His Excellency Zine al-Abidine Ben Ali
President
Republic of Tunisia

13 July 2006

Your Excellency,

Subject: MOHAMMED ABBOU

We are writing on behalf of the Human Rights Institute of the International Bar Association in connection with the arrest, prosecution and detention of lawyer, Mohammed Abbou, who is currently being held in El-Kef prison. 

In its role as a dual membership organisation, comprising 30,000 individual lawyers and over 195 Bar Associations and Law Societies, the International Bar Association (IBA) influences the development of international law reform and shapes the future of the legal profession. Its Member Organisations cover all continents. The IBA’s Human Rights Institute works across the association, helping to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and legal professional world wide.

We understand from published reports that Mr Abbou was arrested on 1^st March 2005 and sentenced to eighteen months imprisonment for “having published information that would disrupt public order” and for “insulting the judiciary” (the first charge). It is reported however, that the reason behind the arrest related to an article published on the internet by Mr Abbou on 26^th August 2004, in which he denounced torture in Tunisia.  A week prior to his trial, an assault charge (the second charge) was added to the indictment. The second charge alleged that Mr Abbou physically attacked a colleague some two years earlier.  It has been reported that Mr Abbou’s lawyers were not given the opportunity to examine any of the evidence relating to the second charge prior to the trial; indeed, allegations have been made that no admissible evidence was submitted at the trial and witnesses intending to give exculpatory testimony were not permitted to give evidence.

It has been further reported that, following his detention, both Mr Abbou and his family have been subjected to harassment and abuse by prison officials and others and that Mr Abbou has been denied the right to seek medical treatment whilst in prison.

At the appeal hearing on 10^th July 2005, it has been reported that neither Mr Abbou nor his lawyers were allowed to contest the charges and a number of international diplomatic representatives were ordered out of the courtroom at the commencement of the appeal, which lasted only a few minutes and upheld both convictions.

The Human Rights Institute is concerned that if these allegations are correct, Mr Abbou’s trial, detention and appeal have not afforded him the rights assured to all citizens of Tunisia under the International Covenant on Civil and Political Rights (ICCPR), to which Tunisia is a state party. Further, Article 32 of the Tunisian Constitution states that ‘treaties duly ratified have an authority superior to law’. 

Based on the allegations at hand, we are concerned that the first and second charges against Mr Abbou were fabricated and only laid and found proven because he was exercising his right to freedom of speech in a manner which was critical of the practices condoned or authorised by official authorities of Tunisia.

Indeed, in November 2005, a UN working group found that Mr Abbou’s arrest was in fact arbitrary and in violation of Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 19 of the ICCPR which guarantee the right to freedom of expression, including the right to ‘hold opinions without interference’ and ‘to receive and transmit information and ideas of all kinds’. We should also like to draw your attention to article 5 of the Tunisian Constitution which ‘protects the free exercise of beliefs’ and Article 8 (1) of the Tunisian Constitution guarantees the liberties of opinion and expression. Articles 14 and 26 of the ICCPR separately covenant that ‘all persons shall be treated equally before the courts’ and may not be discriminated against by virtue of their ‘political or other opinions’.  

Furthermore, the procedures employed in relation to the allegations surrounding the second charge do not appear to have extended to Mr Abbou the minimum guarantees to which he is entitled under Article 14 (3) of the ICCPR, namely to have adequate time and facilities for the preparation of his defence (accorded by Article 14 (3) (b)) and to examine witnesses against him as well as presenting witnesses in his own defence (accorded by Article 14 (3) (e)).

Article 14 (5) of the ICCPR provides that Mr Abbou shall have the right to appeal both his conviction and sentence according to law. This right is a substantive one and not a mere formality. The speed with which the appeal was reportedly conducted, coupled with the court's refusal to permit Mr Abbou's lawyers to contest the charges, thus renders the appeal process illusory and invalid under Article 14 of the ICCPR.

We are extremely concerned, with regard to the allegations surrounding the charges, the timing and conduct of the first trial and appeal, that Mr Abbou was not afforded a fair trial at first instance by an independent and impartial tribunal as is his entitlement under Article (14) (1) of the ICCPR. We are similarly concerned that the Appeal failed to remedy - or even attempt to remedy – the alleged shortcomings of the first trial.

Finally, we have read reports that Mr Abbou has been denied medical treatment whilst in detention and that allegations of police harassment of both Mr Abbou and his family have been levelled.  In this regard, we draw your attention to Articles 7 and 10 (1) of the ICCPR, which state that no-one should be subjected to inhuman or degrading treatment or punishment and that all citizens are entitled to be treated with humanity and respect. If either of these allegations is true they may breach these covenants. 

The Human Rights Institute invites the Government of Tunisia to comment on the above allegations. If the allegations are found to be true, we call on you to review all aspects of Mr Abbou’s case in light of the standards guaranteed by the ICCPR and to take appropriate steps to remedy each of the abuses referred to above.

Further, we urge that, if Mr Abbou is seeking medical attention, he be granted access to appropriate treatment and that any harassment of either Mr Abbou or his family should cease forthwith.

We should be grateful to receive your assurances that our concerns will be investigated as a matter of urgency.

Yours sincerely,

Ambassador Emilio Càrdenas

Justice Richard J. Goldstone                        

Co-Chairs, IBA's Human Rights Institute  

Cc. M. Béchir Tekkari, Minister of Justice

Cc. Tunisian Ambassador to London