The ICJ condemns the use of criminal judicial processes to harass and disrupt the work of lawyers who are acting as the last line of defense against the increasing crackdown on the rule of law and fundamental freedoms.
يمكنكم قراءة وتحميل البيان باللغة العربية عبر هذا الرابط
Tunisian lawyer and human rights defender Ayachi Hammami was informed on Monday 2 January that he would be subject to prosecution for “deliberately using communication networks and information systems to promote and spread false rumors with the aim of infringing on the rights of others and threatening public security, and attributing false information to defame others and damage their reputation”. The charge before the Tunis Court of First Instance, based on article 24 of Decree law 54-2022, is punishable by a 10-year prison sentence. Mr Hammami will appear before the investigative judges on Tuesday 10 January.
The investigation was instigated by an instruction from the Minister of Justice to the public prosecutor of Tunis court on 30 December 2022 based on statements that Ayachi Hammami had made during a radio interview on 29 December 2022 in his capacity as a defense lawyer and coordinator of the Defense Committee of the dismissed judges.
The ICJ stresses that the statements constitute protected freedom of expression under international human rights law and cannot be subject to criminal prosecution.
“Instead of prosecuting lawyers based on trumped-up charges, the Tunisian authorities must end their assault on the rule of law and ensure that lawyers are able to carry out their legitimate work without intimidation, harassment or reprisals.” said Said Benarbia, ICJ MENA director.
Decree law 54 of 2022 was promulgated unilaterally by President Saied on 13 September 2022, without any consultation or public debate. The ICJ, together with other international and Tunisian human rights organizations have condemned the Decree for undermining the right to freedom of expression and privacy in contravention of international human rights law and standards.
Ayachi Hammami is the defense lawyer for and coordinator of the Defense Committee of the dismissed judges and the Independence of the Judiciary. The Defense Committee was created to coordinate the defense of the judges that were summarily dismissed by President Kais Said on 1 June 2022. During the media interview that led to his prosecution, Mr Hammami asserted that the dismissed judges are facing prosecutions that are politically motivated, that the authorities had fabricated terrorism-related cases against 13 of these judges, and that the Ministry of Justice was failing to respect the law by refusing to reinstate the 49 judges following a decision by the administrative court in August 2022. (The Temporary High Judicial Council is scheduled to hold a hearing on 24 January 2023 to decide on lifting the immunity of the 13 judges. )
According to information available to the ICJ, Mr Hammami is at least the fourth lawyer who is being prosecuted for criticizing the Ministry of Justice’s policies and practices regarding the dismissal of the 57 judges.
Lawyers Lazhar Akermi and Ghazi Chaouachi are both being investigated for giving statements similarly critical of the Ministry of Justice in media interviews.
Lazhar Akermi was charged on 21 September under articles 128 of the Penal Code and article 86 of the Telecommunications Code with “attributing illegal acts to a public employee without providing evidence” and “offending others or disturbing their comfort through public telecommunications networks.”
The charges stem from a media interview he gave on a Tunisian radio on 14 September 2022 in which he stated that he had doubts about the fabrication of cases against the dismissed judges.
Ghazi Chaouachi was charged under article 24 of Decree 54 and article 128 of the Penal Code on 22 November 2022 based on a statement that he gave to a Tunisian TV channel in which he asserted that the Ministry of Justice had been harassing the dismissed judges.
On 27 October 2022 Lawyer Mehdi Zagrouba was charged under article 24 of Decree law 54 based on a post he published on his Facebook page criticizing the practices of the Minister of Justice.
The four prosecutions were instigated by the Ministry of Justice under article 23 of the Code of Criminal Procedure.
The ICJ calls on the Tunisian authorities to discontinue these prosecutions and drop any pending charges against the concerned lawyers.
“ The Tunisian authorities are effectively criminalizing lawyers for acting independently in defense of their clients or for exercising their guaranteed rights to the freedom of expression,” added Benarbia. “Through these politicized prosecutions, they are aiming to intimidate the targeted lawyers and sending a chilling message to those others acting as the last line of defense against the government’s assault on the rule of law and human rights”
Lawyers, like any other person, enjoy the right to freedom of expression, as protected under human rights treaties to which Tunisia is party. These include the International Covenant on Political Rights and the African Charter on Human and Peoples Rights. The UN Basic Principles on the Role of Lawyers, reaffirms this principle and states that governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.
The UN Special Rapporteur on the Independence of judges and Lawyers has urged public prosecutors “ to closely monitor situations and cases in which lawyers might be criminalized for performing their duties. When such circumstances arise, appropriate orders should be issued to prevent public prosecutors from maliciously prosecuting members of the legal profession who criticize State officials and institutions in the exercise of their independence and freedom of expression.”
Since 25 July 2021, President Saied has taken steps that have serve to effectively dismantle the rule of law in Tunisia. They have weakened judicial independence and the judicial protection of human rights, restrict the civic space and stifled the exercise of freedom of expression, including dissent.
On 1 June 2022, President Kais Saied issued Decree-Law 2022-35 giving himself the authority to summarily dismiss judges and prosecutors without due legal process. The same day he dismissed 57 judges and prosecutors by decree based on unspecified reports. On 9 August 2022, the Tunis Administrative Tribunal issued its emergency decision finding that 49 of the 57 judges and prosecutors arbitrarily dismissed should be reinstated immediately. The tribunal’s decision in favor of the judges and prosecutors is not subject to appeal and should be enforced immediately according to article 41 of Law n.72-40 on the Administrative Tribunal. The Ministry of Justice has thus far refused to implement the decision, in contravention of rule of law principles.
On 1 December 2022, lawyers Ayachi Hammami, Kamel Ben Massoud and Abdel Razzak Kilani announced in a press conference the creation of the Defense Committee of the Dismissed Judges and the Independence of the Judiciary. The committee is composed of 40 lawyers and coordinated by Ayachi Hammami.