The International League Against Arbitrary Detention urges the Government of the Republic of Tunisia to take all necessary measures to implement Opinion No. 50/2023 of the United Nations Working Group on Arbitrary Detention concerning Mehdi Ben Gharbia, calling on the Tunisian Government to release him immediately and unconditionally and to grant him an enforceable right to compensation and other reparations in accordance with international law.
Read the full opinion of the WGAD concerning Mehdi Ben Gharbia (Tunisia): Opinion n°50/2023.
A BUSINESSMAN AND POLITICIAN CONVICTED ON VARIOUS CHARGES RELATING TO HIS PROFESSIONAL ACTIVITIES
Medhi Ben Gharbia is a Tunisian businessman and politician - former minister and MP - born in 1973. Since 2016, he has been the subject of denigration and defamation campaigns on social networks, allegedly organised by business competitors and other detractors.
On 30 September 2021, Mr. Gharbia was summoned by the National Guard's Second Central Investigation Brigade to be questioned as a suspect, following which he was interrogated for several hours. On 16 October 2021, his home was searched by the same brigade on suspicion of money laundering and forgery. During the search, he was arrested, taken into custody at the brigade's headquarters in Tunis and questioned for several hours. He was subsequently transferred to hospital for heart problems. Following the committal order issued by the examining magistrate two days earlier, on 22 October 2021 Mr Gharbia was incarcerated in Messadine civil prison.
On 14 December 2021, after a thorough investigation, the examining magistrate dropped the charges against Mr. Gharbia and ordered his release. However, the Public Prosecutor's Office quickly appealed this decision, so Mr. Gharbia was not released and remained in custody. On 10 May 2022, he was brought before a trial court, where the following charges were brought against him: forgery and use of forgeries committed in his capacity as a public official; drawing up a certificate or deed stating materially inaccurate facts; money laundering in the context of his professional activity; and carrying out commercial transactions using embezzled means.
Because of repeated delays in the judicial proceedings against him, at the time of the source's communication Mr. Gharbia had still not been tried and was still being held in pre-trial detention in Messadine civil prison.
Although the Government of Morocco had the opportunity to respond to these allegations, it chose not to do so.
ARRESTED WITHOUT VALID WARRANT AND UNJUSTLY DETAINED PENDING TRIAL
First of all, Mr. Gharbia was arrested without a valid warrant when his home was searched on 16 October 2021. During the first 24 hours of his detention, he was not informed of his rights or of the reasons for his arrest. The Public Prosecutor launched an investigation against him on 20 October 2021, and he was brought before a judge the same day, in a worrying state. In the absence of a response from the Government, the Working Group considered that Mr. Gharbia's right to be promptly informed of the reasons for his arrest and the charges against him, as required by article 9 (2) and articles 3 and 9 of the Universal Declaration of Human Rights, had been violated.
In addition, Mr. Gharbia was unfairly denied the right to be released pending trial. Indeed, at the time of the source's communication, Mr. Gharbia had been held in pre-trial detention for 18 months. In this respect, the Working Group noted that international standards stipulate that pre-trial detention should be the exception rather than the rule, that it should be ordered for the shortest possible time, and that it should be decided only after an individual assessment of the alternative measures that could be put in place. Considering that the Tunisian authorities had not complied with these standards, the Working Group concluded that there had been a violation of article 9 (3) of the Covenant.
Finally, as Mr. Gharbia was brought before a judge for the first time 4 days after his arrest, the Working Group found that his right to be promptly brought before a judicial authority following his arrest, guaranteed by article 9 (3) of the Covenant, had been violated. In these circumstances, Mr. Gharbia was thus also unable to challenge the lawfulness of his detention, violating his right to an effective remedy under article 2 (3) of the Covenant and article 8 of the Universal Declaration of Human Rights.
Consequently, the Working Group concluded that Mr. Gharbia's arrest and prolonged detention lacked legal grounds, rendering his deprivation of liberty arbitrary within the meaning of category I.
ARRESTED FOR EXERCISING HIS FREEDOM OF ASSOCIATION AND RIGHT TO PARTICIPATE IN THE CONDUCT OF PUBLIC AFFAIRS
The source explained that Mr. Gharbia's detention appeared to stem from the exercise of his fundamental freedoms, in particular his freedom of association and his right to participate in the conduct of his country's public affairs. More specifically, according to the source, Mr. Gharbia was arrested in a broader context of regression of freedoms and the rule of law, where his political opponents used the fight against corruption as a pretext to eliminate him. This attack on Mr. Gharbia is nothing new, as since 2016 he has reportedly been subjected to an online campaign of denigration and defamation by business competitors with direct links to the Tunisian authorities.
Noting the Government's failure to respond to these allegations, the Working Group established that Mr. Gharbia's detention was in fact the result of the exercise of his right to freedom of association and his right to participate in the conduct of public affairs, guaranteed by articles 22 and 25 of the Covenant and articles 20 and 21 of the Universal Declaration of Human Rights - rights that were consequently violated.
The Working Group thus concluded that Mr. Gharbia's detention was arbitrary under category II.
PROLONGED DETENTION CHARACTERISED BY PROCEDURAL FLAWS, POLITICAL INTERFERENCE AND INHUMAN TREATMENTS
As a result of repeated refusals of his numerous requests for release, as well as numerous delays in the legal proceedings against him, Mr. Gharbia has been held in pre-trial detention since his arrest. At the time of the source's communication, he had been held for almost 2 years without trial. The Working Group therefore considered that Mr. Gharbia's right to be tried within a reasonable time, as guaranteed by article 14 (3) (c) of the Covenant, had been violated.
Furthermore, according to the source, the judicial proceedings against Mr. Gharbia appear to have been compromised by numerous political interferences. Among other things, the Tunisian President made several statements expressing his aversion to businessmen such as Mr. Gharbia, and even issued a decree dismissing 57 magistrates, including the one who had originally ordered Mr. Gharbia's release. Considering these facts, as well as the observations of the Human Rights Committee on the occasion of the 6th Universal Periodic Review of Tunisia concerning the interference of the executive power in the administration of justice, the Working Group considered that Mr. Gharbia's right to be tried by an impartial and independent tribunal, protected by article 14 (1) of the Covenant and article 10 of the Universal Declaration of Human Rights, had been violated.
Finally, the source also noted that Mr. Gharbia had been subjected to inhuman and degrading treatment. More specifically, Mr. Gharbia was allegedly chained to his hospital bed on several occasions, preventing him from sleeping, and assaulted by hooded officers when he refused to be handcuffed again. In addition, the source said that separating Mr. Gharbia from his 6-year-old child - of whom he is the only living parent - was a form of psychological torture. Finally, as a sign of protest against this ill-treatment and the isolation he has had to face, Mr. Gharbia has also started several hunger strikes. In view of this, the Working Group recalled that an individual's poor state of health or poor conditions of detention could affect their ability to prepare a defence, and therefore to receive a fair trial.
The Working Group therefore concluded that Mr. Gharbia's right to a fair trial had been violated in a manner serious enough to render his detention arbitrary within the meaning of category III.
CONCLUSIONS OF THE UNITED NATIONS WORKING GROUP AGAINST ARBITRARY DETENTION
In light of the above, the United Nations Working Group on Arbitrary Detention considered that Mehdi Gharbia's detention was arbitrary and fell within categories I, II and III, as his deprivation of liberty was in contravention of articles 3, 8, 9, 10, 20 and 21 of the Universal Declaration of Human Rights and articles 2, 9, 14, 22 and 25 of the International Covenant on Civil and Political Rights.
The Working Group recommended that the Moroccan Government take the necessary measures to remedy Mehdi Gharbia's situation without delay and bring it into line with the relevant international standards. The Working Group also asked the Moroccan Government to ensure that a thorough and independent investigation is carried out into the circumstances surrounding the arbitrary detention of Mr. Gharbia and to take appropriate measures against those responsible for the violation of his rights.
The Working Group considered that, given all the circumstances of the case, the appropriate remedy would be his immediate release and an enforceable right to compensation and other reparation, in accordance with international law.
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