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Tunisia: Freedom of Expression under Siege
Report of the
IFEX Tunisia Monitoring Group
on the conditions for participation in the World Summit on the Information Society, to be held in Tunis, November 2005
February 2005
Tunisia: Freedom of Expression under Siege
CONTENTS:
Executive Summary
A. Background and Context
B. Facts on the Ground
1. Prisoners of opinion
2. Internet blocking
3. Censorship of books
4. Independent organisations
5. Activists and dissidents
6. Broadcast pluralism
7. Press content
8. Torture
C. Conclusions and Recommendations
Annex 1 - Open Letter to Kofi Annan
Annex 2 - List of blocked websites
Annex 3 - List of banned books
The Tunisian government prides itself on adhering to international obligations in the field of human rights, mainly those contained in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; the Convention on the Elimination of All Forms of Discrimination against Women; the International Convention on the Elimination of All Forms of Racial Discrimination; and the International Covenant on Economic, Social and Cultural Rights.
Tunisia is also a party to the International Covenant on Civil and Political Rights, but has not ratified the two optional protocols to the Covenant. The first acknowledges the right of individuals to submit complaints to the UN Human Rights Committee and the second deals with the abolition of the death penalty.
In 1982, Tunisia ratified the African Charter on Human and Peoples' Rights. Article 9 of this Charter, the respect of which has recently gained more ground in Sub- Saharan Africa than in Tunisia or other North-African countries, guarantees that "every person has the right to freedom of information."
Under article 32 of the Tunisian Constitution, international conventions that have been duly ratified are granted legal primacy over domestic legislation.
Furthermore, the Association Agreement between Tunisia and the European Union, signed on 17 July 1995 and which entered into force on 1 March 1998, includes a clause concerning human rights.
Article 2 of the Association Agreement clearly states that the relations among the parties, as well as the overall provisions of the Agreement itself, rest on the respect for human rights and democratic principles. The preamble of the Agreement further underlines that both parties value and respect human rights and political freedoms. By virtue of Article 74 of the Agreement on Cooperation on Cultural Matters, both parties agree to put a particular emphasis on written means of communications and expression, including books.
Domestic Legislation
A. The Constitution
Article 8 of the Constitution of 1 June 1959 stipulates that "the freedom of opinion, expression, the press, publication, assembly, and association are guaranteed and exercised under the conditions laid down by the law."
The Constitution thus clearly permits legislative restriction of basic rights, including the right to freedom of expression.
The Constitution provides for an independent judiciary, and prohibits arbitrary arrest. detention and arbitrary interference with privacy and correspondence. However, the executive branch which appoints, assigns, promotes and transfers judges also heavily influences their decisions, particularly in political cases.
Furthermore, the President heads the Supreme Council of Judges and controls the Constitutional Council which is a simple consultative body accountable only to him and with no effective prerogatives to strike down legislation. Most of the members of the Constitutional Council are appointed by the President and Tunisian citizens have no way of challenging unconstitutional laws.
B. The Press Code
Since its amendment in 1993, Article 1 of the Press Code of 28 April 1975 guarantees, "the freedom of the press, publishing, printing, distributing and sale of books and publications." The broad provisions of this piece of legislation prohibiting "subversion" and "defamation" have often been used to prosecute critics of the government and the head of state and has led to the the spread of self-censorship among Tunisians.
Article 8 provides for the legal deposit of "all pieces produced or reproduced in Tunisia". As soon as the production or the printing is over, it is the producer's or printer's duty to proceed with the legal deposit. As far as books or "non-periodical printed pieces" are concerned, the printer proceeds with the legal deposit of one copy with the territorially relevant Public Prosecutor's Office, and seven copies with the Ministry of Culture. Of the seven copies, one is for the Chamber of Deputies, one for the Ministry of the Interior and four for the National Library.
Article 12 indicates that fines ranging from 200 to 800 Tunisian Dinars ($1 U.S. equals nearly 1.2 Tunisian Dinars) will punish those who would do not abide by these rules. Furthermore, "anything that is published or imported to Tunisia in breach of the preceding provisions may be seized by order of the Ministry of the Interior".
A 1977 decree lays down the general conditions implementing the 1975 Press Code. As far as the legal deposit is concerned, the decree stipulates that the applicant (the printer, the publisher, the distributor or the producer) sends three copies of a stamped and signed deposit form to the legal deposit office. It further provides that the administration returns to the demanding party ("déposant") one of the three copies of the deposit form, which had accompanied the deposit itself.
This copy acknowledges receipt of the deposit.
In violation of this legal framework, the authorities require printing houses to await approval by the Ministry of the Interior before proceeding with the distribution of the book (or newspaper) concerned. This approval takes the form of a receipt ("récépissé"), which the authorities sometimes never send or take their time in sending.
According to Article 13, a declaration must be lodged with the Ministry of the Interior before the publication of any periodical. In exchange, the Ministry of the Interior must hand out a "récépissé" (receipt). The declaration must include: The title of the periodical, the details of the publisher, the details of the printer, the language(s) in which it is drafted. By virtue of Article 14, before the printing of any periodical, the printer requires the receipt delivered by the Ministry of the Interior. In practice the receipt is almost never issued, thus preventing the creation of a certain number of periodicals in Tunisia.
The status of the foreign press is also regulated by the Press Code, in articles 24 and 25. Thus, "the publication, introduction and circulation in Tunisia of foreign works, whether or not they are periodicals, may be prohibited by decision of the Ministry of the Interior, on advice of the Secretary of State for Information who is responsible to the Prime Minister."
In its 2003 Report entitled "Press in Distress" the Tunisian Human Right League explained how the Press Code "has preserved its overriding repressive character" even after the transfer of some of its articles to the Penal Code. Such transfer was aimed at creating the illusion of "liberalizing the situation of the press," said the LTDH. Its 2004 report "Media under Watch" sheds light on the section added to the Press Code in 2001 providing for greater penalties for offences relating to inciting murder and looting, "even in the absence of concrete acts following such incitement."
The Press Code has been amended on three occasions since 1988. These amendments mainly concerned the provisions on registration of copyright.
Prominent Tunisian jurists maintain that the current media legislation stifles freedom of expression more than legislation passed in 1936 under the French Protectorate and upon the independence of the country in 1956.
C. The High-Level Communication Council
President Ben Ali replaced the consultative Superior Information Council which, during his predecessor's rule, offered Tunisian journalists a forum to discuss with officials and editors issues of interest and even to campaign for independent journalism, by an advisory body with a narrower mandate. The High-Level Communication Council, set up on 30 January 1989, is a 15-member advisory body. It is responsible for "studying and proposing measures to help develop general communications policy. However, it is not open to referrals from professionals or the general public.
D. Other Laws that Have a Direct Impact on Freedom of Expression:
a. The Law on Associations of 7 November 1959 has been subjected to two amendments, one of which permits judicial appeals against decisions of the Ministry of the Interior with respect to the establishment and dissolution of an association. Under this law, a request for approval, for which a receipt is given, must be submitted to the Governor's Office before setting up an association. In principle, the Ministry of the Interior has three months during which it can decide to turn down the application to establish the association.
b. The Labour Code of 1966 regulates the establishment and functioning of trade unions, which does not require any prior authorization.
c. The Electoral Code of 8 April 1969 was amended in 2003 to ban the use of privately owned or foreign television channels and radio stations to call on electors "to vote for, or abstain from voting for, a candidate or a list of candidates." Any violation of this amendment is punishable by a fine of 25,000 Tunisian Dinars (nearly US$20,800). Since this ban does not extend to reporting on speeches of the incumbent President and his top aides, it puts opposition candidates at a disadvantage in the election campaign.
d. The Law on Political Parties of 3 May 1988: Political parties are not allowed to pursue their activities, including holding meetings and issuing press releases, until they have been granted authorization from the Ministry of the Interior.
e. The Telecommunications Decree of 14 March 1997 regulates access to the Internet in Tunisia. This decree, together with the "Internet Decree" published eight days later, provides that the Press Code applies to the production, provision, distribution and storing of information through telecommunication means, including the Internet.
The Internet decree holds each ISP responsible for content, Web pages and sites hosted on its servers. Internet users and those who maintain websites and servers are also held responsible for any infraction of the law (Article 9).
f. The Law on the Funding of Political Parties, passed on 21 July 1997, stipulates that only political parties represented in the Chamber of Deputies are entitled to receive subsidies from the state.
g. The "Anti-terrorism" Law of 10 December 2003 aimed at supporting "international efforts to combat terrorism and money laundering" has a very vague and broad definition of terrorism.
Promulgated, ironically, on the anniversary of the Universal Declaration of Human Rights in 2003, this law prompted widespread concern amid local and international human rights groups that acts of freedom of expression criticizing President Ben Ali's policies would be considered as "acts of terrorism." Long before the promulgation of this law, the Tunisian government had its own definition of "acts of terrorism." Hundreds of Tunisian prisoners of conscience and political activists in exile who have never advocated or used violence are labelled by the authorities and the state-run media as "terrorists."
h. The Telecommunications Code of 15 January 2004 controls the use of radio frequencies and private communication networks. A government agency responsible for assigning radio and TV broadcast frequencies, the National Agency for Frequencies operating under the supervision of the Ministry of Communication Technologies was established.
Any unauthorized use of these frequencies is punishable by a prison sentence varying from six months to five years and a fine that could reach up to 20,000 Tunisian Dinars (approx. $17,000 U.S.).
i. The Law on Personal Data passed by the Chamber of Deputies on 20 July 2004: Presented as proof of "the Head of State's avant-garde policy in the area of human rights", this law severely penalizes transfer or publication of state documents of public interest by individuals. It also gives "public authorities, local authorities and public companies" full liberty to access an individual's personal data.
This law "strips citizens of all protection, reinforces opacity, and criminalizes transparency. It denies information professionals the right to investigate and denies citizens the right to information," said the National Council for Liberties in Tunisia (Conseil National des Libertés en Tunisie, CNLT).
"What is particularly interesting about this law is that it contravenes the provisions laid down in the United Nations Convention against Corruption, which was passed in December 2003 and signed by Tunisia as recently as March 2004," added CNLT.
The Convention against Corruption stipulates that "the prevention and eradication of corruption is a responsibility of all States" and that "they must cooperate with one another, with the support and involvement of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, if their efforts in this area are to be successful."
B. FACTS ON THE GROUND
1. Imprisonment of individuals related to expression of their opinions or media activities.
- Hamadi Jebali, editor of the banned Islamist weekly Al Fajr; imprisoned.
Jebali was first arrested in January 1991 and sentenced by a military court in Tunis to one year in prison for "defamation" after running a piece in Al-Fajr by lawyer Mohamed Nouri on the unconstitutionality of military courts in Tunisia. He remained in prison until August 1992 when he was sentenced to 16 years in prison by another military court in Tunis for "belonging to an illegal organization" and "plotting to change the nature of the State." International human rights groups and Western diplomats deemed the trial of Jebali and 170 other members of the Banned Islamist An-Nahda Movement unfair.
Amnesty International adopted Jebali and scores of other imprisoned Islamists as prisoners of conscience and repeatedly said they have not advocated or used violence and have been imprisoned solely for their "religious and political beliefs."
Jebali's long prison sentence is due to end in 2007.
- The Youth of Zarzis: Abderrazak Bourguiba, Hamza Mahroug, Abdel Ghafar Guiza, Ridha Belhaj Ibrahim, Omar Chelendi and Aymen Mcharek; imprisoned.
Mahroug, Giza, Belhaj Ibrahim and Mcharek were each sentenced to 19 years and 3 months in prison and to 5 years of administrative control on 6 April 2004 by the Court of First Instance of Tunis. Most of them are aged 21. On appeal, the sentence was brought down to 13 years. It was later confirmed by the Cassation Court, the highest judicial body.
Bourguiba, now 20, was sentenced on 16 April 2004 by a Court for Minors to 25 months of prison. At the time of his arrest, he was aged 17.
Tahar Gmir and Ayoub Sfaxi, also involved in this case, were sentenced in absentia; the former to 19 years and 3 months, the latter to 26 years and 3 months.
The charges are: Constitution of a gang for purposes of preparing and committing attempts on persons and goods; preparation, transport and possession of explosives, devices and materials intended for the making of such explosives; theft; attempted theft; and holding unauthorized meetings.
The "evidence" alleged to have been seized has never been exhibited to the defendants whose files their lawyers have never been able to consult.
Falsification of arrest dates: The defendants were arrested in Tunis on 26 February 2003, according to the official version. However, news of their arrest had already transpired on 18 February 2003. On 19 February 2003, their lawyers had already notified the Public Prosecutor ("Procureur de la République") in the Court of First Instance in Médenine, about violation by the police of custody time-limits of their clients and their incommunicado detention.
While actually arrested on 5 and 8 February 2003 in Zarzis, southern Tunisia, no official report accounts for the three weeks they spent in isolation, prior to confirmation of their arrests.
Territorial non-qualification of the court: During a first hearing on 3 February 2004 (one full-year after arrest), the case was deferred to 2 March 2004. The defense lawyers protested the territorial non-jurisdiction of the Tunis court, since the defendants' arrest had taken place in Zarzis. They requested the temporary release of the defendants in light of their age and the absence of a criminal record, in addition to the fact that the files were devoid of evidence. These pleas were all dismissed.
In March 2004, the lawyers for the defense withdrew from a hearing, protesting the examining magistrate's refusal to allow them to see the detainees or to get copies of the indictment documents. They deemed such a refusal a violation of the rights of the defense and of the right to a fair trial. The detainees abstained from answering the examining magistrate's questions in the absence of their lawyers.
The detainees' families were unable to visit them until May 2003. To protest this injustice, the families of the Youth of Zarzis have together gone through two hunger strikes in 2003. Their letters to the authorities and particularly to President Ben Ali, to protect their children from injustice remain unanswered.
While they were hoping that President Ben Ali would respond to their petitions, the police were sent to harass them particularly during their hunger strikes. The police prevented their neighbours and others from expressing solidarity and showing support for the families.
For nearly two years the defendant's parents and their lawyers have been asking in vain for concrete proof of wrongdoing. A brother of one of these prisoners warned that "flagrant injustice might one day tempt some peaceful and naturally tolerant Tunisians to resort to violence to resist tyranny."
The Youth of Zarzis were jailed in the same prison in Tunis. This allowed the families to visit their children together once a week and to split the transportation costs. But their children are no longer held in the same prison and the families cannot afford the weekly visit separately. They feel that they are being punished collectively.
In the meantime, parents and relatives are hoping that the day will come soon when their "innocent children will return home and the real culprits will be brought to justice."
Independent Tunisian civil society groups consider the release of the Youth of Zarzis from prison and the end of the cycle of harassment and injustice inflicted on their families as one of their main goals in their campaign for the protection of basic rights prior to the WSIS in Tunis (November 2005).
The emerging Committee to Support the Internautes of Zarzis (CSIZ) met on January 18 at the Tunisian Human Rights League in Tunis to discuss "the alarming health conditions" of the imprisoned young internautes. They decided to seize the opportunity of the 2nd "Prepcom" in Geneva in mid-February to "widely inform (participants) about the plight of the seven imprisoned internautes."
They also reiterated their conviction that "it is unacceptable on all counts to hold the second phase of the WSIS in Tunis while the seven internautes continue to stagnate in the prisons of the Tunisian regime."
The CSIZ said the seven internautes are not receiving the medical care they urgently need and are subject to ill-treatment and harassment at the hands of prison guards. Abdel Ghafar Guiza has been "systematically tortured, in an odiously racist manner due to the color of his skin," said the CSIZ.
- The Youth of Ariana: Hichem Saadi, Kamel Ben Rejeb, Mahmoud Ayari, Anis Hdhili, Bilel Beldi, Riadh Louati, Kabil Naceri, Ali Kalai, Ahmed Kasri, Hassen Mraidi, Sabri Ounais, Sami Bouras; imprisoned.
These twelve students were arrested in February 2003 and sentenced by a court in Tunis in June 2004 to prison terms varying from 4 to 16 years for "establishing an association in order to commit aggressions and spread fear and terror."
Mohamed Walid Ennaifer was sentenced in absentia on the same charges.
According to human rights lawyers, the young students were arrested near the border with neighbouring Algeria, allegedly planning to flee the country and travel to Palestine.
Mokhtar Yahyaoui, one of Tunisia's most respected judges since independence, said the case is "as groundless and as fabricated as the case of the Youth of Zarzis." He added that "the tragedy of this country is the absence of an independent judicial system."
On 5 January 2005 and again on 9 February, the Court of Appeal of Tunis postponed the proceedings of this case. At the time of publication a new hearing was scheduled to take place on 23 February.
Local human rights groups consider the Youth of Ariana as prisoners of conscience and maintain that their case is a freedom of expression issue because some of the charges are based on documents allegedly downloaded by one of the defendants from the Internet.
The defendants told the court that all of the confessions were made under torture.
- Jalel and Nejib Zoghlami; imprisoned.
These two brothers were sentenced on 29 December 2004 to eight months in prison for politically-motivated charges of "theft, aggression and damage to other people's personal property." According to human rights groups this case is aimed at silencing Jalel Zohglami, a political activist and editor of a bulletin called Kaws Al-Karama (the arch of dignity) and the rest of the
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Copyright © 2002 EOHR. All rights reserved. 