Judicial authorities on July 8, 2015, charged Noureddine Mbarki, chief editor of Akher Khabar online, with complicity in terrorism for publishing a photograph of Seifeddine Rezgui, the gunman of the June 26 attack in Sousse that killed 38 foreigners, emerging from a car before he begins shooting. In a separate case, authorities detained Abdelfattah Saied, a teacher, on July 22 on the same charge for putting a video on his Facebook page that accused the security forces of planning the Sousse attack and duping Rezgui into carrying it out. He also faces charges of “defaming a public servant” for publishing a caricature of Prime Minister Habib Essid on his Facebook page.
While the government can impose limited restrictions on publication of material relevant to ongoing criminal investigations, prosecuting Mbarki for complicity in terrorism seems an inherently disproportionate charge that will have a chilling effect on the right of journalists and the public to impart information, Human Rights Watch said. Prosecuting Saied for defaming state institutions is incompatible with Tunisia’s obligations under article 19 of the International Covenant on Civil and Political Rights (ICCPR).
An investigative judge of the First Instance Tribunal brought the charges against Mbarki three days after his online newspaper published Rezgui’s photo. In an article accompanying the photo, Mbarki wrote that the photo proved that the gunman had travelled to the beach with accomplices who have so far escaped arrest. Following the Sousse attack, authorities announced that they had arrested 127 people connected to it, without disclosing the linkage with the gunman or with the extremist group Islamic State, also known as ISIS, which claimed responsibility for the massacre.
Mbarki told Human Rights Watch that the police called his newspaper’s publisher 45 minutes after the photo was published to ask him to remove it from its website for the sake of the ongoing police investigation, and that after consulting him, the publisher immediately withdrew the photo.
Mbarki said the director of the National Guard unit responsible for investigating terrorism-related crimes called him that evening and summoned him for interrogation at the National Guard Barracks the next day, July 6. Officers interrogated him for four hours, pressing him to disclose the source of the photo, he said. He refused and was released provisionally and ordered to appear before the investigative judge of the First Instance Tribunal in Tunis on July 8.
The investigative judge told Mbarki that he had charged Mbarki under article 18 of the 2003 counterterrorism law for “helping the escape of terrorists” on the grounds that the photo’s publication might have hindered the ongoing investigation by alerting Rezgui’s accomplices. Mbarki told Human Rights Watch that the investigative judge told him to return on July 23 for further questioning, but later contacted his lawyers to postpone this to a date that has yet to be set.
Tunisia’s press code punishes anyone who publicizes documents on ongoing investigations before their reading by a judge in a public hearing with a fine ranging from a thousand to two thousand dinars (US$507 to $1,015). But Mbarki was charged under the counterterrorism law, which can bring a long prison term.
The 2015 counterterrorism and money laundering law, which has yet to take effect, includes a provision protecting journalists from being obliged to disclose their sources of information.
Counterterrorism officers arrested Saied on July 16. He remained in police custody for six days. A prosecutor of the First Instance Tribunal in Tunis then authorized his further detention and transferred his case to an investigative judge attached to that court. Saied was moved to Mornaguia Prison, where he remains.
Article 18 of the 2003 counterterrorism law, under which both men are charged, imposes a prison sentence of 5 to 12 years for “anyone who provides members of an organization, agreement or people in relation to terrorist offenses with a meeting place, helps to accommodate or hide them or favor their escape, or shelter them, or ensure their impunity or benefit from their crime.”
The second charge Saied faces, under article 128 of the penal code, punishes “accusing, without proof, a public agent of violating the law” with up to two years in prison. The investigation report of the police’s counterterrorism brigade in Gorjani, which Human Rights Watch reviewed, states that they arrested Saied for a Facebook post with a caricature of Essid holding a shovel, beside which Saied had posted the comment: “He was ready for what happened in the Sousse attack, it’s a blessing for him, he was waiting for this moment to make his onslaught on moderate Islam.”
Prosecuting a person for complicity with terrorism on the basis of information the person shared or opinions the person held, without demonstrating any concrete connection with the crime, is a serious breach of freedom of expression, Human Rights Watch said.
Article 31 of Tunisia’s constitution guarantees freedom of expression. Article 19 of the ICCPR, which Tunisia has ratified, protects the right to freedom of expression, including “freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” In 2011, the United Nations Human Rights Committee issued guidance to states parties on their free speech obligations under article 19 that emphasized the high value that the ICCPR places upon uninhibited expression “in circumstances of public debate concerning public figures in the political domain and public institutions,” adding that “state parties should not prohibit criticism of institutions, such as the army or the administration.” Defamation should in principle be treated as a civil, not a criminal, issue and never punished with a prison term
the Human Rights Committee has said.
The Human Rights Committee, in general comment no. 34 interpreting article 19, has noted that governments must take “extreme care” to ensure that laws relating to national security are not invoked “to suppress or withhold from the public information of legitimate public interest that does not harm national security” or to prosecute journalists, researchers, activists, or others who disseminate such information.
“Tunisian authorities should stop prosecuting journalists and others under counterterrorism laws for publishing information and sharing ideas about serious attacks that have shaken the country,” Goldstein said.