November 10, 2017

Appeal to the People's Representatives to Abandon Consideration of the Draft Law on Prosecution of Abuses Against the Armed Forces

As part of the coalition of civil society calling to abandon consideration of the draft law on Prosecution of Abuses Against the Armed Forces, Reporters Without Borders (RSF) was auditioned on the 9th of November 2017 by members of the Assembly of the People's represetatives (ARP). On this special occasion, RSF publishes the open letter of 13 national and international organizations addressed last July to the Tunisian Parliament, in which the signatory NGOs expressed their worries about a deterioration of the situation of freedom of information and expression if this bill was to be voted, in view of Articles 4, 5, 6 and 12 of the text.

Open letter published on July 13, 2017

Dear Members of the Assembly of the People's Representatives,

Our organizations are writing to urge you to abandon consideration of the "Draft law No.25/2015 on the Prosecution of Abuses Against the Armed Forces"
officially listed in Parliament since April 13, 2015. On Thursday July
13, 2017, much to the surprise of civil society, the Assembly of the
People's Representatives (ARP) resumed parliamentary debate of this law.

Such draft law risks silencing all criticism of the armed forces and
reinforcing a culture of impunity already entrenched in the Tunisian
security and judicial system, where extensive reform has been sorely
lacking since the Revolution.

Our organizations consider this draft law unconstitutional and
contrary to Tunisia's international human rights commitments,
particularly with regard to respect of the right to life, the fight
against impunity and respect of the right to freedom of expression.

The provisions of the draft law could criminalize the behavior of
journalists, whistleblowers, human rights defenders, and anyone who
criticizes the police. They could also allow the security forces to use
lethal force when not strictly necessary to protect human lives.

Civil society believes that the ARP does have a duty to ensure that
the Tunisian security forces are able to protect the public and their
own lives against potentially deadly attacks, through measures that are
compatible with human rights. However, the draft law goes far beyond
this objective by making the security forces, as well as their relatives
and property, almost untouchable – all in a context in which human
rights violations committed by the security forces in the framework of
the state of emergency, the fight against terrorism and the repression
of peaceful demonstrations almost always go unpunished.

We are putting forward the following arguments to demonstrate the
extent to which this draft law is incompatible with Tunisia's
Constitution and international commitments. In view of the arguments
below, our organizations consider that members of parliament, who have
sworn to respect the rules of the Constitution, have a responsibility,
according to Article 58 of the Constitution, to abandon the draft law or
vote against it if it is submitted to a plenary vote in the Assembly.

Incompatibility between the criminalization of the disclosure of national security secrets and freedom of expression

Articles 5 and 6 of the draft law provide for up to 10 years'
imprisonment, as well as a 50,000 dinar fine, for individuals who
disclose or publish a "secret linked to national security." The draft
law defines secrets linked to national security as "all information,
data and documents linked to national security [...] whose knowledge
should be restricted to individuals entitled to their use, possession,
circulation or conservation."

The draft law also provides for a sentence of up to two years'
imprisonment for any person who disseminates, without authorization,
audio-visual material filmed inside national security buildings, on the
sites of security operations or in vehicles belonging to the armed
forces. Such an article would lead to the imprisonment of people who
might want to denounce abusive behavior by the police by publishing
videos or photos documenting abuses in order to alert public opinion.

These provisions are incompatible with Tunisia's obligations to
protect and respect the right to freedom of expression which includes
the public right of access to information, particularly in accordance
with Article 19 of the International Covenant on Civil and Political
Rights (ICCPR) to which Tunisia is a party. Such information could be
essential for denouncing human rights violations and guaranteeing
accountability in a democracy.

While governments have the right to restrict the dissemination of
certain kinds of information that could seriously endanger national
security, the very vague definition and the absence of any exception or
excuse on the grounds of public interest could enable the authorities to
prosecute those who denounce reprehensible actions by the government.

According to Article 32 of the Tunisian Constitution, "the State
guarantees the right to information and the right of access to
information." In addition, Article 31 guarantees freedom of opinion,
thought, information, and publication and prohibits prior control of
these freedoms.

The Johannesburg Principles on national security, freedom of
expression and access to information, an influential body of principles
issued in 1996 by international law experts on the applicability of
human rights protection to information on national security, state: "No
person may be punished on national security grounds for disclosure of
information if (1) the disclosure does not actually harm and is not
likely to harm a legitimate national security interest, or (2) the
public interest in knowing the information outweighs the harm from

The Principles specify that "to establish that a restriction... is
necessary to protect a legitimate national security interest, a
government must demonstrate that: (a) the expression or information at
issue poses a serious threat to a legitimate national security interest;
(b) the restriction imposed is the least restrictive means possible for
protecting that interest; and (c) the restriction is compatible with
democratic principles."

In addition, the Principles define legitimate national security
interest as the protection of "a country's existence or its territorial
integrity against the use or threat of force, or its capacity to respond
to the use or threat of force, whether from an external source, such as
a military threat, or an internal source, such as incitement to violent
overthrow of the government."

In its General Comment No.34 interpreting Article 19 of the ICCPR,
the United Nations Human Rights Committee notes that governments should
take "extreme care" to ensure that laws on national security are not
invoked "to suppress or withhold from the public information of
legitimate public interest that does not harm national security" or to
prosecute journalists, researchers, activists, or other individuals who
disseminate such information.

Denigrating the Police and Freedom of Expression

The draft law would criminalize "denigration" of the police and other
security forces, thereby jeopardizing freedom of expression.

Article 12 of the draft law provides for a criminal sanction of two
years' imprisonment and a fine of up to 10,000 dinars for any person
found guilty of intentionally denigrating the armed forces with the aim
of "harming public order."

The criminalization of denigration of state institutions is
incompatible with the strong protection of freedom of expression laid
out in international law as well as with rights guaranteed by the 2014
Tunisian Constitution.

Moreover, the vague concept of "denigration of the armed forces" is
incompatible with the principle of legality – the cornerstone of
international human rights standards – which obliges States to ensure
that criminal offenses are clearly and precisely defined in law (see
General Comment No.34, paragraph 25).

Article 12 risks giving the authorities considerable scope to carry
out arrests for unjustified reasons such as arguing with the police or
taking a long time to carry out their orders, or in reprisal for filing a
complaint against the police. The requirement that the denigration
should be aimed at "harming public order" is so broad that it barely
limits the authorities' discretionary powers of prosecution.

The denigration clause would add a new offense to existing laws which
already contain numerous articles criminalizing freedom of expression,
in particular provisions on defamation of state institutions, offenses
against the Head of State, and offenses against the dignity, reputation
or morale of the army. Our organizations have long denounced these
articles and called for their withdrawal.

The UN Human Rights Committee's General Comment No.34 specifies that
"state parties should not prohibit criticism of institutions, such as
the army or the administration."

In its 2008 review of Tunisia, the UN Human Rights Committee
expressed concern about the criminalization of "criticism of official
bodies, the army or the administration." During Tunisia's Universal
Periodic Review by the United Nations Human Rights Council in 2012,
Tunisia complied with Recommendation No.114.59 to review the legislation
of the Ben Ali era that stifles freedom of expression in order to fully
protect these rights, in accordance with international standards.
During Tunisia's Universal Periodic Review in 2017, several States asked
Tunisia to strengthen freedom of expression, including press freedom
and the right of access to information.

Reinforcing Impunity by Exonerating the Security Forces from Responsibility in Cases of Excessive Use of Force

The draft law would exonerate the security forces from criminal
responsibility if they use lethal force to repel attacks on security
buildings, their homes, their belongings, and their vehicles, when the
force they used proved necessary and proportional to the danger. This
provision would mean that the security forces would be legally
authorized to respond with lethal force to an attack on property which
would not endanger their lives or the lives of others and would not
cause serious injury.

According to Article 18 of the draft law, a "member of the armed
forces is not criminally responsible for damages resulting from the act
of injuring of killing a person who has committed one of the offenses
mentioned in articles 13, 14, and 16 of the law, if the action was
necessary to reach the legitimate aim of protecting life or property,
and if the means used were the only ones capable of repelling the
aggression, and the use of force was proportional to the danger."

This article mirrors the directives on the use of force in articles
20-22 of Tunisian law 69-4 of January 24, 1969 regulating public
meetings, while broadening it to the use of force not only during
demonstrations, but also in cases of individual attacks against property
or vehicles belonging to the police or other security forces.

Article 18 therefore gives the armed forces significant leeway to
respond with potentially lethal force to an attack that does not
threaten lives or risk causing serious injury. This is contrary to the
State's obligation to respect and protect the right to life.

International law does not authorize the use of firearms solely to
protect property. See, for example, Article 9 of the UN Basic Principles
on the Use of Force and Firearms by Law Enforcement Officials. These
standards also require an independent authority to assess whether the
use of firearms by the armed forces resulting in death or serious injury
was necessary and proportionate.

The Tunisian security forces have long benefited from impunity for
the excessive use of force or ill-treatment. Killings of demonstrators
during the revolution, excessive and unjustified use of force in
policing demonstrations, torture, and ill-treatment of detainees during
anti-terrorist operations as well as arbitrary practices during the
arrests of citizens have all gone largely unpunished. Exonerating the
security forces from responsibility, as envisaged in the draft law,
risks reinforcing this culture of impunity and sending a message to the
security forces that they have a green light to use force illegally.


Tunisian Human Rights League

National Union of Tunisian Journalists

Tunisian Forum on Economic and Social Rights

Tunisian Organization Against Torture

Human Rights Watch

World Organization Against Torture

International Federation for Human Rights

Amnesty International

Lawyers Without Borders

International Commission of Jurists

Reporters Without Borders

EuroMed Rights

Democratic Transition Human Rights Support Centre (DAAM)