CAT/C/64/D/810/2017
3.3
The complainant also notes that neither police custody nor decisions of the public
prosecutor to extend police custody for up to 12 days may be challenged under Tunisian
law, and indicates that this could violate her husband’s right to a fair trial if he is extradited.
She recalls that the Committee raised this issue in 2015 and that the State party has not yet
taken action to address this breach of its international obligations. 11 The complainant
submits that the situation is all the more troubling in that the Committee has noted the
existence of reports that the judiciary is still subject to considerable influence of the
executive branch.12
3.4
The complainant further alleges that the extradition request from the Tunisian
authorities is politically motivated. The National Fact-Finding Commission, which was
established just after the change of political regime in 2011, had the stated aim of
combating misappropriation and corruption, real or perceived, on the part of members of
the former regime. However, the complainant maintains that the Commission has been used
exclusively as an instrument of political repression and that the extradition request from the
requesting State is of a political nature. For this reason, she states that she fears that her
husband will be in danger of being tried unfairly and subjected to torture or cruel, inhuman
or degrading treatment if he is handed over to the Tunisian authorities.
3.5
In view of this information and the political nature of the charges brought against
her husband by the requesting State, the complainant alleges that Mr. Gharsallah is in
serious danger of being subjected to torture. She also fears that he would be forced to sign a
confession under torture to validate the charges against him. In this regard, she notes that,
in 2016, the Committee expressed concern at the absence of cases in which courts have
declared evidence obtained under torture or duress to be null and void.13
State party’s observations on admissibility
4.1
On 22 May 2017, the State party submitted its observations on the admissibility of
the present communication. Firstly, the State party points out that, under the Moroccan
Code of Criminal Procedure, an application for revocation may be filed in respect of the
Court of Cassation decision of 23 November 2016 in favour of the alleged victim’s
extradition.14 The State party sets out a complete list of the situations in which an
application for revocation may be filed:15 judgments based on false statements made in
evidence; judgments vitiated by manifest material errors; failure to rule on a plea; failure to
provide a reasoned judgment; and judgments finding that an application is inadmissible or
time-barred on the basis of information shown to be false by authentic documents.
Accordingly, the State party submits that the complainant has not exhausted all domestic
remedies and that the Committee should therefore declare the complaint inadmissible.
4.2
Secondly, the State party argues that the extradition request from Tunisia can by no
means be described as political in nature. The arrest of the alleged victim on 21 September
2016 pursuant to a decision taken by the Crown Prosecutor of the Court of First Instance of
Tangier on 22 September 201616 was entirely lawful, as it was based on an international
arrest warrant issued by the Tunisian judicial authorities on 13 October 2011. The State
party recalls that the alleged victim had the opportunity to challenge that decision before
the Court of Cassation, which rejected his claims. Furthermore, the State party points out
that the acts of which the alleged victim stands accused concern a public official’s taking
advantage of his or her position in order to benefit therefrom and to collect undue interest;
these acts are criminalized as breaches of Tunisian criminal law that are not subject to a
statute of limitations.
4.3
Finally, concerning the alleged risk of torture that would make extradition a
violation of article 3 of the Convention, the State party submits that, during Mr.
Gharsallah’s hearing before the Crown Prosecutor of the Court of First Instance of Tangier,
11
12
13
14
15
16
4
See CAT/C/TUN/Q/3, para. 3 (a), and CAT/C/TUN/Q/3/Add.1, para. 3 (a).
See CAT/C/TUN/CO/3, para. 17.
Ibid., para. 23.
Articles 563 and 564 of the Code.
The situations are set out in article 563 of the Code of Criminal Procedure.
The date indicated by the State party is the day after the date of arrest, 21 September 2016.
GE.18-15280