Case N° TUN/05 - KHEMAIS CHAMMARI - TUNISIA

Resolution adopted without a vote by the Inter-Parliamentary Council at its 159th session
(Beijing, 21 September 1996)*

The Inter-Parliamentary Council,

Having before it the case of Mr. Khemaïs Chammari, a member of the Chamber of Deputies of Tunisia, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians in accordance with the "Procedure for the examination and treatment by the Inter-Parliamentary Union of communications concerning violations of human rights of parliamentarians",

Taking note of the report of the Committee on the Human Rights of Parliamentarians (CL/159/11(a)-R.1), which contains a detailed outline of the case,

Considering that Mr. Khemaïs Chammari, an incumbent member of the Chamber of Deputies representing the opposition Democratic Socialist Movement (MDS), of which he is one of the Vice-Presidents, is a staunch advocate of human rights,

Considering that the President of that party, Mr. Mohamed Mouadda, was arrested on the day of the publication, on 9 October 1995, of an open letter to the President of the Republic in which he criticized, on behalf of his party, the course taken by the democratic process in the country, with special reference to the restrictions placed on political activity; that he was sentenced on 29 February 1996 to 11 years' imprisonment for having dealings with a foreign State in exchange for large sums of money,

Considering that, on 29 October 1995, when preparing to leave Tunisia for Malta, Mr. Chammari and his wife had their passports confiscated by the police without any explanation and were thus prevented from leaving the country; that, according to two press agency dispatches referring to judicial sources, the Chammaris were prevented from travelling following the discovery of compromising material in their luggage; that, contrary to that allegation, their luggage was never searched since Mr. Chammari enjoys parliamentary immunity,

Considering that, on 21 November 1995, the Chamber of Deputies voted to lift the parliamentary immunity of Mr. Chammari in order to permit his prosecution for contravening Articles 60bis and 80 of the Tunisian Penal Code by circulating an investigation record in a matter affecting the country's external security,

Considering that, according to the authorities, Mr. Chammari sent to a Belgian lawyer, Me Chansay Wilmotte, whom they allege to be working for a foreign power, the transcript of the interrogation of a witness in the Mouadda case, a document which, as stated by the President of the Chamber in his letter of 12 June 1996, "Mr. Chammari has no business to be in possession of, not being a lawyer in the case, and still less to transmit to a third party alien to the country and whose motives are questionable ...",

Considering in this connection that, on 7 September 1996, the President of the Chamber of Deputies conveyed a copy of a cover page for Me Chansay Wilmotte reading as follows: "Maître and dear friend, Here I am up again, a little diminished but in good spirits. On Sunday we had a very comforting Political Bureau meeting. Herewith the document requested. My wife's fax (which she shares with her associate Me Ben Younes) must as of now be used sparingly. I will telephone you as often as possible. Thank you again for your kindness"; and at the foot of the page: "Please erase (or cut out) the sender's fax references on the document you receive, including this covering note"; that, according to the authorities, this cover page proves that Mr. Chammari communicated the offending document to the Belgian lawyer and his request to remove the fax number on it proves that he was aware of the secret nature of the appended document,

Considering that Mr. Chammari has rejected the charge; that he does not deny having transmitted documents concerning the Mouadda case to Me Chansay Wilmotte, but asserts that they were non-secret documents such as statements he had made on the radio, press articles and translations of communiqués from the Political Bureau of his party,

Considering that, as to his request to have the fax number removed, Mr. Chammari has stated as follows: "This is a practice not confined to that particular instance since I make of it a sound reflex in all circumstances. Since documents faxed to any correspondent may themselves be photocopied, discretion has always seemed to me to be a must",

Considering also that on 17 October 1995 Mr. Chammari met Me Chansay Wilmotte in Tunis, who was the lawyer entrusted by the International Association of Democratic Jurists (AIJD) with a mission to observe the Mouadda case; that, in the opinion of the lawyers, nothing on file indicates that Mr. Chammari met him in the knowledge that he might have been acting in any other capacity,

Considering further that, according to the sources, the preliminary investigation file on the Mouadda case had no secrecy attaching to it since official and unofficial sources had themselves widely publicized items on file, including the offending document,

Considering that Mr. Chammari was imprisoned on 18 May 1996 at the close of his ninth summons by the Chief Magistrate to appear for a hearing; considering that in his public statement of 18 May 1996, Mr. Chammari affirms that "the decision to imprison me is prompted in reality by political considerations: its purpose is to intimidate all those who seek to break the silence surrounding the scheming that resulted in the imprisonment and trial of Mohamed Mouadda following the publication by him of an open letter to the Head of State ...",

Considering that the trial of Mr. Chammari opened on 17 July 1996 and ended the same day with his being sentenced, under Article 60bis and 60quater, paragraph 4, to five years' imprisonment for breaching the confidentiality of the pre-trial investigation in a matter affecting the external security of the State; that Mr. Chammari has petitioned to have the sentence quashed, the right of appeal not being provided for under Tunisian law in such cases; that the Court of Cassation, meeting during the summer recess on 29 August 1996, rejected the petition, thereby upholding the judgment given on 17 July,

Considering that, in accordance with Article 60bis, "any Tunisian who delivers to a foreign power or to its agents, in any form and by any means, a classified secret shall be guilty of treason and subject to the death penalty ..."; that in accordance with Article 60quater, paragraph 4, "classified secrets shall be understood to include ... information relating to measures taken to identify and arrest the authors and accessories of crimes or offences against the external security of the State, to the progress of proceedings and investigations, or to Court deliberations",

Considering that according to the sources the lawyers have never, throughout the proceedings and up to the time of the ruling of the Court of Cassation, had direct access to the file or its contents, that the Court has reportedly been unable to prove that Mr. Chammari in fact transmitted secret documents and that it has apparently never produced the annexes that Mr. Chammari is alleged to have sent by fax,

Considering that the International Commission of Jurists, the International Federation of Human Rights and Amnesty International, all of which observed the 17 July trial, are agreed that it was held in good conditions, the judges acting correctly and in accordance with the law; that they also agree, however, that it was a manifestly political trial,

Considering that, in his letter of 7 September 1996, the President of the Chamber of Deputies states as follows: "The trial took place under normal conditions. Mr. Chammari enjoyed full guarantees for his defence and a large number of lawyers representing various political tendencies did act as his defence counsel. The First President of the Court of Appeals granted the accused's request for a change in the composition of the court. The trial was held in the presence of numerous observers ... In a statement to the press, the Leader of the Tunisian Bar Association noted at the trial's conclusion that it had been completely fair. This statement was taken up by certain international press agencies, in particular the Agence France Presse (AFP)",

Considering that, in a communication dated 3 June 1996, one source had denounced the deplorable conditions in which Mr. Chammari was held, adding abundant details on this point; that these allegations were immediately forwarded to the President of the Chamber of Deputies,

Considering that, in his letter of 17 June 1996, the President of the Chamber of Deputies provided assurances as to Mr. Chammari's conditions of detention; that, following his intervention, those conditions have markedly improved; that he reiterated such assurances in his letter of 7 September 1996,

Considering that on 12 September several sources supplied information about Mr. Chammari's condition of detention, as follows: "Mr. Chammari has not been examined by a doctor since 12 June, though his state of health is such that he requires regular medical attention and constant readjustments in his medical treatment. Since 12 June, he has been in a cell occupied by 35 detainees and has a bed to himself. Nevertheless, the bed should be equipped with a wooden plank, considering his slipped disc, a condition which also makes it necessary for him to have a chair with a back rest. Mr. Chammari has only a plastic bucket for use as a seat. The books and magazines his family brought him were not delivered, nor was any writing material. He does not receive his mail. He meets his family in degrading and humiliating conditions, behind a double wire grill set 2 metres away, in the presence of guards. Although Mr. Chammari has repeatedly petitioned the competent authorities to be granted his right to medical attention, to living conditions suited to his state of health, to books, magazines, writing material and a visiting room matching the most elementary human rights, none of which requests have yet been met, even though all of them conform to the special prison rules published in Decree N° 88-1876 of 4 November 1988.",

Considering that on Tuesday, 10 September 1996, Mr. Chammari reportedly started a hunger strike to:

(i) Denounce the scant medical care he receives;

(ii) Be given a bed with a wooden plank to avoid the risk of paralysis;

(iii) Obtain the books and writing material he requested;

(iv) Have the use of a decent visiting room,

1. Warmly thanks the President of the Chamber of Deputies for his intervention and the members of the Tunisian delegation whom the Committee was able to hear on the occasion of the 96th Inter-Parliamentary Conference for their valuable co-operation and for the information and observations they supplied;

2. Is concerned at the allegation that the Court has been unable to prove that Mr. Chammari in fact transmitted secret documents and that it has never produced the annexes sent by fax;

3. Cannot appreciate, from the cover page alone, the type of accompanying document sent and is therefore unable to regard the page in question as proof of the transmission of a secret document, even when bearing the instruction to remove the fax number upon receipt, an incidentally fairly common practice;

4. Has doubts about the legal characterization of the alleged facts in view of the provisions of Article 60bis and 60quater, paragraph 4, of the Penal Code;

5. Regrets that the authorities have not supplied a copy of the judgment as requested by the Committee at its July session, which would have made it possible to determine what concrete facts have been adduced to substantiate the charge, and to clarify the points raised above;

6. Is concerned at the allegations regarding Mr. Chammari's conditions of detention, and trusts that the Tunisian Parliament will continue to do its utmost to guarantee Mr. Chammari the conditions of detention to which he is entitled;

7. Requests the Tunisian authorities to be so good as to receive an on-site mission of the Committee to Tunisia to gather detailed information on all aspects of this case, both from the competent authorities and from the concerned parliamentarian himself and his defence counsel, and to collect any other information that might clarify certain points and thereby enable the case to be examined in the light of all the factors involved;

8. Requests the Secretary General to bring these considerations, together with this request, to the attention of the President of the Chamber of Deputies;

9. Requests the Committee on the Human Rights of Parliamentarians to pursue the examination of this case and report to it at its next session (April 1997).