For more than two years now, the case of the plot against State security has occupied Tunisian and international public opinion. Despite the investigating judge's ban on media coverage of the case, this has been the most important judicial case since Kaïs Saïed's coup d'état, given the profiles of the defendants, who include leading political leaders, political parties opposed to Kaïs Saïed, civil society activists, businessmen and others who, at first sight, had nothing to do with each other. The Tunisian justice system, brought to heel by Kaïs Saïed and his Minister of Justice Leila Jaffel, has consistently violated the principles and rules of criminal procedure and the most fundamental rights of detainees, as noted by the African Court of Human and Peoples' Rights in its ruling on provisional measures in case 04/2023.

Arbitrary detention, as characterized by the Working Group of the UN Human Rights Council, on all grounds, especially after the maximum period of pre-trial detention under article 85 of the Code of Criminal Procedure had been exceeded, was not rejected by the Indictment Division or the Court of Cassation, despite the opposition of the defense, which cried foul at the absence of any legal or factual elements characterizing the serious terrorist crimes attributed to their clients, or indeed of any evidence.

An illegal trial ab initio

The opening of the trial before the ^5th Criminal Chamber of the Tunis Court of First Instance was marked by two monumental violations which render the trial illegal and liable to annulment under the Code of Criminal Procedure ab initio.

The first is the illegality of the composition of the 5th Criminal Chamber, whose president was transferred and replaced by a simple memo from the Minister of Justice, which runs counter to the provisions of the 2022 Constitution, which Kaïs Saïed himself drafted, and Presidential Decree-Law no. 11/2022 on the Provisional Higher Council of the Judiciary, which grants the prerogative of transferring or appointing magistrates to the competent Council, in this case the Judicial Magistrates Council, in accordance with the organic anti-terrorism law. The Minister of Justice preferred to resurrect a text that had been repealed several times - Organic Law no. 67-29 of July 14, 1967 on judicial organization, the Superior Council of the Judiciary and the status of the judiciary -, repealed by Organic Law no. 2016-34 of April 28, 2016 in article 78. Decree-law no. 11/2022 of February 12, 2022, on the creation of the provisional High Council of the Judiciary, which also repeals the said law in article 30, in any case the prerogative of the Minister of Justice to transfer or appoint a magistrate, since it entrusts this to the competent Council.

The second violation, which also derogates from the constitutional guarantees of judicial independence, is a decision taken by the President of the Tunis Court of First Instance and the Public Prosecutor attached to the court - who is normally a party to the proceedings - who argued that there was imminent danger to justify holding the 5th Criminal Chamber hearing remotely for the detainees. This decision was based on article 141 bis of the Code of Criminal Procedure, a problematic text which the president of the court also violated.

Firstly, this text was promulgated during the exceptional period of the COVID-19 pandemic by government decree-law within the meaning of Article 73 of the 2014 Constitution, which requires such decree-laws to be submitted for approval to the Assembly of People's Representatives once it has resumed its work. However, this decree-law has never been submitted to any vote of the Assembly, rendering it null and void.

Secondly, article 141 bis confers on the criminal chamber to which the case is assigned the power to decide whether to hold the hearing by teleconference from the prison premises for prisoners. This is a procedural decision that the chamber must take after observing the procedures set out in the article, in particular soliciting the opinion of each detainee and his lawyer, as well as that of the public prosecutor, on a case-by-case basis depending on the case. This is not an administrative decision. In fact, the defense has taken the case to the administrative court, requesting the annulment of the decision by the president of the court and the public prosecutor, and has asked the first president of the administrative court for a suspension and a stay of execution in summary proceedings, who has not reacted to the request for over a month, demonstrating his complicit silence with the executive.

Finally, it should not be forgotten that this kind of trial format does not meet the standards of a fair trial. It may be tolerated for correctional trials, for less serious crimes, provided there is a real danger. But to apply it to capital crimes is an infringement of the defendants' right to a fair trial.

From remote hearing to in camera hearing

The third hearing was not like the previous ones. The prisoners' families were harassed and forbidden to attend, with only one family member allowed for each prisoner. Journalists were also banned, with the exception of one journalist whose employer's editorial line explains this preferential treatment. Civil society observers, solidarity activists and representatives of diplomatic delegations were also unable to attend this time. Some lawyers were even harassed and prevented from entering the courtroom, which was sealed off by the forces of law and order.

The defense lawyers, who reiterated their clients' refusal to attend from a distance, also denounced the lack of publicity for the hearing, while the chamber seized of the case had neither duly decided nor given reasons for this security decision, which infringes the right to information of all the Tunisian people, after the ban on media coverage of the case was lifted.

Videoconferencing, but misused

The 5th criminal chamber, while stubbornly ignoring all the objections and grievances of the defense against the decision of the president of the Tunis court of first instance and her prosecutor - who imposed on the competent chamber and the detainees the holding of the three hearings by videoconference - totally ignored the request made by two defendants abroad to be heard by videoconference, in application of article 73 of the anti-terrorism law. This article allows the president of the relevant chamber to hear witnesses and defendants by videoconference when the interests of justice so require. However, the 5th Chamber did not consider it necessary to hear defendants who had not been heard by the examining magistrate or the officers appointed by him, and who could incur the death penalty in view of the charges.