Tunisia: Grant Feminist Activist Pretrial Release

The proliferation of questionable charges against a feminist activist detained since May 19, 2013, suggests that they may be politically motivated. The courts should carefully scrutinize the charges and grant the activist, Amina Sboui, pretrial release, to which she is entitled by law.

Authorities arrested Sboui, also known as Amina Tyler, on May 19 after she wrote "Femen," the name of an international feminist group, on the wall around a cemetery next to the main mosque in the city of Kairouan. She was initially accused and convicted of unlawful possession of a pepper spray, but now faces several additional charges, the most recent added on July 10. If convicted of all the charges, she faces up to nine years in prison. An appeals court has refused to release her, pending trial.

"Prosecutors seem to be piling on serious charges against Amina Sboui that hardly seem to have anything to do with what she may have done," said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. "Amina Sboui could be stuck in pretrial detention for up to 14 months and then serve a long prison term if convicted, for what was a nonviolent - albeit provocative - act."

Sboui, who attracted media attention in March after she posted a photo of herself bare-chested on Facebook, notified several media on May 18 that she was going to Kairouan to protest a rally by members of Ansar Chariaa, a hardline Salafist group.

The public prosecutor initially charged Sboui with unauthorized possession of pepper spray, which she was carrying for self defense, under an 1894 law. On May 30, the Sousse First Instance Tribunal convicted and fined her 300 dinars (US $185).

However, politicians suggested they wanted to see her prosecuted for other offenses. For example, Samir Dilou, the minister of human rights and transitional justice, in a television interview on May 21 said that, "By writing on the wall of a cemetery, Amina committed a serious offense." In a news conference, the Interior Ministry spokesman said that her provocation was an insult to Muslims.

The day of the verdict, the public prosecutor brought new charges against Sboui - "desecrating a cemetery," "belonging to a criminal organization," and "undermining public morals." The court kept her in pretrial custody. The charges were added the day after three European Femen activists protested bare-chested in front of the Tunis Court building in solidarity with Sboui. Activists from Femen, founded in 2008, have staged several protests topless.

On July 10, the public prosecutor in the Sousse First Instance Tribunal informed Sboui's lawyers that he was also charging her with "insulting a civil servant in the exercise of his duty." Her lawyers said they do not yet know the basis for this charge.

Kairouan's governor, shortly after Sboui's arrest and before the prosecutor brought charges against her, said in an interview on the Shems FM radio station that police arrested her because she was bare-chested in front of the Okba Ibn Nafaa Mosque. However, two journalists who accompanied Sboui on the visit to Kairouan, said in media interviews that she did not attempt to undress in public, and the videos they have made available do not show her doing so.

Under the ousted president Zine el-Abidine Ben Ali, authorities used the crime of "belonging to a criminal organization" to go after political opponents.

On June 5, Sboui had her first hearing before the investigative judge of the first instance tribunal of Kairouan on the new charges. The judge ruled that she should remain in pretrial detention, which can last up to 14 months under the code of penal procedure. On July 5, the appeals court in Sousse refused her lawyers' request for provisional release, based on what they alleged to be the "seriousness of the alleged crime."

Sboui's actions, whether they constitute an offense under Tunisia's criminal code or not, are not of the order that should attract pretrial detention, Human Rights Watch said. Human Rights Watch is not aware of any evidence presented to the court that would suggest that Sboui would not turn up for trial or seek to interfere with any evidence if she were released pending trial. The code of criminal procedure allows pretrial detention only in "exceptional" circumstances, to "prevent new offenses, as a guarantee to ensure the execution of the punishment or as a means to protect evidence."

Tunisian authorities must also also guarantee Sboui a fair trial. While they may prosecute her for a recognizable administrative or minor criminal offense under Tunisian law, they should not use vague and overly broad laws to criminalize political activism, as provocative as it may be, Human Rights Watch said. Such use of the criminal law violates the principles of legality and foreseeability - that is the requirement to define precisely all criminal offences so that a person isable to determine when their behavior may violate the law. The charge of "belonging to a criminal organization" is particularly problematic in this respect.

Halim Meddeb, one of Sboui's lawyers, told Human Rights Watch that the case file contained scant evidence of wrongdoing. He told Human Rights Watch that while the file contains three witness statements that Sboui attempted to undress in front of the Okba Ibn Nafaa mosque, all three witnesses withdrew their testimony entirely when they appeared before the investigating judge.

"The court should scrutinize carefully the serious charges against Amina Sboui, which seem motivated more by a desire to punish her provocative activism than by evidence of wrongdoing," Goldstein said.