duties,5 noting that the limitation period stands at 15
years.6 The State party points out that the Tunisian
courts have always acted systematically to remedy
deficiencies in the law on acts of torture (see para.
4.10).
torture and ill-treatment but not making use of
available remedies.
8.5 Concerning the allegations relating to the trial,
according to the State party, although the
complainant acknowledges that two previous cases
against him in 1983 and 1986 were dismissed for
lack of evidence, he continues nevertheless to accuse
the legal authorities systematically of bias. In
addition, contrary to the complainant’s allegations
that during his trial and during questioning the
examining magistrate attached to the Tunis military
court denied him the assistance of counsel, the State
party points out that Mr. Thabti himself refused such
assistance. According to the State party, the
examining magistrate, in accordance with the
applicable legislation, reminded the complainant of
his right not to reply except in the presence of his
counsel, but the accused opted to do without such
assistance, while refusing to answer the examining
magistrate’s questions. Given the complainant’s
silence, the magistrate warned him, in accordance
with article 74 of the Code of Criminal Procedure,
that he would embark on examination proceedings,
and noted this warning in the record. Concerning the
complainant’s claim that he was found guilty on the
sole basis of his confession, the State party 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. 7 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 statements by witnesses,
testimony by his accomplices and items of evidence.
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 illtreatment to the court. However, the State party
points out that although, in the case relating to
Mr. Thabti, the court had ordered a medical check
for all the prisoners who so wished, the complainant
voluntarily opted not to make such a request,
preferring to reiterate his allegations of “illtreatment” to the court, for the purpose of focusing
on himself the attention of the observers attending
the hearing. The complainant justifies his refusal to
undergo the medical examination ordered by the
court on the grounds that the doctors would behave
in a “compliant” manner. The State party replies that
the doctors are appointed by the examining
magistrate or the court from among the doctors
working in the prison administration and doctors
who have no connection with it and who enjoy a
reputation and integrity above all suspicion. Lastly,
according to the State party, the complainant did not
deem it necessary to lodge a complaint either during
his detention or during his trial, and his refusal to
undergo a medical examination illustrates the
baselessness of his allegations and the fact that his
actions form part of a strategy adopted by the
“ENNAHDA” illegal extremist movement in order
to discredit Tunisian institutions by alleging acts of
8.6 Concerning the allegations relating to prison
conditions, and in particular the transfers between
one prison and another, which the complainant
considers 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
5
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.
6
Administrative Court – judgement N° 1013 of 10 May
1003 and judgement N° 21816 of 24 January 1997.
7
Judgement N° 4692 of 30 July 1996, published in the
Revue de Jurisprudence et Législation (R.J.L.); judgement
N° 8616 of 25 February 1974 R.J.L. 1975; and judgement
N° 7943 of 3 September 1973 R.J.L. 1974.
114
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents