Tunisia: President Intensifies Attacks On Judicial Independence, Says HRW

Tunisian authorities should immediately reinstate judges and prosecutors President Kais Saied arbitrarily dismissed as part of what he called an anti-corruption campaign, and reverse all measures taken to crush judicial independence, Human Rights Watch said today.

The Justice Ministry has refused to reinstate 49 magistrates – a term that includes both judges and prosecutors – despite an administrative court order on August 9, 2022, to do so, a ruling that authorities cannot appeal. Instead, the justice minister appointed by Saied announced the preparation of criminal cases against the dismissed judges. Four of them interviewed separately by Human Rights Watch described the arbitrariness of their dismissal and the efforts by authorities to justify it by formulating criminal charges against them after the administrative court’s ruling.

“These blows to judicial independence reflect the government’s determination to subjugate prosecutors and judges to the executive branch, at the expense of Tunisians’ right to a fair trial before independent and impartial judges,” said Salsabil Chellali, Tunisia director at Human Rights Watch. “The fight against corruption should not be instrumentalized for political purposes and should be carried out in compliance with the rule of law.”

The refusal to reinstate the dismissed magistrates is among the latest moves against the judicial branch that Saied has taken since his power grab on July 25, 2021. That day, the president said he would take over supervision of public prosecution. Then, on February 12, 2022, as part of his purported war on corruption, Saied unilaterally dissolved the High Judicial Council (HJC), a constitutional body mandated to guarantee the independence of the judiciary. He replaced it, through decree no. 2022-11, with a temporary HJC in which all 21 members are appointed, including 9 directly by the president. The same decree-law gave the president the power to intervene in the appointment, career tracks, and dismissal of magistrates.

On June 1, 2022, Saied granted himself, via decree no. 2022-35, the power to unilaterally dismiss magistrates, that is, judges and prosecutors. The same day, in a second decree (no. 2022-516), he fired 57 judges and prosecutors, accusing them of financial and “moral” corruption, and obstructing investigations. On February 12, the authorities arrested two of the judges, who have not been charged yet, media reports said.

Each of the four dismissed judges and prosecutors interviewed by Human Rights Watch said that they learned of their dismissal on June 1, after their names were published in the Official Gazette. In contrast to the procedures normally in place for disciplining judges, none of the four was ever informed of the grounds for dismissal or the evidence against them, or given a hearing or means to appeal, other than to petition the administrative court to suspend execution of the dismissal.

The president even made his decision to fire judges immune from any form of immediate appeal. Decree no. 2022-35 states that criminal prosecution is automatically initiated against the magistrates dismissed under its provisions. The decree does not specify what the criminal charges are. The decree says that magistrates may challenge their dismissals only after courts have issued a final judgment in their criminal cases.

The dismissed magistrates nevertheless appealed their dismissals to the Tunis administrative court, which ruled in favor of 49 of them. However, in another blow to the independence of the judiciary, Saied’s government then ignored the court’s order to reinstate them. The court said their dismissal involved “a violation of the right to a fair trial” and “serious breaches of the right to access to court, the presumption of innocence and the right to defense.” Under domestic administrative law, the ruling by the administrative court is definitive and to be implemented immediately. Six months later, none of the magistrates has been reinstated or had their salary and benefits, including health coverage, restored.

The Ministry of Justice announced in a communiqué on August 14, 2022, that the magistrates removed from office on June 1 faced criminal proceedings. Six days later, the ministry said that the public prosecution was processing 109 files and had opened investigations related to financial, economic, and terrorist crimes, among others.

At the time of their dismissal, none of the 49 magistrates was facing criminal charges and none had been convicted, said Ayachi Hammami, a lawyer who coordinates the Defense Committee for the Dismissed Judges. The criminal investigations were not initiated until after the court’s ruling, he added.

The authorities “are opening investigations against the dismissed judges as an excuse to avoid applying the decision of the administrative court,” Youssef Bouzakher, former president of the HJC, told Human Rights Watch.

Hammami said that investigative judges have submitted a request to the temporary HJC to lift the immunity – a protection from civil and criminal liability – of 13 dismissed judges who are under investigation for terrorism charges. The temporary judicial body is expected to rule on the matter in May, but so far, all 49 judges still have immunity, Hammami said.

The dismissed magistrates aren’t the only Tunisians facing charges in connection with moves by authorities to undermine judicial independence. Hammami faces charges himself for his comments critical of the treatment of the magistrates, for which he could face ten years in prison if convicted.

A lawyer and former minister, Lazhar Akremi, is also facing charges, based on a complaint filed by the justice minister for his criticism of the judges’ arbitrary dismissal in connection with a video he posted on Facebook, Akremi told Human Rights Watch. If convicted, he faces a total of up to four years in prison under Penal Code article 128 for “accusing, without proof, a public agent of violating the law,” and under Telecommunications Code article 86 for “harming others via public telecommunications networks.”

On February 13, the authorities arrested Akremi along with other political and media figures. No charges have been filed against him yet, but a searchwarrant shared on social media refers to suspicion of a “conspiracy against internal and external state security”.

Three dismissed magistrates and one still in office, in interviews with Human Rights Watch, said they have been subjected to online harassment for at least several months on social media pages deemed supportive of the authorities.Anas Hmedi, who is still serving at the Monastir Court of Appeal, and who is the president of the Association of Tunisian Magistrates (Association des Magistrats Tunisiens, AMT), which opposed the president’s measures, was the subject of a series of defamatory comments on social media pages, in connection with his activities in the AMT.

Hmedi has been summoned several times by the General Inspectorate of the Justice Ministry. The temporary High Judicial Council lifted his immunity in September. He is now being prosecuted based on article 136 of the penal code for “inciting [a judge] by violence, assault, threats, or fraudulent practices to cease performing their individual or collective duties.”

Tunisia’s new constitution, which Saied endorsed and was approved in a national referendum on July 25, 2022, with an official turnout of 30.5 percent, undermines the independence of courts. It has granted the president the ultimate authority to appoint judges, upon nomination by the HJC, and deprives judges of the right to strike.

On January 23, 2023, 37 judges filed individual complaints against the justice minister at the Tunis Court of First Instance for not complying with the administrative court order, based on article 315 of the Penal Code and article 2 of the 2017 anti-corruption law, Hammami said.

“Authorities should immediately stop their attacks on the judiciary and targeting the judges through prosecution and intimidation. They should reinstate the arbitrarily dismissed judges, and ensure that they fully enjoy their rights to freedom of expression, association and assembly,” Chellali said.