Human Rights Committee asks Tunisia about state of emergency and torture, urges human rights protection in counter-terrorism

Human Rights Committee

4 March 2020

Experts take positive note of the emergence of the new political system in Tunisia and the efforts to build a modern society

The Human Rights Committee today concluded its consideration of the sixth periodic report of Tunisia on the implementation of the International Covenant on Civil and Political Rights.  Welcoming the improvements in the human rights situation, Experts raised concerns about the prolonged state of emergency, denial of fundamental legal safeguards in the context of counter-terrorism and impunity for torture and past human rights violations.

Committee Experts welcomed the emergence of the new political system and the efforts to build a modern society in Tunisia in the wake of the 2011 democratic revolution.  There was progress in the transitional justice process and the advances in gender equality, they said.

Like other countries in the region, Tunisia was grappling with terrorism, but after five years of the state of emergency, one might wonder whether it was winning that war, Experts said and inquired about the obstacles in returning the country to its normal constitutional course.  The draft bill relating to attacks on armed forces would foster the culture of impunity that prevailed in the security and armed forces and allow prosecution of any journalist or human rights defender who criticised the actions of the security forces, they noted with concern. 

Tunisia had taken important steps to prevent and punish acts of torture and should ensure that a comprehensive definition of torture was embedded in the Criminal Code.  It should also guarantee that everyone was protected from torture, including in the context of the fight against terrorism and the state of emergency.  The highly commendable efforts to fight terrorism could benefit from being more strongly anchored in human rights protection, especially when it came to the fundamental legal safeguards for detainees and suspects.

Welcoming the transitional justice efforts, including the setting up of the Truth and Dignity Commission which had received over 60,000 petitions from the victims, the Committee noted that the number of cases dealt with by the 13 specialized judicial chambers was far too small to prevent impunity and avoid criminal responsibility for human rights violations committed in the past.

The head of the Tunisian delegation, Ayachi Hammami, Cabinet Minister in charge of Relations with Constitutional Bodies, Civil Society and Human Rights, acknowledged the great responsibility he was shouldering as a minister in the new Government which had taken office the previous Friday.  Tunisia was very proud of the 2011 revolution for freedom, dignity and human rights, which had represented a turning point for the democratic transition, he said.

Tunisia had adopted the law on transitional justice in 2013 and had set up the Truth and Dignity Commission and criminal chambers specialized in the field of transitional justice.  The new Government was committed to publishing the Commission’s report and implementing its recommendations, under the supervision of Parliament.  While torture was no longer State policy, it was still practised in penitentiary facilities, said the Minister. 

The delegation recognized the challenges related to the state of emergency and said that draft amendment law of 2019 would address the gaps and to ensure that any restrictions on freedoms and rights – which had to be limited in time and scope - did not taint the democratic essence of the State.  All fundamental legal safeguards of anyone deprived of liberty under the state of emergency provisions were respected, stressed the delegation.

The delegates explained that the law on counter-terrorism set out the rules governing pre-trial custody in terrorism cases and assured the Committee that individuals detained on terrorism-related charges could contact their lawyers and family and file complaints.

Mr. Hammami concluded by thanking the Committee Experts and said Tunisia would work to implement their recommendations. 

Ahmed Amin Fathalla, Committee Chairperson, in his concluding remarks expressed hope that, by its next review by the Committee, Tunisia would make additional progress.

The delegation of Tunisia consisted of representatives of the Government Presidency, Ministry of Interior, Ministry of National Defence, Ministry of Foreign Affairs, Ministry of Justice, Ministry of Women, Family, Childhood and Elderly and the Permanent Mission of Tunisia to the United Nations Office at Geneva.

The Committee’s concluding observations and recommendations on the report of Tunisia will be issued at the end of the session on 27 March.  All the documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage.  Summaries of the Committee’s public meetings in English and French will be available at the United Nations Office at Geneva News and Media page, while the webcast can be viewed at UN Web TV. 

The Committee will next meet in public at 3 p.m. today, 3 March, to review the third periodic report of the Central African Republic (CCPR/C/CAF/3).

Report

The Committee has before it the sixth periodic report of Tunisia (CCPR/C/TUN/6).

Presentation of the Report

AYACHI HAMMAMI, Cabinet Minister in charge of Relations with Constitutional Bodies, Civil Society and Human Rights of Tunisia, in the introduction of the report informed the Committee that had taken up office the previous Friday and acknowledged the great responsibility he was shouldering as a minister in the new Government.  Tunisia attached great importance to the cooperation with human rights bodies, he said and hoped that the 2020 treaty body system review would enhance their efficiency and effectiveness.

Since 2008, there had been a great many upheavals in Tunisia, most notably the 2008-2011 revolution under the motto of freedom, dignity and human rights.  It represented a turning point for the democratic transition, of which Tunisia was very proud, despite the socio-economic and political challenges and the difficult regional context.  The Minister commended the great role of Tunisian civil society and human rights defenders who had ensured the success of the democratic process.   

Since the very first year of its independence, Tunisia had joined the efforts of the United Nations to promote human rights, including by ratifying the International Covenant on Civil and Political Rights.  However, before the revolution, human rights had been wishful thinking rather than a reality, which was why the Tunisian people had taken to the streets to call for their rights and freedoms.  Acting in the firm belief in the key role of women in supporting and building social peace and development, the new democratic Government had lifted all the reservations to the Convention on the Elimination of All Forms of Discrimination in 2011.

In addition, Tunisia had acceded to the Rome Statute and had ratified several human rights instruments, including the International Convention for the Protection of All Persons from Enforced Disappearance.  A standing invitation had been offered to human rights special procedures and the field office of the United Nations High Commissioner for Human Rights had been opened.

The Minister then outlined the legislative and other measures Tunisia had taken to comply with the obligations under the Covenant, highlighting the creation of the higher authority for the attainment of the goals of the revolution and the democratic transition in February 2011.  A superior electoral body had been set up to oversee elections as set out in the Second Constitution of 2014 and decrees on political parties, national and foreign associations operating in Tunisia, and freedom of the press and print media featured among the enacted laws.

Following the adoption of the December 2013 law on transitional justice, Tunisia had set up the Truth and Dignity Commission and established criminal chambers specialized in the field of transitional justice.  In 2014, the Second Constitution had been ratified and a peaceful transition of power had taken place after the parliamentary and presidential elections.  The creation of constitutional bodies had been completed too, including those related to the fight against corruption, rural development, data protection and the rights of the future generations.  Members of the Supreme Judicial Council had been elected in 2015, thus strengthening the independence of the judiciary. 

Tunisia was the first non-European state to accede to the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote Convention) and had submitted the request to accede to the Istanbul Convention on preventing and combating violence against women and domestic violence.  In December 2019, the National Human Rights Commission had set up a body for the harmonization of human rights legislation with the Constitution and international instruments.

The third round of presidential and parliamentary elections had taken place in December 2019 and a new Parliament had been formed.  The new Government was committed to decentralization and organizing regional elections by 2022, publishing the report of the Truth and Reconciliation Commission on transitional justice and implementing its recommendations under the supervision of Parliament, and to maintaining the three-decades-old moratorium on the death penalty and working towards its abolition.

Mr. Hammami noted that the report presented to the Committee bore witness to the progress made in the protection of civil and political rights, which would serve a springboard for further consolidating rights and freedoms.  He then acknowledged the remaining challenges and areas for improvement in legislative and institutional systems, which were linked to social and cultural realities in Tunisia. 

While torture was no longer State policy, he said, it was still practsced in penitentiary facilities, some of which were overcrowded.  The Minister highlighted the challenges related to the state of emergency, such as restricted freedoms and rights, and noted that the gender wage gap was still a reality even though it was unconstitutional.  Tunisia needed to consolidate the constitutional bodies and continue the decentralization process, and the dialogue with civil society, while ongoing, had not yet resolved all issues relating to the death penalty, decriminalization of homosexuality or discrimination on the grounds of sexual orientation.

In conclusion, Mr. Hammami reiterated Tunisia’s commitment to completing the democratic transition and the reforms, despite the challenges and with the support of its partners and the international community.

Questions by the Committee Experts

Committee Experts took positive note of the emergence of the new political system and the efforts to build a modern society in Tunisia in the wake of the 2011 democratic revolution.  Wishing good luck to the new Government, they expressed hope that the constructive dialogue, and the Committee’s forthcoming concluding observations, would contribute to the improvement of the human rights situation in the country.

The Experts noted the 13-years gap between Tunisia’s reports and urged it to respect the reporting schedule in the future.  They took positive note of the creation in 2015 of the national commission for the preparation of reports in the field of human rights and welcomed the participation of civil society and independent institutions in the preparation of the sixth periodic report. 

The delegation was asked to explain the system in place to implement and follow-up on treaty bodies’ recommendations and their views on individual communications, in cooperation with civil society organizations active in the field of human rights.  What was the status of the creation of the database on human rights indicators?

The Tunisian constitutional and legal framework was currently suspended due to the state of emergency, which, due to its continuous renewals since 2015, this had already become a permanent state.  It had been renewed for another three months on 31 January 2020.  Like several other countries in the region, Tunisia was indeed grappling with terrorism, but after five years of the state of emergency, one might wonder whether the State was winning that war, an Expert said.  He asked the delegation to comment on the short and medium-term challenges in returning the country to its normal constitutional course.

In the domestic legal order, the Covenant had the primacy over the national laws but not over the Constitution.  The courts had handed down only three judgements invoking the provisions of the Covenant, which indicated the need to strengthen the awareness-raising and training of the judiciary and the legal profession to increase the use of the Covenant by the courts.  Experts inquired about the functioning of the Constitutional Court and the criteria for the appointment of judges, and about the constitutional oversight, especially in relation to the state of emergency. 

As for the national human rights bodies and their independence, the Experts asked whether the High Committee for Human Rights overlapped in its mandate with the Administrative Mediator and whether it complied with the Paris Principles.  What were the criteria for the appointment of its members and what guarantees of independence did they enjoy?  The delegation was asked to explain why it was rather easy to remove the chair of the national human rights institution.

Tunisia had set up the Commission of Good Governance and the independent constitutional body for combatting corruption to identify cases of corruption in the public and private sector and submit the cases to the authorities.  The Experts raised questions about the appointment criteria for the members of the national body, its relation with the Office for the Prosecutor, the protection for complainants, and the number of cases brought to court and sentences they pronounced.

The Committee inquired about the status of the draft bill relating to attacks on armed forces, noting that it would foster the culture of impunity that prevailed in the security and armed forces in Tunisia.  It would also allow prosecution of any journalist or human rights defender who criticised the actions of the security forces and would exonerate the members of the armed and security forces from what would otherwise be criminal use of power.  Was there progress in the adoption of the ethics code for the armed forces?

The Committee welcomed significant efforts to improve the human rights situation in Tunisia, especially in relation to transitional justice and asked how the independence of the Truth and Dignity Commission was assured.  The Commission had received over 60,000 petitions from victims and groups representing them; after preliminary examination, it had been established that 16,000 concerned the violations of economic, social and cultural rights and 38,000 were related to the violations of civil and political rights.  However, the information about the outcomes of the Commission’s work to process the petitions and provide reparations was insufficient.  The delegation was asked about the current status of the Commission and the steps taken to implement its recommendations.

Tunisia had established 13 specialized judicial chambers under the law on transitional justice mechanisms, to adjudicate cases related to gross violations of human rights, including killing, rape and other forms of sexual violence, torture and enforced disappearances.  Each chamber had been assigned 25 cases, which were still largely pending or were only in their preliminary stage, and the Truth and Dignity Commission had referred 173 cases. 

In light of the number of the petitions the Commission had received from the victims, it seemed that the number of cases dealt with by the special chambers was far too small to prevent impunity and escaping criminal responsibility for human rights violations committed under the past regime. 

The report did not explain how Tunisia guaranteed access to abortion to women and girls in rural areas that upheld their right to privacy and prevented stigma.  The Experts asked about the adoption of a comprehensive anti-discrimination law, the efforts to tackle racial discrimination and discrimination on the grounds of disability and to address violence against lesbian, gay, bisexual, transgender and intersex persons.

There was positive momentum underway in matters touching on gender equality, Experts noted and asked for an update on the changes pertaining to the Code of Personal Status related to the equality of spouses in divorce proceedings, the status of men as head of households and the provisions on inheritance.

The Experts commended Tunisia for the adoption of the 2017 act on eliminating violence against women and its comprehensive approach to prevention, protection, deterrence and support to victims, in public and private spheres.  In 2018, Tunisia had registered 36,000 cases of violence against women and girls, which was a worryingly high number; furthermore, only 550 of the alleged perpetrators had been arrested. 

Marital rape was not criminalized by the 2017 act and Experts urged Tunisia to include such acts in the Criminal Code.  What was the impact of the national plan of indicators on violence against women on the registration of cases of all forms of violence against women?

The Committee took note of the important steps taken to prevent and punish acts of torture, including recent changes to the Code of Criminal Procedure, the establishment in 2016 of the National Authority for the Prevention of Torture as a national prevention mechanism, and training of the judiciary and prison officers.

Tunisia was currently reviewing the Criminal Code with a view to preventing torture, encouraging the use of alternative penalties and limiting the use of custodial sentences.  This process should be completed as a matter of highest priority as acts of torture could not be effectively punished or prevented without a comprehensive definition of torture embedded in criminal law. 

The Experts asked for data on complaints, prosecutions and convictions related to torture, and on measures taken to protect all persons from torture, including in the context of the fight against terrorism and state of emergency.

Tunisia had strengthened some legal safeguards for detainees and several non-governmental organizations could conduct visits to places of detention, Experts noted and asked about the number of complaints and investigations of allegations of ill-treatment against prison officials.  

The Experts welcomed the reforms and great steps forward following the 2011 revolution, including the adoption laws and strategies concerning the fight against terrorism, money laundering and violent extremism.  Those highly commendable efforts could benefit from being more strongly anchored in human rights protection, Experts said. 

The specialized institutions dedicated to fighting terrorism, including the anti-terrorist judicial authority, lacked resources and struggled to cope with the increased workload, leading to the prolonged pre-trial detention of suspects.  The 2019 amendment to the law on terrorism had better defined terrorist activities but had not improved fundamental legal safeguards for detainees and suspects, including the right to a fair trial within a reasonable delay.  How were the rights of detainees respected throughout the investigative and trial process?

The Experts also raised concern about the respect for fundamental rights in the context of the state of emergency, noting that during the 2015-2016 period alone, 169 people had been placed under house arrest on the grounds of terrorism without an official warrant.  Could the delegation update the Committee on the status of the organic act on the state of emergency which would strike a better balance between public security concerns and human rights, in line with the Constitution and the Covenant?

In the context of repeated terrorist attacks, the Government had adopted the counter-terrorism act in 2015 that introduced the death penalty, which had not been present in the 2003 version of the law.  The 2019 amendments to the counter-terrorism retained the death penalty.   While none had been carried out since the entry into force of the moratorium, capital punishment sentences continued to be handed down – there were currently 41 persons on the death row in Tunisia.  Would Tunisia make the moratorium official, restrict the number of crimes punishable by the death penalty and restrict its use to the most heinous crimes, and eventually abolish the death penalty?
 
Replies by the Delegation

Responding to the questions, the delegation explained that Tunisia had developed a plan to implement treaty bodies’ recommendations, in cooperation with civil society organizations, which also drafted shadow reports to the various human rights committees.

As for the legal framework, the new Constitution outlined freedoms and rights that should be duplicated in national legislation, a process that required several legal amendments.  In that context, a national committee had been established to review the Code of Criminal Procedure, while work was underway to revise the Child Code and the law on the state of emergency.  A committee had been set up tasked with harmonizing domestic legislation with the Constitution and international instruments. 

The Government had enacted a series of reforms since 2011 and had set up a Human Rights Department in the Ministry of Interior.  Following a consultative process, the law on the state of emergency had been amended substantively in 2019 to address the gaps and to ensure that any restrictions on freedoms and rights did not taint the democratic essence of the State.  The delegation reiterated that such restrictions had to be limited in time and scope.

The delegation assured the Committee that all fundamental legal safeguards were respected for any person deprived of liberty under the state of emergency provisions, including the 48-hour delay for remaining in custody.  Measures taken within the framework of the state of emergency must comply with legal safeguards, the delegation stressed and added that Tunisia was working on developing an organic law to govern the state of emergency and to enshrine fundamental rights guarantees.

The safeguards of the independence of the members of the Constitutional Court were prescribed by law; the members were not expected to have any partisan, regional or other biases.  Members of the Court elected the Court’s President themselves, further embedding the Court’s independence.  Members of the Constitutional Court who were deemed to no longer meet the criteria set out by the law, such as a member who decided to join a political party, for instance, would be removed from their positions.  Any citizen could challenge the constitutionality of a law before the Constitutional Court, which had the sole jurisdiction in the matter.

On the application of the Covenant in courts, delegates explained that judicial training included information on the Covenant and the United Nations Charter.  Judges were also given ad hoc training on specific human rights issues, such as torture, human trafficking, or economic, social and cultural rights.  Specialized judicial training was provided by the Supreme Judicial Council or the Ministry of Justice, in collaboration with international partners, such as the Office of the High Commissioner for Human Rights and the Council of Europe.

Members appointed to the Human Rights Commission, the national human rights institution, had to have the required experience and had to show neutrality, impartiality and competence, in line with the Paris Principles.  Both national and international observers had confirmed the independence of this body.  Members of the Human Rights Commission could be removed if they failed to live up to the standards of independence and impartiality, but they could not be suspended for merely expressing views on their work or the Commission’s mandate.  Tunisia was building its capacity to establish a comprehensive data collection system for human rights.

The Anti-Corruption Authority was legally, administratively and financially independent; its members were elected during a plenary session of the Chamber of Representatives.  They benefitted from guarantees set out in the law, which also protected whistle-blowers.

Since 2015, the Government had been working on improving the conditions of detention, with the Human Rights Department of the Ministry of Interior playing a role in the process.  A central detention facility had been recently built in cooperation with the United Nations Development Programme and in line with international standards.

People detained on terrorism-related charges could contact their lawyers and their family and file complaints.  Crimes were thoroughly examined and the duration of custody was five days instead of 48 hours.  The law on counter-terrorism set out the rules governing pre-trial custody in terrorism cases. 

Responding to questions about racial discrimination, the delegation explained that it was considered an offence in itself rather than merely an aggravating circumstance for other offences.  The definition of racial discrimination in Tunisian law was based on relevant international conventions.  Tunisia was no longer in denial on this issue, which the Government was tackling in collaboration with civil society organizations.  A debate on race and racial discrimination was ongoing in the media and society at large, while modules on coexisting and living together had been included in school curricula. 

Discrimination on the basis of gender identity and sexual orientation was a cross-cutting issue, delegates said.  It cut across anthropological, religious and societal issues, and called for a society-wide debate.  Time and education were needed to increase the knowledge and the understanding of the issues and to allow Tunisians to feel at ease.  As a democratic State, Tunisia was open to debating the question of sexual orientation and gender identity and adopt an action plan.  It was also envisaging eliminating article 230 of the Criminal Code concerning anal tests for homosexuals, which had been inherited from the colonial era.

The Tunisian law did not require that husbands approve abortions, nor did it criminalize pregnancies outside wedlock.  The Ministry of Health continued to raise awareness about contraception amongst youth and had improved the provision of healthcare services to women in rural areas, notably through mobile clinics.

Tunisia had concluded a number of agreements with the European Union to combat violence against women which had allowed the opening of shelters and the launch of a programme called “Women in Peace”, which sought to foster the implementation of United Nations Security Council Resolution 1325.

Questions by Committee Experts

In the next round of questions, Experts inquired about the efforts to tackle child labour and the trafficking of children and adults for the purpose of forced labour.  Noting that the report indicated that judges had been trained on trafficking in persons, they asked for information on the content of this training and inquired about the support provided to victims.  The Committee would appreciate additional data on slavery and forced labour, the availability of support for victims and training of law enforcement officials.

Turning to detention, Experts welcomed the reduction of the duration of police custody of 48 hours, which was a positive step but raised concern about its application in practice.  The delegation was also asked about deaths in custody and the challenges in adopting the revisions to the Criminal Code.  Prison overcrowding remained an issue, with some facilities functioning at 200 per cent of capacity.

Noting with concern reports of civilians tried by military courts, the Experts asked about the work and the conclusions of a technical commission tasked with examining the issue.  Since the irregular entry into Tunisia was penalized, what measures were in place to process requests by people seeking protection under international law in line with human rights obligations?

The magistrates were appointed to the Supreme Judicial Council by a presidential decree, which raised concern about its independence.  It seemed that counter-terrorism surveillance measures, such as phone tapping, were proliferating without any judicial or prosecutorial oversight; the whole system seemed rather opaque.

There were still gaps in the legal framework on the freedom of the press - what safeguards were in place to protect pluralism and media independence?  Did the Government have any data on convictions of journalists under criminal law and the sanctions imposed by courts?  The Committee had been told that the work of journalists was hampered by the lack of access to data held by the Government.

Concerning freedom of association, there was a worrying trend of putting up barriers to the registration of civil society organizations and making the process tantamount to seeking authorization.  The degree of intrusion by the authorities was such that it became difficult for associations to do their work.  Space for civil society was becoming too restricted, it seemed.

The political participation of women and black Tunisians, who represented 15 per cent of the population, remained low.  How did the Government intend to address this issue?

Replies by the Delegation

The delegation explained that single mothers, given their vulnerable situation, could approach the judiciary to file complaints against State agents who stigmatized them.

As to the participation in the society of black Tunisians, the delegation said that they were present in the judiciary, in Parliament, ministries and law enforcement agencies; there were black Tunisian celebrities, whom Tunisians loved.

Military courts exercised jurisdiction over a few specific cases that involved civilians, notably those that concerned the military itself or certain security matters.  It should be noted that Tunisian military courts’ purview had been limited to military crimes after the adoption of the Constitution.  A committee was working on the implementation of this change.

Tunisia was committed to all international human rights conventions, including those that pertained to the rights of migrants and asylum-seekers.  As a host to over 1 million migrants from Libya, the Government had been working with the United Nations to develop an emergency plan for the eventual arrival of additional migrants from Libya.  The delegation stressed that terrorist elements were infiltrating across the southern borders and that adequate measures had to be taken, with full respect for human rights obligations.  Most migrants were aiming to go to Europe and did not want to be registered in Tunisia, which made the management of migration even more difficult.

On attacks on journalists, joint training workshops between security officers and journalists had been conducted.  Journalists reported monthly to the Ministry of Interior on the obstacles they faced in carrying out their work.

The Public Prosecution enjoyed the same guarantees as the judiciary, delegates said.  Public prosecutors were appointed the Supreme Judicial Council using the criteria applied in the judicial appointment.

On women’s participation in public life, 45 per cent of judges were women in first instance courts.  For second instances tribunals, the percentage of female judges stood at over 50.  However, the representation of women in the Public Prosecution was not as high, as few women applied to join this body.

A draft law on personal data aimed to strengthen compliance with international standards related to the right to privacy.  It had been presented to the legislative assembly.  A committee on the protection of personal data would be granted judicial powers to render decisions.  Tunisia was considering drafting a bill on the registration of non-governmental organizations to allow free creation and registration of civil society organizations through and online platform.

Efforts would be made to foster access to information, including journalists’ access to information held by the Government.  Time was needed to change mentalities, and shift away from the culture of secrecy which used to prevail in Government.

Concluding Remarks

AYACHI HAMMAMI, Cabinet Minister in charge of Relations with Constitutional Bodies, Civil Society and Human Rights of Tunisia, in his concluding observations thanked the Committee Experts and said the Government would work to implement their concluding observations.  Moving forward, the Government would focus on training and raising awareness.

AHMED AMIN FATHALLA, Committee Chairperson, in his concluding remarks thanked the delegation and expressed hope that by its next review by the Committee, Tunisia would make further progress.

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