opted not to demand one. When apprised of this fact,
the president simply ignored the objections of the
prisoners and their counsel, including the
complainant, in flagrant breach of the provisions of
the law relating to the prisoners’ right to a medical
report and their constitutional right to be heard, as
the CNLT report confirms. According to the
complainant, this is proved by the State party’s
acknowledgement that during the hearing he raised
allegations of ill-treatment. In addition, according to
the complainant, whereas a State governed by the
rule of law should automatically follow up any
report of a criminal act which may be regarded as a
serious offence, the Tunisian authorities have always
contented themselves with dismissing the claims as
“false, contradictory and defamatory”, without
taking the trouble to launch investigations to
determine the facts in accordance with the
requirements of Tunisian criminal procedure. The
complainant considers that his allegations are at the
very least plausible in terms of the detail of the
torture he suffered (names, places and treatment
inflicted), but the State party contents itself with a
blanket denial. The complainant did not mention
torturers because of their membership of the security
forces, but because of specific and repeated attacks
on his physical and moral integrity and his private
and family life. The initiation of an investigation
designed to check whether a person belonging to the
security forces has committed acts of torture or other
acts does not constitute a violation of the
presumption of innocence but a legal step which is
vital in order to investigate a case and, if appropriate,
place it before the judicial authorities for decision. In
relation to appeals before the courts, the complainant
considers that the State party has confined itself to
repeating the description of legal options open to
victims set out in its previous submissions without
responding to the last two sentences of paragraph 7.2
of the decision on admissibility. He reiterates that
the theoretical legal options described by the State
party are inoperative, while listing in support of this
conclusion cases in which the rights of the victims
were ignored. He points out that the case law cited
by the State party relates to cases tried under
ordinary law and not to prisoners of opinion.
the medical examinations of 25 prisoners, carried out
with the aim of giving an appearance of respect for
procedural guarantees, and the lack of integrity of
the appointed doctors. 10 He points out that video
recordings were made of the hearings in the
Bouchoucha military court, which could then be
replayed to check each complainant’s statements.
9.6 Concerning the allegations relating to the trial,
the complainant points out, first, that the dismissal of
proceedings against him in 1983 and 1986 took
place in a political context of détente (in 1983 and
1984, the phased release of the leaders of the
Mouvement de la Tendance Islamique, which
became ENNAHDA in 1989) and the legitimization
of a new regime (a presidential amnesty was
proclaimed after the 1987 coup d’état), and
illustrated the fact that the courts were dependent on
the executive branch (as shown in reports prepared
by non-governmental organizations). 11 Second, in
relation to his refusal of the assistance of counsel,
the complainant provides the following corrections
and produces a report prepared by CNLT. 12
Appearing before examining magistrate Ayed Ben
Gueyid, attached to the Tunis military court, the
complainant reiterated his request to be assisted by a
court-appointed lawyer or one instructed by his
family. The complainant designated Mr. Najib ben
Youssef, who had been contacted by his family. This
lawyer advised him to consult Mr. Moustafa ElGharbi, who was able to assist the complainant only
from the fourth week of the trial onwards, and was
able to pay him only one or two visits in the 9 April
prison, under close surveillance by prison guards. In
response to the complainant’s request for the
assistance of a lawyer, the military examining
magistrate replied “No lawyer”, prompting the
complainant to say “No lawyer, no statement”.
Following this declaration, the complainant reports
that he was violently beaten by military policemen,
in a room next to the office of the military
examining magistrate, during a break which was
imposed and ordered by the magistrate. The
complainant was then placed in solitary confinement
in the 9 April prison in Tunis for two months.
Following this punishment, the examining
magistrate’s file was missing from the first hearing
attended by the complainant, a matter which the
9.5 Concerning the complainant’s inertia and lack
of action, he considers that the State party is
inconsistent in holding that acts of torture are
regarded as serious offences in Tunisian law and
accordingly prosecuted automatically, while
awaiting a complaint by the victim before taking
action. He also re-emphasizes his serious efforts
described above to demand a medical examination
and an investigation into the torture he had suffered.
With particular reference to a report prepared by
CNLT,9 he mentions the circumstances surrounding
9
10
“The role played by some of the doctors was no less
serious, in the sense of what they did during the torture by
assisting the torturers [to assess] the state of the victim and
the degree of torture the victim could bear […]
information gathered from the torture victims or from
analyses carried out in which famous doctors knowingly
concealed the truth about the causes of the injuries
suffered by the accused during episodes of physical
torture” – CNLT report, October 2002.
11
International Commission of Jurists, report on Tunisia,
12 March 2003.
12
Available for information in the file.
Available for information in the file.
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