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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 7 November 2007,
Having concluded its consideration of complaint No. 269/2005, submitted in
the name of Mr. Ali Ben Salem 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 and the State party,
Adopts the following:
Decision under article 22, paragraph 7, of the Convention against Torture
1. The complainant is Mr. Ali Ben Salem, a 73-year-old Tunisian national. He
alleges he was the victim of violations by Tunisia of article 2, paragraph
1, read in conjunction with article 1; article 16, paragraph 1; and articles
11, 12, 13 and 14, read separately or in conjunction with article 16,
paragraph 1, of the Convention. He is represented by counsel.
Factual Background as Presented by the Complainant
2.1 The complainant has a long history of human rights activism in Tunisia,
where, over the past 24 years, he has helped set up and run human rights
monitoring organizations. In 1998, he co-founded the National Council for
Fundamental Freedoms in Tunisia (CNLT), which the Tunisian Government
refused to register as a legal non-governmental organization (NGO) and kept
under constant surveillance. In 2003, he co-founded the Tunisian Association
against Torture (ATLT). He and his colleagues have been subjected to
harassment, threats and violence by the Tunisian Government.
2.2 In March 2000, CNLT published a report setting out in detail all the
systematic human rights violations committed by the Tunisian Government,
including acts of torture. On 3 April 2000, Mr. Ben Brik, a journalist and
friend of the complainant, began a hunger strike in protest against the
withdrawal by the Tunisian authorities of his passport, constant police
harassment and a boycott of his work by the Tunisian media. On 26 April 2000
the complainant went to visit Mr. Ben Brik and noticed a large number of
people around the house. Among them he recognized several plain-clothes
policemen, some of whom had been involved in the surveillance and numerous
closures of CNLT offices. These policemen prevented foreign journalists from
approaching Mr. Ben Brik's house. The complainant tried to flee, but was
struck on the back of the neck, and partially lost consciousness. Other
people were also beaten and arrested by the police.
2.3 Along with the others, the complainant was brought to El Manar 1 police
station, where he was hit many times on the back of the head and neck and
was kicked by several officers. He was subsequently dragged 15 metres along
the courtyard face down and up a flight of stairs leading to the police
station. His clothes were torn and he was left with abrasions on his lower
body. He continued to be beaten, in particular by one policeman who he later
learned was Mr. Abdel Baqui Ben Ali. Another officer sprayed tear gas in his
face, which burned his eyes and choked him. A policeman banged his head
against a wall, leaving him unconscious for an undetermined period. When he
came to, he found himself in a puddle of water on the floor of the main hall
of the police station. He asked to be taken to the toilet, as he felt
prostate pain, a condition which he had suffered from for several years.
When the policemen refused, he was obliged to drag himself along the floor
to the toilets.
2.4 A little later, he was told to go to an office a few metres further on.
He was once again obliged to drag himself along the floor. Three police
officers tried to force him to sit on a chair. He was then hit on the back
of the neck and briefly lost consciousness. When he came to, he realized
that he was being thrown in the back of a car, then fainted from pain. He
was dumped at a construction site. He was discovered there in the late
afternoon by three workers who found him a taxi to take him to hospital. At
the hospital, medical tests confirmed that he had severe injuries to the
spine, head injuries and bruises. Despite the doctors' concern, for fear of
the police he decided as early as the next day to leave hospital and return
to his home in Bizerte. Ever since he has suffered from serious back
problems and has had difficulty standing up, walking and even carrying small
objects. Doctors have advised back surgery. He also suffers from shoulder
injuries. Because he cannot afford surgery, he has to take painkillers.
2.5 On 20 June 2000 the complainant lodged a complaint with the office of
the Public Prosecutor describing the ill-treatment to which he had been
subjected by policemen at El Manar 1 police station, requesting the Public
Prosecutor to open a criminal investigation into the incident and
implicating the Ministers of the Interior and of National Security. The
Public Prosecutor's office would not accept the complaint, on the grounds
that it was not the two Ministers themselves who had mistreated the
complainant. On 22 August 2000 the complainant mailed his complaint back to
the Public Prosecutor's office. On 4 September 2000 he delivered it to the
office in person. He received no reply. No investigation has been opened
since.
2.6 The applicant has been subjected to nearly constant police surveillance
since 26 April 2000. Plain-clothes policemen are nearly always posted in
front of his home. His telephone line is often cut, and he suspects that the
police have tapped it. He was again assaulted by police officers on 8 June
2004 when he tried to register the organization that he had co-founded, ATLT.
The Complaint
3.1 The complainant alleges a violation of article 2, read in conjunction
with article 1, of the Convention, on the grounds that the State party not
only failed in its obligation to take effective measures to prevent acts of
torture, but also used its own police forces to subject him to such acts.
The State party intentionally inflicted on the complainant treatment
tantamount to torture with the aim of punishing him for his human rights
activities and intimidating him into halting such activities. He notes that
the seriousness of the ill-treatment is comparable to that of other cases
where the Committee has found that the ill-treatment constituted torture
under article 1.[FN1] Furthermore, the gravity of the ill-treatment must be
assessed taking into account the victim's age, his state of health and the
resulting permanent physical and mental effects of the ill-treatment. He
points out that at the time of the incidents he was 67 years old and
suffered from prostate problems.
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[FN1] See communication No. 207/2002, Dimitrijevic v. Serbia and Montenegro,
decision adopted on 24 November 2004, paras. 2.1, 2.2 and 5.3.
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3.2 The complainant considers that the State party violated article 11, on
the grounds that the authorities not only failed to exercise their
supervisory powers to prevent torture, but actually resorted to torture
themselves. The State party thus clearly failed to exercise a systematic
review of rules, instructions, methods and practices with a view to
preventing any cases of torture.
3.3 The complainant alleges that he has been a victim of a violation of
articles 12 and 13 taken together, on the grounds that the State party did
not carry out an investigation into the acts of torture committed against
him, despite abundant evidence that public officials had perpetrated such
acts. He filed complaints, and several international organizations made
official statements mentioning his case and describing the ill-treatment
inflicted by the Tunisian police. He further notes that according to the
Committee's case law, a mere allegation of torture by the victim is
sufficient to require an investigation by the authorities. [FN2]
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[FN2] See communication No. 59/1996, Blanco Abad v. Spain, decision adopted
on 14 May 1998, para. 8.6.
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3.4 With respect to the alleged violation of article 13, the complainant
points out that the State party has not discharged its duty to protect him
against all ill-treatment or intimidation as a consequence of his complaint.
On the contrary, he considers that the State party has exposed him to
intimidation by its own police force. He also points out that since the
events in question he has been under nearly constant surveillance by the
Tunisian police.
3.5 With respect to the alleged violation of article 14, the complainant
considers that the State party has ignored his right to file a complaint,
and has thus deprived him of his right to obtain compensation and the means
for his rehabilitation. Even if civil suits may theoretically afford
adequate reparation for victims of torture, they are either unavailable or
inadequate. Under article 7 of the Tunisian Code of Criminal Procedure, when
a complainant chooses to bring both civil and criminal actions, judgement
cannot be handed down in the civil suit until a definitive decision has been
reached on the criminal charges. Since criminal proceedings were never begun
in this case, the State party has denied the complainant the opportunity to
claim civil damages. If the complainant brings a civil suit without any
criminal proceedings being initiated, he must renounce any future criminal
charges. Thus, even if he won his case, the limited compensation that
resulted would be neither fair nor appropriate. [FN3]
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[FN3] See communication No. 161/2000, Hajrizi Dzemajl et al. v. Serbia and
Montenegro, decision adopted on 21 November 2002, para. 9.6.
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3.6 With respect to the alleged violation of article 16, the complainant
argues that while the ill-treatment he suffered may not qualify as torture,
it does constitute cruel, inhuman or degrading treatment.
3.7 On the exhaustion of domestic remedies, the complainant points out that
he has unsuccessfully tried all the remedies available under Tunisian law.
He has tried three times to file a complaint with the Public Prosecutor's
office (see paragraph 2.5 above). He has received no response to his
complaints, although they were submitted in 2000. He notes the Committee's
finding that allegations of torture are of such gravity that, if there is
reasonable ground to believe that such an act has been committed, the State
party has the obligation to proceed automatically to a prompt and impartial
investigation. [FN4] In such cases, the victim need only bring the matter to
the attention of the authorities for the State to be under such an
obligation. [FN5] In the present case, not only did the complainant report
the matter, but international organizations have also publicly decried the
brutality to which he was subjected.
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[FN4] See communication No. 187/2001, Thabti v. Tunisia, decision adopted on
14 November 2003, para. 10.4.
[FN5] See communication No. 6/1990, Parot v. Spain, decision adopted on 26
April 1994, para. 10.4.
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3.8 In the complainant's opinion, five years of inaction by the Public
Prosecutor after a criminal complaint is submitted is an unreasonable and
unjustifiable amount of time. He points out that the Committee has regarded
a period of several months between the time the competent authority is
informed of alleged torture and the time a proper investigation begins as
excessive. [FN6] There is no effective remedy available to torture victims
in Tunisia, because other appeal procedures are in practice flawed. A
complainant can bring a private suit if the Public Prosecutor does not wish
to initiate proceedings, but by so doing he forfeits the opportunity
subsequently to seek criminal damages. The Committee has considered failure
to bring proceedings to be an insurmountable obstacle, since it made it
very unlikely that the victim would receive compensation. [FN7] He notes
that prosecutors do not investigate allegations of torture and abuse, and
that judges regularly dismiss such complaints without investigating them.
Thus, while appeal procedures exist in theory, in practice they are
unsatisfactory.[FN8]
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[FN6] See communication No. 59/1996, Blanco Abad v. Spain, decision adopted
on 14 May 1998, para. 8.5.
[FN7] See communication No. 207/2002, Dimitrijevic v. Serbia and Montenegro,
decision adopted on 24 November 2004, para. 5.4.
[FN8] See European Court of Human Rights, Aksoy v. Turkey, Preliminary
objections, 18 December 1996, Reports of Judgments and Decisions 1996-IV,
para. 53.
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3.9 The complainant requests the Committee to recommend to the State party
that it take steps to investigate fully the circumstances of the torture he
underwent, communicate the information to him and, based on the findings of
the investigation, take action, if warranted, to bring the perpetrators to
justice. He also requests that the State party take whatever steps are
necessary to grant him full and suitable compensation for the injury he has
suffered.
State Party's Observations on Admissibility
4.1 The State party forwarded its observations on the admissibility of the
complaint on 21 October 2005. It objects that the communication is
inadmissible because the complainant has neither used nor exhausted the
domestic remedies available, which, contrary to his assertions, are
effective. The State party points out that the complainant did not follow up
on his complaint. On 4 September 2000, the very day that the complaint was
filed with the lower court in Tunis, the Deputy Public Prosecutor invited
the complainant, in writing, to produce a medical certificate attesting to
the alleged bodily harm cited in his complaint; the complainant did not
submit such a certificate. Even so, the Public Prosecutor asked the chief of
the security service for the Tunis district to proceed with the necessary
investigation of the related facts and report back to him. On 17 April 2001,
the chief of the security service for the Tunis district stressed that the
facts as related by the complainant had not been established but
investigations were still under way. On the same dates and in the same
places, on the other hand, the police had stopped and arrested people at an
unauthorized gathering on the public highway. On the basis of that
information, the Public Prosecutor assigned a deputy to question the persons
cited in the complaint - the three policemen and the complainant. Questioned
on 12 July 2001, 13 November 2001 and 11 July 2002 respectively, the three
defendants all denied the facts as related by the complainant. One said he
could not have been at the scene of the alleged incident because he was
assigned to a different district. The other two had been at the scene of the
unauthorized gathering but had been taken to hospital after being assaulted
by a demonstrator. Faced with the complainant's failure to respond, the
Tunis prosecutor's office decided on 29 May 2003 to bring the alleged victim
face-to-face with the three police officers. It assigned the office of the
chief of the security service for the Tunis district to summon the
complainant and ask him for contact details of the witnesses he cited in his
complaint. That request was not followed up because the complainant was not
at the address given in the initial complaint. The Deputy Public Prosecutor
therefore decided on 12 June 2003 to file the case without further action,
for lack of evidence.
4.2 The State party points out that the allegations made by the complainant
relate to acts that qualify as crimes under Tunisian law, action on which is
time-barred only after 10 years. The complainant can, therefore, still lodge
an appeal. The State party stresses that the complainant has offered no
serious reason for his failure to take action despite the legal and
practical opportunities open to him to bring his case before the national
courts. He can contest the Public Prosecutor's decision to file the case
without further action, having the inquiry brought before an examining
magistrate, or he can summon the defendants directly before the Criminal
Division of the High Court under article 36 of the Code of Criminal
Procedure. He can combine a civil application for compensation with the
criminal proceedings, or await a conviction, then bring a separate civil
suit for damages before the civil courts alone. The complainant can also
file an administrative appeal, since public officials who commit serious
misconduct render the State liable along with themselves. An appeal of this
kind is still possible, since the limitation period for compensation appeals
is 15 years. The State party asserts that domestic remedies are effective
but the complainant has not made intelligent use of them. It cites numerous
examples to show that appeals to the Tunisian justice system in similar
cases have been not only possible, but effective.
4.3 Because of the complainant's political motivations and the slanderous
content of the communication, the State party considers that he has abused
the right to submit communications under article 22, paragraph 2, of the
Convention. It points out that the complainant is a founder member of two
groups that are not legally recognized in Tunisia, CNLT and ATLT, which
continue to operate outside the law and are constantly adopting disparaging
positions aimed at discrediting the country's institutions. It notes that
the complainant has levelled serious defamatory accusations against the
Tunisian judicial authorities that are in actual fact not supported by any
evidence.
Complainant's Comments on the State Party's Observations
5.1 On 21 November 2005 the complainant reaffirmed that he had made use of
the domestic remedies provided under Tunisian law, despite the fact that
they were ineffective. He had done more than should be expected to have the
incidents investigated and judged at the national level, since he had taken
all the steps that should have led to a serious inquiry. The obligation to
undertake an investigation lay with the State even in the absence of any
formal procedural action on the part of the victim. In any case, he had gone
in person to the offices of the competent authorities to submit his
complaint after trying to complain twice before. No notification, summons or
instruction had been sent to him, and no information on the status of his
case had been communicated to him. He therefore considered that he had not
been remiss as far as following up on his complaint was concerned. The State
party bore sole responsibility for conducting the inquiry. Even if the
complainant had not shown due diligence, the State party would be under the
same obligation. The Committee had stated that a lack of action on the part
of the victim could not excuse failings by the State party in the
investigation of accusations of torture. [FN9]
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[FN9] See communication No. 59/1996, Blanco Abad v. Spain, decision adopted
on 14 May 1998, para. 8.7.
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5.2 The complainant considers that his complaint was unproductive since he
had never been informed of any follow-up to it. He notes that none of the
records, letters and other communications concerning the investigation which
the State party mentions have been produced by the State party in its
response to his communication; and in any event, they cannot be considered
to amount to a full, impartial investigation as required by article 12 of
the Convention. As for the fact that he did not receive the summons issued
in June 2003 because he was not at home, he argues that absence from his
home on one occasion is not a valid reason to exclude him entirely from the
proceedings. As for medical certificates, even if the Public Prosecutor in
September 2000 did issue a request - which was never received - asking him
to present such documents, no further attempt to obtain them was made
thereafter. He notes that the chief of the security service for the Tunis
district reached the provisional conclusion in his message of 17 April 2001,
seven months after the inquiry supposedly started, that the facts as related
had not been established, and did so without hearing any witnesses, the
complainant or the defendants, or seeing any medical certificates. Of the
three defendants, the first was questioned more than a year after the
incident and the last, more than two years after it although the criminal
investigation service could easily get in touch with them all. The
complainant further notes that the State party reports, without giving
further details, that the three defendants denied the facts, and that there
is no indication that their statements were subsequently checked. He
considers that the authorities have not conducted a prompt, serious,
exhaustive and impartial investigation.
5.3 The complainant considers that the other domestic remedies mentioned by
the State party are equally ineffective, and that he therefore does not need
to pursue them to satisfy article 22, paragraph 5 (b), of the Convention.
With regard to seeking remedy through criminal proceedings, he mentions that
he has run up against several obstacles as already described, including the
absence of a decision by the Public Prosecutor not to bring a prosecution.
Furthermore, if an investigation begun by institution of a civil suit
results in a dismissal of proceedings, the complainant may be held civilly
and criminally liable, and this deters action. Regarding a possible civil
remedy, he points out that under article 7 of the Code of Criminal
Procedure, civil suits are dependent and contingent upon the criminal
proceedings; yet in practice, criminal proceedings are not an available
option. As regards an administrative appeal, he says that a favourable
outcome is no more likely in the administrative tribunal than it would be in
the criminal courts, and the outcome of his attempt to bring criminal
charges is a good indicator of how administrative litigation would probably
end. Furthermore, he considers that by their very nature, neither civil nor
administrative proceedings can guarantee full and appropriate reparation in
a case of torture: only a criminal remedy for such a violation of the
fundamental rights of the person is appropriate.
5.4 As regards the argument that his communication constitutes an abuse of
the right to submit communications to the Committee, the complainant states
that he has merely exercised his right to an effective remedy, that he has
no political motivations and has made no defamatory statements against the
State party. He notes that the Committee has found that a complainant's
political commitment does not impede consideration of his complaint. [FN10]
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[FN10] See for example communication No. 187/2001, Thabti v. Tunisia,
decision adopted on 14 November 2003, para. 7.3.
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Additional Observations by the Parties
6.1 On 26 April 2006 the State party reiterated that the complainant had,
since the alleged assault, been blatantly negligent, not least insofar as it
had taken over four months for him to file his complaint, he had not
enclosed a medical certificate, and he had not given sufficient details
concerning the policemen he accused and the witnesses he cited. Besides
those major omissions, the complainant had been remiss in following up on
the investigation, since at no time after submitting his complaint had he
taken the trouble to enquire about the outcome or follow it up. His attitude
indicated bad faith and a deliberate intention to make the appeal procedure
appear ineffective. The Public Prosecutor, on the other hand, had shown
exceptional diligence, considering that complaints not supported by strong
evidence are generally filed with no further action. In this case, the
Public Prosecutor had examined the complaint the very day it had been
submitted; he had noted the absence of a medical certificate and had opted
to give the complaint a chance by asking the complainant to supply one.
Despite the paucity of evidence, he had on his own initiative undertaken an
investigation into the facts as related by the complainant. Despite this
diligence, the absence of the complainant from his home, observed on
numerous occasions, had seriously hampered the collection of reliable
information.
6.2 Regarding the absence of information on the status of the case, the
State party explains that the Code of Criminal Procedure calls for no
special procedures to notify or inform the complainant when a complaint is
filed, and that it is customary and logical for the complainant himself to
follow the case. As for the argument that the complainant may be held
criminally and civilly liable in the event that proceedings are dismissed in
an application for civil indemnities, the State party explains that such a
risk exists only if slanderous accusations have been made. On the matter of
evidence, it emphasizes that its comments are based entirely on official
documents in the case file.
7. On 10 May 2006 the complainant again asserted that he had been diligent
and had persevered in his attempts to file a complaint, and the
ineffectiveness of the legal steps he had taken was in no way attributable
to his conduct. He added that he did not actually have any alternative legal
course affording reasonable prospects of satisfaction.
Decision of the Committee on Admissibility
8.1 The Committee considered the question of the admissibility of the
complaint at its thirty-seventh session and, in a decision dated 8 November
2006, pronounced it admissible.
8.2 The Committee has ascertained, as it is required to do under article 22,
paragraph 5 (a), of the Convention, that the same matter has not been, and
is not being, examined under another procedure of international
investigation or settlement.
8.3 The State party had requested the Committee to declare the complaint
inadmissible on the grounds that the complainant had abused the right to
submit such a communication and had not exhausted all available domestic
remedies. The complainant for his part contested the arguments put forward
by the State party, asserting not only that his submission to the Committee
was not abusive, but also that his approaches to the Tunisian authorities
stood no chance of success.
8.4 On the question of abuse raised by the State party, the Committee
pointed out that in order for there to be abuse of the right to raise a
matter before the Committee under article 22 of the Convention, one of the
following conditions must be met: the submission of a matter to the
Committee must amount to malice or a display of bad faith or intent at least
to mislead, or be frivolous; or the acts or omissions referred to must have
nothing to do with the Convention. In the present case, however, it had been
ascertained that the complainant had reported being tortured and/or
ill-treated by policemen in the street or at a police station, and had
accused the State party of violating provisions of the Convention.
8.5 Regarding the contention that the complaint should not be entertained
owing to the failure to exhaust domestic remedies, while taking into
consideration the State party's description of its legal and court system,
the Committee noted that the incident in question had taken place on 26
April 2000 at El Manar 1 police station; that the only investigations had
been conducted by the chief of the security service of the Tunis district
and by the Public Prosecutor, who had eventually filed the complaint with no
further action; that by the date the complaint was submitted to the
Committee against Torture, 6 July 2005 (over five years after the incident),
no substantive decision had been reached; and that that was an abnormally
long delay before dealing with extremely serious acts which qualify as
crimes attracting severe penalties under Tunisian law. In the light of the
above, the Committee considered that the requirements of article 22,
paragraph 5, of the Convention, had been met.
8.6 The Committee against Torture therefore decided that the communication
was admissible in respect of articles 2, paragraph 1, read in conjunction
with 1; 16, paragraph 1; 11, 12, 13 and 14, read separately or in
conjunction with 16, paragraph 1.
State Party's Observations
9.1 On 2 March 2007 the State party repeated that no provision of the
Convention had been violated and expressed surprise that the Committee
should have found the complaint admissible. It points out that a complaint
to the Committee should not allow the complainant to evade the consequences
of his own negligence and his failure to exhaust available domestic
remedies.
9.2 The Committee had found that no substantive decision had been reached
more than five years after the complainant had complained to the
authorities, but the State party stresses that it was several serious
omissions on the part of the complainant that had led the Public Prosecutor
to file the case: failure to attach a medical certificate or provide
sufficient details about the policemen accused and the witnesses cited, and
failure to follow up on his complaint. The absence of convincing evidence
and details of the full names and addresses of witnesses, in addition to the
accused's denial of the facts as related by the complainant, made it
impossible to take a decision on the substance of the complaint.
9.3 The State party believes it has explained the available remedies that
are still open to the complainant. Since criminal proceedings are not yet
time-barred, the complainant can still bring judicial proceedings. The State
party is emphatic that there is no question that domestic remedies are
effective. As it has indicated in earlier submissions, both disciplinary and
judicial sanctions have been imposed on officials where liability has been
established. In this case, the Committee could have recommended that the
complainant should initiate proceedings and exhaust domestic remedies in
accordance with the Convention. The State party therefore requests that the
Committee review its position in light of these considerations. The State
party submits no observations on the merits.
Further Comments by the Parties
10. On 28 March 2007 the complainant pointed out that the State party was
merely repeating the comments it has already made on admissibility and had
put forward no observations on the merits.
11. On 12 April 2007, the State party again regretted the Committee's
attitude in finding the complaint admissible despite all the State party's
clarifications. It reported that further steps had been taken in line with
rule 111 of the Committee's rules of procedure. In accordance with article
23 of the Code of Criminal Procedure, the prosecutor at the Tunis Court of
Appeal had asked the Public Prosecutor at the lower court in Tunis to
provide information on the facts of the complaint. A preliminary inquiry had
thus been opened against such persons as might be indicated by the inquiry,
to be carried out by the judge in charge of the 10th investigating office of
the lower court in Tunis. The case had been registered with the
investigating judge as No. 8696/10. [FN11] Pending the outcome of the
judicial investigation and in light of the measures taken by the
authorities, the State party invited the Committee to review its decision on
admissibility.
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[FN11] According to the registration certificate enclosed, which has been
translated into French, The registrar responsible for the 10th
investigating office of the court of first instance in Tunis hereby
certifies that the case registered as No. 8696/10, concerning the
investigation of such persons as may be indicated by the investigation, in
accordance with article 31 of the Code of Criminal Procedure, for the
purposes of determining the circumstances of the arrest of Mr. Ali Ben Salem
on 26 April 2000, at the El Manar 1 police station, Tunis, and the alleged
events in relation thereto, is still under investigation.
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12.1 On 20 April 2007, the complainant noted that the State party's
observations were now irrelevant since a decision on admissibility had
already been taken. The State party was simply repeating the arguments it
had previously put forward. However, the complainant noted that concerning
several of his allegations the State party had provided information that was
not correct. He had submitted his first complaint to the Tunisian
authorities in June 2000. Instead of facilitating his access to domestic
remedies, the State party had continued to harass and intimidate him in 2005
and 2006, including by placing him under constant close surveillance. He had
been placed under house arrest on several occasions. On 3 June 2006 he had
been placed under temporary arrest and barred from leaving the country.
12.2 Given the State party's persistent refusal to comment on the merits of
the complaint, the complainant requested the Committee to base its decision
on the facts as he had described them. He recalled that the Human Rights
Committee and the Committee against Torture had consistently maintained that
due weight must be given to a complainant's allegations if the State party
fails to provide any contradictory evidence or explanation. In the present
case, the State party had not expressed any view on the merits. The
complainant, however, had correctly proceeded to substantiate his
allegations with a number of documents, including copies of his medical
records, his complaint to the Tunisian judicial authorities, witness
statements and several pieces of additional documentation.
12.3 The complainant asserted that the State party had not been able to
demonstrate that remedies were effectively available to victims in Tunisia.
It had merely described the domestic remedies available to victims in
theory. The judicial system in Tunisia was not independent and the courts
generally endorsed the Government's decisions. Under the circumstances the
burden of proof with regard to the effectiveness of remedies rested on the
State party. In the present case, the State party had not met this burden of
proof because it had merely described the availability of remedies in theory
without contradicting any of the evidence provided by the complainant to
show that such remedies were not available in practice.
13.1 On 15 May 2007, the State party asserted that the complainant was
accusing the Tunisian judiciary of hidden intentions. As far as the date of
submission of the complaint was concerned, the State party argued that the
receipt produced by the complainant in no way proved that he had actually
sent the complaint, since the receipt made no mention of the nature or
purpose of the letter sent. The State party considered that the complainant
was again indulging in slanderous allegations against the Tunisian
judiciary. It recalled that criminal proceedings had been instituted by the
Public Prosecutor's Office. More than 100 law enforcement officers had been
brought before the correctional and criminal courts since 2000 for
violations committed while on duty. There was therefore no doubt about the
effectiveness of domestic remedies.
13.2 In the State party's view, the complainant was resorting to
manipulation in order to sabotage the judicial proceedings and disrupt the
proper course of domestic remedies. Having undermined the efforts of the
Public Prosecutor with the lower court in Tunis following submission of his
complaint in September 2000, and those of the Deputy Prosecutor appointed to
conduct the preliminary investigation into the allegations, the complainant
was now adopting an attitude of non-cooperation. The complainant had been
summoned to appear before the investigating magistrate on 30 April 2007 but
had once again refused to make a statement on the grounds that his lawyer
had not been permitted to attend, even though the examining magistrate had
explained that his status as complainant did not require the assistance of a
lawyer and that the latter did not need to be heard for the purposes of the
inquiry. The examining magistrate therefore went ahead with other measures,
including calling other people cited by the complainant. The case was
continuing. Consequently, the State party considered that it was still
within its rights to request the Committee to review its decision on
admissibility pending the outcome of the ongoing judicial inquiry.
14. On 13 September 2007, the complainant again stated that the State party
was merely reiterating earlier observations. He repeated that the State
party bore sole responsibility for the lack of progress in the domestic
proceedings. He recalled that the State party had even denied him legal
assistance when he had been called before the examining magistrate, a point,
moreover, that was not contested by the State party. Denial of access to a
lawyer was a violation of Tunisian law.
15. On 25 October 2007, the State party again requested that the Committee
postpone its decision on the merits until the investigation had been
completed and all domestic remedies exhausted. It recalled that, contrary to
the complainant's assertions, the judicial authority had shown due diligence
by ordering:
- That a preliminary investigation be opened on the basis of a complaint
that was not supported by any evidence;
- That the investigation be conducted personally by a member of the
Prosecutor's Office without the assistance of the criminal investigation
service;
- That, despite the decision by the Prosecutor's Office to file the case, a
judicial investigation had been opened even though it might never lead to
any result owing to the complainant's attitude of non-cooperation.
On the last point, the State party recalled that under Tunisian law a
witness was not entitled to legal assistance and that the complainant would
not have qualified as an assisted witness on account of his status as a
possible victim. The examining magistrate in charge of the case had summoned
the complainant to appear at a hearing scheduled for 16 October 2007, but
the latter had failed to appear.
Consideration of the Merits
16.1 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.
16.2 The Committee takes note of the State party's comments of 2 March, 12
April and 15 May 2007 challenging the admissibility of the complaint. While
taking note of the State party's request of 25 October 2007 for a
postponement, it finds that the points raised by the State party are not
such as to require the Committee to review its decision on admissibility,
owing in particular to the lack of any convincing new or additional
information from the State party concerning the failure to reach any
decision on the complaint after more than seven years of lis alibi pendens,
which in the Committee's opinion justifies the view that the exhaustion of
domestic remedies was unreasonably prolonged (see paragraph 8.5 above). The
Committee therefore sees no reason to reverse its decision on admissibility.
16.3 The Committee therefore proceeds to a consideration on the merits and
notes that the complainant alleges violations by the State party of article
2, paragraph 1, read in conjunction with article 1; article 16, paragraph 1;
and articles 11, 12, 13 and 14, read separately or in conjunction with
article 16, paragraph 1, of the Convention.
16.4 The complainant has alleged a violation of article 2, paragraph 1, of
the Convention, on the grounds that the State party failed in its duty to
prevent and punish acts of torture. These provisions are applicable insofar
as the acts to which the complainant was subjected are considered acts of
torture within the meaning of article 1 of the Convention. In this respect,
the Committee takes note of the complaint submitted and the supporting
medical certificates, describing the physical injuries inflicted on the
complainant, which can be characterized as severe pain and suffering
inflicted deliberately by officials with a view to punishing him for acts he
had allegedly committed and to intimidating him. The Committee also notes
that the State party does not dispute the facts as presented by the
complainant. In the circumstances, the Committee concludes that the
complainant's allegations must be duly taken into account and that the
facts, as presented by the complainant, constitute torture within the
meaning of article 1 of the Convention.
16.5 In light of the above finding of a violation of article 1 of the
Convention, the Committee need not consider whether there was a violation of
article 16, paragraph 1, as the treatment suffered by the complainant in
breach of article 1 is more serious and is covered by the violation of
article 16 of the Convention.
16.6 Regarding articles 2 and 11, 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 Convention.
16.7 As to the allegations concerning the violation of articles 12 and 13 of
the Convention, the Committee notes that according to the complainant the
Public Prosecutor failed to inform him whether an inquiry was under way or
had been carried out in the three years following submission of his
complaint in 2000. The Committee further notes that the State party accepts
that the Deputy Public Prosecutor filed the case without further action in
2003, for lack of evidence. The State party has, however, informed the
Committee that the competent authorities have reopened the case (see
paragraph 11 above). The State party has also indicated that the
investigation is continuing, more than seven years after the alleged
incidents, yet has given no details concerning the inquiry or any indication
of when a decision might be expected. The Committee considers that such a
delay before an investigation is initiated into allegations of torture is
unreasonably long and does not meet the requirements of article 12 of the
Convention, [FN12] which requires the State party to proceed to a prompt and
impartial investigation whenever there is reasonable ground to believe that
an act of torture has been committed. Nor has the State party fulfilled its
obligation under article 13 of the Convention to ensure that the complainant
has the right to complain to, and to have his case promptly and impartially
investigated by, its competent authorities.
---------------------------------------------------------------------------------------------------------------------FN12
[See communication No. 8/1991, Halimi-Nedzibi v. Austria, Views of 18
November 1993, para. 13.5.]
---------------------------------------------------------------------------------------------------------------------
16.8 With regard to the alleged violation of article 14 of the Convention,
the Committee notes the complainant's allegations that the State party has
deprived him of any form of redress by failing to act on his complaint and
by not immediately launching a public investigation. The Committee recalls
that article 14 of the Convention recognizes not only the right to fair and
adequate compensation, but also requires States parties to ensure that the
victim of an act of torture obtains redress. The Committee considers that
redress should cover all the harm suffered by the victim, including
restitution, compensation, rehabilitation of the victim and measures to
guarantee that there is no recurrence of the violations, while always
bearing in mind the circumstances of each case. Given the length of time
that has elapsed since the complainant attempted to initiate proceedings at
the domestic level, and given the absence of any indication from the State
party concerning the completion of the current investigation, the Committee
concludes that the State party is also in breach of its obligations under
article 14 of the Convention.
17. 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 1, 12, 13 and 14 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment.
18. Pursuant to rule 112, paragraph 5, of its rules of procedure, the
Committee urges the State party to conclude the investigation into the
incidents in question, with a view to bringing those responsible for the
complainant's treatment to justice, and to inform it, within 90 days of this
decision being transmitted, of any measures taken in conformity with the
Committee's Views, including the grant of compensation to the complainant.
[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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