Repression of offenses against the armed forces draft law: A masked immunity to reinforce impunity
Update
The present paper has worked on the draft law which has been previously proposed. The draft law went one again
The present paper worked on the draft law which was previously presented. In the meantime, the law returned to the corridors of the House of Representatives and before the General Legislative Committee on June 12, 2020. The existing approach is the same despite the proposed amendments.
The General Legislative Committee continued to consider the draft law in the presence of representatives of the Ministry of Interior, the Ministry of Justice, and the Ministry of National Defense to submit their amendments and observations about the draft law.
It should be noted that the amended version of the draft law of repression of offenses against the armed forces does not differ in essence from the old draft that is to be detailed in the coming section, not in terms of the content of the injunction that aims to immunity the agents carrying weapons in all of their work as the immunity extends to their families, homes, and children, not in terms of infringement of rights and freedoms. The changes that occurred in the content of some chapters, especially their arrangement, do not affect the spirit of the text and the breath in which it was formulated. It can also be considered that the retreat from the chapter related to the inability to apply Chapter 53 of the penal code regarding enabling the judge to implement the conditions of mitigation, even if it is a positive step, but it does not negate All reservations related to this draft law and to be detailed later. Through this revised version, the initiative has attempted to refer to the general texts in the penal code and that has already been worth writing about. For example, the text related to the disruption of freedom of work, which is a colonial text that has not been abolished to this day. In addition, the reference to the penal code in the chapter related to the denial of any criminal responsibility with regard to the act carried out by the officer, which can result in damages up to the death point, and the reference here to the chapter on legal defense is at the heart of the journal, which the initiator considered assumed by formulating the chapter that way when it stipulated “in addition to legal defense….” complementing the drafting of the chapter by denying any responsibility, ie, a reverse reading, even in the absence of the elements of legal defense, there can be no criminal liability for the actions stipulated in the draft law.
Finally, the draft law provides for legal follow-up and briefing of agents in case if any harm done to them, which is not wrong itself, but the request for special procedures in compensation them directly from the state that has the ability to refer to people, remains subject to discussion, especially that the draft does not provide for the same procedure in case the situation was reversed, taking the principle of parallel procedures.
DAAM centre does not forget to signal the absence of the inclusive approach so far as the civil society has not been asked to express their opinion about the draft law so far which makes it defective while the legal details remain bound to the initiator.
Despite the current climate of freedom and democracy and the continuous efforts that are made to establish rule of law, the question about the reason for the continued absence of oversight and punishment regarding charges made by security agents in particular still exists unanswered, as followers of public affairs in Tunisia can easily notice that security forces continue to commit several assaults that are known as “ Learn to swim” or “ Ben Arous invasion” where security forces invaded Ben Arous court to free one of their colleagues who was facing torture charges in Ayman Al-Othmani murder incident, All trials that may include similar incidents lack fair justice and promote impunity, but the most dangerous thing is that it occurs in light of strengthening the idea of applying and promoting rule of law. This indicates the importance of maintaining, reviewing, and promulgating laws in a manner that effectively guarantees accurate and applicable texts without intended exploitation in conjunction with a comprehensive path of institutional and structural reform that include all states institutions as the hypothesis of violating law and exploiting its defects occurs and exists too in a democratic climate.
Repression of offenses against the armed forces bill returned to be prominent and trending on media, political and human rights arenas after being referred to the Legislation Committee of the People’s Representatives Assembly to be discussed since three months and just one week before Covid-19 pandemic, Here is a reminder of the most important dates associated with the subject:
It is worth noting too that the context of the bill’s return always come associated with terrorist events or a troubled context in which the country is going through or witnessing. The paradox, however, is that the content usually affects more rights and freedoms rather than being a legislative response to the terrorist threat. And this matter is usually emphasized by civil society organizations.
The Ministry of Interior and the security syndicates, through the last legislative initiative, insisted on the necessity of protecting their members during their work, but this project faced a wide opposition for its repressive content and its punitive nature, The Ministry of Interior and the security syndicates, through the last legislative initiative, insisted on the necessity of protecting their members during their work, but this project faced a wide opposition for its repressive content and its punitive nature, in addition to its violation to international conventions and the constitution regarding freedoms. Most human rights and national organizations have issued statements condemning this law, and warned of its seriousness. And many politicians expressed their resentment toward the bill, the Tunisian Press Syndicate the Tunisian General Labor Union requested it to be withdrawn from the public legislation committee. And DAAM Center participated along with many Tunisian Civil Society organizations in issuing a call for the People’s Representatives to cancel the consideration of the repression of offences against the armed forces bill.
DAAM Center for supporting Democratic transition and Human Rights is concerned to highlight some observations relate to the draft law .
I. On the legal level
A) General introduction
This law includes Twenty Articles that are divided into five sections. Apart from the first three Articles, which came in the first part under general provisions, in which the initiative party tried to define the objectives of the bill, the remaining 17 chapters came to serve repressive and punitive nature of the bill. Of course, with the exclusion of chapter 8, which denies criminal liability and responsibility for any one who assists the security forces in certain cases mentioned in the bill.
The rest of the text is divided as follows:
Articles defining the physical element of the crime (corpus delicti) without stating the punishment required for it, and the subsequent Articles are devoted to state in details the punishment from its minimum level to its maximum level, namely for, the case stated in Article 4, which chapter 5 and chapter 6 state the penalties for its violation. Article 7, Article 8 and Article 9, also set out the penalties for its violation.
There are other Articles that define the physical element of the crime and state the penalty for it within its text.
The Bill also contained three Articles which did not deal with crimes or penalties, but emphasized aggravating the punishment, namely, Article 9, which provided that Article 53 of the Penal Code, which allowed the judge to use leniency bring the punishment of a crime to its minimum degree, could not be applied and referred to the contents of Articles 5 and 6.
Also, Article 19 stressed that the sanctions provided for do not prevent the application of more severe penalties!! In clear violation of the principles of the Penal Code, as it favors a special law over a general one and as the Penal Code provides a provision applying the less severe criminal statute on the accused .
The bill therefore integrates with other provisions to aggravate punishments and repression, and many of those articles contradict with principles of law, rights and freedoms and their constitutional provisions.
The Bill concludes with Article 20, which provides that one or some of the supplementary penalties provided for in Article 5 of the Penal Code may be sentenced.Based on the aforementioned, we can also notice the project includes 13 felons, ranging from six years in prison to life imprisonment, with financial fines ranging from 10,000 to 50,000 dinars, and only 5 misdemeanors, in which the sentence ranges from two to five years in prison and a fine from 5,000 to 25,000 years Dinar. This confirms the initiative party’s tendency to tighten the sanctions that shall be applied
Here is a detailed table of the whole content included in the law whether felonies, misdemeanors or penalties associated with them:
It can be said that the text of the law is broad, concise and poorly worded, and does not respect the general rules of drafting legal texts, which include ensuring that it is well formulated and edited so that it is understood by all, as well as the accuracy necessary for its application in terms of definition and scope, without forgetting its consistency with the entire legal system and its principles. This will be reflected in the next section.
2. In terms of content
By returning to the text’s content, two key points can be observed:
- First: The absence of clear and precise concepts and the use of broad terms.
- Second: The repressive nature and the tightening of sanctions.
If we are to say that the legal norm must be general, abstract and binding, the concepts, definitions, terminology and language used must be accurate and clear in terms of their scope and application. The draft notes that the terms used were broad and broad, without the initiative party itself having to interpret them and define the terms precisely in some articles. It also used terms and concepts that did not bother to define, even if they were not accurately defined in some other articles, thus making their scope of application broad and feasible To pose a practical danger to rights and freedoms.
Among these terms are:
Article 4 of the bill inaccurately defines the secrets of national security as “all information, material and documents relating to national security”. In a similar situation, the security authority has a discretion to make every information, which is of public or political concern in an internally important sector as it relates to political and civil life, a hidden classified secret.
Article 7 of the bill law provides that all use of cameras, Cinematic cameras, Telephones, recording machines, radio or television receivers within security or military installations, security or military operations sites, vehicles or on board of naval or air units shall be subject to prior authorization from the competent authority of the armed forces. Any publication or transmission of films, photographs or sound recordings made within security or military installations, security or military operations sites, vehicles or on board of military or air units of the armed forces shall also be subject to prior authorization by the competent authority.
The absence of any definition of the concept of security operations can easily be noted in this Article .
Article 12 of the bill provides that anyone who deliberately misrepresents the armed forces with the aim of harming public security shall be punished with two years’ imprisonment and a fine of 10,000 dinars. It is also noted that this Article does not define the concept of vilification.
it was stated in Articles 11, 12 and 13, and in relation to other crimes. The concept of public security is a classic legal concept, which is stated in national and international legal texts. It always raises important problems in determining its significance.
This is the case here, especially when the concepts and terminology are not accurate in terms of significance and scope of application, the door is open to the discretion of the authority, even with the judges’ authority and oversight, and where there is complete confidence in their role, their role remains restricted and that does not prevent the executive authority form abuse of power.
This promoted the expansion of the armed forces assistance protection in the bill. According to Article 15 committing any threat of a crime or misdemeanor against security members or associates, his wife, parents or one of his family members or those who are under his legal custody shall be punishable by five years’ imprisonment and 25,000 dinars. This Protection circle includes the place of residence, its contents and the means of transport, while the State makes reparation for the damage done to it, replacing it with a claim for compensation from his opponent.
Article 18 is also considered the most dangerous Article made to protect the armed forces after using lethal force and let them loose without any penal oversight. This makes the law based on the logic of aggravation with the aggressor on the security forces and leniency with the forces themselves is they committed the same crime, as the right criteria to control the forces’ role and guarantees of safety were absent, and the same goes for the required criteria for respecting the necessities of the security work and the necessity of rule of law and principles of rights and freedoms.
II - On human rights level:
We can initially say that the Articles of this bill are almost incompatible with Article 49 of the Constitution, which sets out conditions for any restriction of rights and freedoms and the principles of necessity and proportionality. The above-mentioned Article emphasizes that any restriction shall be placed solely on the basis of the necessity required by a civil and democratic State, while respecting the proportionality of these criteria and their duties.
This Article specifies that legislative logic falls under a general human rights approach that makes other approaches as part of it and even less important than it. This confirms that the security approach that justified the reasons in the bill, by confirming its link to the safety and existence of society, is not separate from the human rights approach enshrined in the 2014 constitution. Here, some of the rights that this bill violate and can be noted.
Article 18 of the bill exempts the forces carrying weapons from criminal liability in the event of injury or death of the aggressor. Moreover, this Article contradicts with the principle of the progressive use of force, which is defined by Law No. 69 of the 24th of January 1969, which regulates public meetings, processions, reviews, demonstrations and assembly. It affects the right to life guaranteed by the Constitution and all international conventions.
Through subjecting photography and publication to prior authorization and the use of broad terms without a precise definition, as in the form of the term “vilification”, which is used as the core of Article 12 of the draft law and the term “secrets of national security”, which is used as the core of Article 4, as well as the term “public security”.
The reasons for the bill were stated the United Nations Basic Principles on the use of Force and Firearms by Law enforcement officials. The excerpts from the commentary were limited to supporting the notion of protection contained in the bill, which was repressive and punitive in nature, without linking it to the spirit and logic of international norms. These principles set forth a network of interrelated concepts about the idea of law enforcement within the “…consideration of the role of law enforcement officials in the administration of justice, the protection of the right to life, liberty and security of person, and the responsibility to maintain public safety and social peace and the importance of their qualifications, training and behavior.” In the same context, the Principles refer to “… the attention of law enforcement officials and other judges, prosecutors, lawyers, members of the executive, the legislature and the public should be drawn”.
The above-mentioned basic principles establish any regulation and legislation relating to the law enforcement process, whatever was the reason of their intervention, conditioned by respect for law, justice, freedom and human rights, in partnership with the rest of its interventionists. This makes this bill, mainly a security bill, without taking into account the legal and rights approach, especially as part of it conflicts, for example, with the principle of lighter punishment provided for in international texts.
DAAM center for supporting Democratic transition and Human Rights, after reflecting on the Articles of the bill comprehensively on the basis of a legal analysis of a human rights perspective confirms that this bill is dangerous and contradicts with international conventions, the Constitution and many other laws. The center also confirms that such repressive laws can no longer be justified under the country’s current political and social changes. The current situation in Tunisia and the whole region, is of such gravity, that makes the security issue the subject of constant and continuous debate, especially after the terroristic operations in which many armed forces have martyred in, as well as in the light of the growing social movement throughout the country (9091 movements and actions during 2019 according to the annual report of the social protest movements in Tunisia issued by the Tunisian Forum for Economic and Social Rights)
This cannot in any way justify such harsh laws that come under certain effects and circumstances, and such laws have proved to be a failure to achieve the societal balance that the initiative party has invoked in the accompanying document to support his bill.
The real difficulties and risks faced by armed forces during performing their national duty are not enough to justify this law, which the more severe the more the gap increases and the more community imbalance increases as it shakes the necessary confidence that should exist in the relationship between the security forces and citizens. The aforementioned relationship does not need repression and punishment to strengthen it as much as it needs to be guaranteed under the law and needs respect for rights and freedoms. The law must not be an instrument for the structure of violence in the relationship between the citizen and security, but rather a peace that is based on self-respect for mutual rights and duties.
The bill does not address the basic issues and the real and urgent problems of armed forces. We support every bill whose true purpose is to reform the security system and to promote the morale of armed forces, as was the case with Law No. 50 of 2013, which deals with the consolidation of a special system of compensation for damage caused for members of the security forces during Internal work accidents and occupational diseases, which were aimed at reassuring members of internal security forces who expose themselves to the dangers of fighting terrorism and crime.
