ARTICLE 19 condemns the Court of Appeal’s decision to sentence journalist Khalifa Guesmi to five years in prison for legitimately carrying out his professional duties. We also condemn the recent damaging pattern emerging regarding the judicial treatment of freedom of expression cases, which gives priority to repressive laws such as the anti-terrorism law, Tunisia’s Penal Code and Decree-Law 54 on cybercrimes over laws that are tailored to and more protective of press freedom.
On 16 May 2023, the Court of Appeal of the 27th Criminal Chamber, which specialises in terrorism cases, confirmed the sentence handed down in the first instance against journalist Khalifa Guesmi and increased the sentence from one year to five years in jail. He is accused of ‘deliberately participating in the disclosure of information relating to interception operations and the data collected about them’ in accordance with Article 34 of the Anti-Terrorism Law. The court also sentenced the security officer who provided the information to the journalist to 10 years’ imprisonment instead of the original three-year sentence he was given[mfn]Maghreb, « Avocat de Khalifa El Guesmi : “10 ans de prison contre le policier accusé dans l’affaire de mon client” ». Lien : https://tinyurl.com/mrxwmvz3 [/mfn]. Terrorism charges were brought against the security official, who was identified as the main perpetrator of the crime, under Article 62 of the Anti-Terrorism and Money Laundering law. Guesmi, who was identified as an accomplice, was charged under Article 34 of the same law.
This decision may affect the ability of public officials and whistleblowers to disclose information in their area of competence and expose them to fears of prosecution, particularly for disclosing information related to the fight against terrorism and money laundering.
The initial case
The Court of First Instance in Tunis 1 – which specialises in terrorism cases – had issued a decision on 29 November 2022, sentencing journalist Khalifa Guesmi to one year in prison for publishing a report on the dismantling of a terrorist cell and for refusing to reveal the sources of information[mfn] ARTICLE 19, “Tunisia: Escalating threats to media freedom as journalists are prosecuted”, disponible sur: https://www.article19.org/resources/tunisia-escalating-threats-to-media-freedom-journalists-prosecuted/ [/mfn] in the report.
The decision is in violation of Article 11 of Decree-Law No. 115 of 2011 on Freedom of the Press, Printing and Publishing, which requires judicial permission to order for sources to be revealed, and states that the goal of the disclosure of such information is to avoid crimes that pose a serious threat to the physical integrity of others. It also states that this demand can only be made if the piece of information cannot be obtained by any other means apart from via a court order.
We note further with concern that Decree-Law No. 115 of 2011 is more protective of freedom of expression, applies specifically to activities by journalists and the press and should have been applied to this case instead of the Anti-Terrorism Law.
Guesmi, who had already served a prison sentence before being released, confirmed in a post on his Facebook page that he remains on bail until the Court of Cassation rules on his appeal.
ARTICLE 19 recalls that the protection of journalistic sources is one of the fundamental pillars of press freedom. This protection encompasses not only the persons providing information to journalists, but also all documents, correspondence and communications that may be used by journalists.
ARTICLE 19 calls on the Court of Cassation to annul the judgement of the Court of Appeal and to lift the charges against the journalist Khalifa Guesmi. The Court of Cassation should assume its role in protecting the right to freedom of expression in accordance with Tunisia’s obligations under international human rights law.