Tunisia: The Working Group on Arbitrary Detention seized of the cases of Anouar MAAROUF and Yousri DALY
On 15 September 2021, the Association of Victims of Torture in Tunisia (AVTT) and Alkarama addressed the UN Working Group on Arbitrary Detention regarding the situation of the former Minister of Information Technology and Digital Economy, Mr Anouar MAAROUF, and the MP and President of the Parliamentary Committee on Defence, Mr Yousri DALY, who have been under house arrest since 05 and 18 August 2021 respectively.
On 25 July 2021, the Tunisian President, Kaïs Saïed, dismissed the Head of Government, suspended all the activities of the Parliament and lifted the immunity of parliamentarians on the erroneous basis of Article 80 of the Constitution1 . Again in violation of the Constitution, he announced that he would assume full executive, legislative and judicial powers with the help of a head of government and ministers that he would appoint personally.
This was followed by a series of violations of individual and collective freedoms, including arbitrary arrests and illegal house arrest of MPs and senior officials, including magistrates and politicians. The number of dismissals by simple presidential decision increased and has continued since 25 July, affecting a number of senior administrative and judicial officials, some of whom have been placed under house arrest by simple administrative decision.
1. Mr. Anouar MAAROUF, former minister illegally placed under house arrest
Mr. Maarouf reported that his home was surrounded by several police officers on Thursday, August 5, 2021 around 21:00 and that he was then taken against his will to the police station of Carthage (northeast Tunis).
He said he was taken to the office of the police station chief who then announced the decision of the "chargé de mission of the Ministry of the Interior" acting as Minister of the Interior, Mr. Ridha GHARSELLAOUI, to place him under house arrest until the end of the state of emergency without giving reasons. The chief of police refused to provide him with a written copy of the decision despite his insistence.
Mr. Maarouf also reported that the decision to place him under house arrest was not reasoned and only mentioned a vague legal basis for the measure and the sanctions he would face in case of a possible violation. In the following days, Mr. Maarouf's lawyers went to the police station to obtain a written copy of the decision, but were met with a categorical refusal by the police.
Since his house arrest, his home has been under continuous surveillance by about 20 police officers. The members of his family are also subject to strict controls, although they are not concerned by the decision to place him under house arrest.
Finally, Mr. Maarouf took the initiative to file a criminal complaint against the "chargé de mission of the Ministry of the Interior", dated 06 August 2021, for having ordered his detention in the absence of any judicial decision on the basis of Article 250 of the Tunisian Penal Code2 , which punishes the illegal arrest, detention or sequestration.
On 12 August 2021, he also lodged an appeal for the cancellation of the house arrest decision with the Tunis Administrative Court. However, he is not allowed to go to court and does not know what will happen to this appeal.
2. Mr. Yousri DALY, MP under illegal house arrest
On 18 August 2021, Mr. Yousri DALY, for his part, was summoned to the police district of Al Marsa (north-east, Tunis). He testified that he went himself to the office of the head of the district who then notified him of the decision No. 503, dated 16 August 2021 taken by the "chargé de mission of the Ministry of the Interior" acting as Minister of the Interior, Mr. Ridha GHARSELLAOUI, to place him under house arrest until the end of the state of emergency which came into force on 26 December 2020 and was extended by six months by presidential decree No. 2021-67 dated 23 July 2021.
Despite his repeated requests, the police refused to provide him with a written copy of the decision issued by the "chargé de mission". Mr. Daly reported that he was only allowed to read the decision, which mentioned, in the absence of any motivation, his placement under house arrest on the basis of Decree No. 78-50 of 26 January 1978, regulating the state of emergency.
Since then, he has been placed under house arrest at the address shown on his identity card, which in fact corresponds to his mother's home, although he usually lives with his wife and children in another part of the city.
Finally, he announced that he had filed an appeal for the cancellation of the illegal decision to summon him to the administrative court of Tunis on 24 August 2021. Not having been able to appoint a lawyer, he has himself formulated this appeal, which he cannot follow up as he has been forbidden to go to the court.
3. The Working Group referred to by Alkarama
On 15 September 2021, Alkarama addressed the Working Group on Arbitrary Detention on the grounds that the house arrest of Messrs Maarouf and Daly is contrary to domestic legislation and the provisions of the International Covenant on Civil and Political Rights ratified by Tunisia on 18 March 1969.
Indeed, the house arrest of Messrs Maarouf and Daly was not ordered by the Minister of the Interior as provided for in Article 5 of Decree No. 78-50 of 26 January 1978, regulating the state of emergency, according to which only the Minister of the Interior is competent to order house arrest for persons "whose activity proves to be dangerous for public security and order". Moreover, Article 49 of the Tunisian Constitution specifies that fundamental freedoms can only be restricted through laws and only if these limits are controlled by the judicial authorities.
However, Mr Maarouf and Mr Daly were both placed under house arrest until the end of the state of emergency, which may be extended, i.e. for an unlimited period, on the basis of a decision that is itself manifestly vitiated by illegality. Indeed, the said decision, in addition to being devoid of any motivation, only mentions Decree No. 78-50 of 26 January 1978, regulating the state of emergency pronounced at the time in particular political circumstances -a general strike by the UGTT, which was bloodily repressed by the Tunisian regime-, without stating the legal and factual considerations that would constitute the basis for such a decision. However, any unfavourable decision restricting the exercise of fundamental freedoms must imperatively include a written statement of reasons, which is essential to verify the validity of the measure.
According to the UN Human Rights Committee, all restrictive measures must also comply with the principle of proportionality and "be appropriate to fulfil their protective function, they must be the least intrusive means of achieving the desired result and they must be proportionate to the interest to be protected.
Thus, if the aim of the decision of the "chargé de mission of the Ministry of the Interior" is truly to ensure respect for public order and securitý it does not explain to what extent the deprivation of libertý of Mr Maarouf and Mr Daly makes it possible to achieve this objective. The placement decision is all the more questionable in that the authorities provide no tangible evidence of the existence of serious reasons for believing that their actions constitute a real threat to public securitý and order.
It would seem, given the lack of motivation for these arbitrary measures of deprivation of liberty, that these placements actually reflect the desire of the President, Kaïs Saïed, who now concentrates all powers in violation of the Constitution, to silence political opponents who have denounced a coup.
The AVTT and Alkarama therefore invited the Working Group to note that the deprivation of liberty of Mr. Maarouf and Mr. Daly is arbitrary and in violation of both domestic legal provisions and articles 9, 12 and 14 of the International Covenant on Civil and Political Rights, and to enjoin the State party to immediately take the necessary measures to remedy this situation by releasing them without delay.