Universal Periodic Review Submission on Tunisia

Since Tunisia’s last Universal Period Review (UPR), serious human rights violations, including torture, violence against women, violations of LGBT rights, lack of accountability for past human rights violations, arbitrary house arrests, and travel restrictions under the state of emergency have continued. President Kais Saied's July 2021 power grab has weakened government institutions designed to check presidential powers and halted the country's democratic transition.

Implementation of Constitution

Tunisia accepted a 2017 UPR recommendation to “accelerate the creation of the Constitutional Court and the Constitutional bodies, ensuring that they and other institutions…are independent, adequately resourced and swiftly operational.” However, successive parliaments have failed to put in place the Constitutional Court, a key independent judicial body tasked with ensuring respect of the 2014 constitution. Before President Saied dissolved it, parliament did not reach the two-thirds majority needed to select the Constitutional Court’s allotted share of judges, and Saied refused in April 2021 to sign a law that would have lowered this threshold.[1]

Successive parliaments also failed to establish the Human Rights Commission and the Commission on Corruption and Good Governance, falling short of their 2017 UPR promise to “ensure the functioning of…institutions on human rights and good governance.”

President Saied suspended most of the Constitution to grant himself almost unlimited power to rule by decree on September 22, 2021. He announced on December 13, 2021, a roadmap back to normal governance that includes a national referendum on a revised constitution in July and parliamentary elections in December 2022.

In a move that compromises the judiciary’s independence from the executive, President Saied on February 13, 2022, signed a decree replacing the High Judicial Council (HJC).[2] Established by the 2014 constitution, the HJC, Tunisia’s highest judicial body, oversees judicial appointments, discipline, and career progression of judges.[3] The new decree affords President Saied the power to control all these functions, and the ability to appoint nine of its 21 members and remove whomever he chooses to the Council.[4]

The government should:

• Establish the Constitutional Court, the Human Rights Commission, and the Commission on Corruption and Good Governance.
• Reverse all policies that compromise the judiciary’s independence from the executive.

Accountability for Serious Crimes

The Truth and Dignity Commission, a state body established in 2013 to expose and investigate systematic human rights abuses, received more than 62,000 complaints about human rights abuses that occurred in Tunisia over a five-decade period.[5] It published its final report in 2019.

This achievement notwithstanding, Human Rights Watch and others documented instances of government interference or non-compliance with the Commission’s work since its last UPR review.[6] The “economic reconciliation law,” passed in September 2017 under President Essebsi, removed some economic crimes from the Commission’s purview, ensured amnesty for some corrupt former officials, and prevented disclosures about acts of corruption.[7] Police forces have failed to enforce court summonses against defendants who refuse to cooperate with the Commission’s investigations.[8]

The Commission’s recommendations to implement major institutional reforms remain unfulfilled.[9] The commission’s recommendations include establishing rehabilitation centers and support services for victims, ensuring effective judicial monitoring of places of detention, and allowing monitoring bodies regular and timely access to places of detention and direct interactions with the prisoners.

Tunisia supported a 2017 UPR recommendation to “…ensur[e] allegations of torture and ill-treatment are systematically investigated and the perpetrators are prosecuted and punished and that victims are compensated in an adequate and equitable manner.”

Tunisia became a state party to the International Criminal Court (ICC) in 2011.

While recognizing that Tunisia has made important strides in adopting laws with stronger guarantees against ill-treatment, such as Law No.5 of 2016 granting a person access to a lawyer from the onset of detention, the commission identified other important safeguards that are still needed.[10]

The government should:

• Carry out recommendations as stipulated by the Truth and Dignity Commission’s March 26, 2019, report.
• Direct police forces, under penalty of disciplinary action, to execute court summonses for those accused of crimes and compel them to appear in court.
• Align its national legislation with the Rome Statute of the ICC, including by incorporating provisions to cooperate promptly and fully with the ICC and to investigate and prosecute genocide, crimes against humanity, and war crimes fairly and effectively by its national courts.

Abuses under State of Emergency

Authorities have renewed a state of emergency since its declaration in 2015 by former president Beji Caid-Essebsi.[11] Invoking article 80 and the state of emergency, and citing a months-long political and economic crisis, President Saied on July 25, 2021, announced extraordinary measures that largely concentrate powers in his hands, which he extended for himself indefinitely on August 23, 2021.[12] The president suspended parliament even though article 80 requires parliament to remain in session when invoked and prohibits the president from “dissolving” it; lifted parliamentary immunity; and took over supervision of public prosecution. On September 22, 2021, he issued Presidential Decree 2021-117, which suspends most of Tunisia’s constitution, grants the president the exclusive right to enact laws by decree, dissolves a temporary body to vet the constitutionality of laws, and bars anyone from overturning decree-laws via Tunisia’s Administrative Tribunal.[13]

During the 2017 UPR review, Tunisia supported a recommendation to “ensure security measures under the state of emergency or counterterrorism laws maintain the human rights of suspects, detainees and their families.” However, the security measures taken by President Saied under the state of emergency largely flout respect for international human rights standards and are being used abusively without judicial oversight.[14] Further, he has not reopened parliament and the new head of government appointed in September 2021 has limited prerogatives.

Arbitrary assigned residence and travel bans

Since 2016 authorities have placed hundreds of Tunisians under assigned residence, a measure used with increasing frequency under President Saied after he granted himself extraordinary powers in July 2021. Since then, three parliament members have been imprisoned for speech offenses, and at least 50 Tunisians have been placed under assigned residence, including former officials, a judge, and three lawmakers.[15] Former government employees are also subject to these abuses, as the cases of former justice minister Nourredine Bhiri and former Ministry of Interior employee Fathi Beldi illustrate.[16] Neither Beldi nor Bhiri received any written notification of their assigned residence, which lasted just over eight weeks.[17] No arrest warrant has been issued and the authorities have not disclosed any formal charge against them during their detention, bypassing the usual legal procedure.

Dozens of others have faced arbitrary travel bans, violating their freedom of movement. The travel bans largely lack official judicial authorization or written justification.[18]

The government should:

• Ensure all restrictions imposed on freedom of movement in the framework of counterterrorism efforts include a written reason, are for a finite time period, and are subject to meaningful judicial oversight and appeal.
• Stop using assigned residence measures arbitrarily. If strictly necessary for security, these measures should be used only with strong safeguards. The Interior Ministry should deliver a written copy of the decision to the affected person, and make them subject to meaningful challenge and judicial review.

Freedom of Expression

Activists, bloggers, and journalists

Human Rights Watch has documented over 20 prosecutions of bloggers, journalists, and others since 2017 on charges related to their peaceful speech, despite Tunisia’s UPR promises to “strengthen legislation on freedom of expression.”[19]

Authorities have targeted people for comments they make online and prosecuted them under the 2001 Code of Telecommunications or the penal code. A military court on June 26, 2018, sentenced Yassine Ayari, a member of parliament, to three months in prison for “defaming the army,” citing an April 2017 Facebook post in which he criticized the army.[20] A prominent lawyer and other members of the parliament have been prosecuted in military courts for speech offenses in recent months.[21]

For sharing a Facebook video mimicking the style and recitation of a Quranic passage, Emna Chargui was sentenced to six months in prison in July 2020 for “inciting hatred between religions through hostile means or violence.”[22] Authorities sentenced blogger Wajdi Mahouechi to two years in prison for “accusing officials of crimes without providing proof,” and “offending others via telecommunications networks,” citing a video he posted on November 1, 2020, to Facebook in which he criticized a Tunis public prosecutor.[23]

Similarly, Myriam Bribri, an activist, received a fine and a four-month prison sentence on December 21, 2021, for “knowingly harming or disturbing others via public telecommunications networks” when she posted a video on Facebook of police roughly arresting a man.[24] On January 17, 2021 authorities arrested Ahmed Ghram, 25, at his home for Facebook posts criticizing police repression, impunity, and corrupt governance, and accused him of “inciting actions of chaos and disorder.”[25]

Media organizations

Tunisia supported the recommendation to “continue enhancing freedom of information and the rights of journalists” in its recent UPR. However, on July 26, 2021, police raided the Tunis headquarters of Al Jazeera TV, evicting its staff and confiscating equipment. They have been unable to return to the office, though they continue to report and broadcast from Tunisia. The closure lacks official judicial authorization, written justification, or a clear method of appeal.[26]

The government should:

• Immediately cease prosecutions of civilians in military courts, which violate a civilian’s right to a fair trial and their due process guarantees.
• The justice minister, who supervises the prosecution office, should direct prosecutors not to use the telecommunications and penal codes to prosecute people for their commentary on matters of public interest, specifically articles 67, 128, 245, and 247 of the penal code and article 80 of the telecommunications code.
• Allow all media, including Al Jazeera, to operate freely and announce a zero-tolerance for infringements on the rights of all media to cover and criticize government policies.

Women and Girls’ Rights

Tunisia has taken important steps towards fulfilling the recommendation of “strengthen[ing] existing legislation to effectively eliminate gender-based violence, including domestic violence, with a view to better protecting victims and holding perpetrators accountable.” In July 2017, parliament adopted a landmark law (Law No. 58) on fighting violence against women, which includes key elements essential to prevent violence against women, protect domestic violence survivors, and prosecute abusers.[27] In September 2017, parliament rescinded a 1973 administrative directive that forbade women from marrying non-Muslim men.

The government has taken positive steps toward implementing Law No. 58. In 2020, the authorities issued a decree to establish and regulate the National Observatory for the Elimination of Violence Against Women, which is tasked to monitor the implementation of Law No. 58.

These achievements notwithstanding, there remain serious gaps in implementation, particularly the lack of prevention efforts to dismantle sexist stereotypes in school curricula and the media, lack of available shelters for survivors of domestic violence with only one operating shelter for the entire country, the limited legal aid for survivors, and problems with the way police deal with survivors’ complaints.[28] Women have reported difficulties in accessing protection orders to prevent contact from their abusers, an important protection measure introduced by Law No. 58.[29] Violence by domestic partners constituted 75.5% of cases of violence against women reported to the Tunisian authorities’ hotline between January and October 2021.[30]

Despite agreeing to “ensure the compliance of…the Code of Personal Status…with articles 21 and 46 of its Constitution and international human rights obligations,” Tunisia’s personal status code still designates the man as the head of household and continues to deny women equal inheritance rights.[31]

The government should:

• Amend the Personal Status Code to ensure that women and men are equal heads of households, and remove gender discrimination in inheritance.
• With respect to 2017 Law No. 58 on the Elimination of Violence Against Women:
  • Ensure there is adequate funding and political will to put the programs and policies outlined in the law fully into effect.
  • Develop awareness-raising strategies, especially in schools, to dismantle sexist stereotypes and mainstream a zero-tolerance culture in relation to violence against women.
  • Ensure specialized police units and relevant members of the judiciary are trained to detect and thoroughly investigate family violence and systematically inform survivors of their rights.
  • Establish monitoring and accountability mechanisms to ensure survivors can issue complaints against officials who do not abide by Law No.58.
  • Ensure availability of adequate shelter, mental health support, legal aid, and other services for survivors of domestic violence, with special attention to improve delivery of services amidst any current Covid-19 restrictions or other emergency situations.

Children’s Rights

In 2018 and 2019, Tunisia acceded to important Conventions affirming its commitments to protect children from violence.[32] However, cases of violent discipline of children appear widespread.[33] A 2018 survey of 12,000 households found 88 percent of children aged 1-to-14 had been subjected to violent discipline, 23 percent had suffered "severe physical punishment" and 49 percent experienced other degrees of physical violence, and that 21 percent of parents in Tunisia believed corporal punishment is a necessary educational practice.[34] 

The government should:

• Fully enforce existing criminal prohibition of corporal punishment and ensure that complaints are inspected and acted upon.

LGBT Rights

The Tunisian Commission on Individual Freedoms and Equality proposed in 2018 to decriminalize homosexuality and to end anal testing during criminal investigations of homosexuality, among other recommendations.[35] In October 2018, 13 members of the Tunisian Parliament introduced draft legislation for a code on individual freedoms. It incorporated several proposals from the presidential commission including the abolition of penal code article 230, which punishes consensual same-sex conduct with up to three years in prison.

However, the government has not since acted on any of the Commission’s aforementioned recommendations and the draft legislation has since stalled.[36]

Human Rights Watch and other groups since 2017 have documented multiple cases of people arrested or prosecuted under article 230 for perceived homosexuality or consensual same-sex conduct.[37]

Despite accepting recommendations to “immediately cease the practice of forced anal exams,” authorities and medical officials continue to practice them as a way to “prove” and gather “case evidence” for same-sex sexual activity.[38]

Despite accepting recommendations to ensure the protection of LGBT people from discrimination and violence, Human Rights Watch and others have documented authorities’ violent targeting and harassment of LGBT individuals, activists, and rights groups.[39]

Tunisian law does not provide a clear or accessible path to legal gender recognition for transgender people, who face discrimination compounded by the incongruity between their official documents and gender expression.[40]

The government should:

• Issue a moratorium on enforcing penal code article 230 criminalizing same-sex conduct, pending parliament’s repeal of it, in line with the Commission on Individual Freedom’s recommendations.

• Direct public prosecutors to abandon prosecutions under article 230 and issue directives ordering prosecutors to stop sending detainees for anal examinations as part of police investigative procedures to determine suspects’ sexual behavior.
• Direct all forensic doctors under the health ministry’s authority to cease all anal examinations for these purposes and to respect people’s right to physical dignity and integrity.

Security Authorities’ Excessive and Lethal Use of Force, Torture

Tunisia supported several 2017 UPR recommendations aimed at curbing abuses by security forces, including by providing human rights training to police forces and ensuring all allegations of abuse are properly investigated. However, in the last five years, Human Rights Watch and others documented an increase in security forces’ excessive and lethal use of force against peaceful protesters and others.[41]

Due Process and Counterterrorism

Tunisia supported several initiatives in 2017 to safeguard the due process and fair trial rights of suspects held in detention for counterterrorism purposes, and to improve pre-trial detention conditions. However, at least 10 women with ties to suspected members of Islamic State (ISIS), released from Libyan prisons and handed over to authorities in Tunisia in March 2021, reported multiple abuses in Tunisian detention, including one woman who said she was beaten and coerced to sign an interrogation report, and others who said they were denied access to legal representation and medical care.[42] Fourteen children were also repatriated, at least 12 of whom have been released to the care of relatives.[43]

At least 16 more women and 19 children suspected of links to ISIS members were detained in Tripoli’s Mitiga prison as of December 2021, according to the Tunisian Observatory for Human Rights.[44] Scores of other Tunisians, including children, are arbitrarily detained as ISIS suspects and family members in northeast Syria.[45]

The government should:

• Take all feasible steps to bring Tunisians home or assist their repatriation for rehabilitation and reintegration, and, if warranted, monitoring or prosecution in line with international legal standards.
• Ensure that all repatriated individuals are treated humanely, receive necessary medical treatment, and are granted their full due process rights while in detention.
• Ensure the swift and safe return of all child nationals detained abroad because of their alleged affiliations with ISIS members.
• Tunisian authorities should treat children who lived under ISIS control and women trafficked by ISIS foremost as victims.
• Detain and prosecute children only in exceptional circumstances, as a last resort and for the shortest appropriate period, due to the inherent harm and risks of abuse.