禁止酷刑委员会审议突尼斯的报告（部分翻译）

日内瓦（2016年4月21日）——禁止酷刑委员会今天下午结束审议突尼斯关于落实《禁止酷刑和其他残忍、不人道或有辱人格的待遇或处罚公约》条款情况的第三次定期报告。

突尼斯宪法关系、民间社会和人权部长卡迈·曾杜比（Kamel Jendoubi）呈递报告时表示，突尼斯已取得一系列进展，正在带来人权观点的改变和对酷刑的禁止。2014年1月通过的第二部宪法确保了人权的首要地位，明确保护生命权和人类尊严，同时禁止酷刑。新宪法建立了一个符合《巴黎原则》的人权机构，有关该机构建立的法案现已提交。该机构将获得调查被控的人权侵犯行为、准备报告和访问拘留场所的任务授权。政府现已决定开展强化并实现人权的工作。挑战仍然存在，不可忽视。加强防范酷刑、调整心态、提升有关禁止酷刑的意识并确保问责是十分重要的。突尼斯政府还将确保在打击恐怖主义的同时对人权和人类尊严的保护。

对话期间，专家们提到突尼斯仍处于转型时期，并承认从独裁时期的“以酷刑为国策”走向《公约》的全面履行是需要时间的。专家们对突尼斯法律中的酷刑定义没有全面符合《公约》中的定义表示遗憾。他们对包括过度拥挤、食物不足和不卫生的条件在内的拘留条件表示了担忧。委员会对允许强奸犯与其受害者结婚即可有罪不罚的立法表示担忧。委员会成员鼓励进一步努力，加快起诉独裁时期犯下的酷刑行为，旨在结束对此类行为的有罪不罚。同样令人担心的是军事法庭的不断启用和庇护法的缺失。专家们提到，尽管突尼斯正面对恐怖主义威胁，但重要的是坚持全面尊重人权，包括在应对该挑战时绝对禁止酷刑。

在结束发言中，曾杜比先生保证突尼斯将继续努力开展强化人权保护的合作。恐惧、镇压和酷刑是独裁的基本手段，突尼斯政府现在必须通过行动重建公民信心。突尼斯已建立了一项准备条约机构报告、跟进建议落实情况的机制。

突尼斯代表团包括外交部、宪法关系、民间社会与人权部、司法部、卫生部、财政部、检察官办公室、国家协调和筹备人权报告委员会以及突尼斯常驻联合国日内瓦办事处代表团的代表们。

委员会将于4月22日（周五）上午10点复会，开始审议沙特阿拉伯的第二次定期报告（CAR/C/SAU/1）。

Report

The third periodic report of Tunisia can be read here: CAT/C/TUN/3.

Presentation of the Report

KAMEL JENDOUBI, Minister for Constitutional Relations, Civil Society and Human Rights of Tunisia, presenting the report, expressed Tunisia’s support for the work of the Committee. Tunisia had undergone a number of developments that had led to changes in its vision of human rights and the prohibition of torture. The Second Constitution adopted in January 2014 ensured the primacy of human rights, and explicitly protected the right to life and human dignity, and the prohibition of torture. Tunisia had acceded to numerous international agreements, including the optional protocols to the International Covenant on Civil and Political Rights, the Rome Statute of the International Criminal Court and the International Convention for the Protection of All Persons from Enforced Disappearances. Tunisia was also hosting a local Office of the High Commissioner for Human Rights. The Tunisian Constitution had created an independent human rights institution in accordance with the Paris Principles, and a Bill for its establishment had been submitted. This body would have the mandate to investigate alleged human rights violations, prepare reports and visit places of detention.

In 2011, Tunisia had acceded to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and created an independent national body for torture prevention, half composed of civil society representatives and with the mandate to make unannounced visits. The Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment had recently visited Tunisia and had made recommendations for strengthening the mandate of the national body for torture prevention. The Government of Tunisia was determined to work for the strengthening and realization of human rights. Challenges remained and were not negligible. It was important to strengthen torture prevention efforts, to change mentality and raise awareness on the prohibition of torture, and to ensure accountability. The Government was also committed to ensuring the protection of human rights and human dignity while combatting terrorism. A national coordinating body would be charged with the implementation of the recommendations to be made by the Committee.

Questions by the Experts

ESSADIA BELMIR, Committee Member and Co-Rapporteur for Tunisia, welcomed Tunisia’s genuine determination to improve the human rights situation in the country, to adopt a number of laws, and to cooperate with United Nations human rights mechanisms. She commended the courage of all in Tunisia who were working to change things for the better. A number of challenges remained, she noted.

Ms. Belmir welcomed that the definition of torture used in the legislation was very close to the one in the Convention, but regretted the lack of reference to the term “punishment” in that definition. She welcomed that the absence of a statute of limitation for torture was in line with the Convention.

She then referred to the exemption of public officials reporting acts of torture “in good faith”, and asked how this term was assessed by the courts. Another Expert was concerned that this legislation could allow perpetrators of acts of torture to receive a much lighter sentence, even in cases where such acts led to the death of the victim.

With regards to custody, the Co-Rapporteur welcomed Tunisia’s efforts to ensure access to legal counsel at the early stages of criminal procedures, but noted that challenges remained. It was difficult to ascertain exactly when it was considered that custody had begun. She also noted that custody could be extended by a prosecutor in certain cases, and asked for more information in that regard. Persons suspected of terrorist acts could be kept in custody for an extended period of 15 days, she noted, highlighting their exposure to abuses and acts of torture during that period. She expressed concerns about reports of ill-treatment during questioning, leading to situations where confessions might by obtained under torture. Terrorism was not defined, she said, but persons who committed such acts could be defined, and prosecutors had to adopt this approach in order to ensure that the rights of the accused were protected.

Ms. Belmir commended Tunisia for being at the forefront of the rights of women, and urged Tunisia not to lose efforts made in that regard. Another Committee Member noted that Tunisia was in the process of adopting a law on violence against women, but regretted the lack of related information in Tunisia’s responses to the list of issues. The Expert expressed concerns about the legislation allowing perpetrators of rape to escape prosecution if they could convince the victim to marry them. This led to impunity and was in contradiction with the spirit of the Convention and other human rights treaties, she insisted, asking whether the Government would be reviewing or repealing this piece of legislation.

Ms. Belmir then asked why there had been a delay in the process of drafting an asylum law. She underlined the importance of the principle of non-refoulement, and expressed concerns about the transfer of an individual back in Libya, where he was sentenced to death in a trial that did not uphold international fair trial safeguards.

The Co-Rapporteur noted several issues facing the judiciary, including a lack of training, a lack of funding and a lack of staff. She was concerned about the continued use of military courts, which did not present all fair trial safeguards.

KENING ZHANG, Committee Member and Co-Rapporteur for Tunisia, welcomed the adoption of a code of professional ethics for law enforcement personal, as well as the implementation of a programme for the protection of the rights of detainees. He commended the fact that Tunisia was carrying on a number of human rights training programmes for judges, lawyers and police officers. He asked a number of questions regarding the number and content of the training programmes provided in Tunisia.

The Co-Rapporteur welcomed Tunisia’s cooperation with United Nations human rights mechanisms, including the opening of an office of the High Commissioner there, as well as the standing invitation to all Special Procedure mandate holders. Other Experts also welcomed Tunisia’s cooperation with civil society organizations in the field of human rights.

With regards to detention conditions, the Co-Rapporteur then referred to medical examinations in prison being mandatory within the first 15 hours after incarceration, and noted that this was not always implemented in practice. Detainees filing complaints for abuse in detention facilities could consequently not submit a medical certificate to back up their claims. It was also of concern that doctors working in detention centres were affiliated to the Ministry of Interior, and that medical examinations were carried out in the presence of security guards.

He echoed Ms. Belmir’s concerns with regards to access to a lawyer, which was not always guaranteed in practice.

Mr. Zhang then expressed concern about overcrowding in Tunisian prisons, and regretted that Tunisia had not provided information on this issue in its report. He regretted that alternatives to detention were not often used, and noted that overcrowding created stress, tension, corruption, and prevented detainees from accessing rehabilitation, health and food services. Another Committee Member was concerned about the lack of personnel in detention facilities, which, mixed with prison overcrowding, led to a “disastrous situation”. The delegation was asked about plans to build additional detention facilities in the near future.

Pre-trial detention was used for very long periods, the Co-Rapporteur regretted, referring to reports from civil society organizations and the Office of the High Commissioner for Human Rights. Pre-trial detention was the second cause for prison overcrowding, after the lack of resources, another Expert noted.

There was also no information within Tunisia’s replies on the issue of solitary confinement. Several Experts asked for clarification as to the use of this practice.

There were no statistics with regards to the number of deaths in detention, he regretted, referring to a number of individual cases of detainees losing their lives in prisons and asking whether investigations on these cases had been carried out. Other Committee Members echoed the Co-Rapporteur’s concerns on that issue. One of them regretted that only “suspicious deaths” were investigated, which could be arbitrary, and encouraged the authorities to systematically investigate all deaths in custody.

Mr. Zhang expressed concerns about allegations of regular use of torture by police forces, particularly by counter-terrorism units, and asked whether investigations or prosecutions had been carried out.

Many Experts recognized that terrorism was a great threat faced by Tunisia, but insisted on the prohibition of torture in all circumstances, including in the context of counter-terrorism efforts.

More generally, Mr. Zhang regretted the lack of oversight of police activities and the lack of prosecution for abuses committed by police forces. However, he welcomed the law obliging the Prosecutor’s Office to open an investigation on allegations of torture being brought to its attention. He regretted that confessions continued to be obtained by torture, despite Tunisia’s good legislation on this matter.

Mr. Zhang echoed his colleague’s concerns with regards to the continued use of military courts.

The lack of independence of Tunisia’s National Human Rights Institution was one of the concerns raised by non-governmental organizations, he said. Another Expert asked how this institution cooperated with Tunisia’s torture prevention mechanism, particularly with regard to visits of places of detention and to recommendations made.

The Truth and Reconciliation Commission had a broad mandate, Mr. Zhang noted, asking whether such a mandate would be backed up with appropriate budget allocations.

The Co-Rapporteur was concerned about abuses against lesbian, gay, bisexual and transgender persons, and the use of forced anal examination against them. He encouraged Tunisia to abolish its law criminalizing same-sex relations.

Committee Members required information regarding budget allocations to torture prevention, and to human rights protection in general.

There were a number of concerns raised with regards to continuing impunity for cases of torture perpetrated before and after the Tunisian revolution, and the delegation was asked for information on this, and statistics on the number of cases investigated or prosecuted. It was noted that many cases of abuses and deaths in detention had not yet been prosecuted.

An Expert asked what redress or compensation had been offered to torture victims.

Most Experts noted that Tunisia was going through a transition phase, and that torture used to be State policy under the dictatorship. They understood that change was taking time, but encouraged the Tunisian Government to issue a clear statement that torture would no longer be tolerated.

Replies by the Delegation

The Head of the Tunisian delegation said that there were two different stages in recent Tunisian history: the one before and the one after the revolution. Torture was used as a State policy before the revolution, despite Tunisia having ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The revolution had allowed Tunisians to grow free from this fear. Tunisians could now express and organise themselves freely, as guaranteed by legislation adopted since 2011. Freeing one’s voice was not enough, and the State itself had to be free as well. Reforms required desire, will and time, as well as resources. The Government’s desire for reforms covered all aspects of society. This had to be done through balancing between what had already been acquired and what was clearly in contradiction with human rights standards. Individual liberties and freedoms in Tunisia were very important, and the President himself was committed to protecting them. Nothing prevented the higher authorities in Tunisia from taking a strong stand in favour of the definitive abolition and prohibition of torture in the country.

The human rights issue, before the revolution, had been an issue of “justification”, and had been used to satisfy the international community during that time, and to sell an image. Prior to the revolution, the judiciary had not been independent and the entire system, and human rights violations as well, had been in the hands of the centralized Government. Everything had changed with the new Constitution. There was now a legislative and an independent judicial power. In addition, a fourth power had been established: the local power. Independent human rights and transitional justice now played an important role, and their establishment ensured that fundamental rights were guaranteed in the country. The management of Tunisia’s limited resources was an important challenge faced by the authorities. Tunisia was fully committed to collaborating with the international community and United Nations agencies with a view to further reform. It was quite difficult to summarize developments pertaining to human rights within the last five years.

The delegation agreed that the definition of torture in the Tunisian Penal Code was not fully in line with the one in the Convention. The French version of the Penal Code referred to the prohibition of discrimination on any ground. Measures would be taken to align these domestic provisions with international standards. The crime of torture had no prescription under Tunisian law. Ongoing reforms of the Penal Code would strengthen fair trial guarantees.

The independence of the judiciary was one of the main priorities of Tunisia following the revolution. This principle had been enshrined in the new Constitution. The Higher Council of Justice had been established in 2016 as a multidisciplinary body composed of independent judges, lawyers, academics and researchers. It ensured the independence of the judiciary, and had the mandate to oversee the work of the police.

Military courts only considered specific cases involving members of the security forces, when the alleged violations had been perpetrated in the exercise of their duty. Amendments to the Code of Military Courts in 2011 had ensured that proceedings responded to fair trial guarantees.

The new Constitution allowed persons in police custody to have access to a lawyer. This provision was being implemented, even in the absence of a procedural law clarifying this right. A new piece of legislation had shortened the duration of police custody down to 48 hours, renewable under strict conditions and under the supervision of the prosecutor.

Terrorism had a trans-border dimension, and had to be combatted in cooperation with the international community. Tunisia was committed to combat terrorism in compliance with its human rights obligations.

On violence against women, a delegate said that a national inquiry had shown that over 45 per cent of women had been victims of violence at least once in their lifetime. It was followed by a national strategy to combat gender violence, focusing on awareness-raising, training of official staff, and legislative reforms. A draft bill would focus on prevention and training, protection of the victims, and prosecution of the perpetrators. There could not be marriage following non-consensual intercourse, a delegate said. The Ministry of Health had also undertaken measures to provide psychological services to women victims of violence. It had specifically focused on consolidating human resources involved in these services.

Prisons had been burnt down and destroyed during the revolution, which had had an impact on detention conditions and overcrowding. A plan to combat overcrowding was being prepared in collaboration with the United Nations Office of the High Commissioner for Human Rights.

In addition, there was a grave shortage of medical personnel in prisons. Efforts had been taken nonetheless to ensure that the confidentiality of medical examinations was maintained. Such examinations were usually undertaken without the presence of a guard. Legal gaps remained; for example, preventing medical files to be shared with the victim’s lawyer without authorization from a judge.

With regard to deaths in detention, a delegate said that autopsies were carried out on a legal order and by independent forensic doctors, trained on the provisions of the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol). In 2016, there had been 12 deaths in prisons so far. The law provided that the Prosecutor General had to be immediately informed, following which an investigation was launched.

Forced medical examinations were conducted with respect to a national code of ethics for doctors, and in accordance with the provisions of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules). The validity of informed consent had to be assessed by medical staff.

Basic human rights training had been provided to 3,000 agents working with detainees. Standard methods of investigation had been developed and shared with law-enforcement officials. A “peer review” programme had been established jointly with the European Union. Tunisia was also in the process of drafting a code of conduct on the treatment of prisoners, in collaboration with the United Nations. A guidebook on the prevention of torture had been prepared with the help of the International Rehabilitation Council for Torture Victims. Training of judges and other law enforcement personnel had been conducted on this guidebook.

Former secret detention centres had been opened, and civil society organizations were allowed to visit them and to interview detainees without supervision.

Migrants were received and held temporarily in centres where their situation was determined. They were provided with food, health and shelter. Additional reception centres had been opened, and could be visited by international institutions and other organizations. Tunisia had been working on a draft bill on asylum since 2011, and had undertaken extensive consultations with all stakeholders. The draft foresaw all principles for ensuring international safeguards for asylum seekers.

The Ministry of Interior had become aware of the need to review the law governing the handling of protests and assemblies, in order to align this text with international standards and to prevent excessive use of force by police forces.

Questions by the Experts

ESSADIA BELMIR, Committee Member and Co-Rapporteur for Tunisia, thanked the delegation for the answers it had given.

With regard to definitions, she welcomed that the crime of torture did not fall under the statute of limitation. She regretted that the legislation on torture could not be applied to acts committed before 1999.

She noted that the judiciary was independent, but regretted the deficiency in handling certain cases of abuses or deaths in detention, which were not followed by appropriate investigations or prosecutions. The investigating judge did not seem to be responsive to cases of torture, the Co-Rapporteur said.

KENING ZHANG, Committee Member and Co-Rapporteur for Tunisia, reiterated his concerns with regards to the criminalization of same-sex relations, and related medical examination to criminalize lesbian, gay, bisexual, transgender and intersex persons. He requested a response on that issue.

Continuing, he welcomed the fact that the Government had expressed the political will to compensate victims of torture, and asked whether Tunisia had a specific law on how to provide such reparation.

A Committee Member asked for information regarding the duration of solitary confinement and disciplinary measures.

Another Expert asked whether amnesties had been granted to perpetrators of crimes covered by the Convention.

The delegation was asked whether virginity tests continued to be imposed on some women.

An Expert asked what the procedure was if doctors carried out medical examinations on detainees that did not abide by ethics standards.

The Committee regretted that the Truth and Reconciliation Commission had not been granted any funds to provide reparation for torture victims.

Replies by the Delegation

Solitary confinement was a disciplinary measure taken to deal with misconduct by an inmate in a correctional institution. The period for solitary confinement was 10 days, during which the inmate was placed in a cell on his own, with access to sanitation and following medical examination by a doctor. The inmate had the right to file an appeal to contest this disciplinary measure within 24 hours.

Anal and virginity tests were not forensic medical practices. These examinations only took place for investigating sexual attacks. Tests reported by civil society organizations had been prohibited under the medical code of ethics. The National Medical Ethics Committee had firmly condemned, and was investigating, alleged violations of this code for the purpose of criminalizing same-sex relations. Doctors conducting tests without the consent of the patient or the authorization of a judge could be subjected to sanctions.

No amnesty would be granted to perpetrators of torture, a delegate said. Presidential pardon could be granted on a case by case basis, but so far it had not benefited any perpetrator of the crime of torture.

International and national entities would be granted authorization to visit prisons in the context of efforts to prevent torture. The Ministry of Justice had concluded an agreement with Tunisian civil society organizations to allow them to make unannounced visits to prisons.

Closing Remarks

KAMEL JENDOUBI, Minister for Constitutional Relations, Civil Society and Human Rights of Tunisia, thanked Members of the Committee, and assured that Tunisia would continue its efforts and cooperation for strengthening human rights protection. Despite difficulties, Tunisia had already made important progress. Fear, repression and torture were basic instruments of the dictatorship, and had an impact not only on laws and institutions, but also on attitudes and minds. Problems relating to torture and violence by authorities in the past were still deeply rooted in the society. The Government now had to build citizens’ confidence in its actions. Tunisians had high expectations, he noted. Tunisia had experienced historical events over the last few years. The threat of terrorism was an important challenge, and had an impact on the progress of the Tunisian transition. But public freedoms gained since the revolution would continue to be guaranteed. Tunisia had established a mechanism to prepare treaty body reports, and to follow-up the implementation of recommendations.

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