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 the 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 1991 and
that, given a statute of limitations of 10 years, the
question arose 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 judicial
authorities in the presence of international observers.
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.
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 preventive3 and dissuasive4 machinery to
combat torture so as to prevent any act which might
violate the dignity and physical integrity of any
individual.
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 para. 6).
Concerning the Committee’s decision on
admissibility, the State party emphasizes that the
complainant cites not only “incidents” dating back to
1991, but also “incidents” dating from 1995 and
1996, 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
“Mahdia 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
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.
3
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.
4
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).
State party’s merits observations
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.
113
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