In its decision of November 28, 2023 in the case of Jilani Daboussi v. Tunisia, the United Nations Human Rights Committee found a violation of the right to life; the prohibition of cruel, inhuman or degrading treatment or punishment; the right to liberty and the prohibition of arbitrary detention; and the right to be tried without undue delay, as guaranteed by the International Covenant on Civil and Political Rights.
Since 2018, Maître Julien MARTIN has been assisting the victim’s family before the United Nations Human Rights Committee, and within the framework of an international rogatory commission opened by the Doyen des Juges d’instruction of the Paris Judicial Court.
- The facts of the case:
Jilani Daboussi was a French-Tunisian doctor, married with two children. He was a member of parliament and rapporteur for the Finance Commission under President Bourguiba from 1981 to 1986, General Secretary of the Doctors’ Union, then Mayor and member of the Executive Board of UTICA (Tunisian Union of Industry, Commerce and Crafts). He was re-elected under President Ben Ali and became General Rapporteur for the State Budget. He also owned a boutique hotel, a clinic and a second clinic under construction.
In 2011, Jilani Daboussi was accused by the Commission for the Fight against Corruption of embezzlement, bribery and favoritism. As such, he was presented as guilty of corruption on the one hand, while answering to President Ben Ali’s orders on the other. Following the publication of articles in newspapers and on television presenting the accusations made against Jilani Daboussi, the latter evoked the idea of a media persecution aimed at discrediting her by her numerous political opponents. In April 2011, some twenty individuals attacked his clinic and the one under construction. The attackers set fire to the facility, destroying medical equipment and personal property such as his car, and vandalizing the family apartment and office.
For these facts, Jilani Daboussi lodged a complaint with the President of the Instance Nationale pour la Réforme de l’Information et la Communication against the media manipulation of which he was the target.
On October 7, 2011, Jilani Daboussi was summoned and arrested on the premises of the Palais de Justice. He was charged with three criminal offences and remanded in custody for a period not to exceed the legal limit of twelve months set by the Tunisian Code of Criminal Procedure.
Jilani Daboussi will now be held in pre-trial detention for thirty months, in conditions that are clearly contrary to respect for human dignity.
Aged 65 at the time of his incarceration, Jilani Daboussi suffered from no health problems apart from diabetes. On January 24, 2012, Jilani Daboussi suffered cardiac arrest after three months in pre-trial detention. The prison authorities did not intervene until it was too late to help him. He was resuscitated in extremis, but the after-effects were severe: he was forced to undergo a heavy chemical treatment which resulted in end-stage renal failure. From then on, Jilani Daboussi was placed on heavy peritoneal dialysis for eight to ten hours a night, six days a week.
On June 23, 2012, Doctor M. O., a specialist in internal medicine, decided to disconnect the dialysis machine to which Jilani Daboussi had been attached at the Charles-Nicolle hospital in Tunis since his cardiac arrest, in the presence of N. H., a doctor at Mornaguia prison, and with the consent of the Ministers of Justice and Health.
That same night, Jilani Daboussi was transferred from the hospital to the detention center, where he had to perform his dialysis sessions on himself, either in his cell, in the presence of his eight fellow inmates, or in a room reserved for the prison administration, in deplorable hygiene conditions and without sterile equipment. However, numerous medical certificates drawn up in 2012 and 2013 pointed out that it was vital for him to be treated in hospital, as the treatment he had to undergo was incompatible with the hygienic conditions in detention as well as with being handcuffed to his bed. The risk of contracting a fatal infection while performing dialysis in such conditions was particularly high. His wife brought the sterilization instruments herself. As a result of these conditions, Jilani Daboussi was frequently unable to carry out his daily dialysis sessions, sometimes remaining for up to three consecutive days without any appropriate treatment or care.
An investigation was launched following repeated requests from the Tunisian Human Rights League. In this context, the Minister of Justice was obliged to request a medical opinion from the head of the nephrology department at the military hospital. The latter concluded that Jilani Daboussi’s state of health was incompatible with his continued pre-trial detention.
On December 29, 2012, Jilani Daboussi fell victim to peritonitis, necessitating his transfer to the intensive care unit at Charles-Nicolle Hospital. He was then transferred to Mornaguia prison, despite conditions that were clearly unsuited to his state of health. Sixteen successive requests for Jilani Daboussi’s early release or for his trial to be brought forward were submitted by his lawyer, with reasons given, so that he could benefit from the medical care required in view of his state of health and the imminent danger. These requests have all been rejected, some without reason, while others have received no written decision.
On March 4, 2013, Jilani Daboussi’s lawyer also lodged a complaint with the Public Prosecutor at the Tunis Court of First Instance against Mr. O., in particular on the grounds that the prisoner’s transfer to Mornaguia prison in conditions inappropriate to his state of health posed a serious threat to his life, and could lead to his death. In September, October and December 2013, and again in January, March and April 2014, the authors filed applications for release on behalf of Jilani
Daboussi. The Tunisian authorities have not carried out any investigation or taken any appropriate protective measures against him.
On May 5, 2014, Jilani Daboussi’s wife managed to get an interview with the Kef court judge, whom she alerted to the deteriorating state of her husband’s health. On May 7, 2014, the judge then took the initiative to examine Jilani Daboussi’s situation and requested his presentation at the hearing, which the prison management refused, as he was untransportable. At the end of the hearing, Jilani Daboussi was finally released at 8.30pm.
Jilani Daboussi died on the night of May 7 to 8, 2014, after thirty months of detention in inhumane conditions.
- Proceedings before national courts :
On December 10, 2014, Samy Daboussi filed a criminal complaint in Tunisia against N. H. for clear-cut failings in the care of his father, repeated acts of ill-treatment, insults in front of witnesses, and the planning and implementation of acts of physical and moral torture. This complaint was not pursued.
In 2015, Jilani Daboussi’s family referred the case to the Public Prosecutor’s Office of the Paris Tribunal de Grande Instance, in order to launch a mutual assistance investigation with the cooperation of the Tunisian authorities. In a letter dated September 12, 2016, the Public Prosecutor at the Paris Court of First Instance confirmed that this request for mutual assistance had indeed been received by the Tunisian authorities since November 13, 2015, that it was in the process of being executed and that the Paris public prosecutor’s office was still awaiting a response from its counterparts in Tunisia.
On January 16, 2017, Jilani Daboussi’s family filed a civil party complaint with the investigating judge of the Paris tribunal de grande instance, in accordance with the provisions of article 85 of the French Code of Criminal Procedure, to denounce the violations suffered by her husband.
- The decision of the United Nations Human Rights Committee :
On March 5, 2019, the family of Jilani Daboussi, represented by Maître Julien MARTIN, lodged a complaint against Tunisia with the United Nations Human Rights Committee.
The applicants claimed that Tunisia had violated articles 6§1 (Right to life), 7 (Prohibition of cruel, inhuman or degrading treatment or punishment), 9§1 (Right to liberty and security), 10§1 (Respect for human dignity in detention), 14 §1 and 3 a) and c) (Right to a fair trial) and 17 (Right to private and family life) of the International Covenant on Civil and Political Rights in relation to Jilani Daboussi.
In its decision of November 28, 2023, concerning communication no. 3703/2020, the United Nations Human Rights Committee found that Tunisia had violated the following provisions:
– Article 6§1 of the International Covenant on Civil and Political Rights (Right to life), due to the lack of investigation following criminal complaints against doctors. The Committee noted that Jilani Daboussi had been diagnosed with end-stage renal failure and placed on peritoneal dialysis for eight to ten hours a night, six days a week, and had suffered cardiac arrest while in detention, due to the delay by prison authorities in transporting him to hospital. The Committee notes the State party’s assertion that Jilani Daboussi received biological tests once a month, whereas the medical certificate of 23 February 2013 prescribed a specialized consultation every fortnight with a biological check-up. It also notes that no investigation has been launched following complaints – including a criminal complaint – against the doctors who were to administer the necessary treatment to Jilani Daboussi. The Committee further notes that the State party has not opened an inquiry to examine the denunciations made about the way in which Jilani Daboussi was given life-saving treatment.
In the absence of any information from the State party on the follow-up to these complaints, the Committee concludes that the State party failed in its duty to protect the life of Jilani Daboussi, who was under the authority of the State, in violation of article 6§1 of the International Covenant on Civil and Political Rights.
– Article 7 of the International Covenant on Civil and Political Rights (Prohibition of inhuman or degrading treatment), due to the incompatibility of the conditions of detention with the strict hygiene conditions required by the treatment to be administered to Mr. Jilani Daboussi. In view of the seriousness of the facts complained of, and in the absence of more concrete evidence as to the measures allegedly taken by the State party, the Committee considers that due weight should be given to the allegations of the complainants.
authors, provided they are sufficiently substantiated.
– Article 9§1 of the International Covenant on Civil and Political Rights (Right to liberty and prohibition of arbitrary detention), since the judicial authorities have repeatedly extended Jilani Daboussi’s pre-trial detention without offering the slightest explanation to justify the need to keep him in custody. On this point, the Committee recalls that deprivation of liberty is lawful only when it is applied for reasons and in accordance with the procedure laid down by domestic law, and when it is not arbitrary. The Committee notes that the State party merely asserted that Jilani Daboussi’s thirty-month pre-trial detention was lawful, without however explaining the contradiction with the twelve-month limit provided for in article 85 of the Code of Criminal Procedure.
The Committee notes that the judicial authorities have repeatedly extended Jilani Daboussi’s pre-trial detention without offering the slightest explanation to justify the need to keep him in pre-trial detention, given that he was suffering from a terminal illness requiring special treatment. The Committee therefore concluded that Jilani Daboussi’s pre-trial detention was arbitrary, in violation of article 9§1 of the International Covenant on Civil and Political Rights.
– Article 14§3 c). of the International Covenant on Civil and Political Rights (Right to be tried without undue delay). The Committee found that Mr. Jilani Daboussi had not been tried for the acts for which he had been detained from October 11, 2011 to May 7, 2014, when his pre-trial detention ended. In addition, no fewer than 16 successive requests for Jilani Daboussi’s early release or for his trial hearing to be brought forward – on the grounds that his state of health was in imminent danger – have been submitted to the judicial authorities, all of which have been rejected without reason or even ignored. The Committee notes that the State party has not put forward any particular reason either for rejecting these requests for release, or for the delay in obtaining a first-instance judgment on the charges against Jilani Daboussi.
The Committee notes that the delay in the trial is exacerbated by the fact that Jilani Daboussi’s pre-trial detention was uninterrupted and that he suffered from serious health problems.
In view of the information submitted to it, and in the absence of satisfactory explanations from the State party, the Committee concludes that there has been a violation of article 14§3 c) of the International Covenant on Civil and Political Rights.
This decision by the United Nations Human Rights Committee marks a decisive turning point in the pursuit of the proceedings underway before the Tunisian courts, as well as in the context of the international rogatory commission, still underway, before the Doyen des Juges d’instruction of the Paris Judicial Court.
Find below the decision of the United Nations Human Rights Committee:
