After the passage of Tunisia’s historic Transitional Justice law in December, 2013, all eyes are on the newly-established Truth and Dignity Commission (TDC)—created by the law— which is now beginning its work to reveal the truth about gross human rights violations committed between 1955 and 2013.
Less straightforward is exactly how the country will try—for the first time—serious human rights abuses committed under former regimes. The Transitional Justice law also calls for Tunisia to create Specialized Judicial Chambers to compliment the work of TDC. The Chambers will consist of judges trained in the field of transitional justice who will look into cases of deliberate killing, rape and sexual violence, torture, enforced disappearances, and summary executions. However, the transitional justice law does not provide a detailed account of the structure of these chambers, how they will operate, and how the Chambers will relate to the work of the TDC.
For background and insight into this specialized approach to criminal justice, we speak to Judge Walid Melki, a member of the Temporary Judicial Council, a body assigned to oversee the independence of judges, their promotion and dismissal, in addition to providing consultation on judicial system reform and development of judicial work.
In this interview, Judge Melki addresses several undefined aspects the Specialized Judicial Chambers and explains the mechanics of this undertaking of accountability.
Article 8 of Tunisia’s transitional justice law stipulated establishing special chambers to look into violations of deliberate killing, torture, enforced disappearance, and execution without fair trial guarantees. Why would such chambers be established in Tunisia?And why are they important for addressing impunity?
The Special Chambers are being established in Tunisia because the transitional process requires these types of chambers to deal with impunity. Article 3 of the Transitional Justice Law defines such violations as “gross or systematic infringement of any human right committed by the State’s apparatuses or by groups or individuals who acted in the State’s name or under its protection.” Such violations have not been tried before in Tunisia, because the previous system did not allow for such trials. Now the opportunity arises—in the frame of transitional justice—to deal with violations that were not tried before through such chambers. These chambers are also established to address impunity, as proven in the Law itself, as it confirms the retroactivity of the penal text, the inability to object to the non-retroactivity of the penal provision, and the inability to object with the principle of res judicata.
The intention of the legislators was to deal with impunity for serious human rights violations, and dealing with impunity cannot happen in ordinary courts. This can only take place in specialized judicial chambers in the frame of a comprehensive process. The transitional justice process happens first through revealing the truth, then through accountability, and then, afterwards, reconciliation.
What are the procedures to be taken to establish the Specialized Chambers? What will their nature and structure be?
The establishment of these chambers is stated in Article 8 of the transitional justice law, which says that the Specialized Judicial Chambers should be created by a decree issued by the prime minister.
The legislators however did not indicate the nature of the chambers in Article 8. So what are the judicial chambers? Are they civil judicial chambers or penal judicial chambers? And what is the nature of penal judicial chambers, if we assume they are penal? The legislators were silent on all these specifications, but when we go and re-examine Article 8, we see that it is about violations and these could be crimes or felonies. So, in this case, the Specialized Chambers will be criminal judicial units.
With respect to their structure, if the chamber is of criminal nature, then it will consist of 5 judges, according to Article 221 of penal procedures. If it is a chamber for dealing with felonies, then it will consist of 3 judges, according to Article 205 of the penal procedures.
What criteria will be adopted in the selection of judges for the Chambers?
These units are judicial chambers, which means that their structure will be purely judicial, rather than a hybrid [model] consisting of non-judges as well as judges. The legislators indicated that the chambers will consist of judges who “will receive special training in the field of transitional justice.” The criteria that will be followed in selecting the judges will be the same as those for selecting candidates to be appointed as judges in other courts. According to Article 12 of the law on the Temporary Judicial Council, the Committee will select the judges, meaning that this Committee will announce the list of vacancies in all judicial lines and then it will select them. The selection will be according to the international criteria for independence of judiciary, competency, integrity, in addition to a special condition stipulated in Article 8 of the Transitional Justice Law, which requires that the selected judges have “never participated in trials of a political nature.”
According to Article 42, “the Commission shall refer to the Public Prosecution the cases in which commitment of gross human rights violations is proven.” How will referrals from the Truth and Dignity Commission (TDC) happen? What will the nature of the relationship between TDC and these chambers be?
The role of the Truth and Dignity Commission is to reveal the truth about the past. In that process, if it is clear to the TDC that there were cases of gross human rights violations—such as deliberate killing, rape, enforced disappearance, and financial corruption—the TDC shall refer the case to the Public Prosecution. If the violation is a crime, the Public Prosecution follows the ordinary process, meaning that it will refer it to the Investigation Division, which in turn refers it to the Indictment Division, and then this Division refers it to the Specialized Judicial Chamber. If it is clear to the Chambers that there is basis for a sentence, they will issue a sentence, which will then be subject to appeal. Thus, the process of referrals from the TDC will follow the normal referrals procedure that is being followed in ordinary cases.
Will the specialized chambers be open to receive cases from other than TDC?
It is possible that in some cases, someone will decide not to go to TDC, but will directly reach to the Public Prosecution. In this case, the Public Prosecution would refer the case to the Specialized Chambers. However, even if the case undergoes the ordinary process—meaning not through the TDC—this does not imply that the case loses its transitional justice component.
As stated in paragraph 2 of Article 8, the chamber will be “adjudicating cases related to gross violations of human rights as specified in international agreements ratified by Tunisia,” despite the fact that it is expected the Chambers will receive case referrals for which there will be no corresponding Tunisian law. In this case, how will the penal terms be specified, given that international treaties do not include punitive measures?
If a violation is referred to the Public Prosecution but no reference to the act exists in the Tunisian penal code, then there is no crime, and—hence—no punishment, so the case will be considered inadmissible. Therefore, what is required is the coupling of both the Tunisian penal code and also international treaties it has ratified.
Is there anything you could consider to be “best practice” concerning the terms of the Specialized Chambers?
The TDC’s term is set to four years with the possibility of renewal once for one year; however, the legislators did not identify a term for the Chambers. They left the term open—this could be a legislative choice, as it is not possible to estimate the exact time for the completion of the Chambers’ work. As we know, these Chambers will be dealing with the cases, after they have passed through prosecution, investigation and indictment, in addition to the appeals that may occur after the chambers issue their sentences, which could bring back the case to the Referral Court for a re-trial. All these make it a lengthy process. In that regard, the legislators choose not to set a term for these chambers, and in my opinion, this is the best choice.
Photo: (Amine Ghrabi)
