The case is "Annie Dabusi, Sami Dabusi and Sarah Dabusi v. Tunisia". The views of the UN Human Rights Committee dated July 14, 2023. Message No. 3703/2020.
In 2020, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to Tunisia.
The authors pointed to a violation by the State party of certain provisions of the Covenant in respect of Gilani Dabusi, who was subjected to arbitrary and unlawful arrest and detention in inhumane conditions and died in prison after being mistreated. The complainants argued that the State party had failed to comply with its positive obligation to protect the life of Gilani Dabusi, in violation of article 6, paragraph 1, of the Covenant, especially since the death occurred while in custody of a man who was in good health at the time of arrest. Gilani Dabusi was detained for 30 months from October 11, 2011 to May 7, 2014 and he was never summoned to a court hearing in connection with the charges against him. The Committee concluded that the facts before it revealed violations by the State party of articles 6, paragraph 1, 7, 9, paragraph 1, and 14, paragraph 3 (c), of the Covenant.
The Committee's legal positions: The Committee refers to its general comment No. 36 (2018) on the right to life, in which it clarified that States parties have an increased responsibility to take all reasonably necessary measures to protect the lives of persons deprived of their liberty, and that the obligation to protect the lives of all detainees includes the obligation to provide They need the necessary medical care and regularly and appropriately monitor their health status (paragraph 7.2 of the Considerations).
The Committee recalls that deprivation of liberty is permissible only in cases where it is carried out on such grounds and in accordance with such a procedure as are provided for in national legislation, and when it is not arbitrary. The concept of "arbitrariness" is not synonymous with the concept of "illegality", but it should be interpreted more broadly, including elements such as improper nature, injustice, unpredictability and non-compliance with judicial guarantees, as well as the principles of reasonableness, necessity and proportionality (paragraph 7.5 of the Considerations).
The Committee draws attention to the fact that the right of the accused to be tried without undue delay is intended not only to prevent a person from being in a state of uncertainty about his fate for too long, but also, if he is detained during the trial, it should be ensured that such deprivation of liberty does not last longer than is absolutely necessary in the circumstances of the case and at the same time, it should serve the interests of justice. In addition, in cases where the court refuses bail, the accused must appear before the court as soon as possible (paragraph 7.7 of the Considerations).
The Committee's assessment of the factual circumstances of the case: the authors' claim under article 6, paragraph 1, of the Covenant has been noted, according to which the State party has not fulfilled its positive obligation to protect the life of Gilani Dabusi. In this case, Gilani Dabusi was diagnosed with end-stage renal failure, and therefore he was transferred to peritoneal dialysis, which was performed 8-10 hours a night 6 days a week, while he suffered cardiac arrest during detention due to the delay of the prison administration with his transportation to the hospital. The Committee took note of the State party's claim that Gilani Dabusi underwent biological tests once a month, while a medical certificate dated 23 February 2013 ordered him to undergo a special consultation with a specialist with a biological test every two weeks. The Committee also noted that after complaints, including a criminal complaint against doctors who should have prescribed the necessary treatment to Gilani Dabusi, no investigation was launched. The Committee reported that the State party had also not launched an investigation in order to examine reports on how Gilani Dabusi was prescribed treatment on which his life depended. In the absence of any information from the State party on follow-up to these complaints, the Committee concluded that it had failed in its duty to protect the life of Gilani Dabusi, who was under State authority, in violation of article 6, paragraph 1, of the Covenant (paragraph 7.2 of the Views).
The Committee has taken note of the authors' claims that the State party violated article 7 of the Covenant in relation to Gilani Dabusi due to the non-compliance of the conditions of his detention with strict sanitary and hygienic requirements for the treatment that he had to undergo daily. The Committee has taken into account the State party's statement that the prison administration has equipped the premises so that Gilani Dabusi can undergo hemodialysis sessions, which require special sanitary and hygienic conditions. The authors disputed these allegations on the grounds that the State party does not provide any evidence to support its claims regarding the training of two nurses and the provision of an equipped room for dialysis. In view of the seriousness of the facts that were reproached to him, and in the absence of more concrete evidence regarding the measures allegedly taken by the State party, the Committee considered that the authors' allegations should be given due consideration, since they were sufficiently substantiated, and concluded that the facts presented to it indicated a violation of Gilani Dabusi's rights under in article 7 of the Covenant (paragraph 7.3 of the Views).
The authors argued that Gilani Dabousi's pre-trial detention, which lasted thirty months in the absence of a court decision on the merits of the charges against him, was not commensurate with the gravity of the crime and the possible danger he could pose, and, at the same time, was contrary to Tunisian law in violation of article 9, paragraph 1, of the Covenant. They explained that, in accordance with article 85 of the Tunisian Code of Criminal Procedure, pre-trial detention can be imposed for a period of no more than 9 months in the case of a minor offense and no more than 14 months in the case of a crime. The State party disputed the allegation of the unlawful nature of the detention, stating that it was in accordance with the Code of Criminal Procedure (paragraph 7.5 of the Views).
The Committee noted that the State party had limited itself to claiming that Gilani Dabusi's 30-month pre-trial detention was lawful, without, however, explaining the violations of the time limits provided for in article 85 of the Code of Criminal Procedure. In addition, the State party stated that during part of the period of his detention, Gilani Dabusi "was in custody at the disposal of the Criminal Chamber", without specifying this concept and without giving its legal basis. Moreover, the judicial authorities have repeatedly extended the pre-trial detention of Gilani Dabusi, without providing the slightest explanation to justify the need to keep him in pre-trial detention and seeing that he suffers from a terminal disease requiring special treatment. The Committee determined that Gilani Dabusi had been held in pre-trial detention for 30 months, even though decisions were made on the complaints of other defendants due to procedural flaws, and no decision was made on the merits of the charges against him. The Committee concluded that, in the circumstances of the present case, the pre-trial detention of Gilani Dabusi was arbitrary and therefore constituted a violation of article 9, paragraph 1, of the Covenant (paragraph 7.6 of the Views).
The Committee took note of the authors' claim under article 14, paragraph 3 (c), of the Covenant and recalled that, in accordance with this article, everyone has the right to be tried without undue delay. The Committee noted that Gilani Dabusi was detained on 11 October 2011 and that no decision had been made on the validity of the charges against him, even in the first instance, until the end of his pre-trial detention on 7 May 2014. Moreover, at least 16 petitions for the early release of Gilani Dabusi or the postponement of hearings in his case to an earlier date were sent to the judicial authorities, one after another, on the grounds that his health was in immediate danger, and all of them were unreasonably rejected and not even taken into account. However, the State party has not provided any specific reasons justifying either the rejection of these requests for release or the delay in the first instance judgement on the charges against Gilani Dabusi. The Committee took into account the fact that, since it was a corruption case involving not only Gilani Dabusi, but also other persons who had exercised their procedural rights, the procedure could take some time. He noted that these procedural objections were not raised by Gilani Dabusi and that he even waived his right to file a cassation appeal in the hope of speeding up the procedures in order to obtain a decision on the merits of the case. The Committee recognized that the delay in reaching a court decision on his case was aggravated by the fact that he was held in pre-trial detention continuously and that Gilani Dabusi had serious health problems. In the light of the information provided to it and in the absence of satisfactory explanations from the State party, the Committee concluded that there had been a violation of article 14, paragraph 3 (c), of the Covenant (paragraph 7.7 of the Views).
The Committee's conclusions: The facts presented revealed violations of articles 6, paragraph 1, 7, 9, paragraph 1, and 14, paragraph 3 (c), of the Covenant (paragraph 8 of the Views).