Since the uprising that ousted the government of Zine El Abidine Ben Ali in 2011, Tunisian authorities have repeatedly expressed their commitment to upholding the rule of law and international human rights standards, and international media outlets have dubbed Tunisia the biggest or only success story of the “Arab Spring”. However, the security threats that the country has faced since 2011 and the authorities’ response to these have undermined attempts to break with the patterns of violations that were common pre-2011.
In the context of a “national plan to combat terrorism”, the authorities have imposed executive border control orders that have restricted the right to freedom of movement of thousands of individuals since 2013.In many cases, these have amounted to de facto travel bans. Amnesty International’s research concludes that the authorities have imposed these measures in a discriminatory manner based on appearance, religious practices or previous criminal convictions and without providing a justification or obtaining a court order. The measures have negatively affected individuals’ livelihoods or have involved their arbitrary arrest and short-term detention. Read the full report in PDF here.
This [S17] is destroying my life.Mohamed, 34, Tunisian
People AFFECTED BY THE S17 MEASURE
The S17 and the “National Plan to Combat Terrorism”
Since 2011, armed groups affiliated with al-Qa’ida, Ansar al-Shari’a and the armed group calling itself the Islamic State (IS) have claimed responsibility for a series of fatal attacks in Tunisia. The attacks have killed dozens, including members of the public, tourists and members of the security forces. The Tunisian authorities initially declared a state of emergency in 2011 and repeatedly renewed it until 2014, when it was allowed to expire. They reimposed it in 2015 and have regularly renewed it since through presidential decrees. Its provisions authorize the Ministry of Interior to restrict certain rights, including the rights to freedom of expression, association and movement.
Amnesty International condemns unreservedly all attacks by armed groups that target civilians and recognizes the duty of the Tunisian authorities to protect their own population from such actions and to prevent them happening abroad. However, the implementation of the state of emergency and other security measures have undermined human rights and the rule of law. The implementation of these measures has often been arbitrary, discriminatory and disproportionate, and has led to a range of human rights violations, including arbitrary restrictions on freedom of movement, torture, arbitrary arrests, and searches of homes without warrants.
A particular security concern of the authorities relates to the several thousand people from Tunisia who have left the country to join IS, particularly in Syria. Between 6,000 and 7,000 Tunisians were estimated to have joined the group as of December 2015.
In 2013, in an effort to contain the flux, the Tunisian Ministry of Interior put into effect a set of measures to monitor the movements of individuals it suspected of affiliation with “jihadi groups” and believed might attempt to join armed groups in Libya, Iraq or Syria and control them at the country’s borders. Known as S17, from the French word “signalisation” (signalling) and the number of the directive, the measures were instituted as part of a “national plan to combat terrorism”.
The full extent to which the authorities have applied S17 measures has not been made public. The only information provided by the government in this regard is that, as of January 2018, the Ministry of Interior had prevented 29,450people from travelling to conflict areas on the basis of S17 measures since 2013.
Human Rights Violations of S17
Arbitrary restrictions on the right to freedom of movement
Amnesty International conducted research into the application of S17 measures between April 2017 and August 2018. It documented 60 cases of individuals who have faced restrictions of their right to freedom of movement within the country or have been banned from travelling abroad on the basis of S17 measures.
Amnesty International’s research concludes that the application of S17 measures has resulted in arbitrary restrictions on the right to freedom of movement of people within the borders of the country as well as on travel abroad. The issuance of S17 border control measures is based on executive orders issued by the Ministry of Interior without any form of judicial oversight. The authorities have also applied restrictions on movement in a discriminatory and disproportionate manner.
In some cases, the authorities appear to have targeted individuals subjected to S17 measures on the basis of their perceived religious beliefs or practices, physical appearance, such as having a beard and wearing religious clothing, or previous convictions without providing any evidence linking them to armed group activity.
Such measures have had a significant impact on the human rights of those targeted, including the right to a family life and employment, the right to a private life and the right not to be subjected to arbitrary arrest and detention.
Ministry of Interior officials have repeatedly stated that S17 measures apply only at Tunisia’s border crossing points, such as airports. However, Amnesty International’s research shows that police and National Guard officers sometimes use S17 measures within Tunisia’s borders to restrict individuals’ movement between cities in a manner that often amounts to an arbitrary restriction on freedom of movement. In 37 cases documented for this report, individuals discovered they were subjected to S17 measures during routine police or National Guard identity checks while travelling within Tunisia, sometimes within their cities or neighbourhoods.
The S17 border control measures are not explicit travel bans, but sometimes amount to de facto ones. Amnesty International has documented in depth 23 cases of persons who were arbitrarily banned from travelling abroad on the basis of S17 orders.
Tunisia’s responsibility to prevent its nationals from travelling to join the ranks of armed groups abroad must not result in arbitrary restrictions that deprive individuals of their right to freedom of movement. Border control measures that are not based on clear and specific legal provisions and that cannot be effectively challenged constitute unlawful restrictions, and thus violations of the right to freedom of movement. The Tunisian authorities should ensure that all emergency measures taken are prescribed by law and comply with the principles of necessity and proportionality; publish in full and make easily accessible to the public all administrative measures directly impacting individuals’ human rights, including S17 border control measures; and reform border control measures in order to ensure clear and effective oversight by the judiciary.
Impact on lives and livelihoods
Amnesty International has documented the cases of five people whose lives have been seriously affected by S17 ordersimposed on them without justification. Three of the individuals depend on cross-border trade for their livelihoods; two of them can no longer earn a living because they have been prevented them from leaving the country, while the third has been subjected to detention and repeated delays and questioning when travelling, interfering with his work. For a fourth individual, the S17 order imposed on him had had a dire effect on his job at an airport. For a fifth, it had arbitrarily restricted his right to a family life by preventing him from travelling abroad to see his family and care for his ill mother.
“Karim”, a 28-year-old engineer, told Amnesty International that being subjected to S17 restrictions had had a dire effect on his work in the aeroplane maintenance department at an airport. He told Amnesty International he believed S17 measures were taken against him after two police officers who worked in the same airport as him falsely accused him of religious extremism in reprisal for an argument he had with them in January 2017. The next month, airport authorities informed him that he could no longer access the areas of the airport where he formerly worked because they were within the border zone and he had an S17 flag next to his name. He was asked to return his access badge.
“Now I can no longer do my job. Since I can’t access the area where I am supposed to work on the aeroplanes, I have been transferred to the administration, where I have nothing to do. I do not even have an assigned desk. It has devastated my professional career. I don’t know what I should do to prove that the S17 order against me is based on false intelligence… from police officers with a vendetta against me.”
Najem, a 59-year-old truck driver from Hidra, a small town near Tunisia’s border with Algeria, told Amnesty International that he was the sole breadwinner for his family and had made a living transporting goods for small businesses across the border for 20 years before he discovered that he had been subjected to the S17 measure. On 2 October 2016, border police officers asked Najem to wait at the Hidra crossing point as he attempted to leave Tunisia and, after roughly 90 minutes, told him he was no longer allowed to travel. The officers did not provide Najem with any written document and gave no indication that any court order had been issued banning him from travelling. Najem said he tried to travel to Algeria again in 2017, but was again prevented from leaving Tunisia. He told Amnesty International that, because officers provided no justification for the decision, he could only guess at what the reason for it was. He said that, in 2005, a court sentenced him to two years’ imprisonment on charges of smuggling for attempting to carry a person who lacked proper travel documents from Tunisia to Algeria. He served the sentence. He said the fact that he was subjected to a S17 measure had made his peers suspicious of him and unwilling to hire him for other work, as they assumed, given the stigma attached to the measure, that he might be a suspect in a terrorism case.
Process to lift the measure
I don’t understand why they would prevent me from working. I have been crossing the Tunisian-Algerian border back and forth for a very long time. It’s my only source of income. Algeria is closer to me than Tunis. Now I am living off relatives and don’t know what I should do.Najem, 59, truck driver from Hidra, Tunisia
Harassment during travel within Tunisia
Senior Ministry of Interior officials have repeatedly stated that S17 border control measures are intended to apply only at Tunisia’s borders and airports. Responding on 10 February 2018 to a lawmaker’s question in a plenary session of parliament, then Minister of Interior Lotfi Brahem, said: “I insist on clarifying to you that the borders measures are not applied outside of border areas.” In an interview with Amnesty International on 23 January 2018, a senior Ministry of Interior official who preferred to remain anonymous said: “Officers outside of border areas and border checkpoints do not have the access to know if a person is under border measures or not. The code is not supposed to show on their systems.”
Nonetheless, Amnesty International’s research shows that Ministry of Interior officials have routinely used S17 orders to restrict individuals’ movement between cities within Tunisia’s borders in a manner that sometimes amounts to an arbitrary restriction on freedom of movement.Samir Ben Amor, a lawyer who told Amnesty International he was representing at least 20 plaintiffs subjected to S17 orders, said that there was no legal basis for using such border control measures inside the country: “The use of S17 orders inside the country is arbitrary, and there is no legal basis for it in the Passport Law or the Emergency Decree. We cannot identify any legislation that could provide for the use of such measures or regulate them procedurally.”
The use of S17 orders inside the country is arbitrary, and there is no legal basis for it in the Passport Law or the Emergency Decree. We cannot identify any legislation that could provide for the use of such measures or regulate them procedurally.Samir Ben Amor, Tunisian lawyer
None of the 60 people whose cases Amnesty International documented for this report were notified that they had been subjected to S17 measures before they came into contact with security forces. Since the declaration of a state of emergency in November 2015, random identity checks by police or the National Guard in the street have become more frequent, and it is often in these routine checks that individuals discover they have been subjected to the restrictions. In 37 of the 60 cases documented by Amnesty International, the individuals concerned only discovered they had been subjected to S17 measures during such checks by the police or National Guard while travelling within Tunisia.
Police officers often stop public buses and taxis at checkpoints on roads between cities and towns, particularly the roads to border towns, and ask passengers to present their personal identification documents. Men with long beards and women who wear niqabsoften report being singled out from the outset. In cases where the code S17 appears when police run a check on someone’s identity, police typically remove the individual from the vehicle and question them on the side of the road or at a nearby police station, sometimes for several hours. Contrary to the Ministry of Interior’s assertions that these checks are based on serious security concerns and are applied only at Tunisia’s borders, Amnesty International’s research suggests that, in many cases, restrictions on freedom of movement are enforced in a discriminatory manner based on security officials’ assumptions regarding individuals’ religious beliefs and practices.
According to testimonies, police officers often create what is called an “information card” on individuals subjected to S17 measures following their detention for questioning. This means that the officers open a file on the person containing information about them such as their profession, marital status and place of residence, as well as their religious practices, reading habits and social activities. Twenty people Amnesty International interviewed about their experiences of being subjected to S17 restrictions said that security officials repeatedly questioned them about their religious practices and beliefs, how their spouses dressed and what they read. The routine use of such questions is invasive and discriminatory.
Najmeddine, a 42-year-old fisherman and father of four who lives in a coastal city in Tunisia, has routinely been subjected to arbitrary movement restrictions under an S17 measure since 2016. Najmeddine told Amnesty International that the Ministry of Interior’s Anti-Terrorism Brigade summoned him to Tunis in June 2016 for questioning after a man he used to work with travelled to Syria, allegedly to join IS. Soon after, police began pulling Najmeddine aside for questioning every time they checked his identity at routine stops. The first time this happened, in August 2016, police patrolling his town stopped him for a routine identity check and brought him to the local police station for three hours of questioning before releasing him. An acquaintance who works at the police station later told him that this was because his name was flagged under the S17 directive. Najmeddine told Amnesty International that, every time a police patrol had stopped him since, they had taken him to the police station to question him for roughly 30 minutes about his movements before releasing him. He said that at no time had the officers questioning him ever disclosed the reasons for his treatment and that the Ministry of Interior had not responded to a complaint he sent on 23 August 2017. He explained to Amnesty International:
“I have never been arrested before, let alone convicted, and they never tell me why I was placed under this measure. At a certain point, they even stopped asking questions; they would just ask me to wait, then let me go. It’s just absurd. I don’t know what I did. If I did do something wrong, I implore them to put me in prison instead of living with this anxiety all the time.”
READ AMNESTY INTERNATIONAL’S FULL REPORT
They never tell me why: Arbitrary restrictions on movement in Tunisia
Obstacles to challenging S17 Orders
Individuals subjected arbitrarily to S17 measures face serious difficulties when seeking a remedybecause they do not receive written notification of the measure or the justification for it and because such measures are based on an executive security order from the Ministry of Interior. Without knowing what evidence, if any, led to the S17 measure, those affected face an uphill struggle in challenging it.
Since S17 measures are administrative orders issued by the Ministry of Interior, administrative courts are the ones competent to review complaints against them. Until February 2018 there was one Administrative Court in Tunis. Since then regional administrative courts have been set up and become operational. To date, neither the Administrative Court in Tunis nor any of the newer regional administrative courts has issued a final verdict in any appeal of an S17 measure, meaning there is no jurisprudence on the measure’s legality.
Individuals appealing against administrative decisions may submit requests for an administrative court to suspend the implementation of such decisions until it issues a verdict on the case. Such requests should be treated with urgency and decisions are taken by the head judge of the administrative court. According to lawyers consulted by Amnesty International during its research, decisions on requests for temporary suspension of orders should be taken within a few months, but in practice have often taken more than a year in the case of requests involving S17 measures.
In three cases that Amnesty International has documented, the Tunis Administrative Court ordered the Ministry of Interior to suspend plaintiffs’ S17 measures pending a final verdict on complaints they had made against the orders. But in none of these cases has the Ministry of Interior provided the individuals with confirmation that they were no longer subjected to S17 measures.
Mohamed Guerfel, who has been subjected to an S17 measure since 2014, filed a petition with the Tunis Administrative Court on 29 December 2016 to lift the restrictions. On 14 February 2018, the court ordered the Ministry of Interior to suspend the implementation of travel restrictions placed on him as a result of his S17 measure. Though the Court notifies the Ministry of Interior of its decisions as a matter of procedure, Mohamed Guerfel also sent a copy of the decision through a notary to the ministry on 28 March 2018. To date, he has received no indication that the Ministry has complied. Mohamed Guerfel told Amnesty International that a relative who is a police officer regularly ran a check on his ID to verify if the order had been lifted and had so far seen that it was still in place.
One mid-level officer from the Ministry of Interior’s Border and Foreigners Agency who works at an airport told Amnesty International that he could not allow travellers with S17 measures to pass, even if they had court orders suspending or lifting travel restrictions:
“Sometimes people bring their lawyers with them to the airport to argue that the measure against them is illegal. Some even had court orders in their favour, but we in the airport still have to consult with the central administration before we let the person through if they have border control measure S17 against them. We cannot make the decision to let a person travel if the authorities that started the S17 against them say that we should not. Whose responsibility would it be if that person then engaged in terrorist activity when they left the country? There must be a reason behind the ban, and we have to respect that.”
Some individuals have appealed directly to the Ministry of Interior to seek the repeal of an S17 measure, but Amnesty International is not aware of any case in which the Ministry has responded. Fourteen of the people Amnesty International interviewed for this report said they had petitioned the Ministry directly to be removed from the list of individuals subjected to S17 measures; all said they had received no reply. For example, “Lotfi” said that he sent three petitions to the Ministry of Interior during 2016 requesting the border control measure against him be lifted, but had not received any response.
Article 24 of the Tunisian Constitution provides that citizens have the right to choose their place of residence, to free movement within the country, and the right to leave the country. Moreover, Article 49 of the Constitution provides that any restrictions imposed on human rights guaranteed in it must be based on law, “must not compromise the essence of those rights” and “must not be imposed except when necessary in a civil and democratic society to protect the rights of others, public order, national defence, public health or public morals”. Further, the Constitution provides that such restrictions “must be proportionate to the intended objective”. However, the fact that the Tunisian authorities have not yet set up a constitutional court means that it is currently impossible to challenge the constitutionality of S17 measures in the courts.
Even though Tunisia has not notified the UN Secretary-General of any derogations made from provisions of the ICCPR during the state of emergency, official statements often refer to the state of emergency to justify restrictions on the enjoyment of human rights such as the right to freedom of movement. The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has stated:
“States utilizing counter-terrorism laws that result in states of emergency must maintain robust and independent judicial access and oversight. Judicial oversight is necessary at all phases of the emergency powers practice and the longer the emergency, the more compelling and important the need for judicial review.”
The Ministry of Interior’s imposition of restrictions effectively amounting to a travel ban and restrictions on domestic travel without the judicial authorization required by Tunisia’s Law on Passports effectively gives police sole power to impose bans on travel. This and the Ministry’s failure to inform individuals that they have been subjected to such restrictions run contrary to Tunisia’s commitments under Article 12 of the International Covenant on Civil and Political Rights. The lack of effective judicial oversight of these measures has further stymied attempts to challenge them.
Amnesty International’s research provides strong indications that the Tunisian Ministry of Interior has abused emergency measures adopted to counter security threats by arbitrarily restricting the right to freedom of movement of thousands of individuals.
In the cases Amnesty International has documented, S17 orders have targeted people arbitrarily, on the sole basis of their perceived religious beliefs or practices, physical appearance or previous convictions without providing any evidence linking them to armed group activity.
Amnesty International recommends that, in order to ensure that the human right to freedom of movement is respected and protected, the Tunisian government should take the following steps:
- Ensure that all emergency measures taken by the government are prescribed by law and comply with the principles of necessity and proportionality as required under international human rights law;
- Ensure that all restrictions imposed on freedom of movement by the executive must be justified, have a clear legal basis and subject of judicial oversight and appeal;
- Ensure regular review, including by a judicial entity, of all cases in which administrative measures restrict individuals’ rights, including to freedom of movement;
- Ensure, including through the allocation of resources, that courts respond promptly to petitions appealing S17 measures.