against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 10 November 1999,
Having concluded its consideration of communication No. 60/1996, submitted
to the Committee against Torture under article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into account all information made available to it by the author
of the communication and the State party,
Adopts its Views under article 22, paragraph 7, of the Convention.
1. The author of the communication is Mr. Khaled Ben M'Barek, a Tunisian
national currently residing in France, where he enjoys refugee status. He
submits a written authorization from Jamel Baraket, the elder brother of
Faisal Baraket (deceased), to act on his behalf. He claims that Faisal
Baraket and his family are victims of violations by Tunisia of articles 2,
11, 12, 13 and 14 of the Convention.
The Facts as Submitted by the Author
2.1 The author affirms that Faisal Baraket, together with others, was
arrested on the morning of 8 October 1991 by members of the Criminal
Investigation Brigade of the Nabeul National Guard. Mr. Baraket was an
activist in the Tunisian General Students' Union and a member of Al-Nahda,
an unofficial political party. He knew that the police were looking for him
and had therefore gone into hiding. After his arrest, during which he was
beaten, he was brought to the headquarters of the Brigade where he was taken
to the office of Captain Abdelfattah Ladib, the officer in charge.
2.2 The author affirms that, according to the account given by fellow
detainees of Faisal Baraket whom he reportedly met subsequently, in the
presence of the captain and the police officers Abdelkrim Zemmali, Mohamed
Kabbous and Mohamed Moumni, as well as Fadhel, Salah and Taoufik (last names
unknown to the author), Faisal Baraket's hands and feet were immediately
bound and he was suspended between two chairs on a big stick, with his head
down and the soles of his feet and his buttocks exposed, in what is commonly
called the "roast chicken" position. He was then beaten. Some of the
officers later threw him out into the corridor after bringing another
detainee into the office. Faisal Baraket was in a very bad way and seemed to
be dying. The officers nevertheless prohibited the 30 or so detainees
present, including his own brother Jamel, from giving him assistance.
2.3 After half an hour, in view of the fact that he was no longer moving,
two detainees were permitted to lay him on a bench and untie him. When they
discovered that he was dead, they told the guard who then informed his
superior. The detainees were then separated from the victim and confined to
one side of the corridor. Finally, two male nurses from Nabeul University
Hospital arrived, accompanied by the general superintendent of the hospital,
who supervised the removal of the corpse.
2.4 On 17 October 1991, Hedi Baraket, the father of Faisal Baraket, was
taken to Tunis by the Chief of the Traffic Brigade and was informed that his
son had died in a car accident. At the Charles Nicole Hospital, he was asked
to identify the body. He noted that the face was disfigured and difficult to
recognize. He was not permitted to see the rest of the body. He was made to
sign a statement acknowledging that his son had been killed in an accident.
His other son, Jamel, was still in prison at that time. At the funeral, the
police brought the coffin and supervised its interment without it being
2.5 The author has provided the Committee with a copy of the autopsy report
drawn up by Doctors Sassi and Halleb, surgeons at Nabeul Hospital. According
to the report:
We the undersigned, [...] appointed under order No. 745 of 11 October 1991
by the Chief of the Traffic Unit of Menzel Bouzelfa in order to undertake an
examination and autopsy of the corpse of an unknown person to determine the
cause of death:
- Bilateral mydriasis
- Presence of bruises [illegible] the left cheek bone, the lower lip and the
- Small haematoma under the scalp on the left temple
- Bruising and oedema on the right hand and the back of the right forearm
- Bruising and abrasion of the left forearm
- Extensive bruises with major oedema on the buttocks
- Bruises and abrasion on both knees
- The left leg displays two puncture wounds with no underlying osteal
- Bruising and abrasions on the left leg
- Bruising on the soles of both feet
* Cranium: absence of any fracture of the cranium, absence of any
intracranial or intracerebral haematoma
* No flooding of the cerebral ventricles or brain displacement
* Lungs: pulmonary congestion affecting the entirety of both lungs, leaving
only two segments of the upper lobe of the left lung operational
* Systolic cardiac arrest; heart displays no vascular or valvular lesions
* Stomach distended, contains no food
* Small haematoma of the pelvis with perforation of the rectosigmoid
Death would appear to have resulted from acute respiratory insufficiency
related to the extensive pulmonary congestion.
2.6 The author has also provided the Committee with a copy of the report
drawn up in February 1992 by Mr. Derrick Pounder, Professor of Forensic
Medicine at the University of Dundee (United Kingdom) at the request of
Amnesty International, which had taken an interest in the case. That report,
which was prepared on the basis of the autopsy report, indicated, inter alia,
The pattern of injuries described in the autopsy report is inconsistent with
the deceased having died in a road traffic accident as a pedestrian, pedal
cyclist, motor cyclist or vehicle occupant.
The pattern of injuries indicates that they were the result of a systematic
beating by one or more other persons.
The type and pattern of injuries excludes the possibility of deliberate
The autopsy report describes a 'small haematoma of the pelvis with
perforation of the rectosigmoid junction'. Such an injury would be unlikely
to occur in a road traffic accident and then only in association with severe
fractures of the pelvic bones, which were not present in this instance. An
injury of this type is typically the result of the insertion of a foreign
object into the anus. The production of this injury would have required the
forcible insertion of a foreign object for a length of 6 inches or more.
The perforation of the rectosigmoid junction ... may cause sudden death as
the result of shock and an induced abnormality of heart rhythm. Associated
with a sudden death by this mechanism would be extensive pulmonary
congestion (blood overloading of the lungs), as seen in this case [...].
The autopsy report describes no injury other than perforation of the
rectosigmoid junction and no natural disease which might otherwise account
for the death.
There were bruises on the soles of both feet. Such injuries would be unusual
in a road traffic death [...]. The only plausible explanation for the
bruising of the soles of the feet is repeated blows using a heavy instrument
The autopsy report describes extensive bruising with major oedema (i.e.
swelling) of the buttocks. Such an injury pattern would be extremely unusual
in a road traffic accident and, if present, would invariably be associated
with fractures of the underlying bones, which were not present in this
instance. The only plausible explanation for the bruising to the buttocks is
repeated blows [...].
In summary, the autopsy report reveals that this man died as the result of
the forceful insertion of a foreign object at least 6 inches into the anus.
Prior to his death, he had been beaten about the soles of his feet and
buttocks. Other scattered injuries to the body are consistent with further
blows. The entire pattern of injury is that of a systematic physical assault
and very strongly corroborates the allegation of ill-treatment and torture
that has been made. The injury pattern as a whole and the injuries to the
anus, feet and buttocks in particular are incompatible with involvement in a
road traffic accident and this explanation for the death has no credibility
in the light of the autopsy findings."
2.7 The author states that he visited the two principal witnesses to
Faisal's death (names provided) some months after the incident. They said
that Faisal had died in their arms at the Brigade's headquarters. The
author, a trade unionist, was himself subsequently arrested on 15 May 1992
by the same Brigade and was detained at the same location as the victim. He
was sentenced to five months' imprisonment. He states that his detention
gave him the opportunity to meet witnesses to Faisal's death, who
corroborated what the first witnesses had said, namely that Faisal had died
under torture. After his release, while he was still under house arrest, the
author left Tunisia and was granted asylum in France.
2.8 The author has provided a copy of a report dated 13 July 1992 by the
Higher Committee for Human Rights and Fundamental Freedoms (Driss
Commission) containing the following reference to the Baraket case:
The investigating commission had concluded, in its report dated 11 September
1991, that a number of deaths had occurred in obscure and suspicious
two other cases came to light after the Investigating Commission had
completed its work.
- concerning Faisal Baraket, the record of the preliminary investigation
indicates that he met his death in a road accident. This was reported by the
police to the prosecutor's office, which entrusted an investigation (No.
13458) to the examining magistrate attached to the Court of First Instance
We think that these two incidents also occurred in suspicious circumstances
and that, in spite of the fact that the two corresponding cases have been
closed, it appears that new evidence has emerged which warrants the opening
of a new inquiry on the matter in accordance with article 36 of the Code of
2.9 The author claims that the victim's family cannot avail itself of the
domestic remedies offered to it in Tunisia because it fears retaliation by
the police. On 11 December 1991, the author sent an anonymous letter to the
Prosecutor of the Republic in the town of Grombalia in which he reported the
crime, identified the victim and the police officers responsible and
specified the circumstances in which the victim died. He also wrote to the
Minister of Justice, his deputies and the national and international media.
However, the death of Faisal Baraket was never investigated.
2.10 From October 1991 onwards, non-governmental organizations such as
Amnesty International, [FN1] the World Organization against Torture, Action
of Christians for the Abolition of Torture (France) and the Association for
the Prevention of Torture (Switzerland) also requested the Tunisian
Government to investigate the death. However, the Government has always
maintained that the death resulted from a road accident.
[FN1] A summary of the allegations relating to the Baraket case appears in
Amnesty International document MDE 30/04/92 dated March 1992.
2.11 In a judgement dated 2 October 1996, the Tunis Appeal Court awarded
damages amounting to 12,000 dinars to the Baraket family in compensation for
Faisal's death in a road accident. The content of the verdict was
communicated to the family by a lawyer, Mohamed El Marhoul, who affirmed in
his letter that it was the father of Faisal Baraket who had initially
commissioned him to act in that matter. However, the author emphasizes that,
contrary to the said lawyer's affirmation, the Baraket family had never
instituted proceedings in that regard.
3.1. The author claims that the Tunisian Government has violated the
following articles of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment:
Article 2, paragraph 1: The State party not only failed to take effective
measures to prevent torture, but also concealed the facts and denied that
acts of torture had been committed.
Article 11: The Authorities used their supervisory powers not to prevent
torture but to hide the truth.
Article 12: The State party claims that the investigation into Faisal
Baraket's death was closed and, although it promised in 1992 that it would
reopen the case, no investigation has been conducted.
Article 13: The State party forced the victim's father to sign a statement
acknowledging that his son died in an accident, while keeping his other son
Jamel in detention for six months after his brother's death.
Article 14: The State party still denies that Faisal Baraket died under
torture; his family therefore cannot claim compensation.
3.2 The author also affirms that the police officers who tortured Faisal
Baraket have remained in their posts and some of them have even been
3.3 The author repeatedly expresses his concern about the safety not only of
the Baraket family but also of the witnesses and their families following
incidents which he considers to be related to the presentation of the
communication to the Committee.
Proceedings Before the Committee
4.1 In its decision of 5 May 1995, the Committee declared the author's
communication No. 14/1994 inadmissible on the ground that he had not
submitted sufficient evidence to establish his right to act on behalf of the
alleged victim. [FN2 ]
However, the decision stipulated that the Committee could receive and
consider a new communication submitted by any person whose right to act had
been duly established.
4.2 On 6 November 1997, the author submitted a new communication, which the
Committee transmitted to the State party on 23 January 1997 under No.
60/1996 in which the Committee requested the State party to ensure that the
author and his family, the alleged victim's family and the witnesses and
their families were not subjected to any ill-treatment.
Observations of the State Party Concerning Admissibility
5.1 The State party maintains that the communication contains comments that
are insulting and injurious to the Tunisian State and its institutions and
are obviously politically motivated, thereby constituting an abuse of the
right to submit such communications. It further indicates that the domestic
remedies have not been exhausted.
5.2 The State party objects to the Committee's request to take measures to
protect Mr. Jamel Baraket and his family, considering that request as
implying that the Committee has already taken a decision on the question of
the admissibility of the communication.
5.3 The State party expresses doubts concerning the authenticity of the
power of attorney granted to the author by Jamel Baraket, the alleged
victim's brother. In that regard, it points out that, in his first
communication, the author submitted a power of attorney from the alleged
victim's father although the latter had made an authenticated statement to
the Government in which he denied having granted such power of attorney.
5.4 The State party submits that the author's undeclared aims are political
and that he belongs to an extremist movement, on account of which he was
sentenced to three months' imprisonment in Tunisia.
5.5 Concerning the exhaustion of domestic remedies, the State party disputes
the author's claim that remedies either do not exist or are ineffective.
According to the Penal Code, the statutory time limit for criminal
prosecution is 10 years and the public right of action is therefore not
extinguished. Moreover, that time limit can also be suspended or reset
whenever a new investigation is opened. The Office of the Public Prosecutor
had, on its own initiative, twice reopened a judicial investigation and
could order a reopening of the investigation at any time whenever it was
notified of new evidence or developments that might help to discover the
5.6 The State party indicates that the alleged victim's father brought a
civil action for damages in connection with his son's death in a hit-and-run
accident. The claimant in that case was represented by Mr. Mohamed Ahmed El
Marhoul. In a judgement dated 9 October 1995, the Court of First Instance at
Grombalia ordered the Chief of the State Litigation Department (as the legal
representative of the Compensation Fund for the Victims of Traffic
Accidents) to pay a sum of 10,000 dinars to the alleged victim's father in
compensation for the mental pain and anguish that he had suffered. On 2
October 1996, the Court of Appeal upheld that judgement and increased the
amount of compensation to 12,000 dinars.
5.7 The State party maintains that the alleged victim's beneficiaries are
completely free to avail themselves of the domestic remedies before the
Tunisian courts without the risk of any threat or act of reprisal, contrary
to the author's allegations. However, although they instructed a lawyer to
defend their interests before the Tunisian courts, they have shown no
interest in taking this matter outside the domestic channels of recourse.
Comments by the Author
6.1 The author refers to the Committee's request to the State party to
ensure the safety of the witnesses and their families and notes that the
wife of one of the witnesses has been in prison since 23 May 1996 on
political charges relating to meetings allegedly held in 1989, even though
she is a simple housewife.
6.2 The author denies belonging to an extremist movement or acting on behalf
of anyone except Jamel Baraket and his family. He has presented the
Committee with a power of attorney dated 5 December 1994, signed by the
victim's father and confirmed on 7 November 1995 by the brother when the
father's health had deteriorated. He maintains that Jamel Baraket is the
person legally responsible for his family, that he has a close relationship
with him, that Jamel's letters are authentic and that the State party has
not proved the documents to be forgeries.
6.3 The author emphasizes the fact that domestic remedies cannot be
exhausted because of the risk of reprisals. He refers to the inquiries that
have been opened and subsequently closed by the Office of the Public
Prosecutor and claims that no serious criminal proceedings were ever
6.4 With regard to the civil proceedings, the author points out that, by
law, in order to lodge an appeal against the State Litigation Department
under the terms of the legislation concerning the Compensation Fund for the
Victims of Road Accidents, anyone filing a complaint against an unidentified
culprit must first of all: (i) have filed a claim for damages with the Fund
not later than one year after the accident in question; (ii) have reached a
settlement with the Fund or, failing such settlement, have filed a complaint
against it. In the case in question, in the absence of a complaint or a
judgement no prosecution was possible.
6.5 He also claims that the father did not commission any lawyer and that
the family, including his client Jamel Baraket, never recognized the action
for damages that was brought on behalf of Mr. Hedi Baraket. However, they
were forced to put up with it in order to protect themselves against the
reactions of those who had brought the action in their name with a view to
presenting it to the Committee as an operative domestic remedy. The author
notes that, in practice, proceedings of that type very rarely succeed and,
when they do, it is only after many years. However, the Baraket case was
heard in two years, including the appeal, which is astonishing.
Decision of the Committee On Admissibility
7.1 The Committee considered the admissibility of the communication at its
nineteenth session and by its decision of 17 November 1997 found it to be
7.2 The Committee referred to article 22, paragraph 1, of the Convention and
to rule 107, paragraph 1 (b), of its rules of procedure, which allow a
communication to be submitted on behalf of an alleged victim if the author
can justify acting on his behalf. The Committee found that the author,
having submitted a written authorization signed by the brother of the
alleged victim, had duly established his right to represent the alleged
victim's family before the Committee. In this regard, the Committee noted
that the State party had expressed doubts about the genuineness of the
written authorization but had not presented sufficient evidence to conclude
that the document signed by the alleged victim's brother was a forgery.
7.3 Concerning the exhaustion of domestic remedies, the Committee found that
the State party had not given sufficient details about the criminal
proceedings that could be taken in order to establish whether the remedies
would be effective. It noted that, although criminal proceedings had been
initiated, the file had been closed. It also noted that the reports to the
effect that the Tunisian courts had awarded damages to the family in
compensation for the accident of which Faisal Baraket was a victim placed in
doubt the existence of an effective remedy based on a complaint of torture.
The Committee therefore found that it was not prevented from considering the
communication by article 22, paragraph 5 (b), of the Convention.
7.4 The Committee had ascertained, as it was required to do under article
22, paragraph 5 (a), of the Convention, that the same matter had not been
and was not being examined under another procedure of international
investigation or settlement.
State Party's Observations on the Merits of the Communication
8.1 The State party regrets the Committee's decision to find the
communication admissible and notes the questionable nature of the arguments
advanced to justify this decision. Faisal Baraket's family consists of his
mother and five brothers, including Jamel Baraket. As has already been
observed, Faisal Baraket's father, while he was still alive, refused to
authorize the author of the communication to bring legal proceedings of any
kind. The legal representation which is required in a matter as serious as
alleged murder necessitates that authority to bring proceedings before the
Committee should be granted by all of the alleged victim's next of kin. An
allegation made by one person out of eight is not sufficient to raise
serious doubt about the cause of death.
8.2 Moreover, it appears that the Committee is prepared to admit that the
author of the communication is not entitled to bring proceedings unless the
Tunisian Government can prove that the power of attorney signed by the
alleged victim's brother is a forgery. Such a requirement is inconsistent
with the smooth operation of an objective procedure designed exclusively to
discover the truth on the basis of solid and corroborating evidence. In this
instance, the Committee itself would seem to be in the best position to
verify the authenticity of the documentation transmitted to it.
8.3 The State party has submitted the following facts concerning the death
of Faisal Baraket on a number of occasions.
8.4 On 11 October 1991 an anonymous telephone caller informed the National
Guard station at Menzel Bouzelfa that there had been a road traffic accident
on route 26 between Ghrabi and Grombalia. Police officers found the victim
alive at the scene. He was taken to Nabeul regional hospital but died the
same day. His identity remained a mystery for four days, until fingerprint
identification on 15 October 1991 revealed him to be Faisal Baraket. The
autopsy report found the cause of death to be acute respiratory
insufficiency related to extensive pulmonary congestion.
8.5 Following referral of the case, the Public Prosecutor's Office began a
manslaughter investigation against X on 6 November 1991 in connection with
the hit-and-run road traffic accident. On 30 March 1992, given the
impossibility of identifying the culprit, the examining magistrate ordered
the case to be closed until further notice.
8.6 On 15 October 1992 the Tunisian Ministry of Foreign Affairs sent a
letter to Amnesty International stating that "with regard to the case of
Faisal Baraket ... the reopening of which had been requested by the 'Driss
Commission' and your own organization, the Tunisian authorities have
forwarded to the Public Prosecutor attached to the Court of First Instance
at Grombalia the medical report which you transmitted to the Government".
The Public Prosecutor's Office ordered the case to be reopened on 22
8.7 Pursuant to the examining magistrate's decision to order a new expert
medical opinion, three professors of forensic medicine including Dr. Ghachem
were appointed to examine the content of the autopsy report and the
conclusions put forward by Professor Pounder. Their report, a copy of which
has been forwarded to the Committee, states that "the autopsy report fails
to mention the presence of any traumatic lesion to the anus itself. Yet the
forced introduction of a foreign body unavoidably leaves lesions in the area
of the anus and sphincter. The autopsy report [...] refers to the presence
of superficial lesions and a visceral lesion. None of the lesions described
in the report permits the cause of injury to be accurately determined. The
description of the lesions is very vague and incomplete and does not help to
determine their origin. The conclusions reached by Professor Pounder cannot
therefore be substantiated since they are not based on objective facts, the
lesions referred to in the report being of a very imprecise nature". Once
again, the case was closed for lack of evidence.
8.8 Following the submission of communication No. 14/1994 to the Committee,
the Public Prosecutor's Office attached to the Court of First Instance at
Grombalia ordered the case to be reopened. The examining magistrate
immediately proceeded to examine the persons named by the author. Mr. Hedi
Baraket stated that he did not know the author, nor had he ever met him; he
also denied the allegations contained in the communication. A deposition to
this effect was signed by Mr. Hedi Baraket and forwarded to the Committee.
Three so-called witnesses who, according to the author, were purportedly
present at the death of Faisal Baraket have denied knowing either the author
or the alleged victim, and they further deny having witnessed scenes of
torture. A fourth individual stated that he was bribed by the author. In
exchange for a sum of money, he agreed to make a tape recording of a text
prepared by the author. Finally, the general superintendent at Nabeul
Hospital stated that he had never gone to the police station to help the
victim. The examining magistrate therefore decided that there were no
grounds for pursuing the matter.
8.9 Faisal Baraket's relatives have never sued for damages in civil
proceedings. For this reason, they have never contested the two decisions to
close the case. Furthermore, article 5 of the Tunisian Code of Criminal
Procedure stipulates that the statutory time limit for criminal prosecution
is 10 years from the date of commission of the offence charged. This period
may be suspended or reset whenever a new inquiry is opened. Relatives are
entitled to submit new material of any kind in order to persuade the Public
Prosecutor's Office to reopen the judicial investigation.
8.10 The State party indicates that on 16 November and 10 December 1991
Faisal Baraket's parents filed separate applications with the Grombalia
Public Prosecutor's Office challenging the arbitrary detention and
disappearance of their son Jamel Baraket. Both of these applications were
successful. Given they were able to take such steps without incurring the
reprisals predicted by the author, by the same token they were entirely at
liberty to raise the matter of Faisal Baraket had they been convinced that
he had been tortured to death. But no complaint of torture has ever been
filed with the Tunisian courts. The criminal investigations to discover the
truth in this matter have been initiated by the Public Prosecutor's Office.
8.11 The State party reports that the Ministry of Foreign Affairs has
requested the Ministry of Public Health to commission a second report from
Professor Ghachem on the conclusions of his initial report. This second
report, a copy of which has been sent to the Committee, states that: "While
it is true that the description of the lesions referred to in the autopsy
report is imprecise and their origin is not explained, it is nevertheless
the case that the conclusions reached by Professor Pounder are not based on
objective forensic evidence. This is because the forced introduction of a
foreign body into the anus leaves obvious marks in this area [...]. The
autopsy report makes no mention of any traumatic lesions to the anus. [...]
Nevertheless, I am also of the opinion that an exchange of views and a
discussion with Professor D.J. Pounder and Professor S. Sassi regarding this
case would be very useful.
8.12 The State party has also provided a French translation of an excerpt
from a sworn deposition made by Dr. Sassi before the examining magistrate.
The relevant passage reads: "It has been ascertained that there was a
rupture of the large intestine in the area of the pelvis and the
infiltration of waste products from the large intestine into the body caused
a blood infection which in turn led to insufficiency of the respiratory
apparatus, the direct cause of death. Dr. Sassi explained to us that the
rupture of the large intestine was due to an acute traumatism which could
have resulted from the collision between the victim and a solid body. This
could have been the result of a road traffic accident involving a motor
8.13 Regarding the question of civil proceedings, the State party emphasizes
that Faisal Baraket's father did indeed bring a civil action for damages in
connection with his son's death in a road traffic accident; from March 1995
he was represented in this action by Mr. Ahmed El Marhoul. The judgement in
this case became final and enforceable following an appeal by the parties.
Counsel proceeded to enforce the judgement. The author has provided no
convincing explanation as to why one of the beneficiaries has received the
sum due to him, thereby unambiguously indicating that Mr. Marhoul has
performed his proper function.
8.14 The State party takes issue with the Committee's contention in its
decision on admissibility that insufficient details were provided regarding
the criminal proceedings that may be taken. The State party stresses that it
has submitted detailed records of the proceedings and investigations
conducted on two occasions by the competent examining magistrate. It is
astonished to find that, in the Committee's view, the remedy for alleged
torture cannot be considered "effective" unless it results in a trial and
subsequent conviction. If this were the case, investigative procedures - an
indispensable component of criminal proceedings - would simply be a means to
realize this end, whereas it is well established both in fact and in law
that the examining magistrate must conduct his investigations with a view to
indictment or acquittal.
Comments by the Author
9.1 The author recalls that in 1992 the Higher Committee for Human Rights
and Fundamental Freedoms transmitted a report to the President of the
Republic in which it expressed the view that the death of Faisal Baraket had
occurred in suspicious circumstances and that, in spite of the case being
closed, new evidence had seemingly come to light which would warrant the
opening of a new inquiry. The State party has not indicated what evidence
led the official Government commission to form this view.
9.2 The author has transmitted to the Committee a copy of a letter dated 20
July 1994 which was sent to the President of the Movement against Racism and
for Friendship among Peoples, a foreign non-governmental organization which
has taken an interest in the case, via the Tunisian ambassador to France.
The ambassador did not mention the road traffic accident hypothesis and
placed the case in the context of promoting human rights and strengthening
democratic structures in Tunisia. The author notes that the State party has
not provided an explanation for this letter.
9.3 The State party claims to have reopened the Baraket case following the
transmission of communication No. 14/1994, and to have summoned for
questioning the witnesses named by the author. In fact, the police officers
concerned have never been questioned or involved with the inquiry in any
way, despite the fact that the author has indicated their name and rank.
9.4 With regard to the witness who the State party says has been bribed, the
author claims that the witness is a wealthy businessman and asks where he
could have found the money to offer a bribe, since he himself has no money
to give. This same witness informed the author that, when he was questioned
after the reopening of the case, he was detained for over a week and the
police officers involved in the Faisal Baraket case were present during his
detention. This is the witness whose wife was arrested in 1996. [FN3]
Finally, the general superintendent at Nabeul Hospital is unknown to the
author and has never been named by him as a "witness".
[FN3] See above, para. 6.1.
9.5 The author rejects the State party's contention that there is no
connection between the imprisonment of the wife of one of the witnesses and
the case under consideration. The State party has not explained to the
Committee why proceedings were instituted against the wife in question. It
has also failed to explain why she has been transferred to a prison far away
from her family, and why her counsel is prohibited from talking to her
without the presence of witnesses.
9.6 The author has forwarded a letter from Professor Pounder in which the
latter states his opinion on the report compiled by Professor Ghachem and
two other experts. Professor Pounder notes that the State party has not
provided the text of the report [FN4] and states that, on the basis of the
sentences which the State party has excerpted, he has not changed his
opinion, namely that a road traffic accident could not explain the type of
injuries which led to the death of Faisal Baraket. He reconfirmed that, in
his opinion, the injury to the rectum could only have been received as a
consequence of a foreign body being inserted into the anus. Furthermore, it
is perfectly possible that such an injury could have been produced without
causing a lesion to the anus itself.
[FN4] The full text of the report was subsequently transmitted to the
9.7 The author has provided three other reports commissioned by Amnesty
International from three professors of forensic science who evaluated the
report prepared by the three experts and Professor Pounder's report. They
all concur with Professor Pounder's opinion. The first, dated 6 October
1994, was drawn up by Professor Knight of the University of Wales, and
I have studied the translation of the very short autopsy report from the
Regional Hospital of Nabeul, Tunisia concerning an unnamed deceased person.
I have also read the report of Professor Derrick Pounder and the extract
from the Tunisian Government's response.
I must begin by saying that I agree in every particular with Professor
Pounder's report and reject the government response, including the further
opinion of three professors of legal medicine in Tunisia, whose comments are
This was a 25-year-old man and therefore in the absence of evidence to the
contrary, would be expected at that age to be free of natural disease,
especially in the rectum and sigmoid.
The cause of death given on the autopsy report (which must surely be only a
brief summary, as no judicial autopsy report can possibly be this short) is
useless and gives no true information at all about the underlying pathology
leading to the death - it is merely a statement of the terminal mode of
death, not the cause and is thus of no value whatsoever.
The autopsy reveals bruising of the soles of both feet, a perforation of the
large intestine at the rectosigmoid junction, extensive bruising and oedema
of the buttocks, various other bruises on the face, arms, head and legs. The
only potentially fatal injury is perforation of the rectosigmoid junction.
The only cause for this, in the absence of any serious stated disease such
as cancer, severe colitis etc., is a perforating injury. This can only be
caused, in the absence of gross abdominal injury, by an object being
introduced into the rectum. This could occur without any damage to the anal
margin, if a thin, pointed object, such as a thin rod was slid into the
anus. Thus the objections of the three professors are unfounded, if they
base their denial on the absence of anal damage. The bruising of the soles
of the feet can only occur from beating in falanga. The bruising and oedema
of the buttocks is typical of a beating in that area.
I entirely concur with Professor Pounder and agree that this cannot be a
'traffic accident', but is a deliberate injury to the lower intestine by the
introduction of a thin weapon into the rectum, in a man who has been beaten
on the feet and buttocks."
9.8 The second report, prepared by Professor Fournier of the Université René
Descartes in Paris on 10 October 1994, indicates that:
[The autopsy report], which may be described as very succinct, furnishes no
evidence as to the true cause of death. [...] Most of the lesions described
could be ascribed to a road accident. However, two factors rule out this
- The perforation of the rectosigmoid junction, which cannot be accounted
for in terms of a mechanism of sharp deceleration and cannot be linked to an
osteal lesion of the pelvis.
- The lesions on the soles of both feet, which are difficult to imagine in
The hypothesis of death by inhibition is compatible with the observations
made during examination with the naked eye. This type of death, which may be
observed when violence is applied but also sometimes independently of any
context of violence or torture, has been described on the occasion of
vaginal or rectal examination, various punctures (of the pleura, the lumbar
region, etc.), or injury to the testicles, the solar plexus region or the
neck. The exact mechanism of death is not known, but pulmonary congestion is
usually observed. As the dossier stands, and in the absence of more precise
data concerning the prior clinical state and the toxicological context, the
hypothesis of death by inhibition following the deliberate and traumatic
introduction of a foreign body into the rectum appears to be highly likely."
9.9 Lastly, the third report, prepared by Professor Thomsen of the
University of Odense on 11 November 1994, states in relation to the autopsy
The above pattern of injury is not consistent with any known type of road
traffic accident. The pattern of injury is much more consistent with having
been inflicted deliberately by the use of blunt violence. Thus the
haemorrhages of the foot soles are very indicative of the type of torture
known as phalanga (or falaca) inflicted by the beating of the soles of the
feet with clubs or similar instruments. A perforation of the rectosigmoid
junction is very rarely seen without a pelvic fracture and is much more
indicative of torture by the insertion of an object through the anal canal.
The rest of the lesions are all consistent with the use of blunt violence in
the form of beating by one or more other persons.
The stated cause of death is almost meaningless, as congestion of the lungs
is always secondary to some other pathologic state.
Based on the available brief autopsy report it is much more likely that the
cause of death was the described perforation of the bowel wall.
9.10 With regard to the civil proceedings, the legal time limits for
admissibility were largely exceeded by the time proceedings were brought.
The Court of Appeal not only confirmed the admissibility of the case, but
also increased the damages payable to the beneficiaries. The Chief of the
State Litigation Department specifically stated before the Court of Appeal
that the decision of the court of first instance in favour of the victim's
father had violated the law in that the alleged victim of a road traffic
accident caused by an unidentified culprit must file, in writing and no more
than one year from the date of the accident, a request to reach an amicable
agreement with the Compensation Fund for the Victims of Road Accidents. In
this case, the authorities were only apprised of the accident on 30 May
1995, or three years and five months after it occurred, thereby involving
the statute of limitation.
9.11 The author states that Faisal Baraket's younger brother is the only
member of the family to have been paid his share of the compensation for the
road traffic accident. Jamel Baraket, who is legally responsible for the
family, has instructed the author to inform the Committee that this was done
without his knowledge, his brother did not act spontaneously and it has not
affected the family's position. This remains unchanged, in spite of the fact
that the sums awarded are sizeable in proportion to the standard of living
in Tunisia and the family's very modest material situation. The family has
always refused to have any dealings with the lawyer Mr. Mohamed Ahmed El
Marhoul, particularly with regard to his persistent appeals that they should
come to his office and collect the money. At the request of the President of
the Court of First Instance, Mr. Ahmed El Marhoul should long ago have filed
a warrant authorizing remittance of the sums in question to the Treasury.
9.12 The author reaffirms that the victim's parents never brought criminal
proceedings because they knew for a fact that their son did not die in a
road traffic accident. They also knew that the State party was acting in bad
faith when it reopened and closed the same case three times in less than
three years, entrusting the same people with the investigation on each
Further Observations by the State Party
10.1 Concerning the medical opinions advanced by Dr. Knight, Dr. Thomsen and
Dr. Fournier, the State party affirms that these are not medical evaluations
but comments prepared on the basis of an alternative report, which was in
turn drawn up on the basis of Dr. Sassi's initial report, and which purely
and simply endorsed the conclusions reached by Dr. Pounder.
10.2 The State party considers it unacceptable that the author should accuse
the Tunisian judicial authorities of distorting the procedure by questioning
witnesses and not suspects. A suspect becomes a suspect only when there is
credible and consistent evidence and proof which may be revealed by
witnesses, inter alia. From the standpoint of criminal procedure,
examination of witnesses is necessary, before the possible questioning of
the "real" suspects. In addition, the examination of witnesses is carried
out exclusively before the competent examining magistrate, in his office and
without any criminal investigation officer being present.
10.3 As regards civil procedure, the State party points out a flagrant
contradiction on the part of the author. On the one hand, he considers Jamel
Baraket as being "legally responsible" for the entire Baraket family, while
at the same time he mentions that Mohamed El Hedi is 27 years old. In
Tunisia the age of majority is 20. Consequently, Jamel Baraket cannot be
legally responsible for adult relatives, except where the courts have
declared them legally incompetent by reason of insanity. He is not even the
legal representative of his close relatives, as to date he has not cited a
legally valid authorization.
10.4 The lawyer Mohamed Ahmed El Marhoul did not appear "out of the blue" in
the civil proceedings, as the author claims. The father of the late Faisal
Baraket, who has since died, engaged him to pursue an action for
compensation following a road accident, on his behalf and on behalf of all
the other heirs. None of the heirs had recourse to the law to challenge his
authority. In any event, the relations between a lawyer and his clients fall
within the sphere of private law and are not subject to any supervision on
the part of the Government. If not all those entitled to compensation have
yet received it, that is not because they have been subjected to pressure by
the lawyer, but because they are being manipulated by the author of the
10.5 Lastly, as regards the situation of the wife of one of the "witnesses",
she has been prosecuted in keeping with normal legal procedures for offences
under the ordinary law.
Consideration on the Merits
11.1 The Committee has considered the communication in the light of all
information made available to it by the parties concerned, in accordance
with article 22, paragraph 4, of the Convention.
11.2 It also notes that the author of the communication claims that the
State party has violated articles 2, 11, 12, 13 and 14 of the Convention.
11.3 Regarding articles 11 and 14, the Committee considers that the
documents communicated to it furnish no proof that the State party has
failed to discharge its obligations under these provisions of the
11.4 As regards article 12 of the Convention, the Committee notes first that
study of the information forwarded by the parties points to the following
- The victim Faisal Baraket did indeed die no later than 11 November 1991,
the date of the order for an autopsy; dying, according to the author of the
communication, as a result of his arrest, or, according to the State party,
as a result of a road accident caused by an unknown person.
- In October 1991, the State party received allegations that Faisal Baraket
died as a result of torture from the following non-governmental
organizations: Amnesty International, World Organization against Torture,
Action of Christians for the Abolition of Torture (France) and Association
for the Prevention of Torture (Switzerland).
- On 13 July 1992, a report prepared by the Higher Committee for Human
Rights and Fundamental Freedoms, an official Tunisian body, had considered
Faisal Baraket's death to be suspicious and had suggested that an inquiry
should be begun under article 36 of the Code of Criminal Procedure.
11.5 However, only on 22 September 1992 was an inquiry ordered into these
allegations of torture - over 10 months after the foreign non-governmental
organizations had raised the alarm and over 2 months after the Driss
11.6 In a similar case, [FN5] the Committee had considered delays of three
weeks and more than two months on the part of the competent authorities in
reacting to allegations of torture to be excessive.
[FN5] Encarnación Blanco Abad v. Spain (CAT/C/20/D/59/1996)
11.7 The Committee is of the view that the State party did not comply with
its obligation under article 12 of the Convention to proceed to a prompt ...
investigation, wherever there is reasonable ground to believe that an act of
torture has been committed in any territory under its jurisdiction and that
there was consequently a violation of the Convention.
11.8 Concerning the investigation carried out by the competent authorities
of the State party, the following acts may be regarded as having been
- The examining magistrate, who was entrusted with the case by the Public
Prosecutor's Office on 22 September 1992, ordered a new medical evaluation,
which found that it was impossible to determine the mechanism by which the
lesions observed on the victim had arisen, or their origin, and dismissed
- Assigned the case once again, following communication No. 14/1994, the
magistrate examined the persons mentioned by the author of the
communication. However, as all these persons denied the slightest knowledge
of the alleged events, the magistrate again dismissed the case.
11.9 The Committee notes in this regard that, among other things, the
examining magistrate had at his disposal the results of other important
investigations which are customarily conducted in such matters, but made no
use of them:
- First, notwithstanding the statements made by the witnesses mentioned, and
in particular bearing in mind the possibility of incomplete recall, the
magistrate could have checked in the records of the detention centres
referred to whether there was any trace of the presence of Faisal Baraket
during the period in question, as well as that, in the same detention centre
and at the same time, of the two persons mentioned by the author of the
communication as having been present when Faisal Baraket died. It is not
without relevance to note in this regard that in pursuance of principle 12
of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment, adopted on 9 December 1988, [FN6] as well as
article 13 bis of the Tunisian Code of Penal Procedure, [FN7] - a record
must be left of every person detained.
- Next, the magistrate might have sought to identify the accused officials,
examine them and arrange a confrontation between them and the witnesses
mentioned as well as the complainant.
- Lastly, in view of the major disparities in the findings of the forensic
officials as to the causes of some of the lesions observed on the victim,
the Committee considers that it would have been wise to order the exhumation
of the body in order at least to confirm whether the victim had suffered
fractures to the pelvis (confirming the accident hypothesis) or whether he
had not (confirming the hypothesis that a foreign object had been introduced
into his anus); this should have been done, as far as possible, in the
presence of non-Tunisian experts, and more particularly those who have had
occasion to express a view on this matter.
[FN6] Principle 12 reads:
1. There shall be duly recorded:
(a)The reasons for the arrest;
(b) The time of the arrest and the taking of the arrested person to a place
of custody as well as that of his first appearance before a judicial or
(c) The identity of the law enforcement officials concerned;
(d) Precise information concerning the place of custody.
2. Such records shall be communicated to the detained person, or his
counsel, if any, in the form prescribed by law.
[FN7] n its comments on the conclusions and recommendations of the Committee
following its consideration of Tunisia's second periodic report the
Government stated that "All departments with responsibility for places of
detention are obliged to keep a special numbered register including the
identities of all persons held in custody and indicating the time and date
that the custody period begins and ends (article 13 bis of the Code of
Criminal Procedure)." [A/54/44, para. 105]
11.10 The Committee considers that the magistrate, by failing to investigate
more thoroughly, committed a breach of the duty of impartiality imposed on
him by his obligation to give equal weight to both accusation and defence
during his investigation, as did the Public Prosecutor when he failed to
appeal against the decision to dismiss the case. In the Tunisian system the
Minister of Justice has authority over the Public Prosecutor. It could
therefore have ordered him to appeal, but failed to do so.
12. Consequently, the State party breached its obligation under articles 12
and 13 of the Convention to proceed to an impartial investigation wherever
there is reasonable ground to believe that an act of torture has been
committed in any territory under its jurisdiction.
13. In pursuance of rule 111, paragraph 5, of its rules of procedure, the
Committee calls on the State party to inform it, within 90 days from the
date of the communication provided for in rule 111, paragraph 3, of its
rules of procedure, of the steps it has taken in response to the
observations made above.
[Done in French (original text) and translated into English, Russian and