Military Trials of Tunisian Civilians: Towards New Laws to End Injustice and Capitalize on Gained Rights.

Executive Summary:

Since the 25^th July 2021, Tunisia has been undergoing radical changes, particularly on the political level. These changes have affected the prerogatives of the three branches of government, especially the judiciary. This being said, the judiciary is now reduced from a proper branch of government to a mere instrument or “function,” as the 2022 Constitution refers to it. Furthermore, the successive political regimes in Tunisia, from President Bourguiba to Ben Ali, used to take advantage of political unrest to take military judiciary action against civilians. During President Kais Saied’s term, the situation is not really different, for the current political authorities do seize the constitutional State of Exception as an opportunity to force civilians into military trials that do not meet the requirements of a fair trial in terms of independence and neutrality of the judiciary. These trials do not take into account the civilian character of litigants vis-à-vis military affairs and crimes. 

In this regard, this policy brief sets to expose the reality of military trials in Tunisia, to detect instances  of human-rights violations in these trials, and to evaluate national laws regarding this issue in terms of meeting the minimum international standards of a fair trial. The paper concludes on a number of suggestions and alternatives to bring human rights violations inflicted on civilian litigants to an end. It also offers a number of recommendations to the Tunisian political authorities and to political and civil-society organizations and activists, thereby acting as a force of proposal to eradicate such violations.

Introduction:

Justice rests upon the respect of each person’s rights. Whenever a citizen is brought to justice for having committed a criminal act, they indeed face the full force of the state apparatuses. It follows, then, that the treatment of defendants is an accurate indicator of a country’s observation of individual rights and the rule of law. Every trial testifies to a country’s respect of the international human rights standards. The test becomes especially tricky in the case of those defendants who are brought to courts which do not fulfill the international conditions of a fair trial. Such is the case in Tunisia, where the military trials of civilians fall short of meeting the requirements of [judicial] independence, neutrality and competence. It is noteworthy that Tunisian laws do permit the trial of civilians before military courts – the competence of which mainly revolves around military crimes and sentences. Public prosecutors are appointed in these courts by the Council of Military Justice[1], upon recommendation of the Minister of National Defense, which is a severe violation of the right of a fair trial by a competent, neutral and independent jury.

Since July 25^th, 2021, Tunisia has witnessed a number of deep political transformations and electoral events within a very limited timespan, as well as restrictions on civil rights and liberties and increased prosecutions of civilians before military courts. Within a year, ten civilians (bloggers, politicians, lawyers, and journalists[2]) were brought to military courts, which is an alarming precedent that needs to be addressed as urgently as possible. 

Military Trials of Civilians in Tunisia: An Ongoing Political and Legal Debate:

Under President Bourguiba’s and Ben Ali’s regimes, military courts had played a major part in sentencing individuals based on their political affiliations or critical views of the authorities[3]. Despite the partial reform brought to the Organizing Law of Military Justice after the Revolution[4] of 2011[5] and the enforcement of some procedural guarantees (the double-hearing principle and a civil judge being the head of the jury), these courts are still far from meeting the requirements of a fair trial as far as the neutrality and independence of the judiciary are concerned[6]. After the 25^th of July 2021, 10 civilians (politicians, lawyers, journalists and former parliamentarians) were tried in front of military courts. Military trials of civilians are often the subject of heated political and legal controversy[7]. Politically, most criticism was mainly levelled at the concordance between the military prosecutions of civilians and the political situation in the country. As Tunisians debate their blurry future, critics and opponents of the President are prosecuted in military courts. These military trials are no longer limited to politicians who oppose political authorities; now, they include journalists, lawyers, members of parliament, and bloggers[8]. Such practices do not exclude the possibility of seeking revenge from political opponents and silencing them. In fact, they do give more substance to it.

First, it is worthy of note that Tunisian law grants to military courts the prerogative of trying civilians in a number of cases. In this regard, Paragraph G of the 8^th Article of The Code of Military Procedures and Penalties allows for military trials of civilians either as original perpetrators (in crimes outlined in Article 5 of the same Code) or as partners in crimes. Article 91 of the same Code[9] incriminates all enfeeblement of the military morale and of the spirit of military discipline within the army. In the Law no. 70-1982, which sets the fundamental regulations of interior-security forces, Article 22[10] incriminates a number of aggressions against security forces within a specific set of circumstances. Nevertheless, the frequency of military trials of civilians has witnessed an alarming turning point since President Kais Saied’s assumption of large prerogatives. This has engendered increased restrictions on individual liberties and, thus, visibly more crowded military courts. A year after the declaration of a constitutional State of Exception, military justice has undertaken investigations and issued sentences against no less than ten civilians, a precedent in post-revolutionary Tunisia. If these figures are to serve us any indication, they point to the worrying direction to which Tunisian military justice has taken after July 25^th, 2021. It has consistently violated citizens’ rights to a fair trial before an independent (the neutrality of the military judge as a foremost guarantee for defendants) and competent (one of the prerequisites of judiciary competence is being a civilian) jury, as stipulated in Article 19 of The Code of Civil and Commercial Procedures[11] for civil courts.

Legally, one must outline the specifics of the 2014 Constitution as well as the new, 2022 Constitution.

Military Trials in the 2014 Constitution: An Unfulfilled Ideal:

In the 2014 Constitution, military trials of civilians are constitutionally characterized by the duality of transition and permanence[12]. Article 149 of the Constitution indicates that “military courts shall pursue the exercise of the prerogatives granted to them by active laws until they are reformed as per the stipulations of Article 110,” which illustrates what we mean by transition. The permanent aspect lies in the fact that military courts are described, by the constitution, as courts of special competence. Article 110 says in this regard: “Categories of courts are created by legal text. No exceptional courts or procedures, in which the principle of a fair trial is threatened, shall be created or issued. Military courts are competent in military crimes. Their area of competence, composition, organization, procedural regulation, and statute of judges, are all stipulated by law.” It can be deduced from these two articles that the legislator of the 2014 Constitution recognizes the deficient guarantees of a fair trial in military courts in their current format. However, it does not stipulate that they should cease exercising in their current area of competence. This means that military courts still have the right to look into cases of civilian defendants, despite all the reservations as far as the standards of a fair trial in these courts are concerned. These reservations are of especial significance when one takes into account the fact that military justice and the Code of Military Procedures and Penalties have not been revised as per the stipulations of Article 110 of the Constitution. It is also noteworthy that the 2014 Constitution has tasked the Parliaments elected after its activation (legislative mandates 2014-2019 and 2019-2024) with the revising of laws regulating military justice in the light of the spirit of the constitution. Military justice regulations are left unrevised to this very day.

Military Justice in the 2022 Constitution: Constitutional Gaps and Overlooking.

As far as the 2022 Constitution is concerned, the legislator has virtually been silent regarding military trials of civilians, thereby creating a legislative gap that maintains the regulations of the [unrevised] Code of Military Procedures and Penalties in place. This indeed indicates the unwillingness of the 2022 constitutional legislator to tackle military trials of civilians and give them constitutional value. In its 122^nd article, the Constitution suffices itself with mentioning the neutrality of the judiciary – a much-criticized issue by civil-society organizations with regard to military trials of civilians. In fact, much indignation has been expressed towards the failure of military justice to meet the requirements and criteria of independence and neutrality. The President of the Republic has the final say in appointing the judges and representatives of the public prosecution service in military-court regulation, based on recommendations from the Minister of Justice and that of Defense. Moreover, the State prosecutor and all public prosecutors (who play a pivotal role in initiating and pursuing prosecutions) should legally be members of the military who abide by military orders and procedures, which places them under the influence of the Executive Branch of government (represented by the President of the Republic, the constitutional Commander-in-Chief of the Armed Forces). Therefore, military courts are lacking in neutrality, which contradicts the 122^nd article of the new Constitution[13] and the 14^th article of the International Covenant on Civil and Political Rights, approved by Tunisia, which stipulates that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

It is also worthy of mention that, in its Fourth Title devoted to the “Judiciary Function,” the new Constitution did not discuss a Supreme Council of Military Justice, unlike its treatment of civil, financial and administrative justices, to which it stipulates the establishment of a Supreme Council for each. This refers us to the Decree no. 2011-70[14], which creates a judiciary establishment – the Council of Military Justice – to look into matters of military judiciary assistant appointments, as well as military judge promotions, transfers and disciplinary action, resignation and waiver-of-immunity requests for military judges and, overall, into all matters relative to the functioning of military judges. The Council of Military Justice has been subject to criticism, chiefly because it is presided over by the Minister of National Defense, who – as a representative of the Executive Branch abiding by the orders of the President – controls the various stages of the function of a military judge (promotions, transfers, disciplinary measures, elections). Such practices are no longer acceptable, for they are opposite to the separation of powers. Furthermore, the 117^th article of the new Constitution stipulates that Justice is an independent Function to be exercised by judges who abide by nothing but the law. How is it, then, that the Council of Military Justice – which examines all matters relative to military justice – is presided over by a person who may or may not be a judge and who, more importantly, represents the Executive Power – or, rather, function?      

Military Justice and Human Rights Violations:

Civilians are brought to military courts in most cases based on statements, actions, opinions or criticism related to the head of the Executive Branch, its functioning, State institutions and their governance policy[15]. This is done through such charges as “threatening military morale” and “enfeebling the spirit of military discipline and obedience to superiors,” stipulated by the 91^st article of the Code of Military Procedures and Penalties (CMPP), which bars any critique of the general command of the armed forces. With the imprisonment penalties they prescribe, such articles may indeed silence all public discussions of those matters and deter civilians from going into them. In reality, the level of performance of the armed forces should be a legitimate topic for public discussion in media outlets and elsewhere, in a country that respects freedom of speech, since it has to do with public matters. All partakers in these discussions shall be able to freely gather and communicate information, including criticism of the decisions made and measures taken by the President of the Republic or military authorities. 

Whenever a civilian is tried before a military court, a fundamental human right is violated. For instance, freedom of speech was the target of several legal military cases, in which the defendants were journalists. As the press has the right to access information and communicate it to the general public, the latter’s right to receive information has to be also warranted. Therefore, Article 91 of the CMPP doubtlessly puts restrictions that go against freedom of speech, and the instrumentalization of military justice for these ends against journalists and bloggers shall pose serious threats to freedom of speech and discussions of public affairs.

Moreover, the usage of Article 91 of the CMPP against civilians, especially those who oppose the current regime, is a violation of the 19^th article of the International Covenant on Civil and Political Rights. In other prosecutions, some civilians found themselves brought to two courts[16], a military court and a civil one, which goes against legal stipulations that guarantee people’s right to a single trial of the same parties for the same cause and the same subject, which is known among law specialists as the principle of juridical link.

Solutions and Alternatives:

In support of the human-rights perspective rejecting military trials of civilians, and out of sheer responsibility, these alternatives constitute a force of proposal to end this ongoing debate since the post-Independence days. These recommendations are not in isolation from the legal and political process undergone in the country.

The need for new laws to regulate military justice according to standards of independence and competence:

One of the foremost recommendations in this regard is the creation of new laws regulating the conditions and procedures of military prosecutions, in such a way as to respect the spirit of the Constitution, Tunisia’s international commitments, and the supremacy of rights and liberties. These prosecutions are also to be made concordant with the requirements of competence, so that civilians are no longer brought to courts that look into military crimes and affairs. They should also observe the standards of independence, which guarantees fairer and more independent judiciary decision-making, less appointments of judges by the executive branch, and not treating those as part of the armed forces. In this regard, the procedural guarantees outlined in the Decree no. 2011-69, issued on July 29, 2011[17], such as the principle of a double-hearing and the jury being presided over by a civil judge, should be maintained.

“Moreover, to maintain the independence of the judiciary and warrant high competence levels among them, international standards require that the individuals appointed in the military judiciary be selected on grounds of legal training, impartiality and experience[18]. The entity responsible for military judges’ appointment, promotion and discipline should be independent from the Executive branch, in composition and in action,”[19] in a similar fashion to civil and administrative tribunals[20]. Absolute competency in this regard exclusively pertains to the Supreme Council of Magistracy to warrant the independence and neutrality of the judiciary. Therefore, the current composition of the Council of Military Justice, headed by the Minister of National Defense, ought to be changed. 

Furthermore, military justice ought to be a competent military branch. Competence here refers to the fact that the law grants military courts the jurisdiction or prerogative of looking into military lawsuits and crimes without looking into civilian cases.

“Tribunals derive their independence from the principle of separation of powers, applied in democratic societies. This means that each of the State apparatuses has an exclusive set of responsibilities. According to the African Committee, the principle of separation of powers exists so that no branch of government gains so much influence as to overpower the other branches and overstep its sphere of authority. The separation between the executive, legislative and judiciary branches of government warrants the regulations and mechanisms through which balance between them is maintained. Judges, either as jury or as individuals, shall not be subject to any interference from the State or from regular individuals. The State shall guarantee this independence and protect it through legal stipulation and observation by all governmental institutions, so that it is absolutely up to the judges to look into the prosecutions allocated to them[21].”

The Principle of Narrow Interpretation of Legal Texts and Avoidance of Loose Terminology:

Added to this, the constitutional principle of the lawfulness of crimes and penalties requires, from legislators and judges alike, a strict phrasing and application of incriminating legal texts, thereby avoiding large and loose terminology like “the belittling of the armed forces, the harming of its dignity, reputation or morale, the enfeebling of the spirit of military discipline, obedience of superiors, and observation of duty among the armed forces, critique of the general command and those responsible for the affairs of the army in a way that harms their dignity.” They should also use a restrictive phrasing, refrain from incrimination by referral, and commit to a narrow interpretation of legal texts, as per the principle of the lawfulness of crimes and penalties. This intends to avoid all violations of defendants’ rights because, the broader a military judge’s interpretation of legal texts grows, the broader the sphere of incrimination and penalty for acts not incriminated or penalized by law.

Recommendations:

For the Legislative Branch:

• The need for new laws regulating military justice according to requirements of independence and competence. An alternative would be to amend the Code of Military Procedures and Penalties, in particular its 9^th and 81^st articles, which allow military trials of civilians in a number of cases. The same applies to Article 22 of the Law no. 1982-70, issued on August 6 1982 and related to the setting the general regulation of the interior security forces, which allows the bringing of civilians to military courts in lawsuits which have security-force officials as parties in cases specified in the same law.
• The amendment of the articles relative to the Council of Military Justice in the Decree no. 2011-70, in order for it to be entirely made up of military judges, without including the Minister of Defense.

For Military Justice Authorities:

• Committing to the principle of narrow interpretation of legal text, a ramification of the principle of the lawfulness of crimes and penalties, which requires the use of restrictive phrasing and the avoidance of incrimination by referral for the non-abuse of defendants’ rights.

Civil Society and Human Rights Organizations:

• Offering legal support and protection to civilians who had been tried in military courts.
• Working on a tentative law to amend the Code of Military Procedures and Penalties that abides by universal and inclusive human rights within a maximum period of two years, and presenting it to the upcoming Parliament to be elected in December 2022.
• Forming a civil coalition and pressuring decision-makers to limit and even do away with bringing civilians to military courts within six months at the latest.  

[1]Article 2 of the Law no. 2011-70, issued on July 29^th, 2011, organizing military justice and defining the fundamental regulation of military judges.[2] “Tunisia: Figures of Civilians Brought to Military Tribunals in Worrying Increase,” Amnesty International, Nov. 10, 2021. https://www.amnesty.org/ar/latest/news/2021/11/tunisia-alarming-increase-in-number-of-civilians-facing-military-courts/[3] “Report on Military Trials of Civilians: The Authorities’ Sword Hangs on the Necks of Opponents,” Intersection Association for Rights and Freedoms, Tunis, Aug. 2022. Accessed on Oct. 20, 2022. https://cutt.ly/2NJtydl  https://intersection.uno/wp-content/uploads/2022/08/%D8%AA%D9%82%D8%B1%D9%8A%D8%B1-%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%83%D9%85%D8%A7%D8%AA-%D8%A7%D9%84%D8%B9%D8%B3%D9%83%D8%B1%D9%8A%D8%A9-%D9%84%D9%84%D9%85%D8%AF%D9%86%D9%8A%D9%8A%D9%86.pdf[4] The Decree no. 2011-70, issued on July 29^th, 2011, organizing military justice and defining the fundamental regulation of military judges. https://legislation-securite.tn/ar/law/43402[5]The Decree no. 2011-69, issued on July 29th, 2011, amending and completing the Code of Military Procedures and Penalties. https://legislation-securite.tn/ar/law/43401#:~:text=الفصل%20الأول%20(جديد)%20-%20تنظر,3-%20دوائر%20اتهام%20عسكريـة[6]“Tunisia: Additional Information: Drop All Charges Against a Lawyer Tried in Military Court!”, Abdel Razzek Kilani, Amnesty International, May 11, 2022. Accessed on July 16, 2022. [7]“Report on Military Trials of Civilians: The Authorities’ Sword Hangs on the Necks of Opponents,” Intersection Association for Rights and Freedoms, Tunis, Aug. 2022. Accessed on Aug. 13, 2022. https://cutt.ly/2NJtydl  https://intersection.uno/wp-content/uploads/2022/08/%D8%AA%D9%82%D8%B1%D9%8A%D8%B1-%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%83%D9%85%D8%A7%D8%AA-%D8%A7%D9%84%D8%B9%D8%B3%D9%83%D8%B1%D9%8A%D8%A9-%D9%84%D9%84%D9%85%D8%AF%D9%86%D9%8A%D9%8A%D9%86.pdf[8] Ibid.[9]he Code of Military Procedures and Penalties. https://cyrilla.org/ar/entity/nsvjad5thnqq9g44qalq2rzfr?page=[10]Law no. 1982-70, issued on Aug. 6, 1982. https://legislation-securite.tn/sites/default/files/lois/Loi%20n°%2082-70%20du%206%20Août%201982%20%28Fr%29.pdf[11] The Code of Civil and Commercial Procedures. https://wrcati.cawtar.org/preview.php?type=law&ID=109[12]“Can Civilians Be Tried in Military Courts?”, intervention by Abdel Razzek El-Mokhtar, Professor of Constitutional Law, on Jawaher FM. Accessed on Aug. 2, 2022. https://cutt.ly/vNJy2P7[13] “Article 122 – A judge shall be competent, and they ought to commit to independence and impartiality. They are accountable for all infringements.” Presidential Decree no. 2022-578, issued on Jun. 30, 2022, relative to the publishing of the project of the new constitution of the Tunisian Republic for referendum on Monday, July 25, 2022.[14]Articles 14, 15 and 17 of the Decree no. 2011-70, issued on July 29^th, 2011, organizing military justice and defining the fundamental regulation of military judges. https://legislation-securite.tn/ar/law/43402.[15] “Report on Military Trials of Civilians: The Authorities’ Sword Hangs on the Necks of Opponents,” Intersection Association for Rights and Freedoms, Tunis, Aug. 2022. Accessed on Aug. 13, 2022. https://cutt.ly/2NJtydl[16]“Military Sentences in the ‘Airport’ Case in Tunisia: Trials of Civilians and Possible Violations of Defendants’ Rights,” The Legal Agenda, May 18, 2022. Accessed on Sep. 1, 2022. https://legal-agenda.com/%d8%a3%d8%ad%d9%83%d8%a7%d9%85-%d8%a7%d9%84%d8%b9%d8%b3%d9%83%d8%b1%d9%8a%d8%a9-%d9%81%d9%8a-%d9%82%d8%b6%d9%8a%d8%a9-%d8%a7%d9%84%d9%85%d8%b7%d8%a7%d8%b1-%d9%81%d9%8a-%d8%aa%d9%88%d9%86%d8%b3/?fbclid=IwAR3h8khnzih5A3LzfANnELXoxkze4pdJpYaNZVj46HHgqvwkvF3HZqXcsnA#_ftn2[17] Decree no. 2011-69, issued on July 29th, 2011, amending and completing the Code of Military Procedures and Penalties. https://legislation-securite.tn/ar/law/43401#:~:text=الفصل%20الأول%20(جديد)%20-%20تنظر,3-%20دوائر%20اتهام%20عسكريـة[18]Principle 10 of the Founding Principles for the Independence of the Judiciary, Sections A4, I, and K from The Principles of Fair Trial in Africa, Article 12 of the Statute of the Court of Rwanda, and Article 13 of the Statute of the Court of Yugoslavia.[19]Amnesty International. The Guide to a Fair Trial, The Right to a Fair Trial before a Competent, Independent, and Impartial Court Formed as per the Law, p. 113.[20] Article 119 of the 2022 Constitution stipulates that “the judiciary is divided into civil, administrative and financial branches. A Higher Council oversees each category, and the law delineates its composition and area of competence.”[21]Amnesty International. The Guide to a Fair Trial, The Right to a Fair Trial before a Competent, Independent, and Impartial Court Formed as per the Law, p. 111.