Appeal to members of parliament to cancel the consideration of
the bill on the repression of assault on armed forces
Dear members of parliament
The undersigned organizations send you this letter to alert you to the need to desist from consideration of “Bill No 25 for 2015 on the repression of assault on armed forces“, which has been formally registered in Parliament since 13 April 2015. On 13 July 2017, the parliament resumed discussing the bill, which is a major surprise for civil society.
We call on Tunisian legislators to abandon consideration of the bill, which may put down any criticism of the armed forces and promote a culture of impunity that has already been rampant in Tunisia’s judicial system, which pointedly lacks in-depth reforms ever since the revolution.
Our organizations consider this bill as unconstitutional and contradicts with Tunisia’s international obligations to human rights issues, in particular the respect for the right to life, to oppose impunity, and the right to freedom of expression.
The bill could criminalize the conduct of journalists, informants, human rights defenders, and others who criticize the police, and allow security forces to use lethal force other than in extreme cases of protection of human lives.
For civil society, the Parliament must ensure that the task of the Tunisian security forces is to protect people as well as themselves against possible deadly attacks in ways that respect human rights, but this project goes beyond that by criminalizing any harm to elements of the armed forces, as well as their relatives and property. This comes at a time of violations by these elements in the context of the state of emergency and the fight against terrorism, and a suppression of some peaceful demonstrations almost without any accountability.
We present the following arguments that highlight the discrepancy between the bill and the constitution and Tunisia’s international obligations. In view of the above arguments, the signatory organizations consider that the responsibility of deputies who have sworn to respect the rules of the Constitution, in accordance with article 58, is to waive the bill or to vote against it, if it is brought before the plenary.
Inconsistency between criminalization of disclosure of national security secrets and freedom of expression
Articles 5 and 6 of the bill impose sentences of up to 10 years’ imprisonment and a fine of 50,000 dinars for those who disclose or publish “national security secrets”. The definition of national security secrets is “all information, data and documents related to national security […] which must be known only to those who have the capacity to use, possess, circulate or preserve them.”
The bill also imposes sentences of up to two years’ imprisonment on anyone who publishes any audiovisual material taking inside national security buildings or in the premises of security operations or vehicles of the armed forces. This will result in the imprisonment of persons who wish to denounce Police abusive behavior by publishing videos or photographs documenting abuses and alerting public opinion.
This version is inconsistent with Tunisia’s obligations to protect the right of freedom of expression and to promote the right of public access to information, as provided for in Article 19 of the International Covenant on Civil and Political Rights, signed by Tunisia. Such information may be necessary to expose human rights violations and ensure democratic accountability.
Although governments have the right to restrict the circulation of certain information that would endanger national security, the broad definition and the absence of any exception or defense regarding public interest may allow authorities to charge those who disclose government’s violations.
Article 32 of the Tunisian Constitution provides that “the State shall guarantee the right to information and the right of access to information and communication networks.” Chapter 31 provides that “Freedom of opinion, thought, expression, information and publication shall be guaranteed. These freedoms shall not be subject to prior censorship”
The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, a wide-ranging set of principles issued by international law experts in 1996 on the application of human rights protection measures to national security information, state that: “No person shall be punished on a national security basis for the disclosure of information if (1) the disclosure has not led or is unlikely to cause harm to an interest affecting national security, or (2) the public interest obtained from the diversity of information has overcome the damage caused by disclosure. ” “.
The Principles state that “to ensure that the restriction is necessary to protect a legitimate interest affecting national security, the government shall demonstrate that: (a) the opinion or information in question constitutes a serious threat to a legitimate interest affecting national security, (b) the imposed restriction is the least possible means of protecting that interest, and (c) the restriction is consistent with democratic principles “.
The principles complement the definition of legitimate interests affecting national security as “protecting the existence or territorial integrity of the country from the use or threat of force, or protecting its ability to respond to the use or threat of force, whether from an external source such as military threats or from an internal source such as incitement to overthrow the regime through violence. “
In its General Comment No. 34 on Freedom of Expression explaining article 19 of the International Covenant on Civil and Political Rights, to which Tunisia is a state party, the UN Human Rights Committee noted that governments should exercise “extreme caution” to ensure that national security laws are not invoked ” for the purpose of suppressing or blocking information from the public that has a legitimate public interest and does not harm national security “or to pursue journalists, researchers, activists or others who disseminate such information.
Contempt of police and freedom of expression
The bill criminalizes the “contempt” of police and other security forces, which would violate freedom of expression.
Article 12 of the draft law imposes a penalty of two years’ imprisonment and a fine of up to 10,000 dinars for anyone convicted of deliberately insult the armed forces or “in order to harm public security.”
The criminalization of the “contempt” of state institutions is inconsistent with the strong guarantees of freedom of expression under international law and it is incompatible with the rights enshrined in the Tunisian Constitution of 2014.
Moreover, the ambiguity of the concept of contempt of the armed forces is inconsistent with the principle of the legality of crimes and penalties which are one of the pillars of international human rights law that obliges states to ensure that criminal offenses are clearly and precisely defined in laws (see paragraph. 25 of General Comment No. 34).
Article 12 may grant the authorities broad estimated jurisdiction to detain persons on unjustified basis such as arguing with the police, slowing down when obeying orders, or to avenge a complaint against police. As for the requirement of the contempt’s motivation to be “harming the national security”, it is too loose that it hardly limits the discretion enjoyed by the authorities to file charges.
The contempt clause added a new violation to existing laws, which includ several chapters criminalizing freedom of expression, particularly those related to defamation of state bodies, abuse to the president, or violation of the dignity, reputation or morals of the army. Signatory organizations had always denounced these laws and called for their withdrawal.
General Comment No. 34 of the Human Rights Commission states that “States parties shall not prohibit criticism of institutions such as the military or the administrative system”.
In its review of Tunisia in 2008, the Human Rights Committee expressed its concern about the criminalization of criticism of official systems, the military and the administration.
The Human Rights Council, in its 2012 Universal Periodic Review, also requested the authorities to review the legacy of laws inherited from the era of Ben Ali, which violates freedom of expression to provide full protection for those rights in accordance with international human rights law. During the universal periodic review of Tunisia in 2017, several States called on Tunisia to promote freedom of expression, including freedom of the press and the right of access to information.
Devoting impunity through exemption from responsibility when excessive force is used
The bill would exempt the security forces from criminal responsibility for the use of lethal force to denounce attacks on their homes, property or vehicles if the force used is necessary and proportionate to the risk. This provision means that the security forces are allowed by law to respond with lethal force to an attack that does not endanger their lives or lives of others and does not entail a serious risk of injury.
Under section 18 of the bill, “armed forces agent shall have no criminal responsibility when repression one of the aggressions stated in chapters 13, 14 and 16 of this Act and caused the injury or death of the aggressor if such act was necessary to achieve the legitimate objective required to achieve protection of life or property, and the used means are the only ones to respond to the attack, and the response was proportional with the seriousness.
This chapter follows the guidelines on the use of force in chapters 20-22 of Tunisian Law No 4 of 1996 issued in January 1996 regulating public gatherings, with the expansion of the use of force not only during demonstrations but also in the case of individual attacks on police and others of the security forces’ property and cars.
Chapter 18 grants a large margin of maneuver allowing the armed forces to use force that may be lethal in response to an attack that does not pose a threat to people’s lives or may cause serious injury. This is contrary to the state’s obligation to respect and protect the right to life.
International law does not permit the use of firearms only to protect property, for example, chapter 9 of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. These standards also require that an independent authority evaluate whether the use of firearms by an armed force, resulting in death or serious injury, is necessary and proportionate.
The Tunisian armed forces have always benefited from the lack of accountability for the use of excessive force or ill-treatment. The killings of demonstrators during the revolution, the excessive and unjustified use of force when dealing with demonstrations, the torture and ill-treatment of detainees, counterterrorism operations and the arbitrary practices that accompany the arrest of citizens remain unaccountable. The exemption of the armed forces from responsibility, as provided for in the bill, would strengthen this culture of impunity and send a signal to the security forces that they have a green light to use force illegally.
Tunisian League for Human Rights
National Syndicat for Tunisian Journalists
Tunisian Forum for Socio-economic Rights
Tunisian Organization Against Torture
Inetrnational Federation forHuman Rights
International Committee of Jurists
Lawyers Without Borders
World Organization Against Torture
Human Rights Watch
Reporters Without Borders
Euromed Rrights – Tunisia
Democratic Transition and Human Rights Support Center