Tunisia: Injured of the Uprising Urgently Need Care
|Publisher||Human Rights Watch|
|Publication Date||28 May 2012|
|Cite as||Human Rights Watch, Tunisia: Injured of the Uprising Urgently Need Care, 28 May 2012, available at: http://www.refworld.org/docid/4fc60fdd2.html [accessed 28 April 2015]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
The popular protests that led to Ben Ali's ouster left 132 people dead and 1,452 injured in the period between December 17, 2010 and January 14, 2011, according to the final report, issued on May 4, 2012, of the fact-finding commission created by the first transitional government. Police gunfire was the cause of the vast majority of these casualties, the report said, and 345 of the wounded have serious injuries due to police gunfire, resulting in amputations or other physical disability.
"These people were wounded fighting for freedom, and the government shouldn't turn its back on them," said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch, "The government should waste no more time in providing the health care they need – free if they can't afford it."
Human Rights Watch interviewed twelve of the seriously injured, who described their daily lives as a constant ordeal. People who were paralyzed, for example, need colostomy bags, physiotherapy to avoid bedsores, special anti-bedsore mattresses, wheelchairs, pain relief medication, and anti-coagulants. They have had to rely on charitable donations to finance their long-term medical care. In addition, many of the injured cannot return to their previous jobs, or have lost work and study opportunities. The loss of income affects both the victims and their families.
The government should provide all victims injured during the uprising by the police's excessive and illegal use of force with compensation for all damages resulting from their injuries, Human Rights Watch said. The reparations should include compensation for any lost educational opportunities, wages, and business profits that would have been possible had those crimes not occurred.
Immediately following the revolution, Tunisia's interim authorities provided the injured with emergency medical treatment. They also set up procedures for limited financial compensation. However, many who had received care in public hospitals were soon discharged and found themselves confronting obstacles to continued care. Various types of medicine, physiotherapy, and long-term treatment were unavailable in public hospitals and, when available in private clinics, were frequently beyond their means.
Following the ouster of Ben Ali on January 14, 2011, an interim government took power and organized elections for a constituent assembly on October 23. After these elections, the constituent assembly designated a second interim government that has been managing day-to-day affairs while the assembly drafts a constitution that will form the basis for new general elections.
Under international law, people who have been injured by state agents' excessive and unlawful use of force have a right to adequate, effective, and prompt reparation for harm suffered, including medical care and rehabilitation. The ouster of the government that was in power when these abuses occurred and its replacement by another does not relieve the state of this obligation.
The duty to make reparations to victims of human rights violations is enshrined in international human rights treaties, including article 2 of the International Covenant on Civil and Political Rights (ICCPR) and has been recognized by an array of international tribunals. Under the United Nations Basic Principles on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, which systematizes existing norms of international law, victims are entitled to prompt redress for the harm that they have suffered.
The government should make it a priority to establish an independent mechanism, in compliance with article 2 of the ICCPR, to assess the needs of those injured during the uprising and propose, in an even-handed and transparent way, the redress to which they are entitled.
The National Constituent Assembly could issue a decree mandating the creation of a reparations program, through the establishment of an independent multi-disciplinary commission, Human Rights Watch said. This mechanism should identify and register victims, and create a definitive list. The program should assess on a case-by case basis the nature of the injuries and the needs of victims based on their social and medical situation. The program should include medical, psychological, and legal units mandated to ensure coordination of action for urgent medical cases with various government agencies.
In addition, in conducting trials for the crimes of the uprising, the military courts should determine the level of compensation for the victims in accordance with international standards.
Inadequate Health Care System for the Injured
Following the self-immolation of the street peddler Mohamed Bouazizi in Sidi Bouzid on December 17, 2010, thousands of protesters took to the streets. Many were youth from poorer cities and neighborhoods. The police opened fire on demonstrators with live ammunition. Some of the deadliest incidents took place on January 8, 9, and 12, 2011 in Kasserine, Tala and Regueb, where more than 22 people were killed and hundreds injured, and in Tunis, the capital, and its suburbs, where more than 21 people were killed between January 13 and 15, according to the final report of the National Fact-Finding Commission on Abuses Committed from December 17, 2010 to the End of its Mandate [the Commission].
Most of the casualties resulted from live gunfire that the police used in situations in which deadly force could not be legally justified, the Commission said. The use of lethal force also wounded more than 1,452 people from December 17, 2010 to January 14, 2011.
Many of those injured during the uprising are now suffering from serious chronic or permanent disabilities including paralysis, amputations, and atrophy. For the most part they have faced difficulties in getting adequate medical care, psychological counseling, and social services.
The state has an obligation to act affirmatively to ensure that Tunisian health centers do not discriminate against people with disabilities and that services are accessible and affordable, as required by the Convention on the Rights of Persons with Disabilities, ratified by Tunisia in 2008. The government should ensure that those injured as a result of the uprising, whose mobility or mental capacities have been reduced in ways that make it harder for them to navigate the system themselves, are provided support and accommodation to ensure their ability to get effective care, Human Rights Watch said.
The government offered a flat compensation of 6,000 dinars (US$3,800) to all the injured, regardless of the extent of their injuries, as well as 40,000 dinars (US$25,850) to the families of those killed, paid in two installments for both categories, in February and December 2011. However, no clear criteria were set out to determine who had been injured as a result of state excessive use of force and the level of compensation for each case.
Law no. 8, dated February 18, 2011, shortly after Ben Ali's ouster, created "a National Fact Finding Commission on Abuses Committed from December 17, 2010 to the End of its Mandate." Tawfik Bouderbala, a well-known figure of Tunisian civil society and former president of the Tunisian League for Human Rights, was appointed president of the Commission and selected the rest of its 14 members.
Its mandate stated it would collect information and documentation on the abuses through testimonies of the victims or the families of those killed or injured and documents to be collected from any relevant administration or institution. Because the law setting up the commission required its work to remain confidential until the final report was submitted to the President of the Republic, the commission refused to release a list of the injured before May 4, when it issued its report.
The compensation for the victims and their families was paid by the respective wilayat (governorates) after the victims produced medical certificates attesting that they were casualties of the uprising. The lack of an official list and the absence of clear mechanisms and criteria for who should be included, along with inadequate procedures to assess their medical and socio-economic situation, led to a muddled compensation process. In addition, the government did not take any steps to ensure that the gravely injured had access to necessary long-term care.
The Tunis-based nongovernmental association Nsitni ("You Forgot Me") has followed the most serious cases since April 2011. Lilia Bougerra, a physician with Nsitni, told Human Rights Watch:
In the emergency phase, the injured received the necessary treatments and surgical operations, despite the very volatile and even dangerous situation prevailing at that time, when the Ben Ali regime was still fiercely repressing protesters and their supporters. Most of the doctors did their best to save the injured, avoid amputations, and provide them with necessary treatment. However, since the emergency phase, nothing has been done for the longer-term care. These people suffer permanent injuries that are causing them to be handicapped for the rest of their lives.
The root of the victims' problems is the absence of long-term care arrangements in Tunisian public hospitals. For example, those who are paralyzed need daily physical therapy and nursing to avoid developing bedsores and atrophy. Long-term care arrangements are available in some private clinics but the injured interviewed by Human Rights Watch cannot afford this private long-term health care and therapy. The fortunate among them are able to obtain limited care thanks to donations made by individuals or civil society initiatives.
Interviews with the Victims
Tarek Dziri used to work as a cook in al-Fahs, a city 60 kilometers southwest of Tunis. Police bullets pierced his shoulder and his lung on January 12 during a demonstration in front of the police station. After a month and a half in the Ben Arous hospital in Tunis, where the doctors removed the bullet in his shoulder, he was sent home. However, he still had a bullet in his lung. He became paralyzed when internal bleeding damaged his spinal cord, he said. Dziri told Human Rights Watch:
After the hospital, I stayed home for one-and-a-half months, during which time my situation deteriorated. Then I was sent for physical therapy to the Jbal al-Ouest Public Health Center. However, my situation did not improve there. The doctor had recommended five sessions of physical therapy daily, but I received only about 10 minutes a day. I developed bedsores in the center. Sometimes I would cry out for hours before a nurse came and helped me change my position. I staged a hunger strike and several sit-ins to claim proper treatment. I went many times to the ministries of health and social affairs, where I got only empty promises.
The case of Rached al-Arbi illustrates the difficulties wounded people have in getting the healthcare they need from the government. He told Human Rights Watch he was protesting, with friends and neighbors, on January 13, 2011, in Mornaguia, a town 30 kilometers east of Tunis, when police fired with live ammunition from a police station, hitting him in the chest and damaging his spinal cord.
He was treated in al-Rabta public hospital in Tunis and sent home a paraplegic. During the first months, except for the 3,000 dinars that the government awarded al-Arbi, his family paid out-of-pocket the expenses generated by his disability. His situation soon deteriorated, as he developed bed sores in his lower back. In protest of the lack of assistance from the state, al-Arbi and nine others injured during the uprising tried to get attention for their situation in October with a hunger strike at the offices in Tunis of Nawaat de Tunisie, a renowned and independent online blog.
He was subsequently admitted to the military hospital of Tunis, which is normally reserved for military personnel and their families. After being discharged, al-Arbi has been treated since January 2012, thanks to private donations, at the private La Soukra clinic, one of the few medical establishments offering long-term physical therapy for orthopedic traumas.
Anis Ben Mohamed al-Hajji was shot in the thigh by police gunfire on January 15, 2011, in Ouardanine, a city 120 km from Tunis, while he was participating in a citizens' neighborhood protection group. Despite four operations in the Monastir public hospital, al-Hajji is paralyzed. Because he lives in a remote place, 25 kilometers from the nearest city, he is unable to travel to receive the care he needs, which includes physical therapy and regular checkups to treat bedsores and change his bandages.
He told Human Rights Watch that the measures announced so far by the government, such as free public transport and hospital care, are inadequate in his case because he cannot get public transportation, which is rarely available in his village. Al-Hajji was supporting his mother and his younger sisters, but has been unable to work since his injury.
Mohamed Jendoubi was wounded by police gunfire during protests in Le Kram district in the northern suburbs of Tunis on January 13, 2011. Despite several operations, he remains paralyzed, with a bullet lodged in his lower back that was deemed too risky for surgical removal. A businessman paid for Jendoubi's initial operations and early treatment. That private charity stopped when the government publicly announced that it would take over treatment of the injured. However Jendoubi's assistance from the state since then has been inadequate. His mother, Moufida Jendoubi, told Human Rights Watch:
After Mohamed spent three months at the hospital, they said that they could not do anything more for him. They didn't advise us what treatment he should follow. When he was back home we had to pay for a physical therapist three times a week. He risked choking because when he left the hospital they didn't inform him he had to control his tracheotomy tube and the tube became obstructed after several weeks. We had to fight all the time to get a minimum level of care. Even his wheelchair was paid for by neighbors and other kind individuals.
The Ministry of Health claims that the hospitals have everything that the injured need, and that they provide good care. But every time we have a medical prescription, we have to pay to fill it because most of the medicine is not available at the hospital. If it weren't for the private donations, my son would be left completely to himself. Now his health has improved considerably since he began receiving treatment at the private clinic of La Soukra, thanks to private donations.
Legal and Institutional Framework
The reparation policies of successive interim governments toward those injured during the uprising fell short of Tunisia's obligation to ensure adequate, effective, and prompt reparations, including adequate health care and compensation for the harm suffered. In February 2011, the interim government decided to allocate 20,000 dinars (US$12,624) to families of those killed and 3,000 dinars ($1,900) to the injured, regardless of the severity of the harm. Authorities paid compensation to 2,749 of those injured and to the families of 347 of those killed, according to official numbers. In December, the interim government distributed a second installment of the same amount to the injured and the families of those killed.
The government did not specify whether those amounts excluded reparations to be determined by the military tribunals in charge of the trials of 40 former members of the security forces for crimes committed during the former government's efforts to suppress the uprising. Three military tribunals – in Le Kef, Tunis, and Sfax – are dealing in group trials with a total of more than 600 of the victims' cases, according to Colonel-Major Marouane Bouguerra, the military prosecutor-general.
Following the reform of military justice under decree-law no. 69 of July 29, 2011, the military courts will determine the material damage resulting from the use of force at the end of the trials. Article 7 of the law gives victims the right to make claims for reparation for the harm suffered based on the rules applicable in the ordinary criminal procedures code. A military prosecutor told Human Rights Watch that 150 victims have already made claims for damages. Following each victim's request for reparation, the military court ordered forensic examinations from doctors affiliated with the judiciary.
On October 24, 2011, the interim government handed down law no. 97 on reparations. The law was handed down the day after elections for the constituent assembly, before the assembly could convene.
That legislation took a more comprehensive approach to providing victims with political recognition of their sacrifice as well as financial and health care remedies. It defines "the martyrs and the wounded persons" as being "the persons who risked their lives for the revolution, and who died or were victims of physical harm causing them an infirmity, during the period [extending] from December 17th, 2010 till February 19th, 2011."
Decree-law no. 97 provides for symbolic and material compensation to "the martyrs and to the wounded." It calls for communal reparations, including a memorial to the victims of the "January 14 Revolution;" a museum of the revolution providing a narrative account of the events and preserving the "national memory" of them; naming streets, venues, and squares of the most affected areas after people who were killed; observing January 14 as the anniversary of the revolution, and incorporating an account of the revolution into history textbooks.
The material and financial compensations include a monthly pension to the spouse of each "martyr," or the person's children or parents depending on the circumstances, and a monthly pension to the wounded, depending on the degree of infirmity they suffered as a consequence of the state agents' abuses.
It provides medical benefits for the spouses and children, until age 18, of those killed, including free care in all public hospitals of the country, including the military hospital of Tunis, which has modern equipment. The spouses and children up to age 18, or the end of their schooling, would also qualify for free public transportation. The same benefits would be provided to the injured but not to their relatives.
However, seven months later, none of these measures have been carried out. Part of the problem was the law's confusing wording about who qualifies as a victim and the absence of coherent criteria for their reparation.
Instead of implementing decree-law no. 97, the National Constituent Assembly created a Commission of the Martyrs and Injured of the Revolution to examine the situation of the victims and the framework adopted by the interim governments and to propose amendments to the laws. The president of the commission, Amina Zoghlami, publicly declared that decree-law no. 97 will not be applied and will be replaced by a new law. But to this writing, no new draft law has been proposed to the National Constituent Assembly.
Following the formation of the new transitional government on December 22, 2011, authorities named 17 of the seriously injured needing urgent medical care who, they said, would be sent to Germany or Qatar for treatment. In addition, the authorities established medical commissions in Tunis, Sousse, and Sfax to evaluate case-by-case the degree of disability and the medical care required. However, seven months later, only three of the injured designated to be sent to Qatar had actually been transferred there. Ten others told Human Rights Watch that doctors appointed by the medical commissions had examined them. As of May 7, they said they are still awaiting decisions by the government on next steps.
The Reparations Framework Provided by International Law
The United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law was adopted by resolution by the General Assembly on December 16, 2005. The preamble states, "the Principles and Guidelines do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law." The resolution recognizes five basic forms of reparation aimed at repairing the harm caused to victims and survivors:
- Restitution is meant to restore the condition lost by the victim due to gross violations of human rights.
- Compensation provides victims with monetary and non-monetary damages to make up for the losses they have suffered.
- Rehabilitation seeks to repair the lasting damage caused by human rights violations through provision of medical, psychological, legal, and social services.
- Satisfaction is a category that includes a broad range of measures such as the cessation of continuing violations, disclosure of the truth, an official declaration and an apology.
- Guarantees of non-repetition refers to the needed reforms to the security forces, the judiciary, and all the institutions that played a pivotal role in the system of human rights violations.
The Basic Principles specify that "compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as: physical or mental harm (...); lost opportunities, including employment, education and social benefits; material damages and loss of earnings, including loss of earning potential; moral damage (...); and costs required for legal or expert assistance, medicine and medical services, and psychological and social services."
The obligation of the Tunisian authorities to provide the victims of serious human rights violations with adequate psychological and medical care derives also from the right to the highest attainable standard of physical and mental health, which is enshrined in the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and Peoples' Rights. Realization of this right is to a large extent dependent on availability of resources. However, according to international standards, all countries, notwithstanding their economic situation, are obliged to ensure realization of "minimum core obligations" with respect to the right to the highest attainable standard of physical and mental health.