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W6nnews.com  ==== وطن === تاريخ النشر – 2026-02-11 23:55:00

*Written by Fahem Boukados Tunisia has never known an existential conflict like the one it has known since the terrorist situation escalated on its soil immediately after the revolution, not only because of the phenomenon’s ramifications, its regional and international depth, and its ability to adapt, change, and develop in all circumstances and climates, but because all of these elements combined were present in a phenomenon that has the intrinsic potential for development, having accumulated, over decades, amazing flexibility in formulating tactics and strategies appropriate to every circumstance. But the existential dimension of Tunisia’s battle against terrorism is getting deeper due to the weakness of the security and intelligence services, which has turned it into a soft ground susceptible to intense targeting, as well as the reality of the Libyan neighborhood, which has turned into a guest house, in the Afghan sense, as an incubator for training camps for Tunisian terrorists. Therefore, political decision-makers were forced, under the pressure of terrorist operations and the security services together, to review national ambitions in the field of combating terrorism, by taking them to the minimum achievable. After the official discourse tended to declare the necessity of eradicating terrorism, it redirected its focus towards reducing it and stopping its expansion towards cities. The Tunisian terrorist situation is not devoid of peculiarities, whether in the field of terrorism laws or at the level of the agencies charged with combating it, whose origins were accompanied by structural and functional distortions that allowed for multiple fronts of penetration, and also due to the peculiarity of their origins, as after residing under skies near and far, the Tunisian terrorist remnants returned and began to Writing its biography within its own organizations in Tunisia. But what did judge and lawyer Ahmed Sawab have to do with the past of the terrorist movement and its subsequent outcomes? The laws with which Ahmed Sawab was tried have a special history, which must be delved into in order to determine the deviation of the judicial authority in the special text contained in Basic Law No. 26 of 2015 dated August 7, 2015. Since the late 1980s, terrorism has turned into a permanent phenomenon inherent in societies with an ideological veil. Although there is no agreement on its definition or classification, it can be recognized from the beginning that it is an individual or collective project that aims, by its nature or in its context, to spread terror among the population or force a state or international organization to do or omit something within their relations.[1]Terrorism laws in Tunisia went through two phases, as they moved from a semi-specialized judiciary to a fully specialized judiciary. Terrorism in a semi-specialized judiciary: The path of criminalizing the terrorist phenomenon went through multiple phases, as it was initially considered an ordinary crime within the framework of public law.[2]Then, legislation developed, starting from the enactment of Law No. 75 of 2003, towards recognizing the specificity of terrorist crimes, without completely transforming into a specialized and independent judiciary, which later allowed the legislative text to be exploited to expand the circle of criminalization and punishment, which affected a large number of detainees under its banner.[3]This law also introduced, for the first time in the Tunisian legislative system, the crime of praising terrorism[4]It is a vague and non-specific term that has been used in many cases to restrict freedom of expression. And because this law, as stated in its title, was enacted in order to support the international effort to combat terrorism within the framework of Tunisia’s international obligations.[5]It ostensibly abolished the death penalty[6]However, in reality, he left a small window hidden from the eye of the international observer to apply that punishment when necessary[7]This is what actually happened when the court ruled the death penalty for Saber Al-Raqoubi in the case known as the Suleiman case.[8]One of the most important things that can be noted in Law No. 75 of 2003 is that it limits the courts’ consideration to the Tunis Capital Court whenever the matter is related to a terrorist crime. Thus, it has taken an important step towards a specialized and independent judiciary. However, the procedures applied during investigation and trial remained, for the most part, public law procedures.[9]However, it can be considered that Law No. 75 of 2003 has introduced into the content of the trial several mechanisms that are unprecedented in the courts, including what is called the protection system for witnesses, judges, and members of the public prosecution in charge of combating terrorism, which is a system that specifically aims to protect witnesses when giving testimony. The protection system: The protection system is a set of procedures aimed at concealing identity, and revealing it is considered a traceable crime, and among its procedures: the system of giving testimony in a confidential framework. Identity: It has become possible to receive the witness’s statements without recording his name in the records, and without him conducting a confrontation with the accused, in order to protect him from targeting and retaliation.[10]. This mechanism has been applied in many terrorist cases[11]. Despite the objections related mainly to the conditions of a fair trial and the right of the accused to know the witness and to discredit him when necessary, the Tunisian legislator reaffirmed them in Basic Law No. 26 of 2015, while surrounding it with some guarantees.[12]Courts with masked judges: In Law No. 75 of 2003, the legislator chose a system of strict protection for judges assigned to terrorist cases, through the possibility of issuing rulings that do not bear the names of the person who issued them on their faces, nor the identity of the public prosecution representative who was present, nor the clerk of the session, nor the place where the trial was held itself.[13]. Rather, judges can, in exceptional circumstances, hide their faces and conduct the session with masked faces[14]Basic Law No. 26 of 2015 preserved that system, especially by concealing the identity of the judicial body when issuing rulings, a situation to which the Tunisian judiciary has never resorted. Gathered in Tunisian prisons during that period, between 2004 and 2010, for the first time, most of the terrorists from near and far heavens who had been returned by exile to Tunisian prisons, after they had been extradited by many countries. Inside the April 9 prison. In Tunis, and later in Mornaguia prison, Tunisian terrorists finally found ample time to think, dialogue, and establish a flesh-and-blood Tunisian terrorist movement.[15]Its results will soon appear in the early stages after the fall of the Ben Ali regime[16]Following the revolution, and with the expansion of the terrorist operations that began on May 16, 2011, the legal mentality fell into a state of severe confusion. On the one hand, Law No. 75 of 2003 was considered unconstitutional, did not guarantee the conditions for a fair trial, and violated the rights of the accused. According to it, all detainees were released within the framework of a general legislative amnesty.[17]On the other hand, it was approved to try those accused of all terrorist operations that took place after the revolution up to August 7, 2015, the date of the issuance of Basic Law No. 26 of 2015. After a discussion that did not exceed three days, the Assembly of People’s Representatives in Tunisia approved not only the expansion of criminalization and punishment, but also the tightening of methods and means that limit freedom, creating for the first time in the history of Tunisian legislation a judiciary specialized in terrorist crimes. We will limit ourselves to examining the protection mechanisms and their relationship to the Ahmed Sawab file. Protection mechanisms in the judiciary specialized in combating terrorism and exceeding their conditions in the Ahmed Sawab file: Due to the seriousness of the role assigned to the agencies charged with combating terrorism, Basic Law No. 26 of 2015 imposed the adoption of special protection mechanisms. However, the question posed at this level of analysis is the following: Is protection for judges a mechanism that covers them as soon as they are chosen to work in the judiciary to combat terrorism, and subsequently becomes a legal privilege over their colleagues of the same rank and seniority, or is it instigated protection preceded by necessary necessary procedures attached to it? Automatic protection or instigated protection?[18]Chapter 73 of Basic Law No. 26 will answer this question. The legislator was explicit when it required the possibility of taking exceptional measures in cases of significant danger, with the necessity of guaranteeing the right of the accused to defend himself. The previous chapter also stipulated a distinction between the measures taken to protect judges in the event of significant danger, and the case of exceptional cases when there is a real and tangible danger, which means that protection must be raised according to the situation of the judges to be protected, and that it does not include others. Of the judges working in the judicial pole to combat terrorism, which confirms that it is a raised protection and not an automatic protection. Returning to Ahmed Sawab’s file, the head of the criminal department in the judicial pole was not included in the protection measures when examining the conspiracy file, and therefore the application of the penalty of Article 78 of Basic Law No. 26 was not successful in his case, as that penalty is prescribed for revealing data related to the persons in whose respect a decision was made to protect them after determining the state of grave danger. It is not possible to Punishing Ahmed Sawab for crimes of revealing protection unless a decision is taken to hide. There is no punishment for disclosure as long as there is no decision to hide. Referrals:[1] A definition contained in Chapter 13 of Basic Law No. 26 of 2015 dated August 7, 2015, relating to combating terrorism and preventing money laundering.[2] The terrorist crime was regulated in the Penal Code under Article 52 bis, which was included in it pursuant to Law No. 112 of November 22, 1993, and was later repealed by Law No. 75 of 2003.[3] A report issued by Amnesty International on November 2, 2007, on the occasion of the twentieth anniversary of the Tunisian President’s accession to power, contained on the organization’s official page.[4] It was stipulated for the first time in Chapter 12 of Law No. 75 of 2003 relating to combating terrorism and preventing money laundering.[5] This is what was stated in the title of the law itself when it was published in the Official Gazette after the House of Representatives approved it.[6] Chapters 7 and 9 stipulate that the maximum penalty for terrorist crimes is life imprisonment.[7] However, he made it impossible to apply the provisions of the Penal Code to terrorist crimes, which later allowed death sentences to be issued, as was the case in the Suleiman case.[8] The events of Suleiman’s case took place during December 2006, when a Tunisian terrorist group infiltrated a mountainous area south of the Tunisian capital and clashed with the security forces, which they quickly managed to control.[9] Regular criminal procedures were used when investigating and investigating terrorist crimes, and no investigative judges or specific criminal departments were allocated to decide on these cases.[10] The witness protection system was stipulated in Articles 48 to 54 of Law No. 75 of 2003, with the aim of concealing their identity.[11] This mechanism was used to protect witnesses in the case of the martyr Muhammad Al-Brahmi, who was assassinated on July 25, 2013, in order to protect the identity of the security personnel who gave testimonies condemning influential directors of the Ministry of Interior.[12] In particular, the accused has the right to know the identity of the witness, and when the investigating judge refused to enable him to do so, he was granted the right to appeal the decision to refuse to reveal the identity of the witness. This right is stated in Chapter 76 of Basic Law No. 26 of 2015.[13] Chapter 48 of Law No. 75 of 2003 dated December 10, 2003 required taking measures to protect all those entrusted by law with the task of inspecting and reprimanding crimes, including judges, judicial police officers, and public authority agents. Protection measures also include judicial assistants, victims, witnesses, and anyone who has, in any way, undertaken the duty of notifying the relevant authorities of the crime. These measures also apply, when necessary, to family members of the persons referred to, and any of their relatives who fear being targeted.[14] Chapter 49 of Law No. 75 of 2003 stipulates the following: “The investigating judge or the president of the court, depending on the circumstances, and in cases of significant danger, and if necessary, may conduct investigations or authorize hearings to be held in a place other than their usual place, while taking the necessary measures to guarantee the right of the accused to defend himself.”[15] Initial Criminal Judgment No. 28654 issued by the Fifth Criminal Circuit of the Anti-Terrorism Judicial Pole on 03/01/2016, in which 73 leaders of the Ansar al-Sharia organization were tried in the crime of assassinating the First Undersecretary of the National Guard, Anis Al-Jalasi, on December 10, 2012.[16] The announcement of the establishment of the Uqba bin Nafi Brigade in the Chaanbi Mountains during the month of March 2011, and the discovery of a letter of allegiance to the Emir of Al-Qaeda in the Islamic Maghreb, Abdelmalek Droukdel, among the documents of the Indictment Chamber No. 91547 dated 03/06/2014.[17] Decree No. 1 of 2011 dated February 19, 2011, relating to general amnesty.[18] Chapter 71 of Basic Law No. 26 stipulates the following: “Measures shall be taken to protect everyone entrusted by law with the task of inspecting and reprimanding the terrorist crimes stipulated in this law, including judges, judicial police officers, military justice police officers, customs agents, and agents of a public authority.”