During the period between 20 March and 2 August 2018, the Truth and Dignity Commission (TDC) remitted 20 files related to grave violations of human rights to chambers specialized in transitional justice. The TDC therefore waited four years since its establishment before launching the accountability course mandated to these chambers as per Article 8 of the Organic Law on Establishing and Organizing Transitional Justice.[1] On 29 May 2018, the Specialized Criminal Chambers held their first hearing in Gabes. The hearing was widely welcomed by human rights bodies, going beyond the local scope to the extent that the high commissioner for human rights issued a statement in which he considered the move “a truly historic moment – the start of a new era in the fight against impunity in Tunisia”.[2]

At this point, the course of accountability appears to be the safest amongst those available to Tunisian transitional justice as far as tensions are concerned. This course has been void of such tensions that marked the TDC’s work. Additionally, it is one that is sure to continue in light of the political authority’s refusal to extend the TDC’s term past 31 May 2018. This image may be deceptive in part because this course raises problematic issues. Some of these issues are related to the preliminary stage of investigation in the preparation of the files undertaken, and others have to do with the stage of issuing rulings. Such issues raise an embarrassing question regarding the extent to which these specialized chambers are committed to the conditions of fair trial, [and by extension] regarding the constitutionality of its work in a country whose constitution requires no “exceptional” trials be held.

 

Issues of the Preliminary Investigation Stage

Article 47 of the Tunisian Code of Criminal Procedure requires that all criminal offenses described as crimes be investigated.[3] Article 107 establishes the principle of two-tier litigation in this initial investigation stage.[4] The same procedural provisions mandate the investigative work to judges appointed by the Supreme Judicial Council and to courts of appeal judges.[5] It is thus clear that the Tunisian penal procedural system considers the investigative judiciary as one of the stages of trial that requires a professional independent judiciary that looks for evidence of innocence just as they look for evidence of conviction.

By contrast, the judicial accountability provisions of the Law on Establishing and Organizing Transitional Justice did not address the preliminary investigation stage. It seems the TDC quickly realized this matter and tried, through its internal documents, to fix this by constructing a system that complies with the principles of judicial investigation. However, some aspects of their efforts appear to contradict legal texts and principles, most prominently the following:

– The investigation carried out by the TDC is regulated by an internal decision that is not even published in the official gazette. This violates Article 65 of the Constitution which stipulates that laws relating to the organization of justice and the judiciary are deemed organic laws, whereas procedures before various types of courts are deemed ordinary laws.[6]

– The investigation by the TDC shall be carried out by judges appointed by the Commission whose chairperson is entitled to terminate their appointment whenever the chairperson wishes.[7] Indeed, the weak administrative status of these judges has led to the resignation of a number of them[8] against the backdrop of an absence of the conditions of independence.[9]

– The ordinal text of the TDC investigator gave them the authority to hear the victims and witnesses, as well as interrogations and prosecution, but it denied them any of the powers to conduct a preliminary investigation. One of the most important powers denied here is the authority to “adjudicate”, as the investigator may only propose a draft indictment.

 

The Problem with the Absence of Review Methods

Members of the National Constituent Assembly were concerned about the judiciary handling human rights violations. They justified their fear in that some of the judges are themselves involved in such violations. In an attempt to find solutions to their concern without establishing special courts, they came up with the idea of ​​creating – within the framework of the courts of justice – specialized judicial chambers “by a decree within courts of first instance in the headquarters of the courts of appeal, and shall consist of judges chosen among those who have never participated in trials of a political nature”.[10] Accordingly, the Constituent Assembly ended up creating chambers that do not meet the requirements of a fair trial, for the following two reasons at least:

1. The chambers look into cases based on an administrative decision rather than a judicial one; and

2. The rulings are final and cannot be appealed by any means before a second-level court.

The TDC’s annual report for  2015 revealed that in a meeting held on 23 June, the Commission’s board and the Provisional Authority for the Supervision of the Judicial Justice realized the danger of the chambers’ violation of the Constitution and the need to find solutions for this issue.[11] However, they did not want to open a public debate at the time.

It seems clear that these chambers, which were celebrated by everyone at the beginning of their work, are fundamentally incompatible with the constitutional conception of a fair trial. This raises the question of whether they are specialized or exceptional courts that threaten the values ​​of the Second Republic.

In response to this statement, some say in side conversations that have never been published, that Article 148 of the Tunisian Constitution, which states that “the state undertakes to apply the transitional justice system in all its domains and according to the deadlines prescribed by the relevant legislation”, will practically result in immunizing the specialized chambers against any challenge to their constitutionality.[12] However, this argument is weak for two reasons:

• First, it is unquestionable that this stipulation in Article 148 is set to counter any negative resistance by the state to the courses of transitional justice in a way that would contradict the values of the Constitution. It is entirely wrong to interpret this article in that it might allow a contravention of any of these values. Any such interpretation would be contrary to the will of the constituent authority and to the principles of a hierarchy of legal norms that places the Constitution at the top of the pyramid, and as long as the constitution is in effect, does not accept its violation thereof by laws that have a lesser standing.

• Secondly, transitional justice values require, firstly, the right to a fair trial. This is given so that the reopening of the trial in these cases derives its legitimacy from the suspicions – particularly for the absence of the conditions of a fair trial – that surrounded the trials which took place during the period of the transitional justice process. Could it after all be possible to hold a retrial in a particular case on the grounds that the conditions of a fair trial had not been previously available, while the retrial itself does not meet those conditions?

To overcome this structural issue, it may be important to boldly ask the question about the reforms that should be adopted to bring about a new start to justice that society still awaits.

 

This article is an edited translation from Arabic.

 

Keywords: Truth and Dignity Commission, Tunisia, Transitional Justice

 

[1] See: Judge Afaf Al-Nahaly’s article “Yajib al-Tafkir Fi Maslahat al-Dahaya Awwalan La Fi Raʾisat al-Hayʾa Saʿida Bu Hlal”, Assabah, 15 January 2018. Judge Al-Nahaly, who was a placement judge at the TDC until mid-August 2017, revealed that up until that date, the TDC had not prepared the files to be referred to the specialized chambers. This negligence explains the limited number of referrals compared to the number of gross violations of human rights the TDC had pledged to look into.

[2] Tunisia: “Mufawwad Huqouq al-Insan Yusheed Bimasar al-Adala al-Intiqaliyya Fi al-Bilad”, United Nations News, 30 May 2018.

[3] Article 47 of the Code of Criminal Procedure states that “investigation in felonies is obligatory, but optional in misdemeanors unless otherwise stipulated by law”.

[4] Article 107 states that “if the investigating judge considers that the acts constitute a felony, they shall decide to refer the accused to the indictment chamber together with the facts of the case and a list of things seized”.

[5] Articles 258, 259, and 260 of the Code of Criminal Procedure.

[6] Article 65 of the Constitution states: “Laws relating to the following areas are deemed ordinary laws:… Procedures before various types of courts… Laws relating to the following areas are deemed organic laws:… Organization of justice and the judiciary… Freedoms and human rights… All matters which do not form part of the domain of laws shall be within the domain of general regulatory authority.”

[7] A statement issued by the TDC dated 16 August  2018: “Terminating the placement of an employee is a purely administrative measure subject to applicable work procedures and to the requirements of the TDC statute. It is the prerogative of the chairman of the board, and the Commission has resorted to him many times”.

[8] The resignation of Judge Omar al-Tayyeb from the TDC, dated 17 August 2017, reads: “I am now certain that it is no longer possible to continue to work in the TDC to the fullest extent and in the proper manner”.

[9] In a statement issued on 16 August 2017 by The Tunisian Observatory for the Independence of the Judiciary, the observatory “feared an increase in pressure on placement judges of the TDC, as well as the inadequate conditions that forced a number of them to resign”.

[10] Article 8 of the amended bill, as ratified.

[11] Page 123 of the annual report of the TDC, published on the TDC website, reads: “Commitment to the principle of two-tier litigation is guaranteed by the Constitution and international agreements”.

[12] Article 148 of the Tunisian Constitution states:“ 9. The state undertakes to apply the transitional justice system in all its domains and according to the deadlines prescribed by the relevant legislation. In this context the invocation of the non-retroactivity of laws, the existence of previous amnesties, the force of res judicata, and the prescription of a crime or a punishment are considered inadmissible.”