How unconstitutional laws are criminalising peaceful speech in post-revolution Tunisia.
This statement was originally published on hrw.org on 15 October 2019.
Tunisian authorities are using laws on criminal defamation, “spreading false information,” and “harming others via public telecommunications networks” to prosecute people for their online commentary, Human Rights Watch said today.
Courts have sent at least six Tunisians to prison since 2017 for their posts on social media about politics and other issues of public interest. Most recently, a court sentenced Yacine Hamdouni to six months in prison on June 6, 2019 for accusing a senior security official of corruption.
“The steady procession of police summons and charges against citizens who comment online on corruption, public services, pollution, and the like threatens to close the space that the 2011 revolution opened for expression,” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch.
Lawmakers should move quickly to amend laws that criminalize peaceful speech, including laws on insulting the president of the republic, on spreading “false information,” and defamation, which should be made a civil rather than a criminal matter. The authorities should stop using these laws to prosecute people for their online commentary on matters of public interest.
These laws restrain speech via all means of public communication. When people express themselves via social media, a charge under article 86 of the 2001 Telecommunication Code of “willfully or knowingly harming others via public telecommunications networks” is routinely added to the other charges. This alone carries a penalty of up to two years in prison. Article 86 should be amended to prevent its use to punish peaceful speech, Human Rights Watch said.
Those who have gone to prison since 2017 for social media posts include Hamdouni and Ahmed Najeh, Sahbi Amri, Naim Haj Mansour, Mahdi Shili, and Mohamed Yacine Amri. At least another three, Dali Mak, Amina Mansour, and Maha Naghmouchi spent nights in jail after being arrested.
The police arrested Hamdouni at his home in Tunis on May 28. They took him to the Anti-Crime Police Brigade in Gorjani and interrogated him about two Facebook posts from May. In those posts, he accused a senior security official of corruption by using an official car for private purposes, his brother, Hedi Hamdouni, who is also his lawyer, told Human Rights Watch. On June 6, a Tunis First Instance court convicted Hamdouni, a civil servant, of defamation, dissemination of “false information,” accusing officials of wrongdoing without providing proof, and “harming others via public telecommunication networks,” and sentenced him to one year in prison, reduced to six months on appeal. He is currently in Mornaguia Prison.
Tunisia’s post-revolutionary constitution guarantees “freedom of opinion, thought, expression, information, and publication.” However, parliament has yet to amend the penal code provisions as well as those of other existing codes that criminalize speech to harmonize them with the constitution.
Parliament has also failed to fulfill its constitutional mandate to establish a constitutional court empowered to strike down laws that the court finds unconstitutional, so defendants cannot appeal to that body when they face prosecution under repressive laws that seem to violate Tunisia’s supreme legal text. This deprives Tunisians of a key safeguard against criminal prosecutions on charges that violate their human rights.
“When Tunisia’s new parliament convenes toward the end of the year, it should act swiftly both to eliminate laws that criminalize peaceful speech and to establish the constitutional court,” Goldstein said. “These are two of the biggest remaining gaps in rights protections in the country nine years after the revolution.”
For details of the cases that went to prosecution and other cases of arrests and questioning that did not result in convictions, please see below.
The following are other recent cases of Tunisians imprisoned, prosecuted or questioned for their social media postings.
Ahmed Najeh is a 26-year-old football fan and company owner from Gabes. On March 31, 2019, the judicial police for southern Gabes phoned Najeh and asked him to come in for questioning. Toumi Ben Farhat, his lawyer, told Human Rights Watch that he advised Najeh not to go without an official summons. The police arrested Najeh that day. Arriving at the police station, the police took his cellphone and took a screenshot of a Facebook post he had made on April 7, 2018. The post concerned a Tunisian football fan, Omar Abidi, 19, who had drowned seven days earlier, reportedly after a police chase.
In his post, which Human Rights Watch reviewed, Najeh mentioned a popular rap song, “Boulisiya Kleb” (local dialect for “Cops are Dogs”), which denounces police repression and corruption. Najeh’s post included the hashtag “Taalam Oum” (“Learn how to swim”), a phrase that a policeman allegedly used when Abidi was struggling to stay afloat.
The police detained Najeh for two nights, and on April 10, the public prosecutor at Gabes First Instance Court extended his detention for two more nights.
On April 13, the Gabes First Instance Court convicted Najeh under article 86 of the Code of Telecommunications for “harming others via public telecommunications networks” and sentenced him to six months in prison. The Gabes Court of Appeals reduced his sentence to one month in prison and freed him on April 29.
Mahdi Shili, from Kef, spent time in Mornaguia prison for posts on Facebook that he wrote between February and March 2019 about his firing from a civil service job, his lawyer. Mohamed Ali Bouchiba, told Human Rights Watch. A Tunis First Instance sentenced him to two years in prison in absentia for his posts. Authorities nevertheless took him into custody. A court then tried Shili in his presence on April 23 and acquitted him.
Sahbi Amri and his son Mohamed Yacine Amri were both imprisoned for Facebook posts.
Authorities have detained and prosecuted Sahbi Amri several times in recent years in connection with posts alleging corruption and criticizing public officials and the judiciary and other government institutions. In January 2019, a Tunis First Instance Court sentenced him, in two different cases, to a total of five and-a-half years in prison, for charges that include violating article 86 of the code of telecommunications and article 128 of the penal code, which punishes accusing public officials of crimes related to their jobs without furnishing proof with up to two years in prison. He served time in Mornaguia prison.
Authorities arrested Mohamed Yacine Amri on January 15, 2019 for Facebook posts, including his reposting of one by his father criticizing a senior judicial official, accompanied by his own denunciation of his father’s imprisonment. Like his father, authorities prosecuted him under article 128 of the penal code. He spent three months in prison and was freed in April.
The authorities have prosecuted Naim Haj Mansour, manager of the blog Thawra News (News of the Revolution), three times since 2011, for blog posts critical of the military and the Interior Ministry. The Gorjani Anti- Crime Unit interrogated Haj Mansour on September 18, 2018, one day after authorities arrested Sahbi Amri for a Facebook post critical of a senior judicial official. The authorities accused both Haj Mansour and Sahbi Amri of writing similar posts. On September 19, 2018 a Tunis First Instance Court charged Haj Mansour with harming others via public telecommunications networks and spreading false information, among other charges, and sentenced him to two and-a-half years in prison. An Appeals Court reduced the sentence to a suspended one-year prison term. Haj Mansour was released from prison in February 2019.
Aymen Jbeli, 26, from the municipality of Krib in the governorate of Siliana, runs a Facebook page called Mendhar Misti, where users debate local and national issues. Jbeli told Human Rights Watch that in late 2018, he accused a medical waste management company of dumping waste on land meant for agricultural use. Jbeli said that the land is also close to a residential area. He accused the company owner of negligence, polluting the environment, and endangering health.
Jbeli also helped to organize a sit-in at the site where the waste was allegedly being dumped. The sit-in organizers distributed flyers on the dangers of pollution.
On March 12, 2019, the Krib police summoned Jbeli and questioned him the next day. Jbeli said that they asked him about his civic activities.
Rafik Talbi, Jbeli’s lawyer, told Human Rights Watch that the company owner had filed a complaint against Jbeli for defaming her and her company. The judicial police of Siliana interrogated Jbeli on March 14. On March 29, the Siliana First Instance court acquitted him of the charges.
Oussama Rezgui, 26, also faced questioning because of accusations he made on a Facebook page he maintains, devoted to local news. On his page, Doukhaniya, Rezgui accused the managers of a farm of corruption and mismanagement allegedly in connection with the death of cows and demanded an investigation. Rezgui said that on September 22, 2018, the Siliana judicial police summoned him for questioning. They informed Rezgui that the center’s director had accused him of defamation. In April, Rezgui told Human Rights Watch that Siliana judicial police phoned him again and asked him to report for further questioning. The judicial police also asked him to find other means of criticism and to change his ways. The police have not contacted Rezgui since then.
Zaghouan judicial police summoned Faycel Mbarki, a political activist, on March 25, 2019, one week after he denounced on Facebook what he described as the shifting political allegiances of a member of parliament representing the Zaghouan region. The deputy shifted his allegiance five times to bolster his chances for re-election, Mbarki’s post contends. The Public Prosecutor of Zaghouan’s First Instance Court declined to press charges.
The First Anti-Brigade Unit of the National Guards of Ben Arous interrogated Saloua Charfi, a professor at the Institute of Press and Information Sciences (IPSIE), on May 2, 2019, in response to a citizen complaint over a Facebook post that she wrote in June 2018. In her post, Charfi denounced those who, she said, misrepresented episodes of early Islamic history to defend the raids by extremist groups on Tunisian towns to collect food and money.
Charfi told Human Rights Watch that she took down the post the day she wrote it because she did not want to offend anyone. This did not prevent six men who identified themselves as “Muslims representing other Muslims in Tunisia and abroad” From filing a complaint against her. The complaint, which Human Rights Watch reviewed, accused Charfi of insulting the Prophet Muhammad and his disciples, violating the sanctity of battles in early Islamic history, and using derogatory terms that aim to disturb the general peace. Charfi has not heard from the police since they questioned her.
The investigating judge of the Tunis appeals court questioned Hedi Hamdouni, a lawyer and the brother of Yassine Hamdouni, in March 2019, following a complaint related to a comment Hedi Hamdouni had posted earlier that month. Hamdouni had alleged that a woman appointed to participate in a state investigation commission into the death of 15 babies at Rabta public hospital in Tunis between March 6 and 8, 2019, should have been ineligible for such an appointment because of a commercial conflict of interest.
The woman filed a complaint against Hamdouni for defaming her. An investigating judge questioned Hamdouni but has not charged him.
Like Hamdouni, Maha Naghmouchi, who is an aesthetician-in-training, says that she took to Facebook on March 11, 2019, to respond angrily to the infant deaths at Rabta Hospital. Maha also wrote disparagingly and using vulgar terms about the police in the same post, which Human Rights Watch viewed.
“I deleted the post a few hours after writing it,” Naghmouchi said. “On that day, I received a call from an acquaintance who works at the judicial police who told me to delete any objectionable private messages that I might have on my phone. They said that the police are planning to interrogate me and advised that I take a shower and get ready because the police might come to arrest me at any time. They came three days later.”
On March 14, at 10:30 a.m., judicial police officers, some in uniform and others in civilian clothing, came to Naghmouchi’s house in Jendouba, a city in northwest Tunisia. Naghmouchi said that she was still in her pajamas when the officers handcuffed her, without explaining the reasons for her arrest. Naghmouchi said that when she asked for an explanation, the police replied, “It’s nothing.” Saida Radhouani, Maha’s mother, told Human Rights Watch that “When I told the police to let me get her a lawyer, they said that she doesn’t need one and that she will be released soon. She just has to sign on a commitment that she won’t write about the police again or apologize to us!”
At the police station, Naghmouchi said, eight or nine plainclothes officers questioned her, asking why she wrote the post, who encouraged her to do so, and why she had cursed the police. The officers also asked Naghmouchi to take a urine test, suspecting that her judgment was impaired when she wrote the post, she said. She spent three nights in Bellarigia civil prison.
On March 18, the Jendouba First Instance Court put her on trial for harming others via public telecommunication channels and using drugs. Authorities released Naghmouchi that day. On April 10, the same court sentenced her to a suspended term of one month in prison under article 86 of the code of telecommunications but acquitted her on the drug charges. She has appealed her conviction.
The National Guards of Gebili, in the governorate of Douz, interrogated Alaa Abd Daher on October 31, 2018 about his posts critical of Mahbouba bin Dhifallah, a parliament member from the Nahdha party who represents the region.
Abd Daher questioned whether bin Dhifallah had brought benefits to the region she represents.
Abd Dhaher also mocked bin Dihifallah’s Facebook post cheering the victory in Turkey of President Recep Tayyip Erdogan in the June 2018 elections. Abd Dhaher asked bin Dhifallah if she was herself Turkish and denounced what he described as her failure to serve well the Tunisians who had elected her to parliament. Abd Dhaher also wrote other critical posts about bin Dhifallah and Ennahdha.
On March 18, 2019, Abd Dhaher received a summons order from the criminal chamber of the First Instance Court in Gebili, to be tried for “harming others via public telecommunication networks,” under article 86 of the code of telecommunications. On April 10, Gebili First Instance Court convicted him on this charge and sentenced him to two months in prison, suspended. He has appealed.
Five judicial police officers from the Ben Bhar district of Sousse, wearing civilian clothes, arrested and handcuffed Najib Hwimdi, 36, on October 13, 2017, following a complaint from the head of the Sousse judicial police. The complaint accused Hwimdi of undermining the state and mocking and questioning the credibility of the president and other high-level state officials.
At the station, Houimdi sat handcuffed while some police officers mocked his writing style and referred to some language mistakes that he made, he told Human Rights Watch. Then, two officers questioned him for nearly two hours about eight blog posts that he wrote during September 2017.
In his posts, which Human Rights Watch reviewed, Houimdi criticized then-president Beji- Caid Essebsi’s prolongation of the state of emergency, spoke of a coming revolution that “will burn down all the traitors” and denounced the poor infrastructure in the Sousse region that had led to a building collapse, killing six people. Houimdi also said that the head of the government, Youssef Chahed, the governor of Sousse, and the head of the municipality take responsibility for what happened. Houimdi described Essebsi as suffering from dementia. The police detained Houimdi for three days. He said he slept on the floor each night.
On October 16, 2017, the police presented Houimdi to the public prosecutor of Sousse’s First Instance Court, who asked why he had disparaged the president and state officials. Houimdi was released the same day. Over several sessions, the court tried him on charges of insulting the president and defamation under articles 67, 245, and 247 of the penal code and article 86 of the code of telecommunications. On December 27, 2017, the court convicted Houimdi and fined him 600 dinars (US$159). The Sousse Court of Appeal upheld the sentence on June 27, 2019.
