On 16 July, in what observers in Tunisia have called an “unprecedented decision,” the Tunisian administrative court suspended the detention of 22 migrants detained arbitrarily at the El Ouardia detention centre. The decision comes after reports of hunger strikes at El Ouardia and calls from civil society organisations for authorities to clarify the legal basis for detainees’ continued detention (see the 5 May and 18 April Tunisia updates on this platform). The court found that the detention measures were contrary to Tunisian law as well as the country’s commitments under international human rights treaties, including the International Covenant on Civil and Political Rights and the Convention against Torture.
In a press release that published in the days before the court decision (13 July), the Forum Tunsien pour les Droits Économiques et Sociaux (FTDES), a Tunis-based research and advocacy group that has long documented immigration detention issues in the country, along with other NGO partners (OMCT, ASF, Terre d’Asile), said: “The arbitrary detention of migrants at Ouardia symbolises the flaws of the rule of law” in Tunisia.
Recalling the principle that any deprivation of liberty must be based in law, the tribunal opined that the deprivation of liberty of the 22 migrants did not meet the essential conditions required by the law. In effect, the migrants must be immediately released. In the court application, the lawyers for the migrants had denounced the fact that the migrants had been detained without any legal procedure, any judicial control, without having access to a lawyer, and without written notification of the basis of their detention in a centre which is not even officially recognised as a place of deprivation of liberty. Accordingly, the court found the situation amounted to arbitrary detention, in violation of international human rights law and the Tunisian Constitution.
In addition, in order to avoid future human rights violations, the court requested that Tunisian authorities, including in particular the Interior Ministry, clarify the legal status of the El Ourdia detention centre so that it is no longer employed as a site for deprivation of liberty.
The Global Detention Project previously reported, in its March 2020 report “Immigration Detention in Tunisia: Shrouded in Secrecy,” that in Tunisia there are no explicit legal grounds for administrative forms of immigration-related detention. However, the country explicitly criminalises irregular migration for both Tunisian nationals and non-citizens. Tunisian legislation provides penalties for the unauthorised exit of both nationals and non-nationals; fines and imprisonment for non-nationals who enter or exit the country without authorisation or documentation; and fines and imprisonment terms for non-citizens using false documents or providing inaccurate information.
- FTDES, “Une Décision Sans Précédent en Tunisie: le Tribunal Administratif Suspend la Détention de 22 Migrants Détenus Arbitrairement au Centre d’Accueil et d’Orientation El Ouardia,” 17 July 2020, https://ftdes.net/une-decision-sans-precedent-en-tunisie-le-tribunal-administratif-suspend-la-detention-de-22-migrants-detenus-arbitrairement-au-centre-daccueil-et-dorientation-el-ouardia/
- Global Detention Project, “Immigration Detention in Tunisia: Shrouded in Secrecy,” March 2020, https://www.globaldetentionproject.org/immigration-detention-tunisia-shrouded-in-secrecy
- Global Detention Project, Tunisia Country Page, https://www.globaldetentionproject.org/countries/africa/tunisia
- FTDES, OMCT, ASF, Terre d’Asile, 13 July, 2020, https://ftdes.net/la-detention-arbitraire-des-migrants-de-ouardia-symbole-des-failles-de-letat-de-droit/
- Migrants Inside a Room in the El Ouardia Immigration Detention Centre, (R. Cherif, “El Ouardia: Des Migrants Saisissent la Justice pour Dénoncer Leur Détention,” Le Courrier de l’Atlas, 8 June 2020, http://kapitalis.com/tunisie/2020/04/30/des-ong-salarment-des-migrants-prives-de-leur-liberte-au-centre-el-ouardia/)