken place in Tunisia on 7 March, expressing his condolences and hope that continuing legal reform in the country would act as a deterrent against future attacks.
Question was asked about the draft law on the right of asylum. How could it be ensured that the principle of non-refoulement was applied to all persons requiring international protection? Delegation was asked for assurances that no person would be returned to their country of origin if they risked persecution.
The Expert asked about the criminal procedure reform that would come into effect in July 2016. It was unclear for how long the pre-trial detention could last before a person was brought before the judge. How could it be ensured that legal protection was ensured during initial provision detention, or during the extended period?
Regarding the detention, it was noticed that family members had often been unable to receive information on the whereabouts of detainees, most notably in cases when persons had been detained under the charges of terrorism. Seeing how family members were entitled to receive information, what sanctions had been foreseen for the failure of police officers to transmit information to family members?
On the deprivation of liberty at migrant centres, were all the data collected about migrants? The data that the Committee obtained had shown that the records were often incomplete, so the delegation was asked to provide assurance that the situation would improve.
How had the protection of personal data been defined under the law and who had access to the information?
What was the statute of limitations for crimes committed after 2013, asked the Expert.
How was the military crime defined? There had been an overlap between military crimes and crimes that had military characteristics, a distinction that had been very important seeing how the crime of enforced disappearances had not been a military crime.
On liability for carrying out orders of superior officers, question was asked whether there had been a possibility that an official could ignore the order of a superior. Was that concern something that the new law would address?
The Anti-corruption Convention also included witness protection. Was there a possibility, if Tunisia acceded to that Convention, that the same principle could be applied?
SUELA JANINA, Committee Member and Country Rapporteur for Tunisia, asked whether there had been remedies against refusal of the police to provide information to family members on persons that were deprived of liberty. Were there only administrative sanctions in place?
A comment was raised on the definition of victim under the current legal framework. The Law on Transitional Justice provided for reparations for victims, but the Law had a limited scope. As for the general legal framework in the country, including the Code of Criminal Procedure, very limited protection had been granted to victims. The system of reparation that was envisaged under the Law on Transitional Justice was satisfactory, but it had been lacking in the remaining legal framework.
The Expert opined that specific trainings on provisions of the Convention were needed for prosecutors, judges and police officers.
It was mentioned that the Fund for dignity of the victims of tyranny had been established. Was the fund available and ready and who was in charge for distributing the allocations to victims? In addition, had there been any specific programmes for protection of victim children and women, who were particularly vulnerable?
Question was raised on persons who had disappeared and lost their legal status. What kind of certificate did the courts issue in those cases - was it a death certificate, or a certificate on disappearance? That was a very important matter, since declaring the person dead or dissipated had different repercussion for inheritance.
The point of non-derogatory provision of the Convention was raised and hope was expressed that the new law on criminalising enforced disappearances would contain clear provisions that protection of all persons from enforced disappearances would not be derogated.
The clarification was needed on the Counter-terrorism law, seeing how it envisaged that person could be detained for fifteen days without access to lawyer.
Regarding the abduction of children, an Expert asked whether the future bill for criminalizing enforced disappearances would specifically elaborate that matter. Had there been any cooperation with other countries for search of children that might have disappeared in other countries?
Replies by the Delegation
The delegation warned about the danger that terrorism was presenting to the region, shedding light on the continuing problems in Libya and cautioning about the flight of refugees from Libya.
On the direct applicability of the Convention in non-criminal provision, it was stated that although judges could use those provisions, they could not be applied, which was why Tunisia had been preparing the bill on criminalizing the enforced disappearances.
As for the criminal liability of superior officers, the Criminal Code did not preclude that. The liability could be foreseen in the Criminal Procedure reform.
Turning to the continuous nature of crime of enforced disappearances and statute of limitations, the delegation stated that admissibility of cases after 2013 was the sole jurisdiction of the specialized chamber of the transitional justice, so they were the institution applying the statute of limitations to individual cases.
Concerning the competencies of military courts, an elaborate response was provided on the structure and organization of military courts in Tunisia. Following the Revolution, two decrees had been issued regarding the legal on proceedings in the military. A new code had been established for military judges, providing all the safeguards that were available to civil judges. Military judges had usually been recruited from civil courts and had undergone intensive trainings for military courts. The military courts applied procedures from the penal code that were applied by the civil courts as well. The Constitution specified that the sphere of competence of military courts would be military crimes.
The delegation responded that the Tunisian judicial system undertook investigations where security officers had been involved. The police inspectorate was also capable to initiate administrative investigations. If there had been signs that police officers had been involved in human rights violations, they would be immediately suspended.
As for the protection of witnesses, the Code of Criminal Procedure had not established a general system for protection, but it would do so. Tunisia had acceded to the Anti-Corruption Convention.
On the matter of retroactivity, it was explained that the principle that had been utilized was the non-retroactive application of the Law, so the individuals could only be punished for crimes committed after the adoption of the law.
As concerns the trainings of judges in specialized chambers, the Protocol of understanding had been signed and a specialized course had been organized for judicial officials and magistrates. The course that had been organized in cooperation with Office of the High Commissioner for Human Rights in Tunisia had been attended by 130 magistrates. Another training had been scheduled for this year was and its focus was on the Article 8 of the Convention.
Regarding the participation of victims in investigations and proceedings, the delegation stated that the Truth and Dignity Commission was currently in the stage of hearing from the victims. Once this had been completed, the Commission would start a series of investigations. Therefore, it would be premature to asses at this stage how victims were participating in the proceedings. What could be said now was that the Law on Transitional Justice was clear that participation of victims was essential for obtaining the full truth on the crimes committed.
Regarding the status of foreigners, the delegation said that national security forces had undertaken to combat illegal migration but also to protect vulnerable migrants.
The concern of non-refoulement in the draft law on asylum was taken into account and would need to be consisted within the provisions of the Convention.
Regarding the role of Code of Criminal Procedures and the access to legal aid of those that had been accused of terrorism, the code of military procedure and pre-established procedures applied in those cases. The custody period had been envisaged for 48 hours, and it could only be extended once for 24 hours. In cases of serious offences, the extension could be 48 hours. Guarantees of protection had been made during the custody period and the legislation required all law enforcement officers to keep an official register on detainees. The register was monitored by a senior officer, and available to judges upon request. The officers had been fully respecting the identity of the person in custody and had been in charge of informing the family. The Office of the Inspectorate in the Ministry of the Interior conducted visits to ensure that everything was in place. If it had been found out that officers were not adhering to rules, they would be suspended. Once the Ministry of the Interior scheduled visits to detention centres to assess the conditions for detainees, the visits could not be refused by directors of detention centres, unless when there was a national emergency.
Regarding the information of the Committee that family members were not informed about detainees, the delegation argued that the practice showed the opposite. The police chief would immediately inform the family and relatives, particularly in the case of foreign nationals. To ensure that informing was conducted in proper manner, the Government had been working closely with the International Committee of the Red Cross and conducted trainings on all related elements.
Questions on migrants and refugees and personal properties would be answered in written in due course, said a delegate. The same would be done for the question of child abduction, cooperation with third parties in resolving child abduction and specialized assistance measures towards women and children.
The delegation said that the legal status of disappeared persons was regulated in the Personal Status Code.
Regarding the question of sanctions in cases where family members were not provided with information, the delegation said that administrative punishments were in place, but there were no criminal sanctions.
The Tunisian law did not provide a definition of a victim. However, after the Revolution, that notion had been appearing in new legislation, including in the Organizational Law No. 53.
A detailed answer on compensation measures used by the Truth and Dignity Commission and the structure of the Fund for rehabilitation of victims would be submitted in written in due course.
There was no specific definition of military crimes in the jurisprudence or in the law. However, the technical committee that was reviewing the military code had been assessing the current legislation with the view of producing a definition in a clear-cut way.
The delegation noted that special emphasis was put on cooperation between the Ministry of the Interior and United Nations in the field of human rights protection and fight against terrorism. A United Nations task force had visited Tunisia the previous year to assess the measures in place, and the recommendations from the visit were fully taken into account.
Concluding Remarks
MOHAMMED AL-OBAIDI, Committee Member and Country Rapporteur for Tunisia, expressed his gratitude to the delegation for the detailed responses they provided and praised the efforts of the Tunisian Government to improve all the issues that were enlisted, even in the midst of the current circumstances. He recognized the credibility, ability and genuine desire of the members of the delegation to address the concerns. Sufficient clarifications were received and the Committee was pleased with the constructive dialogue.
SUELA JANINA, Committee Member and Country Rapporteur for Tunisia, affirmed that many positive changes had occurred in the past few years, leading towards a new framework that would tackle the problem of enforced disappearances. The country should continue in the same direction, particularly in the area of transitional justice which was considered as a role model in the region. The work of the Truth and Dignity Commission was of invaluable importance and should continue and intensify. While there might not be currently a record of enforced disappearances since the Revolution, the prevention mechanisms had to be created as well as the administrative and legal infrastructure to implement the obligation stemming from the Convention.
KAMEL JENDOUBI, Minister in charge of relations with constitutional bodies, civil society and human rights, expressed his thanks for all the points raised, as it had been a useful learning experience. He reiterated that the Government had been investing efforts needed to reform the Tunisian State and the institutions, as well as to reinforce the application of the international human rights legal mechanisms. Tunisia was in a transition period, building its institutions and independent constitutional bodies, but it had already delivered some positive solutions. Mr. Jendoubi stated that the delegation was looking forward to reading concluding observations, and that they will be drawing from the recommendations to devise necessary measures to enhance the implementation of the Convention. The Law on criminalizing enforced disappearances would be adopted soon and it would be consistent with international good practice.
EMMANUEL DÉCAUX, Chairperson of the Committee, thanked the members of the Tunisian delegation. The delegation entered the spirit of the constructive dialogue and made solemn promises. The recommendations that were presented would assist in drafting the future law on criminalizing enforced disappearances and establishing the national human rights commission in line with the Paris Principles. It was hoped that the cooperation between the Committee and the State party on urgent appeals would continue.
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