Tunisian legislators should revise the draft counterterrorism law to make it fully consistent with international human rights standards on fair trial, privacy, and freedom of expression. The new law will replace a 2003 law used for years to quash dissent by curtailing free expression, association and assembly. Human Rights Watch issued a report on July 7, 2014, that analyzes the law in detail and contains recommendations for revisions.
The draft retains some of the most troubling provisions of the 2003 law. It includes provisions that would open the way to prosecuting political dissent as terrorism, give judges overly broad powers, and curtail lawyers' ability to provide an effective defense. In addition, the draft does not offer sufficient judicial oversight over police authority to interfere with privacy in counterterrorism operations.
"The experience of the last decade is that broad counterterrorism laws without safeguards can cause horrible violations and fuel hatred and a cycle of other abuses," said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. "While countries have a responsibility to prevent and punish terrorism, that doesn't give them license to override fundamental rights."
In 2003, during Zine al Abidine Ben Ali's rule, Tunisia adopted counterterrorism legislation that was widely criticized for its vague definition of terrorism, including acts such as "disturbing the public order," which led to prosecution of peaceful dissent. The law also violated the right of a suspect to mount an effective legal defense by making it a crime for a lawyer not to provide authorities with "information relating to any terrorist activity." The draft retains similar provisions.
Under Ben Ali, the authorities prosecuted well over 3,000 people under the law. Some people were charged because they had religious leanings and were convicted on the basis of confessions extracted under torture. The former UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin said that the 2003 law "did not provide the Tunisian people with more security, but was widely abused as a tool of oppression against any form of political dissent."
In January 2014, the head of government submitted a new draft counterterrorism law. The Commission on General Legislation of the National Constituent Assembly (NCA) is debating the draft and will submit its general report to the plenary session for voting.
In recent months, armed groups have committed a number of attacks against security forces and the army in Tunisia. Judicial authorities announced that they have charged people detained during counterterrorism operations under the 2003 law.
Armed groups have killed more than 37 members of Tunisian security and armed forces and injured 148 since the ouster of Ben Ali. The most recent attack, in which four members of security forces were killed, was on the interior minister's house in Kasserine, a city close to the Algerian border.
The new draft contains several improvements over the previous 2003 law. It would provide reparations for terrorism victims, including free health care in public hospitals and judicial assistance. It would create a commission with representatives of relevant ministries, and headed by a magistrate, to devise a comprehensive strategy to combat terrorism aimed at drying up funding sources through education and other means.
The law would also prohibit the authorities from extraditing or deporting a person accused of terrorism when there are credible risks that the person would face torture or inhumane treatment in the other country.
However, the draft still contains a broad and ambiguous definition of terrorist activity that could permit the government to repress a wide range of internationally protected freedoms. For example, the draft could be used to prosecute as a terrorist act a public demonstration that led to "harming private and public property" or the disruption of public services.
Vague terminology on "praising terrorism" would allow prosecutions for using a term or symbol deemed supportive of terrorism, regardless of whether it was likely to result in any concrete act of violence. Some provisions would undermine fundamental due process rights, giving judges overly broad power to close hearings and call anonymous witnesses, for example.
The draft law does not contain sufficient safeguards against interfering with the right to privacy in authorizing surveillance. Rather than placing surveillance decisions under the exclusive oversight of independent judges, it extends the power to order such measures to prosecutors, who are still linked under Tunisian law to the executive branch.
Tunisian legislators should remove from the draft overly broad offenses such as "harming public or private property" and harming "transportation means, communication networks, information and computer systems or public facilities." They should ensure that any crime, including any crime of terrorism, is clearly and narrowly defined in the country's laws, so that people can predict whether any specific act would be a crime. The report by the former United Nations special rapporteur says that deadly or otherwise serious physical violence against members of the general population or segments of it must be the central element of any definition of terrorism.
Incitement to terrorism should require both a specific intent to incite commission of a terrorist act and a concrete danger that the act will be committed as a result. The law should also be revised to ensure that all basic fair trial rights, such as the right for the accused to examine, or have examined, the witnesses against them, apply equally to those charged with terrorism offenses as to those charged with other serious crimes. The law should ensure that all defendants can challenge the key evidence and witnesses against them, and that the identity of witnesses would only be protected in exceptional cases.
The privileged nature of lawyer-client communications, including lawyers' files, should be respected, and it should not be a criminal offense to refuse to disclose such privileged information.
"Tunisia has been a leader in the region in rights-based reforms and should play the same role in the fight against terror," Goldstein said. "Too often the effort to combat terrorism has been used as an excuse to silence legitimate criticisms."