The President of the Truth and Dignity Commission (IVD), Sihem Ben Sedrine, is the victim of a media and judicial onslaught that has intensified in the wake of the closure of the IVD's work with the publication, on March 26, 2019, of the final report in the Official Gazette of the Republic of Tunisia, documenting the serious human rights violations and financial crimes committed between 1955 and 2013, and the transfer of 205 cases to specialized criminal chambers in which more than 1,000 security officials are being prosecuted. To date, no judgment has been handed down in any of the cases investigated by the IVD; the perpetrators of serious human rights violations and crimes of corruption enjoy an impunity in which successive governments, and above all the current government, are complicit.
What is the President of the IVD accused of?
She is responding to accusations of corruption and falsification of the IVD's final report made by a former member of the IVD, herself the subject of several disciplinary measures during the body's term of office.
The part "suspected" of having been added to the final report, which was nonetheless validated by the members of the IVD board, concerns the Banque franco-tunisienne affair (a dispute that has lasted 38 years), a case investigated and transferred by the IVD to the courts, in which 23 senior government officials and businessmen are being prosecuted for influence peddling, embezzlement, abuse of position and breach of trust in the management of public funds. These high-ranking officials and businessmen, some of whom are still in office, intentionally caused the bankruptcy of this bank to serve their own personal interests. To this day, they remain unpunished.
A procedural ordeal
Since March 2021, Sihem Ben Sedrine has been summoned six times, to be heard in her capacity as a witness, by officers of the judicial police (OPJ) of the central financial crimes brigade attached to the Aouina National Guard. Other members of the IVD were also interviewed by the same brigade. On February 20, 2023, the Public Prosecutor at the Tunis Court of First Instance (TPI) decided to open five judicial inquiries and appointed three investigating judges from the 6th, 9th and 15th Judicial Economic and Financial Pole to carry out the investigations.
On March 2, 2023, the investigating judge at the 6th office issued a ban on Sihem Ben Sedrine leaving the country.
On February 5, 6, 7 and 8, 2024, she was questioned by the examining magistrate of the 15th office. After the hearings, the judge in charge of the case decided to keep her at liberty. The Public Prosecutor's Office appealed this decision and requested that a committal order be issued.
On February 28, 2024, the Indictments Division of the Tunis Court of Appeal upheld the decision of the examining magistrate to keep her at liberty and rejected the appeal of the Public Prosecutor's Office.
Two weeks later, the judge at the 15th office received a memo informing him of his transfer to the TPI of Jendouba, outside the annual movement of magistrates. He will not be replaced.
On March 4, 2024, the investigating judge at the 6th office decided to place Sihem Ben Sedrine under house arrest until March 27, 2024, when he would proceed with her hearing. On March 27, he was "promoted" to the position of Public Prosecutor at the Tunis Court of First Instance, and by virtue of this "promotion" he was also appointed head of the Anti-Terrorist Judicial Pole and the Economic and Financial Judicial Pole.
On July 24, 2024, Sihem Ben Sedrine received a summons to appear on August1 before the investigating judge of the 37th office, which is acting as the 15th office. According to the summons, she will be questioned on the basis of articles 82, 83, 84, 96, 98 and 99 of the Penal Code.
On the day of the hearing, the defense discovered that the examining magistrate had decided to hear him in connection with the case of "falsification of the IVD report", a case which did not fall within his jurisdiction and which was being investigated by the examining magistrate attached to the 6th office.
At the end of the hearing, mainly based on unfounded accusations by a former member of the IVD, the examining magistrate "decided" to issue a committal order against him.
The case in which the arrest warrant was issued
In this case, the IVD Board is accused of falsifying its own document.
The IVD's work on the Banque franco-tunisienne (BFT) case was the subject of a public presentation at the final conference on December 14, 2018 (available on the YouTube platform), with a detailed chronology and Powerpoint presentation published on the IVD website in the presence of all board members, including the former member making the accusations. This presentation was reproduced as is in the IVD's final report and in the indictment, transmitted on December 31, 2018 to the specialized chamber for transitional justice at the Tunis Court of First Instance.
This part of the report was also validated by the Board of the Instance in its session of December 27, 2018 as verifiable on the minutes of the meeting.
When adopting the various chapters of the report, the Board had given itself until the end of January 2019 to make the necessary corrections (recorded in the minutes of the December 28, 2018 session). The overall final report (nearly 2,000 pages excluding appendices) was adopted on December 30, 2018. A few hours later, the President of the Republic set an appointment for its official presentation on December 31, 2018. The report, comprising seven volumes, was handed over on the appointed day, without having had the opportunity to undertake the customary checks, and he was informed of this. The entire process was checked by the IVD Board and there is no falsification.
It is customary for all official texts to undergo a technical conformity check prior to publication, in order to eliminate any errors that may have crept in during the various phases of the adoption process. This in no way constitutes a misrepresentation of content. These corrections have been included in the report submitted to the Head of Government.
The published report is the authoritative one, the one given to the Chairman is not opposable to third parties and has no legal effect or consequence. The authoritative document, which is enforceable against third parties, is the one posted online on March 26, 2019 and published in the JORT on June 24, 2020.
The alleged existence of a "recommendation to compensate the State's opposing party to the tune of 3,000 million dinars" is misleading. The IVD's final report can be consulted on the JORT website. It simply mentions, for information purposes, the potential impact of the dispute: "The damages claimed by ABCI International have been estimated at around 1 billion dollars (around 3 billion dinars)". The report does not include any recommendation to compensate the opposing party, an amount declared by ABCI in the JORT, under the Ben Ali regime, of November 6, 2010, n°133, page7409.
Violations of the right to a fair trial
The President of the IVD has been the victim of several violations of her right to a fair trial:
- The right to impartiality and independence of the judiciary :
In addition to the damaging effects of Presidential Decree-Laws 11/2022 and 38/2022 and the provisions of the 2022 Constitution on the institutional and personal independence of the Tunisian judiciary and magistrates, who can now be dismissed by a simple decision of the President of the Republic, without any prior disciplinary procedure. Following the decommissioning of the provisional High Council of the Judiciary, which the regime itself had initiated, the Minister of Justice found a way to control judges even more directly, by referring to a repealed law, in this case law no. 69-5 of January 24, 1969, amending law no. 67-29 of July 14, 1967 on the organization of the judiciary, the High Council of the Judiciary and the status of the judiciary. It applies a carrot-and-stick policy, transferring judges by means of simple memos, as in the case of the examining magistrate in charge of one of the cases in which Ms. Sihem Ben Sedrine is being prosecuted, who considered that the elements of the case file did not justify the issuance of an arrest warrant. His decision was confirmed by the relevant indictment chamber, and the judge was suddenly transferred to a court in the country's interior without any legal grounds (a form of non-disciplinary punishment in keeping with the traditions of Tunisia's upright judiciary). The result was not long in coming, and not only in this case, but also in all examining magistrates responsible for investigating cases in which the victim is the defendant.
- The right to freedom and the presumption of innocence :
Like all legislators respectful of the principle of liberty and the presumption of innocence, the issuance of an arrest warrant is an exception within the meaning of article 84 of the Tunisian code of criminal procedure. Article 85 of the same code specifies its conditions: "cases of flagrant crimes or offences and whenever, due to the existence of serious presumptions, detention seems necessary as a security measure to avoid further offences, as a guarantee of the execution of the sentence or as a means of ensuring the security of information". It goes without saying that the decision to issue a committal order against Ms. Ben Sedrine is not based on any of these conditions, and worse still, no new element has arisen in the case to justify such a decision.
- The right to defense and the adversarial principle
Summoned to appear before the new examining magistrate on August1, 2024 on the basis of articles 82, 83, 84, 96, 98 and 99 of the penal code, as specified in the summons issued by the examining magistrate's office, Mrs. Sihem Ben Sedrine and her defense team discovered during the hearing that she was to be questioned on the facts of falsification of the report, in other words, a completely different subject not specified in the summons, which violated her right to defense and respect for the adversarial process. Tunisian criminal case law is abundant and identical on this point.
- The right to procedural integrity and neutrality in investigations
Criminal proceedings cannot be traps set by the investigating authority or the court, which must behave in an honest and transparent manner that does not in any case hinder the right of defence or the adversarial principle. By summoning her for one reason and hearing her on another at the hearing, the new investigating judge violates the principle of the integrity of proceedings and his presumed neutrality.
Retaliation for the President or transitional justice
The purpose of this judicial harassment and gross violation of the right to a fair trial is to remove the final report of the Truth and Dignity Commission (IVD) from the Official Gazette, thus burying the revelations about the despotic and corrupt system it contains. It is clear and obvious that this is retaliation or revenge on the part of the anti-revolutionary apparatuses and forces that spearhead the current regime, even if it claims to be a reformist revolutionary movement. The violations committed against the President of the IVD in the course of this trial clearly show that the aim is to discredit the whole concept and process of transitional justice, given that President Kais Said wants to monopolize all the powers, and in particular the exclusive right to the historical narrative.
The CRLDHT
- strongly condemns and denounces the judicial harassment to which the President of the Truth and Dignity Commission, Mrs. Sihem Ben Sedrine, has been subjected, including the travel ban, legal proceedings and the issuing of an arrest warrant.
- expresses its total and unconditional solidarity with the President of the Truth and Dignity Commission, a staunch campaigner against the Ben Ali dictatorship, and demands that the malicious and vindictive prosecution of her be stopped and that she be released immediately,
- condemns the government's policy of destroying the achievements of the State, refusing to render justice to the victims, and clearly targeting anyone who tries to hold the torturers to account, in exchange for absolute impunity for all those who have robbed, plundered, tortured and killed the daughters and sons of the Tunisian people for decades.
- rejects the domestication and instrumentalization of the judiciary to liquidate opposition and critical voices, and harass human rights defenders, leaders of former bodies and activists in the civil, political and trade union spheres; a judiciary that has become a mere function in the service of the executive rather than an independent authority that succeeds in prosecuting torturers and human rights violators.
