Jaïdane case: a new step towards finding justice?
The first hearing in the transitional justice process for the Jaïdane case took place on Thursday 4 October 2018 in Tunis. Due to the social movement of magistrates that affected almost all the specialized Chambers, the Tunis Chamber, composed in part of substitute magistrates, decided to postpone the hearing after 45 minutes of introductory exchanges – in spite of 5 accused being present.
After the Tunis Court of Appeal gave its judgment in December 2017 and decided that the torturers of Rached Jaïdane were to be pursued for committing torture, the transfer of the case in June 2018 by the Instance Vérité Dignité(IVD) offers new hope for justice and for the conviction of the alleged perpetrators. When the case was brought to the IVD, it issued 9 indictments on 6 counts based on several articles of the Tunisian Penal Code.
Even though the crime of torture is imprescriptible under the provisions of the Tunisian Constitution, the Tunis Court of First Instance ruled on 8 April 2015 that the facts were too old. The alleged perpetrators thus remain free. This decision was subsequently confirmed by the Tunis Court of Appeal on 21 December 21 2017.
On 11 August 2017, the decision of the Committee Against Torture, issued following a complaint lodged by ACAT and TRIAL International, contradict the judgments delivered. It is fraught with meaning and demands in relation to the Tunisian justice system. While reminding Tunisia of the “obligation (…) to impose on the perpetrators of torture appropriate penalties in view of the gravity of the acts”, the Committee:
- Affirms that the Tunisian justice system cannot in any way retain its decision held in the Jaïdane case;
- Demands, in cases where judges cannot legally characterize acts of torture committed before 1999 (date of criminalization of torture in the Penal Code) as “torture”, that they retain a qualification reflecting the seriousness of the facts and permitting prosecution.
This decision constitutes a clear call to break with practices of impunity which, beyond the pain they inflict on the victims, constitute a blank check given to the Tunisian security forces, who continue today to resort to committing acts of torture and ill-treatment.
The story of Rached Jaïdane is emblematic of Tunisia’s torture system, the very one the post-revolution governments promised to upturn by providing justice to the victims. And yet…
Today, and despite its international obligations as well as the legal and institutional reforms introduced since 2011, the Tunisian state still fails to demonstrate a firm will to end impunity. In this context, the establishment of specialized Chambers represents a considerable hope of obtaining justice and creating a solid case law on which hundreds of other cases could be based.
In this context, the signatory organizations call on:
- The Superior Council of Magistracy (CSM) as well as the actors concerned to quickly replace the missing members of specialized chambers and train them;
- The specialized Chamber of Tunis to act with all due diligence to prosecute the alleged torturers in a fair trial.
- ACAT, Action des chrétiens pour l’abolition de la torture;
- ASF, Lawyers without Borders;
- TRIAL International;
- OMCT, World Organization against Torture.