TUNISIA: AUTHORITIES MUST END EROSION OF JUDICIAL INDEPENDENCE

On 1 June 2022, President Saied issued Decree-Law 2022-35, which allowed him to dismiss any judge based on vague criteria and without due process. On the same day, he announced the dismissal of 57 judges and prosecutors, accusing the judges of obstructing terrorism-related investigations, financial corruption, “moral corruption,” and “adultery” including senior judges and prosecutors

Two years after summary dismissal of judges by the president, harassment, prosecutions and denial of rights of judges continue

Tunisian authorities must end the ongoing erosion of judicial independence in the country, Amnesty International said today, marking two years since President Kais Saied granted himself powers to unilaterally dismiss judges.

On 1 June 2022, President Saied issued Decree-Law 2022-35, which allowed him to dismiss any judge based on vague criteria and without due process. On the same day, he announced the dismissal of 57 judges and prosecutors, accusing the judges of obstructing terrorism-related investigations, financial corruption, “moral corruption,” and “adultery” including senior judges and prosecutors.

Despite an August 2022 decision by the Tunis Administrative Tribunal, ordering the reinstatement of 49 of the arbitrarily dismissed judges, the Ministry of Justice has not reinstated any of the judges until today. Moreover, judges and judicial institutions that have opposed the President’s measures and acted independently continue to face intimidation and harassment.

“Since President Kais Saied dissolved the High Judicial Council and dismissed judges based on vague accusations two years ago, the harassment of judges and the unlawful interference in their work has continued in a bid to stifle dissent and make accountability unattainable,” said Heba Morayef, Amnesty International’s Regional Director for the Middle East and North Africa.

“Tunisian authorities must urgently put an end to all practices that hinder judicial independence and amend or repeal all laws that fail to uphold respect for international standards on judicial independence and fair trial, in line with Tunisia’s international commitments. Amnesty International reiterates its call on authorities to reinstate all arbitrarily dismissed judges and prosecutors and provide them with reparations.”

On 23 January 2023, 37 of the 57 dismissed judges filed criminal complaints against the Minister of Justice for failing to comply with the Administrative Court’s decision. To date, no progress has been made on these complaints.

Two years on, the dismissed judges and prosecutors continue to suffer the professional, economic and reputational harm of this decision with no source of livelihood or social security coverage.

Hammadi Rahmani, a dismissed judge, told Amnesty International: “To this day, two years after I and my colleagues were dismissed in that unlawful way, we have yet to receive an official justified decision to inform us of the reasons behind our dismissal. However, after these two years I think it became clear to everyone that the dismissals targeted the independence of judges and those who denounced the erosion of the principle of separation of power and the control of the judiciary by the executive. I consider it my duty as judge and citizen to warn against any attempts to control the judiciary.”

Another of those dismissed, Khira Ben Khlifa, was being prosecuted for adultery charges at the time of her dismissal in June 2022. Ben Khlifa’s prosecution was based on acts that should never have been criminalized and for which she was ultimately acquitted.

“To say that my life has drastically changed since my dismissal on 1 June 2022 is an understatement, I was not only arbitrarily deprived of my right to work but my right to privacy was violated, and I am still denied access to legal remedy,” Khira Ben Khalifa told Amnesty International.

Since President Kais Saied’s power grab on 25 July 2021, Tunisia has witnessed a significant rollback of the human rights progress following the 2011 Revolution, including the dismantling of many existing institutional safeguards such as the dissolution of the High Judicial Council in February 2022 and the adoption of a new constitution through a referendum on 25 July 2022. The new constitution undermines institutional guarantees for human rights and fails to provide the necessary safeguards for the judiciary to function with full independence and impartiality.

Harassment of judge Anas Hmedi

Anas Hmedi, head of the independent Tunisian Judges Association (known by French acronym AMT, Association des Magistrats Tunisiens) and a judge at the Monastir Court of Appeal, has been facing an online defamation campaign, arbitrary disciplinary and criminal proceedings in reprisal for the association’s work in continuing to challenge attacks on the independence of the judiciary. He is being prosecuted for “disrupting liberty to work” under article 136 of the criminal code. He has a hearing scheduled for 5 July 2024.

The AMT publicly opposed measures taken by President Saied against the judiciary and denounced the undue and unlawful interference of the executive in the judiciary. According to AMT in a statement issued on 16 April 2024, since August 2023 the Minister of Justice has ordered the appointment, transfer and suspension of at least 105 judges and prosecutors through executive memos. In the same statement, the AMT states that there have been several suspensions from work with or without pay, outside any disciplinary process.

After the summary dismissal of the 57 magistrates on 1 June 2022, the AMT, together with other judges’ associations, led a nationwide four-week strike to protest these arbitrary dismissals. Following the strike, Anas Hmedi was summoned for questioning four times between July and August 2022 by the General Inspection Service of the Ministry of Justice.

In October 2022, following a decision by the Temporary High Judicial Council (THJC) to lift his immunity from prosecution, the deputy prosecutor at the Monastir Tribunal of First Instance charged Anas Hmedi with “disrupting the freedom to work”, punishable with a maximum prison sentence of three years. The charges against him relate to his alleged “incitement” of other judges of the Monastir Tribunal to strike.

In February 2023, the General Prosecutor of the Tunis Court of Appeal moved the case against Hmedi from the Monastir Tribunal to the El Kef Tribunal of First Instance, despite an ongoing appeal made by his lawyers against the decision to lift his immunity. Anas Hmedi was summoned to appear by an investigating judge on 21 August 2023, but his hearing has been postponed several times. In parallel, separate disciplinary procedures have also been opened against him by the THJC.

Anas Hmedi’s lawyers lodged a request to appeal the decision to lift his immunity, in December 2022 and the request remains pending, in violation of his right to an effective remedy. Under Tunisian law, requests for suspension of administrative decisions are urgent and in practice adjudicated within three months.

“Anas Hmedi’s actions and AMT’s work are protected under international human rights law. Tunisian authorities’ targeting of Anas Hmedi through abusive disciplinary and criminal proceedings violates international standards and must cease immediately,” said Heba Morayef.