Tunisia: Lawyer Prosecuted Before Military Court
Abderazzak Kilani is a lawyer, former president of the Tunisian Bar Association, former minister in charge of government’s relations with the parliament from 2011 to 2013, and Tunisian ambassador to the United Nations in Geneva from 2013 to 2014. He is also a member of legal defence team of Noureddine Bhiri, a former justice minister and senior official of the Ennahdha party whom authorities detained arbitrarily for 67 days before releasing him without charge on 7 March 2022. Throughout his detention, he was denied his right to have access to his lawyers.
On 31 December 2021, the authorities detained Noureddine Bhiri outside his home in Tunis and carried him off to an undisclosed location. His wife, also a lawyer, who witnessed the arrest, immediately called on fellow lawyers for help. Abderazzak Kilani began coordinating Noureddine Bhiri’s legal defence team.
On 2 January, Abderazzak Kilani and Noureddine Bhiri’s wife , together with other lawyers, went to Bougatfa Hospital, in the city of Bizerte, where they had learned that Bhiri had been brought by authorities, and attempted to go inside and visit him. Abderrazak Kilani and Akremi told Amnesty International how police who were deployed outside the hospital barred Akremi from entering to see Bhiri unless she agreed to sign a document whose contents she did not know, and barred Abderazzak Kilani from entering to see Bhiri entirely.
Abderrazak Kilani told the police that in barring him from the hospital they risked exposing themselves to prosecution, comparing the situation to that of security officers tried for human rights violations committed under former presidents Habib Bourguiba and Zine El Abidine Ban Ali before specialized transitional justice courts set up after the 2011 revolution that ousted Ben Ali. The exchange was filmed and posted on social media, in a video that Abderazzak Kilani confirmed to Amnesty International showed his encounter with police outside the hospital.
In the video, Abderrazak Kilani tells the police: “You are exposing yourselves, your families, and your future to danger. Who will defend you? Charfeddine (the interior minister) who understands nothing of the law? Kais Saied?... Truly, I weep for the country, I weep for the country. We have a constitution, the best constitution in the world. He (apparently President Saied) made a rag of it, made a rag of the constitution. It states…that security forces are republican, the army is republican, and security forces must treat everyone equally…According to the law, you cannot prevent a citizen from entering a hospital unless the hospital director tells you that he has closed the hospital.” On 3 January, Interior Minister Taoufik Charfeddine said in a televised press conference that remarks by an individual to police outside the hospital might be grounds for prosecution by a military court, in an apparent reference to Abderrazak Kilani.
Tunisian law grants military courts jurisdiction to prosecute civilians in some circumstances, including for offenses under the penal code that are committed in certain circumstances against security personnel as per Article 22 of Law 1982-70 regulating the status of internal security forces.
Legal representation is fundamental to fair trial rights as guaranteed by treaties that Tunisia has ratified. These include the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights. According to the United Nation’s Basic Principles on the Role of Lawyers, governments should ensure lawyers “are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference”.
Tunisia’s military courts do not fulfil the requirement of independence because the president has final say over the appointment of judges and prosecutors to military courts. In addition, both the general prosecutor who heads the military justice system, as well as all prosecutors in the military courts, who play a pivotal role in initiating proceedings, are serving members of the military and subject to military disciplinary procedures. This places them under the influence of the executive branch, since the president is also commander-in-chief of the armed forces under Tunisia’s constitution.
Since President Saied’s power grab on 25 July 2021, military courts have increasingly investigated and prosecuted civilians, including a journalist, a blogger and opposition politicians.