Tunisia: workshop addresses adjudication of SGB crimes before Specialized Criminal Chambers

The investigation and adjudication of sexual and gender-based crimes by the Specialized Criminal Chambers must be victim-oriented and aimed at securing victims’ right to effective remedy while simultaneously upholding the accused’s right to a fair trial.

This was the conclusion that judges and prosecutors reached at a workshop held by the International Commission of Jurists (ICJ) and the Association of Tunisian Magistrates (Association des magistrats tunisiens, AMT) on 25 and 26 September 2021 in Tunis.

The workshop, attended by 18 SCC judges and prosecutors, emphasized the importance of relying on international law when adjudicating SGB crimes before the SCC, and discussed the challenges faced by the SCC judges and prosecutors in relation to the charges, standards of proof, as well as the difficulties encountered in the investigation of SGB offence, including evidence collection and admissibility. Discussions involved interventions of international experts, ICJ representatives as well as several Tunisian judges and prosecutors, including from the SCC.

The Director of the ICJ’s Middle East and North Africa Programme, Said Benarbia, emphasized the need for the SCC to adjudicate SGBV offences effectively — including by ensuring the laying of adequate charges, consistent with relevant crimes under international law and standards — and to supplement investigations of SGB crimes already carried out, where necessary, to ensure that no stone is left unturned in the pursuit of accountability.

Over two days, speakers and participants focused on the legal definitions of SGB crimes under Tunisian and international law, including the definitions of rape and other forms of sexual assault; the applicability of international law and standards to address inadequate domestic criminal law provisions; investigative and evidentiary good practices; fair trial rights and the right to effective remedy.

The President of the SCC in Kef flagged that the Tunisian Penal Code lacks a comprehensive definition of rape and other forms of sexual assault and fails to consider rape as a form of torture in compliance with international law.

ICJ Commissioner Martine Comte noted that human rights treaties by which Tunisia is bound are a source of law that should be applied and enforced by SCC judges and prosecutors, adding that SCC judges can thus interpret definitions of rape and other forms of sexual assault in light of applicable international law at the time of the events, thereby ensuring a broader and more inclusive definition.

Martin Hackett, an international prosecutor, discussed the duty to investigate and prosecute SGB crimes under national and international law. Hackett presented on good practices in victim-centred investigations, where respect, care and compassion are critical to the gathering of best evidence and prevent re-traumatisation. He also discussed the need to address misconceptions relating to SGB crimes against men and boys.

Participants and international experts discussed possible ways to mitigate challenges faced by SCC judges and investigators in conducting effective and fair investigations while respecting the psychological well-being of victims.

A Tunisian expert further dealt with the challenges related to the legal characterization of the facts charged and the prosecution strategy, in particular with regard to the cases referred by the Truth and Dignity Commission (Instance Vérité Dignité) without an indictment.

Annahita Moradi, a barrister at One Pump Court, London, addressed the victims’ right to an effective remedy and their right to privacy, including in the context of alleviating societal stigma related to SGB offences, and the right under Tunisian law to challenge investigation decisions. Moradi insisted on the duty to fulfil victims’ rights while respecting the defendants’ right to a fair trial. Chiara Maddocks, a barrister at Church Court Chambers, London, discussed the right of the accused to be presumed innocent before the SCC.

Speakers and participants also focused on the challenges arising from the evidence in SGB criminal cases before the SCC, by addressing the applicable international standards and Tunisian law governing the collection, admissibility and exclusion of evidence and the burden of proof.

A Tunisian deputy public prosecutor elaborated on the process of evidence gathering to prove sexual assaults while taking into consideration the time elapsed between the criminal act and the evidence gathering. She further recommended that judges working in the context of transitional justice be engaged in the investigation process considering the sensitive nature of SGBV crimes.

Finally, a Judge and former SCC President closed the workshop by recommending compliance with international standards and good best practices regarding evidence collection in SGB cases to overcome some of the evidentiary challenges faced by the SCC.

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