Tunisia: UN Special Rapporteur on the Independence of Judges and Lawyers Seized of Arbitrary Suspension of Prosecutor Bechir Akremi
On 07 February 2023, Alkarama and the Association of Victims of Torture in Tunisia (AVTT) submitted to the United Nations Special Rapporteur on the independence of judges and lawyers, the situation of Bechir AKREMI, a Tunisian magistrate arbitrarily suspended and victim of intimidation and reprisals in the exercise of his functions.
The Tunisian judiciary in the hands of the executive
While the independence of the judiciary has been a major issue for decades in Tunisia, it has worsened since President Kaïs Saïed suspended Parliament on 25 July 2021. Since then, the latter has established itself as the sole source of all powers, in particular by legislating through executive decrees.
In addition, in a statement dated 6 February 2022, the Tunisian President announced the dissolution, by decree, of the High Judicial Council (HJC), the body responsible for the appointment and discipline of judges and prosecutors. The executive then replaced, again by decree, the dissolved HJC by a "temporary" High Judicial Council (THJC), composed of members personally appointed by the president, the latter thus assuming de facto judicial power.
In addition, many magistrates were arbitrarily dismissed from their functions before being subject, for some of them, to criminal proceedings on the basis of Decree-Law No. 2022-35 of 1 June 2022, supplementing the decree on the creation of the THJC.
The latter decree gives the president of the THJC the power to unilaterally dismiss or suspend judges and prosecutors, on the basis of reports submitted by unidentified "competent authorities" on the pretext that they could constitute "a threat to public security", "the higher interest of the country", or for acts that would be likely to "compromise the reputation of the judiciary, its independence or proper functioning."
Wrongful suspension of Mr Bechir AKREMI
Mr Bechir AKREMI was, before his suspension, public prosecutor at the Tunis Court of First Instance, a court with national jurisdiction in economic, financial and counter-terrorism matters.
During his previous duties as first investigating judge at the same court, he was responsible for investigating important criminal cases, including the assassination of the Secretary-General of the United Party of Democratic Patriots, Mr. Chokri BELAÏD.
On 6 February 2013, the lawyer and politician, Mr Chokri BELAÏD, was murdered outside his home in the capital, leading to demonstrations by his supporters and calls for the overthrow of the government of the day and the burning of the headquarters of the Ennahda movement, accused by Belaid's party and his relatives and lawyers of being behind the murder.
In 2015, at the end of the investigation initiated by Mr. AKREMI, the case was referred to the Indictment Chamber of the Tunis Court of Appeal, responsible for reviewing its regularity, which, after validating it, referred it to the trial court. To date, the case has not been tried and has not progressed since then.
According to Mr. AKREMI, members of the Tunisian executive and some political parties, now close to President Kaïs Saïed, tried to influence the investigation of the case so that he would implicate and indict, even in the absence of evidence, their political and ideological opponents of the Ennahda party.
As part of his investigation, Mr. AKREMI was therefore accused of having "obstructed" the Belaïd case and was the subject of administrative and criminal complaints, all of which were concluded by dismissals and dismissals.
Subsequently, Mr. AKREMI was also responsible for investigating the cases of the terrorist attacks that targeted the Bardo Museum in Tunis on March 18, 2015 and the one that targeted the "Imperial Marhaba" hostel in Sousse on June 26, 2015. As a result of the investigations, senior police and civil servants as well as magistrates were implicated. Since then, Mr. AKREMI has been subjected to media attacks and reprisals in various forms.
Despite a virulent press campaign initiated by some media encouraged and supported by certain political parties, Mr. AKREMI was, on August 1, 2016, appointed by competition to the post of prosecutor at the Court of First Instance of Tunis in charge of the Economic and Financial Poles as well as the Anti-Terrorist Pole.
Disciplinary proceedings initiated by the CSM
In August 2020, as part of a movement in the body of magistrates, the HJC took the decision to mutate, against his will, Mr. AKREMI to the Ministry of Justice.
The Administrative Court of Appeal of Tunis, seized by Mr. AKREMI of an application for annulment of that decision, decided, by judgment dated 31 December 2020, to annul it considering, inter alia, that it constituted an abuse of power. However, this annulment decision, although confirmed by the High Administrative Court on 13 April 2021, was not executed in violation of legal provisions and Mr. AKREMI did not return to his duties.
At the same time and during the month of March 2021, criminal complaints were again filed against the magistrate by the "United Party of Democratic Patriots" on the basis of the same pretexts invoked in previous years. These complaints triggered new investigations and controls by the General Inspectorate of the Ministry of Justice, and were all concluded by a dismissal.
On 13 July 2021, Mr AKREMI was surprised to learn that the the Disciplinary Council of the HJC had decided to suspend him from his duties as prosecutor following a disciplinary procedure marred by numerous irregularities. Against all logic, the said council also referred his case to the prosecutor's office of the Court of First Instance of Tunis, always under the same pretexts invoked in previous complaints by his critics.
Mr. AKREMI then appealed to the Administrative Court of Appeal of Tunis against this unfounded decision, which decided to annul the suspension measure on 20 January 2022.
According to the Administrative Court, the HJC which took up Mr. AKREMI's disciplinary file was incompetent under Article 56 of Law No. 67-29 of 14 July 1967, relating to the organization of the judiciary, the HJC and the status of the judiciary, which stipulates that "The disciplinary council is seized by the Minister of Justice of the facts alleged against the magistrate. "
The court also noted "the illegality of the composition of the disciplinary board" on the grounds that it had a member challenged for having violated the rule of confidentiality of the deliberations devoted to Article 65 of Organic Law No. 2016-34 of 28 April 2016 on the HJC.
Finally, the Administrative Court considered that the suspension decision challenged by Mr. AKREMI is "devoid of any reason in fact and in law, thus violating the provisions of paragraph 2 of Article 63 of the 2016 Law".
Following the appeal filed by the HJC, the decision to annul the suspension was confirmed by the High Administrative Court in a final judgment of 2 June 2022.
However, and probably anticipating this last decision, the president, Kaïs Saïed, promulgated the day before, June 1, 2022, a presidential decree, dismissing 57 magistrates including, Mr. AKREMI thus placing justice before the fait accompli.
Violation of the principle of judicial independence
In their communication to the Special Rapporteur, Alkarama and AVTT stressed that the decision to dismiss Mr. AKREMI by decree taken the day before a final judicial decision rendered in his favour was arbitrary and unlawful in that it constituted a clear violation of the principle of res judicata and the principle of irremovability of judges.
Concerned by these serious violations committed at the highest level of the State, Alkarama and AVTT invited the Special Rapporteur to urge the Tunisian authorities to implement the final decision of the High Administrative Court rendered on 2 June 2022 on the annulment of Mr. AKREMI.
The NGO also asked the Rapporteur to urge Tunisia to refrain from any measures, disciplinary sanctions and/or reprisals against the magistrate because of his professional activities and to take all necessary measures to ensure that all members of the judiciary in Tunisia can exercise their functions independently and impartially without fear of disciplinary and criminal prosecution.