CAT/C/61/D/654/2015 5.2 The trial before the Correctional Chamber of the Court of First Instance began in April 2012 and continued for three years. The complainant lodged an appeal, which had still not been considered by July 2016.14 The complainant therefore requests the Committee to conclude that the proceedings have exceeded reasonable time limits. Moreover, the ineffectiveness and futility of domestic remedies are rendered more manifest by the Court of First Instance ruling that the acts are statute-barred and can no longer be prosecuted. 5.3 The complainant concludes that the Tunisian courts have violated articles 2, 4 and 14 of the Convention by refusing to prosecute his torturers on the ground that the acts are statute-barred due to their legal definition as the offence of violence, which is statute-barred after three years. 5.4 The author stresses that the definition is based on two factors, the first of which is the non-retroactivity of article 101 bis of the Tunisian Criminal Code, which criminalizes torture, and which was not adopted until 1999. Prior to the adoption of Act No. 98 of 1999, the crime of torture was not punishable as such, but simply as a form of violence, pursuant to article 101 of the Criminal Code (see para. 2.21 above). It follows that the use of violence by a public official was classified as a major offence and not as a serious crime. Act No. 98 introduced article 101 bis, which states that “any public official or person of comparable status who subjects a person to torture in the performance of or in connection with his or her duties shall be liable to 8 years’ imprisonment”. 5.5 In light of the principle of non-retroactivity of criminal law, 15 an accused person may be convicted only on the basis of a law applicable at the time he committed the offence, with the sole exception of the principle of lex mitior, i.e. application of the most lenient law, even if the latter entered into force after the infringement. In the present case, as article 101 bis of the Criminal Code provides for harsher penalties than article 101, it cannot be applied retroactively to violence committed by public officials before 1999. 5.6 The complainant reiterates on these grounds that the failure to criminalize torture prior to 1999, despite the ratification of the Convention by Tunisia in 1988, constitutes a violation of article 4 of the Convention. He adds that the definition of the offence of violence adopted in the case is due to a lack of due diligence, and probably also to a lack of independence and impartiality of the judiciary. 5.7 Notwithstanding the requests of the victims’ lawyers, the judges maintained that, given the public status of the perpetrators, the application of article 101 of the Criminal Code was mandatory. 5.8 Article 218 of the Criminal Code stipulates that any person, and therefore not necessarily a public official, who intentionally injures, beats or commits any other form of violence or assault, is liable to 1 year of imprisonment and a fine of 1,000 dinars and, if the violence or assault is premeditated, to 3 years’ imprisonment and a fine of 3,000 dinars. Article 219 adds that when the violence in question is followed by mutilation, loss of the use of a limb, disfigurement, infirmity or permanent disability of 20 per cent or less, the suspect is liable to 5 years’ imprisonment, and to 10 years of imprisonment if the violence in question results in permanent disability of over 20 per cent. In the latter case, as the sentence exceeds 5 years, jurisdiction lies with the criminal chamber rather than the correctional chamber of the court. 5.9 The issue of the victim’s disability as an aggravating circumstance is not addressed in article 101 of the Criminal Code, which deals solely with violence perpetrated by public officials. The paradox lies in the fact that article 101 provides for a harsher penalty than article 218 on the ground that the perpetrator’s status as a public official constitutes an aggravating circumstance. However, the penalty prescribed by article 101 is more lenient 14 15 GE.17-16785 On 21 June 2017, counsel for the complainant informed the secretariat that the appeal proceedings continued to be postponed, on each occasion at the request of the accused. The next hearing is scheduled for 25 October 2017 and will probably result in a further postponement, according to counsel for the complainant. A principle enshrined in article 1 of the Tunisian Criminal Code: “No one shall be punished save by virtue of a provision of a pre-existing law. If, following the commission of the act but prior to the final judgment, a law that is more favourable to the accused is enacted, this law shall be applied.” 11