CAT/C/64/D/810/2017
a remission of tax and a 300 m2 plot of land), offered to resolve the situation with the
authorities by repaying the amount of the tax deduction that he had been granted. The
complainant also claims that during the criminal proceedings she proved that her husband
had received no benefits in kind from President Ben Ali, whereas the National Fact-Finding
Commission was unable to provide any evidence in support of its allegations. 5
2.7
Despite the resolution of the situation through the repayment of the tax deduction
granted to Mr. Gharsallah, on 13 October 2011 chamber No. 19 of the Court of Tunis
issued an international warrant for the arrest of the alleged victim, pursuant to the complaint
filed by the National Fact-Finding Commission.
2.8
Concerning the requirement to exhaust domestic remedies, the complainant alleges
that no effective remedy is available to Mr. Gharsallah, as the Court of Cassation of Rabat
is the country’s highest court and its decisions are final. On 23 November 2016 the Court of
Cassation of Rabat ruled in favour of the extradition request submitted by the Tunisian
authorities.6 As the Court’s decision is not subject to appeal, it became final and binding
once it had been confirmed by order of the Head of Government. 7
2.9
The complainant indicates that the Moroccan authorities could argue that other
remedies are available to the alleged victim, namely an application to an administrative
court to set aside the extradition order of the Head of Government on grounds of ultra vires.
The complainant emphasizes, however, that while this remedy is available in theory, 8 it
may be used only in certain exceptional situations and would not apply in the present case.
She submits that this procedure is never warranted in an extradition case to challenge an act
of the Head of Government, who has full authority to sign extradition orders within the
scope of his prerogatives. The complainant thus maintains that this remedy cannot be seen
as a possible avenue of appeal or as a valid remedy within the meaning of article 22 (5) (b)
of the Convention, as it is unlikely to bring effective relief to the alleged victim. Lastly, she
states that she has not submitted the complaint to any other procedure of investigation or
settlement, in accordance with article 22 (5) (a) of the Convention.
The complaint
3.1
The complainant alleges that the extradition of Mr. Gharsallah from Morocco to
Tunisia would constitute a violation of his rights under article 3 of the Convention.
3.2
She submits that the human rights situation is particularly troubling in the requesting
State, where torture, which had virtually disappeared just after the fall of President Ben
Ali’s regime, is again being practised by the police and the National Guard. She also alleges
that the definition of torture contained in article 101 bis of the Tunisian Criminal Code, as
amended in 2011, is still not in conformity with the one set out in article 1 of the
Convention. The complainant refers to the concluding observations adopted by the
Committee during its most recent review concerning Tunisia, held in June 2016, 9 in which
the Committee notes that the persistence of such practices in Tunisia is due, on the one
hand, to the absence of domestic legal provisions that would enable the authorities to
prevent and punish torture in a manner consistent with their obligations under the
Convention, and, on the other, to the fact that past practices in this regard are still in
evidence. The Committee also expresses concern about the provision, in article 101 quater
of the Tunisian Criminal Code, for the exemption from punishment of public servants and
similar officials who report acts of torture “in good faith”, as this opens the door to
impunity.10
5
6
7
8
9
10
GE.18-15280
The complainant does not attach a copy of any decision related to the proceedings to which she refers.
The complainant indicates that her husband was provided with a copy of the decision, but it is not in
the file.
The complainant does not mention whether the extradition order was issued by the Head of
Government. Nevertheless, the State party confirms in its note verbale of 8 September 2017 that the
order was issued, although it does not specify the date of issuance.
Under article 9 of Act No. 41-90 establishing the administrative courts.
CAT/C/TUN/CO/3.
Ibid., para. 7.
3