March 15, 2006
President Zine el-Abidine Ben Ali
Dear Mr. President,
Human Rights Watch welcomes your decision announced February 25 to free 1,298 prisoners and to grant conditional parole to 359 others, including many whom we considered to be political prisoners. We hope that this move will be followed by further measures to release all those who remain in prison because of their nonviolent speech or political activities.
The Constitution of Tunisia states that court judgments are executed in the name of the president of the republic (Art. 64). The Constitution also gives the president the power to issue pardons (Art. 48).
We urge you to release Mr. Bettibi unconditionally because, for the reasons outlined below, we believe he was imprisoned for exercising his right to freedom of expression. We also note that the court based its determination of Mr. Bettibi’s criminal intent on a confession that the defendant alleged was procured by torture, an allegation that the court refused to investigate.
We are concerned also because the case against Mr. Bettibi stems from his having copied and re-posted online material in a discussion forum. As such, his prosecution sends the message to Tunisians that they risk prison if they view and exchange information from the Internet that the government deems to be extremist, even in the absence of compelling evidence that the person had any intention to threaten or commit acts of violence, or that the person’s online activities were likely to incite others to commit criminal acts.
The police arrested Bettibi and searched his home in Kram, near Tunis, on March 15, 2005, reportedly confiscating personal papers, books, and compact disks. They accused him of having copied from one website a statement threatening Tunisia with terrorist attacks and re-posting it in a discussion forum that he co-moderates elsewhere on the World Wide Web. The activity in question took place on the evening of March 13, 2005, when Mr. Bettibi was using a computer at an Internet café (a “Publinet”) in Kram where he worked part-time.
Two weeks later, on March 28, the Tunis Court of First Instance sentenced Mr. Bettibi (case file 12751) to five years in prison and fined him 1,000 dinars (about U.S. $750). The court found Mr. Bettibi guilty under Article 222 of the Penal Code, which provides terms of up to five years for “threatening others, by any means, with an attack that would be punishable by criminal penalties.” The Tunis Court of Appeals on June 17 upheld his conviction while reducing his prison term to four years (case file 7309). Mr. Bettibi, who was born in 1976 and has no previous criminal record, is serving his term in Bourj er-Roumi prison in Bizerte.
The statement that Mr. Bettibi was convicted of re-posting in its entirety is signed by a group calling itself “The Group of the Islamic Jihadist Fighters – Ouqba ben Nafi’ Branch” (Jama’at Jund al-Islam al-Jihadia, Liwa’ ‘Ouqba ben Nafi’). It threatens Tunisia with car bombings and with “bloodbaths” at foreign embassies should Israeli Prime Minister Ariel Sharon visit the country. (The statement was issued in response to news reports in February 2005 that Sharon was among the heads of states and governments invited to attend the United Nations-sponsored World Summit on the Information Society, which was eventually held in Tunis in November 2005.)
As reprehensible as the statement may be, the court did not accuse Mr. Bettibi of authoring it. The court found that he had copied it from one site, known as al-Qal3ah (the Citadel), and re-posted it on another site, Mountada al-Ikhlas (the Faithfulness Forum). This act, the court found, “constitutes a clear threat to the Tunisian government, forming the crime defined by Article 222,” because Mr. Bettibi’s purpose was “to bring it to the attention of other Internet surfers in order to incite protests against the visit of Sharon to Tunisia.” Mountada al-Ikhlas is primarily a discussion site where participants post items and opinions in Arabic, some of them virulent, relating to world politics and to Islamist and jihadist movements.
The Bettibi “confession” that is cited in the court ruling is police statement (procès verbal) 1/267, dated March 15, 2005 and bearing the letterhead of the General Directorate for Public Security, Criminal Affairs Branch. In it, Mr. Bettibi is said to admit that his purpose was to incite protests. The court ruling does not mention that at his trial, Mr. Bettibi repudiated this statement and said he had signed without reading it because police had beaten and threatened him while in their custody.
Family members told Human Rights Watch that Mr. Bettibi said the police transported him after his arrest to a cell in the Ministry of Interior in downtown Tunis, where agents beat him with batons all over his body, notably on the soles of his feet (a form of torture known as falaqa). They allegedly threatened to apply electric current to his body if he did not sign a confession. According to a relative, the family did not know Mr. Bettibi’s whereabouts until a week after his arrest, when a released prisoner telephoned to inform them that he had seen Mr. Bettibi in the April 9 Prison in Tunis. (He had been transferred there after his period of garde à vue detention.)
Human Rights Watch is alarmed by the failure of the court of first instance, presided by Judge Mehrez Hammami, to investigate whether the defendant’s statement to police was improperly coerced. Mr. Abdelfattah Mourou, Mr. Bettibi’s lawyer, asked the judge to order a medical examination of him in order to determine whether there was evidence of abuse. Mr. Mourou also told Human Rights Watch that he had petitioned the trial judge to order the defendant to remove his shoes in court so that the court could examine possible evidence of torture.
Judge Hammami rejected these requests, even though the one-day trial took place only thirteen days after police took Mr. Bettibi into custody, and thus traces of any abuse might well have been detectable. He also failed to note in his ruling that Mr. Bettibi had made such a request.
We are grateful that officials of your government responded in writing to Human Rights Watch about the case, but are distressed by the substance of their statement. We refer here to a communication dated December 14 and entitled, “Clarifications from a judicial source in Tunis concerning the Ali Ramzi Bettibi case.” This document, sent in reply to a letter we had addressed to Minister of Justice Béchir Tekkari on November 23, states:
The court’s rejection of [Mr. Bettibi’s] request to have a medical examination is explained by the fact that, as a general matter, the court does not grant such requests if it does not have an intimate conviction that there are objective reasons to believe in the credibility of such an allegation. (« Le rejet, par le tribunal de sa demande d’être soumis à des examens médicaux, s’explique par le fait que le tribunal n’accepte pas, en général, une telle requête s’il n’a pas dans son intime conviction des raisons objectives de croire à la crédibilité d’une telle allégation. »)
We would be grateful to learn how this explanation can be reconciled with Tunisia’s own Code of Penal Procedure, which in Article 13bis grants defendants the right to request a medical examination. We also wish to know how this discretionary power to refuse medical examinations can be reconciled with the highest duty of the judge, which is to search diligently for the truth, including by scrutinizing all evidence that is presented to the court. We also note that Tunisia has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which requires States parties to “ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities.”
We find it particularly problematic that judges enjoy wide discretion to reject motions for medical examinations in Tunisia, a country where credible allegations of torture during pre-arraignment detention are commonplace. The medical examination is that much more important when – as in the case of Mr. Bettibi and in many other cases of Tunisians convicted in “security” cases –police statements contested by the defendant constitutes the only evidence cited by the court to support the guilty verdict.
The case file contains no credible basis for convicting Mr. Bettibi of having issued a criminal threat. Among the few items in the file is a police statement signed by Mohamed Achour, the owner of the Internet café where Mr. Bettibi carried out the activities in question. Mr. Achour’s statement, dated March 17, 2005, contains no incriminating evidence against Mr. Bettibi. Mr. Achour testified he did not know what Mr. Bettibi was doing while online on March 13, since he is not in a position to monitor the activities of persons using the terminals in his café.
Human Rights Watch has no objection to laws that punish persons who threaten violent attacks against others. However, the robust nature of the right to freedom of expression under the International Covenant on Civil and Political Rights and other rights treaties requires that prosecutions for “threats” be limited to cases where there is a clear showing that the speaker had the specific intent to convey to another his serious purpose to imminently carry out a criminal act.
Similarly, Human Rights Watch does not object to laws that punish incitement to violence. However, to comport with international norms protecting freedom of expression, such laws should define incitement narrowly to refer to situations where the inciting behavior creates an imminent danger that violent or recognizably illegal acts will follow.
The court concluded in its ruling that Mr. Bettibi was guilty of making criminal threats because, according to his disputed police statement, he said that in re-posting the communiqué he sought to “incite protests against a visit by Sharon to Tunis.” The ruling did not show that Bettibi’s re-posting of the communiqué had created, or contributed to, an imminent danger that violent acts would be carried out; indeed, there was no evidence presented that anyone had read and reacted to his re-posting. Moreover, the court did not suggest anywhere in its ruling that the “protests” that Mr. Bettibi allegedly hoped to “incite’ would be violent or otherwise recognizably criminal in character.
There are a variety of non-criminal explanations why a person would re-post a reprehensible text such as this one without associating himself with its threats: for example, to caution others of a threat that had already been made, to share it with scholars, journalists or others who follow the activities of extremist groups, or to invite others to debate the contents of the statement. In Mr. Bettibi’s case, his motive apparently was to show the hostile response in some quarters to your government’s decision to invite Prime Minister Sharon, while expressing his own opposition to the invitation. Mr. Bettibi wrote to us recently claiming that this was the gist of comments that he had added when re-posting the communiqué. (Bettibi wrote that; being in prison, he could not send us the exact text he posted a year ago, and we have been unable to retrieve it from online archives in order to verify its content.) The case file contains no evidence that Mr. Bettibi appended to the communiqué comments that could be construed as a threat or as incitement to imminent violence.
For these reasons, while condemning the contents of the communiqué itself, we consider it a violation of the right to free expression to imprison a person on charges of “issuing threats” merely because he re-posted such a communiqué in a discussion forum.
We therefore urge you to exercise your authority to release Mr. Bettibi and to order an investigation into his allegations that police tortured him while interrogating him.
We thank you for your consideration and look forward to your response.
Sarah Leah Whitson
Executive Director of the Middle East and North Africa division