Following the popular uprising in Tunisia that began in December 2010 and saw protests against corruption, poverty, and political repression, culminating in the ousting of President Zine al-Abidine Ben Ali in January 2011, Tunisia went through a difficult political transition that resulted in the formation of a democratically elected government under the new Constitution, which was approved by the Constituent National Assembly on 26 January 2014. Through its democratization process, Tunisia has made significant progress in advancing the rule of law and human rights, especially regarding missing persons.
These efforts have been primarily focused on developing a legislative framework that addresses past human rights violations by establishing a mechanism for establishing truth, accountability, reparation and a guarantee of non-recurrence of human rights violations.
International legal instruments
Tunisia is a state party to the major international human rights instruments including ICCPR, CESCR, CAT and the Convention and also to the ACHPR. It became a party to the Rome Statute in 2011.
Constitutional framework
The new Constitution from January 2014 provides for the protection of key civil, political, economic and social rights. It guarantees, among other things, the rights to life, dignity and integrity of the person, prohibition of torture, the right not to be placed under arrest without a warrant, equality before the law, the right to privacy, and the protection of the family. Article 102 mandates the judiciary to ensure the administration of justice, the supremacy of the Constitution, the sovereignty of the law, and the protection of rights and freedoms. The new Constitution serves as a basis for the introduction of political, legislative and institutional reforms at this level.
Lex specialis
The most important effort of the Tunisian government to address past human rights abuses includes the adoption of the Law on Establishing and Organizing Transitional Justice, in December 2013. The Law established a framework for dealing with past human rights violations by providing for a mechanism to establish the truth, holding perpetrators of human rights violations accountable, and providing for reparations, restitution and guarantees of non-recurrence.
More specifically, under Article 4, the Law provides that in cases of death, missing persons, or enforced disappearance, the fate and whereabouts of the missing must be investigated, in addition to prosecuting perpetrators of acts of disappearance.
In order to pursue accountability for perpetrators of past human rights violations, the Law provides for the establishment of so-called Specialized Judicial Chambers within the courts of first instance in the headquarters of appeals courts. These should hear cases related to gross violations of human rights as specified in international agreements ratified by Tunisia and as specified in this Law. Cases of enforced disappearance are also placed under the jurisdiction of these chambers.
Another aspect of the Law refers to reparation for victims of violations that obliges the State to take sufficient and efficient reparations measures in line with the seriousness of the violation and the situation of each victim. Art. 10 defines a victim as “any individual, group or legal entity having suffered harm as a result of a violation”. It says that victims include “family members who were harmed as a result of their kinship to the victim as well as any person who was harmed while intervening to help the victim or to prevent the violation.”
The Law provides for the establishment of an independent Truth and Dignity Commission. The Commission’s work covers the period extending from Tunisia’s independence in July 1955 through 2013. Its mandate includes, among other things, examining cases of enforced disappearance where the fate of the victims is unknown based on declarations and complaints, determining the fate of victims, gathering data, tracking, counting, verifying and documenting violations to create a database, and establishing a unified record of victims of violations (Art. 39).
In order for overall accountability processes to be effective, institutional reform and criminal justice, among other things, have to advance simultaneously, as envisaged by the Transitional Justice Law.