This statement was originally published on article19.org on 1 November 2016.
ARTICLE 19 is concerned that the Tunisian military courts handle cases involving civilians, including journalists and bloggers. Such practices are contrary to international standards regarding the right to a fair trial and freedom of expression. The Tunisian Military Justice Code protects symbols such as the national flag or the dignity of the army, which is also incompatible with international law. There is an urgent need to review the legal framework, deleting provisions of the Military Justice Code that leads to intimidation and deters the freedom of public debate.
ARTICLE 19 notes the persistence of practices involving military courts judging cases involving civilians.
In November 2014, the blogger Yassine Ayari was convicted by a military court and sentenced to one year in prison for defamation and undermining the morale of the national army. In April 2015, the Tunis Court of Appeal ordered his release on parole after he had completed half of his sentence.
In 2013 Hakim Ghanmi, another Tunisian blogger, was arrested and accused, on the basis of Article 91 of the Tunisian Military Justice Code, of violating the dignity of the army. He eventually received a dismissal before a military tribunal.
Jamel Arfaoui, journalist and editor of the "Tunisia Telegraph" site, appeared before a judge at the military court to answer a charge of insulting the army, as per articles 91 of the Tunisian Military Justice Code and 128 of the Tunisian Criminal Code. However, he was allowed to remain free pending the result of the investigation.
Mohamed Haj Mansour, director of online newspaper "Al-Thawra News", was subject to a warrant for arrest on 3 October 2016 by the presiding judge at the Military Court following publication of an article in his journal.
Article 31 of the new Tunisian constitution guarantees the right to freedom of expression. With regard to restrictions on human rights, Article 49 of the Constitution stipulates that these restrictions should not "undermine their essence." These means of control "are set up as the need demands in a civil democratic state and to protect the rights of third parties or for public safety, national defence, public health or public morality, and with the respect of proportionality " as to the objective.
The 1967 Military Justice Code, as amended by two decrees, the-law adopted on 29 July 2011 assigned to the military courts a jurisdiction that goes beyond that required by the Constitution (in Article 110). The amendment made by Decree-Law No. 2011-69 of 29 July 2011 has not removed the jurisdiction of the military courts over civilians and non-military crimes committed by members of the army.
Moreover, the common crimes committed by civilians can be brought before military courts when the victim belongs to the army. Military courts also have jurisdiction for offences committed to the detriment of the army.
Moreover Article 91 of the Military Justice Code provides for a penalty of up to 3 years in prison against anyone "who is guilty […] of insulting the flag or the army, attacking the dignity, reputation, morale of the army, or acts liable to undermine military discipline, obedience and respect due to superiors, or criticism on the action of the military hierarchy or officers the army, thereby undermining their dignity. "
Violation of the right to a fair trial
ARTICLE 19 notes that military courts in Tunisia do not meet the independence requirements set out by Article 10 of the Universal Declaration of Human Rights and Article 14.1 of the International Covenant on Civil and Political Rights. As per the United Nations Human Rights Committee, "the requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception." (General Comment n. 32, § 19). The guarantees of independence relate, specifically, to the conditions for appointment and promotion of judges. But in Tunisia, the Minister of Justice chairs the board of the military judiciary and proposes the appointment and promotion of military judges. Following his visit to Tunisia in 2012, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-repetition had also expressed concern over the lack of independence of military judges.
ARTICLE 19 further notes that international law precludes that civilians are tried by military courts. According to the UN Human Rights Committee, it is only in exceptional cases, especially when civilian courts are not able to play their part, that the trial of civilians by military courts can be compatible with the International Covenant on civil and political rights (General Comment n. 32, § 22). United Nations Principles for the Protection of Human Rights in the fight against impunity provide clearly that "the jurisdiction of military tribunals must be restricted solely to specifically military offences committed by military personnel" (Principle 29).
ARTICLE 19 notes that the fact of being tried by a military court is likely to intimidate journalists and bloggers, creating a chilling effect on freedom of expression.
ARTICLE 19 reiterates that media freedom is essential to the operation and development of a democratic society. ARTICLE 19 recommends that the Tunisian Military Justice Code is promptly reviewed to ensure compliance with the right to a fair trial. Pending legislative change, ARTICLE 19 recommends that all justice sector actors interpret the legal provisions relating to the jurisdiction of the courts in a manner that ensures civilians are no longer tried by a military tribunal.
Violation of international standards on freedom of expression
ARTICLE 19 is also extremely concerned about the use of Article 91 of the Military Justice Code against journalists and bloggers in Tunisia. Indeed, this provision is compatible neither with Articles 31 and 49 of the Constitution of Tunisia nor with Article 19 of the International Covenant on Civil and Political Rights.
Under international law, any restriction of freedom of expression must be based on a sufficiently clear and foreseeable legal basis, pursue one of the legitimate aims listed in Article 19.3 of the International Covenant on Civil and Political Rights and respect the principle of proportionality.
ARTICLE 19 notes that Article 91 of the Military Justice Code resorts to vague terms, such as the dignity or reputation of the army or such acts likely to undermine discipline or morale, which lend themselves to either a subjective or purely arbitrary interpretation. Article 91 is not sufficiently precise and predictable to meet the requirements of international law.
We also note that Article 91 protects the dignity of a symbolic object such as the national flag. An object is not in itself likely to possess dignity or reputation: Article 91 therefore does not pursue a legitimate aim.
ARTICLE 19 is also concerned that article 91 prohibits any criticism of the actions of the military hierarchy. This provision is likely to prevent any public debate, and especially so as it provides for a severe prison sentence. But in a democratic society, the conduct of the armed forces is a matter of legitimate public concern about which the media and anyone who contributes to public debate must be free to seek and disseminate information, including a critical perspective on the decisions and actions of public and military authorities. In addition to the right of the press to seek and disseminate information, there is also the public's' right to receive said information. Therefore, article 91 is a manifestly disproportionate restriction upon freedom of expression.
The use of such a provision by military courts against journalists and bloggers is likely to engender serious intimidation and thus have a detrimental effect on the public debate.
ARTICLE 19 recommends the immediate repeal of Article 91 of the Tunisian Military Justice Code. As a temporary measure, pending the legislative amendment, we recommend that this provision is no longer enforced by any court.
Tunisia: When military justice threatens freedom of expression
This statement was originally published on article19.org on 1 November 2016.