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The Committee
against Torture, established under Article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 14 November 2003,
Having concluded its consideration of complaint No. 188/2001, submitted to
the Committee against Torture by Mr. Imed Abdelli 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
complainant, his counsel and the State party,
Adopts the following:
Decision Under Article 22, Paragraph 7, of the Convention
1. The complainant is Mr. Imed Abdelli, a Tunisian citizen, born on 3 March
1966 in Tunis and resident in Switzerland since 7 July 1998, where he has
refugee status. He claims to be the victim of violations by Tunisia of the
provisions of article 1, article 2, paragraph 1, article 4, article 5,
article 11, article 12, article 13, article 14, article 15 and article 16 of
the Convention. He is represented by the non-governmental organization
Vérité-Action.
1.2 Tunisia ratified the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment and made the Declaration under article
22 of the Convention on 23 September 1988.
Facts as Submitted by the Complainant
2.1 The complainant states that he was an active member of the Islamist
organization ENNAHDA (formerly MTI). One day in July 1987, at 1.30 a.m., the
complainant was arrested at his home, on the grounds that he belonged to an
unauthorized association. He says that, while he was being arrested, the
police manhandled his mother and beat two of his brothers with their
truncheons. The complainant was held for 2 days at the district police
station in a dirty cellar with no water; for 10 days in the holding cells in
El Gorjani, from where he was taken daily to the Jebel Jelloud district
police headquarters for questioning; and for one month at the Bouchoucha
detention centre.
2.2 The complainant provides a detailed description of the different types
of torture to which he was subjected.
2.3 The complainant describes what is customarily known as the "roast
chicken" position, in which the victim is stripped naked, his hands tied and
his legs folded between his arms, with an iron bar placed behind his knees,
from which he is then suspended between two tables and beaten, in particular
on the soles of his feet, his knees and his head. The complainant says that
he was subjected to this torture for two sessions lasting more than one hour
each. He adds that, during one of these sessions, his torturers also
masturbated him to humiliate him and leave him exhausted.
2.4 The complainant also claims that he was subjected to "chair" torture, in
which the victim is forced to kneel and to hold a chair as high as possible
above his head, and is then whipped whenever he starts to lower the chair.
2.5 Following this, for one month, in the detention centre of the
intelligence service in Bouchoucha, the complainant was subjected to
interrogation under torture, namely, the "roast chicken" position, until he
passed out. He adds that, every day, when being escorted from his cell to
the offices, he was struck across the face and hit with truncheons. In
addition, according to the complainant, his family was unable to obtain any
information about him and his mother was detained, for an entire day, in the
premises of the Ministry of the Interior for having requested a meeting with
her son. The complainant asserts that he witnessed torture being inflicted
on other detainees, such as Zoussef Bouthelja and Moncef Zarrouk, the latter
having died in his cell on 13 August 1987 as a result of the ill-treatment
to which he had been subjected.
2.6 From the end of August to 25 October 1987, the complainant was detained
in Tunis prison in an overcrowded cell with no facilities.
2.7 On 25 October 1987, the complainant was placed in Mornag prison, after
being sentenced to two years' immediate imprisonment. When the indictment
against him was quashed he was released on 24 December 1987.
2.8 Two months later, the complainant was questioned by the police for
possession of a video cassette showing the bloodshed of 1987 committed by
the State security services of Sousse governorate. The complainant was held
for 15 days at the headquarters of the Ministry of the Interior and was
subjected to interrogation accompanied by slaps, beatings and intimidation.
He was released on 30 March 1988.
2.9 According to the complainant, following the April 1989 elections, he
stopped coming back to his family home because of a wave of arrests being
conducted at the time, targeted in particular against opposition party
members and sympathizers. The complainant claims that in 1990 his family was
subjected to harassment (night-time raids, summonses for questioning and
confiscation of passports). In May 1991, the complainant's brothers Lofti
and Nabil were detained and tortured in order to get information about the
complainant.
2.10 On 20 November 1991, at 7 a.m., the complainant was detained by the
State security services. He maintains that, for the next 25 days he was
subjected to various forms of torture. The complainant mentions the practice
of "balanco", in which the victim is held upside down and immersed in dirty
water with an admixture of bleach and other chemicals until he chokes. The
victim adds that his torturers tied a piece of string to his penis which
they then repeatedly tugged in all directions, until it started emitting a
mixture of blood and sperm.
2.11 The complainant was also placed on a table where he was masturbated and
then beaten on his erect penis. The complainant claims that he was given
injections in his testicles, which caused first strong arousal and then
intolerable pain. He adds that he was subjected to sessions of beatings
administered by experts, in which he was struck on both ears at the same
time until he passed out, and claims that his hearing has been permanently
damaged as a result. He also claims that his torturers were assisted by a
doctor, to ensure that torture was applied in the most effective doses.
2.12 According to the complainant, on the twenty-fifth day, the Director of
State Security, Ezzedine Djmail, stubbed out cigarettes on his body, notably
in the region of his genitalia.
2.13 On 13 January 1992, the complainant was taken to Tunis central prison.
2.14 After appearing briefly before the judge, on 12 March 1992, the
complainant was sentenced to two years' immediate imprisonment and three
years' administrative supervision for helping to support an unauthorized
association, and this verdict was upheld on appeal on 7 July 1992. The
complainant submits a statement by a representative of the non-governmental
organization Human Rights Watch, who attended one session of the trial and
states that his case was disturbing.
2.15 The complainant states that his request for a medical check was refused
and that he was even threatened by a member of the prison service with
further torture if he dared complain of his treatment to the judge.
2.16 After six months in Tunis central prison, the complainant was
repeatedly transferred between different penal institutions in the country,
including El Kef prison, from 19 July to 15 October 1992; Kasserine, from 15
to 18 October 1992; and then Gafsa, and others, which transfers, he
maintains, were designed to prevent him from having any contact with his
family. The complainant says that he was treated like an "untouchable", in
other words, he was barred from speaking with or being helped by other
detainees; his mail and family visits were obstructed. The complainant says
that his mother was always abused when she visited the prison - her
headscarf was ripped off and she was summoned for questioning after the
visits.
2.17 On leaving Gafsa prison on 11 January 1994, the complainant was taken
to the governorate security headquarters to fill in a report sheet and to
answer questions about the activities of other prisoners and his future
plans. He was ordered to report at Gorjani district police headquarters as
soon as he arrived in Tunis.
2.18 The complainant was also required to report for administrative
supervision twice a day, at 10 a.m. and 4 p.m. at the local police station,
and to report daily to the district police headquarters. According to the
complainant, these supervision arrangements had the practical effect of
house arrest, accompanied by a prohibition on employment. In addition,
several weeks after his release, the complainant was required to report for
questioning by various security bodies, including the national guard station
on route X in Bardo, the national guard investigation centre in Bardo, the
intelligence service, the State security service and the national guard
barracks in Aouina. These bodies all subjected him to questioning and
demanded that he collaborate with them in monitoring members of the
opposition, on pain of continued harassment against him and his family,
through such measures as night-time raids and summonses for questioning.
2.19 The complainant claims that, after he threatened to defy the
administrative supervision arrangements, he was able to resume his
university studies, but these were still severely disrupted by the repeated
summonses to Sijoumi police headquarters for questioning, because of his
refusal to collaborate.
2.20 In spring 1995, the complainant was rearrested on the grounds that he
had attempted to flee the country. He was held for 10 days and subjected to
ill-treatment, comprising beatings, slaps and threats of sexual abuse, in an
endeavour to force him to collaborate. Under this coercion, the complainant
signed a minuted record on 12 April 1995, certifying that he was an active
member of the unauthorized organization ENNAHDA.
2.21 The complainant was then sentenced, on 18 May 1995, by the court of
first instance in Tunis to three years' immediate imprisonment and five
years' administrative supervision; this verdict was upheld on appeal on 31
May 1996.
2.22 The complainant says that he requested the judge at the court of first
instance in Tunis to protect him from the torture to which he was subjected
daily in prison, and also informed him that he had been on hunger strike for
a week. According to the complainant, the police then escorted him from the
courtroom in the presence of the judge, who did not react.
2.23 While held in Tunis central prison from 13 April 1995 to 31 August
1996, the complainant was subjected to torture which, on this occasion,
comprised the practice of "falka", in which the torturers tie the victim's
legs to a bar and raise his feet in the air so that they can whip the soles
of his feet. The complainant explains that the deputy director of the prison
personally participated in these torture sessions, tying him, for example,
to the door of his cell before hitting him on the head with a truncheon
until he passed out. At the end of August and beginning of September 1995,
the complainant was placed in solitary confinement and deprived of washing
facilities. He then went on a hunger strike, demanding medical attention and
an end to the discriminatory treatment against him.
2.24 After being transferred to Grombalia prison, the complainant continued
his hunger strike from 28 November to 13 December 1997 and, once again, was
beaten on the orders of the director.
2.25 The complainant states that, during his years of detention, he was only
ever able to have one meeting with his lawyers, and that was in the presence
of a prison officer.
2.26 After his release on 12 April 1998, the complainant was subjected to
harassment, in the form of summonses for questioning, interrogation and
daily supervision, until he fled the country for Switzerland on 22 June
1998, where he was granted refugee status in December 1998.
2.27 The complainant states that, since he fled the country, members of his
family have been subjected to interrogation and other forms of humiliation,
including a refusal to issue a passport to his mother.
2.28 The complainant provides a list of people who carried out acts of
torture against him, namely, Ezzeddine Jnaieh, Director of State Security in
1991; Mohamed Ennaceur, Director of General Intelligence in 1995; Moncef Ben
Gbila, senior officer in the State Security Service in 1987; Mojahid Farhi,
lieutenant colonel; Belhassen Kilani, full lieutenant; Salim Boughnia, full
lieutenant; Faouzi El Attrouss, major; Hédi Ezzitouni, full lieutenant;
Abderrahman Guesmi, Interior Ministry official; Faycal Redissi, Interior
Ministry official; Tahar Dlaiguia, Bouchoucha detention centre official;
Mohamed Ben Amor, State Security; Hassen Khemiri, warrant officer; Mohamed
Kassem, deputy director of Messadine prison in 1997; Habib Haoula, prison
wing supervisor at Messadine prison; and Mohamed Zrelli, prison wing
supervisor at Grombalia prison. The complainant adds that the then Minister
for Internal Affairs, Abdallah Kallel, should be held responsible for the
treatment to which he was subjected since, at a press conference held on 22
May 1991, the minister named him as the person responsible for a campaign of
terror.
2.29 The complainant describes the after-effects of his torture and the
conditions in which he was held, which include hearing problems (he submits
a certificate from a Swiss ear, nose and throat specialist), rheumatism,
skin disorders, an ulcer and mental problems.
2.30 As to whether all domestic remedies have been exhausted, the
complainant argues that, although such remedies are provided in Tunisian
law, they are unavailable in practice because of the bias of judges and the
impunity granted to those responsible for violations. He adds that the
regulations governing the activities of bodies which play a role in
upholding human rights, such as the Higher Committee for Human Rights and
Fundamental Freedoms and the Constitutional Council, prevent them from
supporting complaints of torture. To back up his argument, he cites the
reports of such non-governmental organizations as Amnesty International.
Substance of the Complaint
3.1 The complainant maintains that the Tunisian Government has breached the
following articles of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment:
Article 1. The practices described above, such as "falka", the "roast
chicken" position, "balanco", the "chair", etc., to which the complainant
was subjected, constitute acts of torture.
Article 2, paragraph 1. It is alleged that the State party not only failed
to take effective measures to prevent torture, but even mobilized its
administrative machinery and, in particular, its police force as an
instrument of torture against the complainant.
Article 4. It is alleged that the State party has not ensured that all the
acts of torture to which the complainant has been subjected are offences
under its criminal law.
Article 5. It is alleged that the State party has instituted no legal
proceedings against those responsible for torturing the complainant.
Article 11. It is alleged that the authorities have not used their
supervisory powers to prevent torture; instead, specific instructions have
been given that torture is to be applied.
Article 12. It is alleged that the State party has not carried out an
investigation of the acts of torture committed against the complainant.
Article 13. It is alleged that the State party has not effectively upheld
the complainant's right to lodge a complaint with the competent authorities.
Article 14. It is alleged that the State party has ignored the complainant's
right to make a complaint and has thereby deprived him of his right to
redress and rehabilitation.
Article 15. It is alleged that the complainant was sentenced in 1992 and
1995 to prison sentences on the basis of confessions obtained as a result of
torture.
Article 16: The repressive measures and practices described above, such as
solitary confinement, violation of the right to medical care and medicine
and the right to send and receive mail, restriction of family visits, house
arrest and harassment of his family, applied by the State party against the
complainant constitute cruel, inhuman and degrading treatment or punishment.
3.2 The complainant also alleges that his right to practise his religion
while in detention, his freedom of movement and his right to work were
infringed by the administrative supervision measures applied against him, as
was his right to continue his studies. He seeks redress for the harm
inflicted on him and on his family, including cessation of the daily
harassment of his family by the local police, and requests that they be
granted passports.
State Party's Observations on Admissibility
4.1 On 4 December 2001, the State party challenged the admissibility of the
complaint on the grounds that the complainant had neither employed nor
exhausted available domestic remedies. It maintains, first, that the
complainant may still have recourse to the available domestic remedies,
since, under Tunisian law, the limitation period for acts alleged to be, and
characterized as, serious offences is 10 years.
4.2 The State party explains that, under the criminal justice system, the
complainant may submit a complaint, from within Tunisia or abroad, to a
representative of the Public Prosecutor's Office with jurisdiction in the
area in question. He may also authorize a Tunisian lawyer of his own choice
to submit such a complaint or request a foreign lawyer to do so with the
assistance of a Tunisian colleague.
4.3 Under the same rules of criminal procedure, the Public Prosecutor will
receive the said complaint and institute a judicial inquiry. In accordance
with article 53 of the Code of Criminal Procedure, the examining magistrate
to whom the case is referred will hear the author of the complaint. In the
light of this hearing, he may decide to hear witnesses, question suspects,
undertake on-site investigations and seize physical evidence. He may also
order expert studies and carry out any actions which he deems necessary for
the uncovering of evidence, both in favour of and against the complainant,
with a view to discovering the truth and verifying facts on which the trial
court will be able to base its decision.
4.4 The State party explains that the complainant may, in addition, lodge
with the examining magistrate during the pre-trial proceedings an
application for criminal indemnification for any harm suffered, over and
above the criminal charges brought against those responsible for the
offences against him.
4.5 If the examining magistrate deems that the public right of action is not
exercisable, that the acts do not constitute a violation or that there is no
prima facie case against the accused, he shall rule that there are no
grounds for prosecution. If, on the other hand, the magistrate deems that
the acts constitute an offence punishable by imprisonment, he shall send the
accused before a competent court - which in the present instance, where a
serious offence has been committed, would be the indictment chamber. All
rulings by the examining magistrate are immediately communicated to all the
parties to the proceedings, including the complainant who brought the
criminal indemnification proceedings. Having been thus notified within a
period of 48 hours, the complainant may, within four days, lodge an appeal
against any ruling prejudicial to his interests. This appeal, submitted in
writing or orally, is received by the clerk of the court. If there is prima
facie evidence of the commission of an offence, the indictment chamber sends
the accused before the competent court (criminal court or criminal division
of a court of first instance), having given rulings on all the counts
established during the proceedings. If it chooses, it may also order further
information to be provided by one of its assessors or by the examining
magistrate; it may also institute new proceedings, or conduct or order an
inquiry into matters which have not yet been the subject of an examination.
The decisions of the indictment chamber are subject to immediate
enforcement.
4.6 A complainant seeking criminal indemnification may appeal on a point of
law against a decision of the indictment chamber once it has been notified.
This remedy is admissible when
the indictment chamber rules that there are no grounds for prosecution; when
it has ruled that the application for criminal indemnification is
inadmissible, or that the prosecution is time-barred; when it has deemed the
court to which the case has been referred to lack jurisdiction; or when it
has omitted to make a ruling on one of the counts.
4.7 The State party stresses that, in conformity with article 7 of the Code
of Criminal Procedure, the complainant may bring criminal indemnification
proceedings before the court to which the case has been referred (criminal
court or criminal division of the court of first instance) and, as
appropriate, may lodge an appeal, either with the Court of Appeal if the
offence in question is an ordinary offence, or with the criminal division of
the Court of Appeal if it is a serious offence. The complainant may also
appeal to the Court of Cassation.
4.8 Second, the State party maintains that the domestic remedies are
effective. According to the State party, the Tunisian courts have
systematically and consistently acted to remedy deficiencies in the law, and
stiff sentences have been handed down on those responsible for abuses and
violations of the law. The State party says that, between 1 January 1988 and
31 March 1995, judgements were handed down in 302 cases involving members of
the police or the national guard under a variety of counts, 227 of which
fell into the category of abuse of authority. The penalties imposed varied
from fines to terms of imprisonment of up to several years. [FN1]
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[FN1] The examples cited by the State party are available for information in
the file.
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4.9 Third, the State party maintains that, given the complainant's
"political and partisan" motives and his "offensive and defamatory" remarks,
his complaint may be considered an abuse of the right to submit complaints.
4.10 The State party explains that the ideology and the political platform
of the "movement" of which the complainant was an active member are based
exclusively on religious principles, promoting an extremist view of religion
which negates democratic rights and the rights of women. This is an illegal
"movement", fomenting religious and racial hatred and employing violence.
According to the State party, this "movement" perpetrated terrorist attacks
which caused material damage and loss of life over the period 1990-1991. For
that reason, and also because it is in breach of the Constitution and the
law on political parties, this "movement" has not been recognized by the
authorities.
4.11 The State party indicates that the complainant is making
unsubstantiated allegations to the effect that "the Tunisian authorities
have not criminalized these acts of torture …". According to the State
party, this allegation is given the lie by Act No. 99-89 of 2 August 1999,
whereby the legislature amended and transposed a number of provisions of the
Criminal Code and incorporated the definition of torture as set out in the
Convention against Torture.
Complainant's Comments on the State Party's Observations
5.1 In a letter of 7 May 2002, the complainant challenged the State party's
argument that he was supposedly unwilling to turn to the Tunisian justice
system and make use of domestic remedies.
5.2 The complainant believes that the recourse procedures are excessively
protracted. He notes, in this context, that the appeal procedure against his
conviction in 1995 comprised 18 sessions, lasting from June 1995 to the end
of May 1996. According to the complainant, these delays were entirely due to
the authorities, who repeatedly postponed consideration of his appeal
because they were embarrassed to have to convict a person - who, to make
matters worse, was a political opponent - for illegally attempting to leave
the country. He says that this conviction would in itself be harmful to the
image of the regime and that this made it harder to hand down a stiff
sentence. He believes that this delay in a simple appeal procedure
demonstrates that the lodging of a complaint of torture - even assuming that
such a complaint would be accepted - would be an even more protracted
process. The complainant also describes how, when his name appeared in
various reports by non-governmental organizations, including after his
conviction in 1995, the authorities reacted by worsening the conditions in
which he was held, subjecting him to mental and corporal punishment and
transferring him to prisons far from his family home, and harassing his
family, who were placed under stricter supervision. In support of his
arguments, he cites the case of Mr. Abderraouf Khémais Ben Sadok Laribi, who
died in police custody as a result of ill-treatment. According to the
complainant, even though the dead man's family lodged a complaint of
intentional homicide against the Minister of the Interior on 9 August 1991,
and even though the case received extensive media coverage, as a result of
which his family received material compensation and an interview was granted
with an adviser of the President, the case was closed without any effective
investigation, while the minister in office at the time was given full
protection by the Government.
5.3 The complainant also believes that the recourse procedures would not
lead to any satisfactory remedies. He enumerates the efforts he made, to no
avail, in 1992 to seek a medical examination and, in 1995, to secure
protection from the judicial authorities against the ill-treatment to which
he was being subjected. For that reason, it seemed unlikely to the
complainant that he would obtain satisfaction from the judicial authorities.
The complainant explains that his case with the magistrate was not an
isolated instance and, in that context, submits an extract from a report by
the Tunisian Committee for Human Rights and Freedoms. He maintains that the
judicial system is not independent and gave him no protection when he was
convicted in 1992 and 1995. He says that he has been a victim of the
"culture of torture" in Tunisia and that it was psychologically very
difficult for him to submit his complaint to the Committee against Torture
for fear of reprisals against his family. He adds, lastly, that his hunger
strikes against his ill-treatment failed to bring any results, apart from
some material concessions. Similarly, the letters he wrote to the
administration of the prisons following these hunger strikes also proved
unavailing. In addition, the transfer of the prison service to the Ministry
of Justice has done nothing to change the complicity of the service in such
practices. The complainant cites extracts from reports by the International
Federation for Human Rights and the Tunisian Committee for Human Rights and
Freedoms in support of his observation that complaints of torture do not
succeed and that the authorities exert pressure to prevent the lodging of
such complaints. He also maintains that the administrative supervision under
which he was placed, which involved constant supervision by eight different
authorities, accompanied by acts of intimidation, meant that lodging a
complaint would have placed him in danger.
5.4 The complainant also challenges the State party's arguments that a
Tunisian lawyer can be instructed from abroad to lodge a complaint.
5.5 The complainant describes serious encroachments by the authorities on
the free and independent exercise of the legal profession. According to the
complainant, lawyers who dare to defend complaints of torture are subject to
harassment and other abuses, including prison sentences. As an example, he
cites the cases of the lawyers Néjib Hosny, Béchir Essid and Anouar Kosri,
and quotes extracts from reports and statements by Amnesty International,
the World Organization against Torture, the International Federation for
Human Rights and the International Commission of Jurists. He adds, also on
the basis of these reports by non-governmental organizations, that none of
the complaints lodged by victims of torture over recent years, particularly
following the promulgation in 1988 of article 13 bis of the Code of Criminal
Procedure, providing for the possibility of medical visits, have been
followed up. He also explains that, in certain cases, medical checks have
been allowed after a long delay, once all traces of torture have
disappeared, and that the checks are sometimes carried out by compliant
doctors who will fail to find anything wrong with the detainees' physical
condition, even if there are traces of torture. The complainant believes
that, in these circumstances, it would not make much difference to appoint a
lawyer.
5.6 The complainant also cites as an obstacle the fact that not only is
legal aid not an established practice in Tunisia, but that the procedures
involved are not accompanied by the necessary safeguards.
5.7 The complainant also stresses that the lodging of a complaint from
abroad with the Tunisian authorities is likely to be covered by article 305,
paragraph 3, of the Tunisian Code of Criminal Procedure, which provides that
"any Tunisian who commits any of the offences mentioned in section 52 bis of
the Criminal Code abroad may be prosecuted and brought to trial, even if the
aforementioned offences are not punishable under the legislation of the
State in which they were committed". The complainant believes that a
complaint submitted by him from abroad could be construed as an insult
against the regime, given that the State party has declared him to be a
terrorist.
5.8 The complainant also explains that his situation as a political refugee
in Switzerland precludes him from successfully concluding any proceedings
that he might initiate, given the restrictions placed on contacts between
refugees and the authorities in their own countries. He explains that
severance of all relations with the country of origin is one of the
conditions on which the status of refugee is granted, and that it plays an
important role when consideration is being given to withdrawing asylum.
According to the complainant, such asylum would effectively end if the
refugee should once again, of his own volition, seek the protection of his
country of origin, for example by maintaining close contacts with the
authorities or paying regular visits to the country.
5.9 The complainant also challenges the affirmation by the State party of
the existence of available remedies. He argues that the State party has
confined itself to repeating the procedure described in the Code of Criminal
Procedure, which is far from being applied in reality, particularly where
political prisoners are concerned. In support of his argument, the
complainant cites reports by Amnesty International, Human Rights Watch, the
World Organization against Torture, the National Consultative Commission on
Human Rights in France and the National Council for Fundamental Freedoms in
Tunisia. The complainant also refers to the Committee against Torture's
concluding observations on Tunisia, dated 19 November 1998. He stresses that
the Committee against Torture recommended, among other things, that the
State party should, first, ensure the right of victims of torture to lodge a
complaint without the fear of being subject to any kind of reprisal,
harassment, harsh treatment or prosecution, even if the outcome of the
investigation does not prove their allegations, and to seek and obtain
redress if those allegations are proven correct; second, ensure that medical
examinations are automatically provided following allegations of abuse and
that autopsies are performed following any deaths in custody; and third,
ensure that the findings of all investigations concerning cases of torture
are made public and that such information includes details of any offences
committed, the names of the offenders, the dates, places and circumstances
of the incidents and the punishment received by those found guilty. The
Committee also noted that many of the regulations existing in Tunisia for
the protection of arrested persons were not adhered to in practice. It also
expressed its concern over the wide gap that existed between law and
practice with regard to the protection of human rights, and was particularly
disturbed by the reported widespread practice of torture and other cruel and
degrading treatment perpetrated by security forces and the police, which, in
certain cases, resulted in death in custody.
5.10 The complainant also notes the lack of independence of the judicial
system and the bodies set up to monitor application of the law. Lastly, he
emphasizes that the State party's reply, in the current case, shows that no
domestic investigation has been held into the rather detailed information
contained in the complaint under consideration.
5.11 The complainant also challenges the State party's argument that the
domestic remedies are effective.
5.12 With regard to the 302 cases involving police or national guard
officers against whom, according to the State party, sentences have been
handed down, the complainant points out that there is no tangible proof that
these cases, which have not been published or made public in any way,
actually took place; that the 277 cases cited by the State party as examples
of abuse of authority are not relevant to the case in question; and that the
State party refers only to cases which do not tarnish the image of Tunisia
and therefore include no case of inhuman or degrading treatment. He explains
that the cases adduced by the State party took place during the period
1988-1995 and were covered by the concluding observations of the Committee
against Torture mentioned above.
5.13 Lastly, the complainant believes that the State party's comments
regarding his membership of the ENNAHDA movement and the aspersions cast
upon it demonstrate the continued discrimination against the opposition,
which is still considered illegal. According to the complainant, with its
references in this context to terrorism, the State party is demonstrating
its bias and, by extension, the impossibility of obtaining any remedy in
Tunisia. He also stresses that the prohibition of torture and inhuman or
degrading treatment is a provision which admits of no exception, including
for terrorists.
5.14 Finally, in the light of his previous explanations, the complainant
rejects the observation by the State party to the effect that the present
complaint constitutes an abuse of the right to submit complaints, an
argument which, the complainant believes, shows that the State party has
decided to resort to a political manoeuvre which has no legal relevance.
Additional Observations From the State Party on Admissibility
6.1 On 8 November 2002 the State party again challenged the admissibility of
the complaint. It maintains, first, that the complainant's claims about
recourse to the Tunisian justice system and the use of domestic remedies are
baseless and unsupported by any evidence. It adds that appeal procedures do
not take an unreasonable time, and that proceedings in respect of the
allegations made in the complaint are not time-barred, since the time-limit
for bringing proceedings in such cases is 10 years. Second, the State party
considers that the complainant's claims that a complaint lodged from abroad
with the Tunisian authorities is might be covered by article 305, paragraph
3, of the Code of Criminal Procedure, which permits the prosecution of those
guilty of terrorist acts, are baseless. Third, the State party affirms that,
contrary to the complainant's allegations, it is open to him to instruct a
lawyer of his choice to lodge a complaint from abroad. The State party adds
that the complainant's refugee status does not deprive him of his right to
lay complaints before the Tunisian courts. Fourth, it maintains that
domestic remedies before the Tunisian judicial authorities are not only
possible in the current case but effective, as shown by the fact that
victims of violations in Tunisia have obtained satisfaction. Lastly, the
State party indicates that its reply of 4 December 2001 was not intended to
be defamatory to the complainant, who is, nonetheless, abusing the right to
submit complaints.
Committee's Decision on Admissibility
7.1 At its twenty-ninth session, the Committee considered the admissibility
of the complaint, and in a decision of 20 November 2002 declared it
admissible.
7.2 With regard to the issue of the exhaustion of domestic remedies, the
Committee noted that the State party challenged the admissibility of the
complaint on the grounds that available and effective domestic remedies had
not been exhausted. In the present case, the Committee noted that the State
party had provided a detailed description both of the remedies available,
under law, to any complainant and of cases where such remedies had been
applied against those responsible for abuses and for violations of the law.
The Committee considered, nevertheless, that the State party had not
sufficiently demonstrated the relevance of its arguments to the specific
circumstances of the case of this complainant, who claims to have suffered
violations of his rights. It made clear that it did not doubt the
information provided by the State party about members of the security forces
being prosecuted and convicted for a variety of abuses. But the Committee
pointed out that it could not lose sight of the fact that the case at issue
dates from 1987 and that, given a statute of limitations of 10 years, the
question arose in the present case of whether, failing interruption or
suspension of the statute of limitations - a matter on which the State party
had provided no information - action before the Tunisian courts would be
disallowed. The Committee noted, moreover, that the complainant's
allegations related to facts that had already been reported publicly to the
authorities. The Committee pointed out that to date it remained unaware of
any investigations voluntarily undertaken by the State party. The Committee
therefore considered it very unlikely in the present case that the
complainant would obtain satisfaction by exhausting domestic remedies, and
decided to proceed in accordance with article 22, paragraph 5 (b), of the
Convention.
7.3 The Committee noted, in addition, the argument by the State party to the
effect that the complainant's claim was tantamount to abuse of the right to
lodge a complaint. The Committee considered that any report of torture was a
serious matter and that only through consideration of the merits could it be
determined whether or not the allegations were defamatory. Furthermore, the
Committee believed that the complainant's political and partisan commitment
adduced by the State party did not impede consideration of this complaint,
in accordance with the provisions of article 22, paragraph 2, of the
Convention.
State Party's Observations on the Merits
8.1 In its observations of 3 April 2003 and 25 September 2003, the State
party challenges the complainant's allegations and reiterates its position
regarding admissibility.
8.2 In relation to the allegations concerning the State party's "complicity"
and inertia vis-à-vis "practices of torture", the State party indicates that
it has set up preventive [FN2] and dissuasive [FN3] machinery to combat
torture so as to prevent any act which might violate the dignity and
physical integrity of any individual.
---------------------------------------------------------------------------------------------------------------------
[FN2] This includes instruction in human rights values in training schools
for the security forces, the Higher Institute of the Judiciary and the
National School for training and retraining of staff and supervisors in
prisons and correctional institutions; a human-rights-related code of
conduct aimed at senior law enforcement officials; and the transfer of
responsibility for prisons and correctional institutions from the Ministry
of the Interior to the Ministry of Justice and Human Rights.
[FN3] A legislative reference system has been set up: contrary to the
complainant's allegation that the Tunisian authorities have not criminalized
acts of torture, the State party indicates that it has ratified the
Convention against Torture without reservations, and that the Convention
forms an integral part of Tunisian domestic law and may be invoked before
the courts. The provisions of criminal law relating to torture are severe
and precise (Criminal Code, art. 101 bis).
---------------------------------------------------------------------------------------------------------------------
8.3 Concerning the allegations relating to the "practice of torture" and the
"impunity of the perpetrators of torture", the State party considers that
the complainant has not presented any evidence to support his claims. It
emphasizes that, contrary to the complainant's allegations, Tunisia has
taken all necessary legal and practical steps, in judicial and
administrative bodies, to prevent the practice of torture and prosecute any
offenders, in accordance with articles 4, 5 and 13 of the Convention.
Equally, according to the State party, the complainant has offered no
grounds for his inertia and failure to act to take advantage of the
effective legal opportunities available to him to bring his case before the
judicial and administrative authorities (see paragraph 6.1). Concerning the
Committee's decision on admissibility, the State party emphasizes that the
complainant cites not only "incidents" dating back to 1987, but also
"incidents" dating from 1995, 1996 and 1997, that is, a time when the
Convention against Torture was fully incorporated into Tunisian domestic law
and when he reports "ill-treatment" that he claims to have suffered while
being held in "Tunis central prison" and "Grombalia prison". Hence the
statute of limitations has not expired, and the complainant should urgently
act to interrupt the limitation period, either by contacting the judicial
authorities directly, or by performing an act which has the effect of
interrupting the limitation. The State party also mentions the scope for the
complainant to lodge an appeal for compensation for any serious injury
caused by a public official in the performance of his duties, [FN4] noting
that the limitation period stands at 15 years. [FN5] The State party points
out that the Tunisian courts have always acted systematically to remedy
deficiencies in the law on acts of torture (see paragraph 4.10).
---------------------------------------------------------------------------------------------------------------------
[FN4] Under the Administrative Court Act of 1 June 1972, the State may be
held responsible even when it is performing a sovereign act if its
representatives, agents or officials have caused material or moral injury to
a third person. The injured party may demand from the State compensation for
the injury suffered, under article 84 of the Code of Obligations and
Contracts, without prejudice to the direct liability of its officials
vis-à-vis the injured parties.
[FN5] Administrative Court - judgement No. 1013 of 10 May 1003 and judgement
No. 21816 of 24 January 1997.
---------------------------------------------------------------------------------------------------------------------
8.4 As for the allegations of failure to respect guarantees relating to
judicial procedure, the State party regards them as unfounded. According to
the State party, the authorities did not prevent the complainant from
lodging a complaint before the courts - on the contrary, he opted not to
make use of domestic remedies. As for the "obligation" of judges to ignore
statements made as a result of torture, the State party cites article 15 of
the Convention against Torture, and considers that it is incumbent on the
accused to provide the judge with at least basic evidence that his statement
has been made in an unlawful manner. In this way he would confirm the truth
of his allegations by presenting a medical report or a certificate proving
that he had lodged a complaint with the public prosecutor's office, or even
by displaying obvious traces of torture or ill-treatment to the court.
However, the State party points out that the complainant did not deem it
necessary to lodge a complaint either during his detention or during his
trial; this formed part of a strategy adopted by the "ENNAHDA" illegal
extremist movement in order to discredit Tunisian institutions by
systematically alleging acts of torture and ill-treatment but not making use
of available remedies.
8.5 Concerning the allegations relating to his confession, the State party
considers baseless the complainant's claim that he was found guilty on the
sole basis of his confession. It points out that, under the last paragraph
of article 69 and article 152 of the Code of Criminal Procedure, a
confession on the part of the accused cannot relieve the judge of the
obligation to seek other evidence, while confessions, like all items of
evidence, are a matter for the independent appreciation of the judge. On
that basis, it is a constant of Tunisian case law that an accused cannot be
found guilty on the sole basis of a confession. [FN6] In the case in
question, the basis for the court's decision, in addition to the confessions
made by the complainant throughout the judicial proceedings, was testimony
by his accomplices. The State party also rejects as baseless the
complainant's allegation that he had signed a transcript without being aware
of its content, pointing out that the law requires that the transcript be
read to the accused before signature, and that this was done. Concerning the
complainant's allegations that the proceedings in his case were both summary
and protracted, the State party indicates that the length of the proceedings
is dictated by respect for the right to a defence. In addition, with the aim
of preventing counsel or even the prosecution from engaging in delaying
tactics and seeking the postponement of hearings, the State party points out
that rulings by judges are always accompanied by a statement of grounds, as
are rulings postponing hearings relating to the criminal proceedings against
the complainant.
---------------------------------------------------------------------------------------------------------------------
[FN6] Judgement No. 4692 of 30 July 1996, published in the Revue de
Jurisprudence et Législation (R.J.:L); judgement No. 8616 of 25 February
1974 R .J .L . 1975; and judgement No. 7943 of 3 September 1973 R.J.L 1974.
---------------------------------------------------------------------------------------------------------------------
8.6 Concerning the allegations relating to prison conditions, and in
particular the comparison of prisons to "concentration centres", the State
party considers them unfounded. Concerning the arrangements for transfers
between one prison and another, which the complainant considers to
constitute an abuse, the State party points out that, in keeping with the
applicable regulations, transfers are decided upon in the light of the
different stages of the proceedings, the number of cases and the courts
which have competence for specific areas. The prisons are grouped in three
categories: for persons held awaiting trial; for persons serving custodial
sentences; and semi-open prisons for persons found guilty of ordinary
offences, which are authorized to organize agricultural labour. According to
the State party, as the status of the complainant had changed from that of
remand prisoner to that of a prisoner serving a custodial sentence, and
bearing in mind the requirements as to investigations in his case or in
other similar cases, he was transferred from one prison to another, in
accordance with the applicable regulations. Moreover, the conditions in
which the complainant was held, wherever he was held, were in keeping with
the prison regulations governing conditions for holding prisoners in order
to ensure prisoners' physical and moral safety. The State party points out
that prisoners' rights are scrupulously protected in Tunisia, without any
discrimination, whatever the status of the prisoner, in a context of respect
for human dignity, in accordance with international standards and Tunisian
legislation. Medical, psychological and social supervision is provided, and
family visits are allowed.
8.7 Contrary to the allegations that the medical consequences suffered by
the complainant are due to torture, the State party rejects any causal link.
Moreover, according to the State party, contrary to the complainant's
allegations that his request for a medical examination was refused (see
paragraph 2.15), he enjoyed appropriate care and proper medical supervision,
as stipulated in the prison regulations, throughout his stay in prison.
8.8 Concerning the allegations that he was denied visits, according to the
State party the complainant regularly received visits from his brother
Belhassen Abdelli, in accordance with the prison regulations, as
demonstrated by the visitors' records in the prisons in which he was held.
8.9 Concerning the allegations relating to article 11 of the Convention, the
State party rejects them and refers to systematic monitoring [FN7] of
compliance with rules, instructions, methods and practices of interrogation
and provisions relating to the holding [FN8] and treatment of persons who
have been arrested, detained or imprisoned. [FN9]
---------------------------------------------------------------------------------------------------------------------
[FN7] In addition to legislation, protective institutional machinery has
been set up by stages, including surprise visits to prisons by the Chairman
of the Higher Committee for Human Rights and Fundamental Freedoms, and the
creation on 31 July 2000 of a post of "judge for the enforcement of
sentences" who is responsible for closely monitoring the enforcement of
custodial sentences and conducting periodic visits to prisons.
[FN8] Act No. 99-90 of 2 August 1999 amended and supplemented a number of
provisions of the Code of Criminal Procedure, and in particular reduced the
length of police custody to three days, renewable once only for a further
three days. Under the Act, criminal investigation officers may not hold a
suspect for more than three days; they must notify the public prosecutor,
who may, by written decision, extend the length of police custody once only
for a further three days. The criminal investigation officer must inform the
suspect of the measure being taken against him and its duration, and his
rights under the law, notably the possibility of undergoing a medical
examination during his period in custody. The officer must also inform one
of the suspect's parents or children, brothers or sisters or spouse, as
selected by him, of the measure being taken against him. These safeguards
were further strengthened under the constitutional reform of 26 May 2002,
which granted constitutional status to supervision of police custody by the
judiciary, stipulating that this custodial measure could be imposed only by
order of a court.
[FN9] The Act of 24 April 2001 on conditions for the imprisonment and
treatment of detainees strengthened safeguards for the protection of
prisoners and provided for prisoners to be prepared for a working life by
offering them opportunities for paid employment.
---------------------------------------------------------------------------------------------------------------------
8.10 Concerning the allegations relating to administrative supervision and
the social situation of Mr. Abdelli's family, the State party explains that
administrative supervision cannot be equated with ill-treatment under the
Convention against Torture because it is in fact an additional punishment
for which provision is made in article 5 of the Criminal Code. According to
the State party, the application of this measure did not prevent the
complainant from continuing to live a normal life, and in particular to
pursue his studies following his release in 1994. It is pointed out that the
fact that it was not possible for those studies to be completed could not
constitute proof of alleged restrictions imposed within the framework of
administrative supervision. According to the State party, the allegations of
abuse are unfounded, and the summonses produced by the complainant do not
constitute ill-treatment or an abuse of the administrative supervision
procedure. In addition, the State party indicates that the summons dating
from 1998 constitutes irrefutable evidence that the complainant's
allegations are false. It also maintains that the complainant's family is
not suffering from any form of harassment or restrictions, that the
complainant's mother is receiving a pension following the death of her
husband, and that the family is living in decent circumstances.
Observations by the Complainant :
9.1 In his observations dated 20 May 2003, the complainant sought to respond
to each of the points contained in the above observations by the State
party.
9.2 Concerning the preventive arrangements for combating torture, the
complainant considers that the State party has confined itself to listing an
arsenal of laws and measures of an administrative and political nature
which, he says, are not put into effect in any way. To support this
assertion he cites reports prepared by the non-governmental organization
"National Council for Fundamental Freedoms in Tunisia" (CNLT). [FN10]
---------------------------------------------------------------------------------------------------------------------
[FN10] « Le procès-Tournant : A propos des procès militaires de Bouchoucha
et de Bab Saadoun en 1992 », October 1992 ; "Pour la réhabilitation de
l'indépendance de la justice», April 2000- December 2001.
---------------------------------------------------------------------------------------------------------------------
9.3 In relation to the establishment of a legislative reference system to
combat torture, the complainant considers that article 101 bis of the Code
of Criminal Procedure was adopted belatedly in 1999, in particular in
response to the concern expressed by the Committee against Torture at the
fact that the wording of article 101 of the Criminal Code could be used to
justify serious abuses involving violence during questioning. He also claims
that this new article is not applied, and attaches a list of the victims of
repression in Tunisia between 1991 and 1998 prepared by the non-governmental
organization "Vérité-Action". He also points out that the cases cited by the
State party to demonstrate its willingness to act to combat torture relate
only to accusations of abuse of authority and violence and assault, as well
as offences under the ordinary law, and not to cases of torture leading to
death or cases involving physical and moral harm suffered by the victims of
torture.
9.4 Concerning the practice of torture and impunity, the complainant
maintains that torturers do enjoy impunity, and that in particular no
serious investigation has been carried out into those suspected of
committing crimes of torture. He considers that, in his own case, the State
party's observations display a selective approach to the facts by shifting
from 1987 to 1996, whereas the most serious violations occurred in 1991. The
complainant also states that, whereas a State governed by the rule of law
should automatically follow up any report of a criminal act which may be
regarded as a serious offence, the Tunisian authorities are content to
accuse the alleged victims of terrorism and manipulation. The complainant
considers that his allegations are at the very least plausible in terms of
the detail of the torture he suffered (names, places and treatment
inflicted), but the State party contents itself with a blanket denial. The
complainant did not mention torturers because of their membership of the
security forces, but because of specific and repeated attacks on his
physical and moral integrity and his private and family life. The initiation
of an investigation designed to check whether a person belonging to the
security forces has committed acts of torture or other acts does not
constitute a violation of the presumption of innocence but a legal step
which is vital in order to investigate a case and, if appropriate, place it
before the judicial authorities for decision. In relation to appeals before
the courts, the complainant considers that the State party has confined
itself to repeating the description of legal options open to victims set out
in its previous submissions without responding to the last two sentences of
paragraph 7.2 of the decision on admissibility. He reiterates that the
theoretical legal options described by the State party are inoperative,
while listing in support of this conclusion cases in which the rights of the
victims were ignored.
9.5 Concerning the complainant's inertia and lack of action, he considers
that the State party is inconsistent in holding that acts of torture are
regarded as serious offences in Tunisian law and accordingly prosecuted
automatically, while awaiting a complaint by the victim before taking
action. He also re-emphasizes his serious efforts to demand a medical
examination and an investigation into the torture he had suffered.
9.6 Concerning the allegations relating to the trial, the complainant
considers that the State party remains silent concerning the conditions in
which his trial took place, and has failed to embark on any investigation to
check the allegations of torture that he made before the judge.
9.7 Concerning the allegations relating to his confession, the complainant
maintains that his confession was extracted under torture, and, citing the
reports of CNLT, states that such methods are used in political trials and
sometimes in trials involving offences under ordinary law. Concerning the
length of the trials, the complainant states that the 1992 trial was summary
in nature because it formed part of a spate of trials aimed at putting as
many members of the ENNAHDA movement as possible behind bars, while the 1995
trial was protracted since the lawyers insisted on the principle of double
jeopardy. The complainant also notes that the State party is silent about
his arrest a few months after the Presidential pardon of 1987.
9.8 Concerning the conditions in which he was held, the complainant
considers that the State party is taking refuge behind legal texts in order
to dismiss the detailed information he provides. He points out that the
question of transferring him for the purposes of the investigation never
arose, and calls on the State party to prove the contrary.
9.9 In relation to visits, the complainant explains that each time he was
transferred, his family had difficulty discovering his new place of
detention. He considers that denial of visits constituted a form of revenge
against him each time he sought to exercise a right and took action to that
end, for example in the form of hunger strikes. He points out that the
prison entry and exit logs can confirm his claims. In addition, the
complainant's family found it difficult to exercise the right to visit him
because of the conditions imposed on the visitors - the complainant's mother
was ill-treated to make her remove her scarf, and was made to wait many
hours for a visit lasting a few minutes.
9.10 Concerning the allegations relating to the provision of care, the
complainant draws the Committee's attention to the medical certificate
contained in his file. Concerning the treatment cited by the State party,
the complainant demands the production of his medical file by the State
party.
9.11 In relation to administrative supervision, the complainant considers
that any punishment, including those provided for in the Tunisian Criminal
Code, may be characterized as inhuman and degrading if the goal pursued does
not include the reconciliation of the offender with his social environment.
He points out in particular that his resumption of his studies prompted a
tightening of the administrative supervision, including imposition of an
obligation to report to the police twice a day, insistent surveillance by
the university police and a ban on contacts with the other students.
Concerning his summonses, the complainant states that the three years which
elapsed between his two summonses in 1995 and 1998 corresponded to the
period he spent in prison after being arrested again in 1995. According to
the complainant, administrative supervision serves only to bolster the
police's stranglehold over the freedom of movement of former prisoners.
9.12 Concerning the situation of his family, the complainant records the
suffering caused by the police surveillance and various forms of
intimidation. He mentions that two of his brothers (Nabil and Lofti) were
imprisoned in advance of his arrest, and that his mother was detained for a
whole day. In addition, according to the complainant, the authorities'
deliberate decision to move him far from his family affected the pattern of
the visits.
9.13 Concerning the application of article 11 of the Convention, the
complainant considers that the State party once again contents itself with a
theoretical description of its legal arsenal and a reference to the
activities of the Higher Committee on Human Rights and Fundamental Freedoms,
a non-independent institution. Citing documents issued by non-governmental
organizations, [FN11] the complainant notes violations relating to the
supervision of detention and police custody, such as manipulation of the
dates when arrests were recorded, and incommunicado detention. He notes that
the State party has not responded to his precise allegations relating to his
detention for over a month in 1987, for 56 days in 1991 and for 18 days in
1995.
---------------------------------------------------------------------------------------------------------------------
[FN11] Alternative report by FIDH to Tunisia's second periodic report to the
Committee against Torture; communiqué issued on 20 February 2003 by the
International Association for Support for Political Prisoners in Tunisia.
---------------------------------------------------------------------------------------------------------------------
9.14 In relation to the ENNAHDA movement, the complainant maintains that the
organization is well known for its democratic ideals and its opposition to
dictatorship and impunity, contrary to the State party's explanations. In
addition, he challenges the accusations of terrorism levelled by the State
party, which in fact form part of a complete fabrication.
9.15 Lastly, according to the complainant, the State party is endeavouring
to place the entire burden of proof on the victim, accusing him of inertia
and failure to act, seeking protection behind a panoply of legal measures
which theoretically enable victims to lodge complaints and evading its duty
to ensure that those responsible for crimes, including that of torture, are
automatically prosecuted. According to the complainant, the State party is
thus knowingly ignoring the fact that international law and practice in
relation to torture place greater emphasis on the role of States and their
duties in order to enable proceedings to be completed. The complainant notes
that the State party places the burden of proof on the victim alone, even
though the supporting evidence, such as legal files, registers of police
custody and visits, and so on, is in the sole hands of the State party and
unavailable to the complainant. Referring to European case law, [FN12] the
complainant points out that the European Court and Commission call on States
parties, in the case of allegations of torture or ill-treatment, to conduct
an effective investigation into the allegations of ill-treatment and not to
content themselves with citing the theoretical arsenal of options available
to the victim to lodge a complaint.
---------------------------------------------------------------------------------------------------------------------
[FN12] Guide to Jurisprudence on Torture and Ill-Treatment - Article 3 of
the European Convention for the Protection of Human Rights, Debra Long
(APT); Ribitsch v. Austria; Assenov v. Bulgaria.
---------------------------------------------------------------------------------------------------------------------
Consideration of the Merits
10.1 The Committee examined the complaint, taking due account of all the
information provided to it by the parties, in accordance with article 22,
paragraph 4, of the Convention.
10.2 The Committee took note of the State party's observations of 3 April
2003 challenging the admissibility of the complaint. It notes that the
points raised by the State party are not such as to prompt reconsideration
of the Committee's decision on admissibility, notably owing to the lack of
new or additional information from the State party on the matter of
investigations voluntarily carried out by the State party (see paragraph
7.2). The Committee therefore does not consider that it should review its
decision on admissibility.
10.3 The Committee therefore proceeds to examine the merits of the
complaint, and notes that the complainant alleges violations by the State
party of article 1, article 2, paragraph 1, article 4, article 5, article
11, article 12, article 13, article 14, article 15 and article 16 of the
Convention.
10.4 Article 12 of the Convention, the Committee notes that article 12 of
the Convention places an obligation on the authorities to proceed
automatically to a prompt and impartial investigation whenever there is
reasonable ground to believe that an act of torture or ill-treatment has
been committed, no special importance being attached to the grounds for the
suspicion. [FN13]
---------------------------------------------------------------------------------------------------------------------
[FN13] Communication No. 59/1996 (Encarnación Blanco Abad v. Spain).
---------------------------------------------------------------------------------------------------------------------
10.5 The Committee notes that the complainant maintains that he complained
of acts of torture committed against him to the judge at his trials in 1992
and 1995. The complainant states that in 1992 he requested a medical
examination, which was refused, and that in 1995 he sought the protection of
the judge of the Tunis court of first instance against the torture inflicted
on him daily at the prison. The Committee notes that the State party
challenges the complainant's claim that he was denied a medical examination,
without commenting on the treatment of which the complainant complained to
the judge or providing the results of the medical checks allegedly carried
out on Mr. Abdelli while he was being held. The Committee also takes note of
the State party's failure to comment on the precise allegations set out
above relating to 1995. Lastly, the Committee notes the existence of
detailed and substantiated information provided by the complainant
concerning his hunger strikes in Tunis central prison in 1995 and in
Grombalia prison from 28 November to 13 December 1997, mounted in order to
protest against the treatment he had suffered and to secure medical care.
The complainant refers to letters sent to the prisons administration
following his hunger strikes, which produced no result. The Committee notes
that the State party has not commented on this information. The Committee
considers that these elements, taken together, should have been enough to
trigger an investigation, which was not held, in breach of the obligation to
proceed to a prompt and impartial investigation under article 12 of the
Convention.
10.6 The Committee also observes that article 13 of the Convention does not
require either the formal lodging of a complaint of torture under the
procedure laid down in national law or an express statement of intent to
institute and sustain a criminal action arising from the offence, and that
it is enough for the victim simply to bring the facts to the attention of an
authority of the State for the latter to be obliged to consider it as a
tacit but unequivocal expression of the victim's wish that the facts should
be promptly and impartially investigated, as prescribed by this provision of
the Convention. [FN14]
---------------------------------------------------------------------------------------------------------------------
[FN14] Communications No. 6/1990 (Henri Unai Parot v. Spain) and No. 59/1996
(Encarnación Blanco Abad v. Spain).
---------------------------------------------------------------------------------------------------------------------
10.7 The Committee notes, as already indicated, that the complainant
explains that he did complain to judges in 1992 and 1995 of the treatment
inflicted on him, resorted to hunger strikes and wrote to the prison
authorities to complain about the conditions imposed on him. The Committee
regrets that the State party has not responded or provided the necessary
clarification on these points. Moreover, and notwithstanding the
jurisprudence under article 13 of the Convention, the Committee notes the
State party's position maintaining that the complainant should have made
formal use of domestic remedies in order to lodge his complaint, for example
by presenting to the court a certificate proving that a complaint had been
lodged with the office of the public prosecutor, or displaying obvious
traces of torture or ill-treatment, or submitting a medical report. On this
latter point, to which the Committee wishes to draw its attention, it is
clear that the complainant maintains that his request for a medical
examination in 1992 was refused, and that the State party challenges this
allegation on the grounds that the complainant enjoyed appropriate care and
proper medical supervision, as stipulated in the prison regulations,
throughout his stay in prison. The Committee observes that this response by
the State party is categorical and general and does not necessarily answer
the complainant's precise affirmation that he asked the judge in 1992 to
order a medical examination. Finally, the Committee refers to its
consideration of the report submitted by Tunisia in 1997, at which time it
recommended that the State party should arrange for medical examinations to
be organized systematically when allegations of abuse were made.
10.8 In the light of its practice relating to article 13 and the
observations set out above, the Committee considers that the breaches
enumerated are incompatible with the obligation stipulated in article 13 to
proceed to a prompt investigation
10.9 Finally, the Committee considers that there are insufficient elements
to make a finding on the alleged violation of other provisions of the
Convention raised by the complainant at the time of adoption of this
decision.
11. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention, is of the view that the facts before it disclose a violation
of articles 12 and 13 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
12. Pursuant to rule 112, paragraph 5 of its rules of procedure, the
Committee urges the State party to conduct an investigation into the
complainant's allegations of torture and ill-treatment, and to inform it,
within 90 days from the date of the transmittal of this decision, of the
steps it has taken in response to the views expressed above.
[Adopted in English, French, Russian and Spanish, the French text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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