Committee against Torture
Concluding observations on the third periodic report of Tunisia *
1.The Committee against Torture considered the third periodic report of Tunisia (CAT/C/TUN/3) and its additional updated report (CAT/C/TUN/3/Add.1) at its 1398th and 1401st meetings (CAT/C/SR.1398 and 1401), held on 19 and 21 April 2016. At its 1420th and 1421st meetings, held on 6 May 2016, the Committee adopted the following concluding observations.
2.The Committee welcomes the third periodic report of Tunisia and notes with satisfaction that an additional updated report was submitted in 2014 highlighting the progress made by the State party.
3.The Committee welcomes the written replies to the list of issues (CAT/C/TUN/Q/3/Add.1) and the oral responses provided in the course of its open and constructive dialogue with the high-level delegation sent by the State party.
4.The Committee notes with satisfaction that the State party has ratified or acceded to most of the United Nations international human rights instruments.
5.The Committee welcomes the legislative measures taken by the State party to give effect to the Convention, including:
(a)The new Constitution of January 2014, article 23 of which states that the crime of torture is not subject to a statute of limitations;
(b)The Organic Act of March 2016 establishing the High Council of the Judiciary;
(c)Organic Act No. 2013-53 of December 2013 on transitional justice and related organizational arrangements and Decree No. 2014-2887 of August 2014 establishing special criminal divisions for transitional justice;
(d)Organic Act No. 2013-43 of October 2013 establishing the National Authority for the Prevention of Torture;
(e)Act No. 2009-68 of 2009 on punitive damages and on the modernization of alternatives to prison sentences.
6.The Committee also welcomes other steps taken by the State party to give effect to the Convention, including:
(a)The opening in 2014 of the first rehabilitation centre for victims of torture;
(b)The attention paid to the prison system through the adoption in 2015 of an action plan for the reform of judicial and prison facilities and the adoption in 2016 of an action plan against overcrowding;
(c)The signing in 2011 of an agreement with the Office of the United Nations High Commissioner for Human Rights to open an office in Tunisia and the adoption in December 2012 of a memorandum of understanding with several national human rights organizations on prison visits, and the adoption in December 2014 of a protocol on medical care for prisoners on hunger strike, with the assistance of the International Committee of the Red Cross;
(d)The adoption in 2008 and 2012 of a national strategy on the prevention of violence;
(e)The establishment in 2014 of an extended multisectoral committee within the Ministry of Justice to amend the provisions of the Criminal Code and to bring it into line with the Convention.
C.Principal subjects of concern and recommendations
Definition of torture
7.While welcoming the recognition in 1999 of torture as a crime in the Criminal Code, the Committee is concerned that the definition of torture contained in article 101 bis of the Code, as amended in 2011, is still not in conformity with the definition set out in article 1 of the Convention, as it does not refer to “punishment” as one of the prohibited purposes of torture and limits “discrimination” to “racial discrimination”. The Committee is also concerned that article 101 quater provides for the exemption from punishment of public servants or their equivalents who denounce acts of torture “in good faith”, which opens the door to impunity (arts. 1 and 4).
8. The Committee requests the State party to expedite the ongoing legislative reform process and to take the necessary steps to amend article 101 bis of its Criminal Code so as to bring it strictly into line with the definition of torture contained in article 1 of the Convention. To ensure that any act committed by a public official or similar person constituting participation in an act of torture does not go unpunished, the State party should also amend article 101 quater of its Criminal Code so as to remove the exemptions aimed at encouraging reporting of the crime of torture.
Fundamental legal safeguards
9.While the Committee welcomes the adoption of Act No. 2016-5 (due to enter into force on 1 June 2016), which provides for the reduction of the legal duration of police custody to 48 hours in criminal cases, renewable once by reasoned decision of the public prosecutor, and which provides for detainees to have access to a lawyer from the very beginning of their stay in custody as well as during questioning, the Committee remains concerned about the new law’s lack of clarity as regards the moment that marks the beginning of custody and the fact that the lawfulness of the custody is not open to challenge (art. 2).
10. The State party should take the necessary legislative measures to clarify the conditions in which custody begins and the moment when it starts and to ensure that custody does not last longer than 48 hours, renewable once in exceptional circumstances, duly supported with actual justifying elements. The State party should also ensure that all detainees will be brought before an independent judicial authority within 48 hours of their arrest in order to review the grounds for placement in custody and renewal of custody and to allow the lawfulness of the custody to be challenged. The State party should regularly check that legal safeguards are observed by all public officials and ensure that any who do not observe them are punished.
11.While recognizing the difficult context faced by the State party in the wake of terrorist attacks, the Committee is just the same concerned about the adoption in 2015 of Organic Act No. 2015-26 on combating terrorism, as the Act gives no clear definition of an act of terrorism and extends the maximum duration of custody for those suspected of such acts to 15 days. The Committee is also concerned to note that under a new law, Act No. 2016-5, the assistance of a lawyer can be delayed for up to 48 hours in cases of terrorism. In this connection, the Committee is concerned about reports it has received on incommunicado detention before the arrest has been officially registered in cases related to counter-terrorist activities and in which claims of torture have been made (arts. 2 and 12).
12. The State party should:
(a) Amend Act No. 2015-26 so as to strictly define acts of terrorism and reduce the duration of custody in cases of terrorism in accordance with international standards;
(b) Make the necessary legislative changes to ensure that every person held in custody enjoys all fundamental legal safeguards regardless of the grounds for custody;
(c) Put in place an effective and independent mechanism for monitoring the registration of persons deprived of liberty and for appropriate punishment in cases where records are falsified or destroyed;
(d) Eliminate all forms of incommunicado detention, systematically investigate complaints in this respect, and duly punish those responsible.
Medical examinations of detainees
13.While appreciating that Act No. 2016-5 guarantees access to a medical examination during custody, the Committee regrets that persons deprived of liberty cannot choose their doctors. It is concerned about reports of detainees being examined in the presence of police officers or prison staff and of some examinations being carried out by doctors from the Ministry of Justice, although it notes that responsibility in this area is now being transferred to the Ministry of Health. The Committee also takes note with concern of reports that the medical records of detainees are often incomplete, lacking in detail and only accessible to detainees or their counsel on the instructions of the investigating judge, which prevents victims of torture or ill-treatment from documenting their complaints (arts. 2, 12 and 13).
14. The State party should ensure that:
(a) A medical examination is performed promptly at the beginning of the deprivation of liberty by independent doctors, preferably of the detainees ’ choosing, and who have been trained in the use of the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol);
(b) The medical file is made available to the detainee or the detainee ’ s counsel on request;
(c) All examinations are performed out of earshot and sight of police officers and prison staff;
(d) The doctor is able to report any signs of torture or ill-treatment to an independent investigative authority in confidence and without risk of reprisals.
Allegations of torture and ill-treatment
15.While taking note of the numerous measures taken by the State party to prevent torture, the Committee remains concerned about consistent reports that torture and ill-treatment continue to be practised in the security sector. Torture is practised particularly by officers of the police and National Guard when holding a person in custody, and especially against terrorism suspects. Although the police are under the authority of the public prosecutor during investigations, the Committee regrets that the public prosecutor is not practically involved in monitoring interrogation, but rather exercises judicial oversight of the measures taken by the police. The Committee is also concerned about reports that the Ministry of the Interior has sometimes misinterpreted the counter-terrorism law by refusing to reveal the identity of officers suspected of torture to the judge in charge of the investigation (arts. 1, 2, 4, 11-13, 15 and 16).
16. The Committee urges the State party to:
(a) Ensure that public prosecutors properly monitor the measures taken by the officers of the security services in charge of investigations;
(b) Install video surveillance equipment in all interrogation centres and places of custody, including the centres in Gorjani, El Aouina and Bouchocha, except where doing so might give rise to violations of detainees ’ right to privacy or the confidentiality of their conversations with their counsel or doctor. The State party should also ensure supervision of the use of such recordings during trials;
(c) Unambiguously reaffirm the absolute prohibition of torture and publicly warn that anyone committing such acts or otherwise complicit or acquiescent in torture will be held personally responsible before the law for such acts;
(d) Ensure that article 67 of the new counter-terrorism law (Act No. 2015-26) is not misinterpreted with the aim of guaranteeing impunity for officers of the security services suspected of committing acts of torture or ill-treatment;
(e) Pursue efforts to reorganize and reform the security services so that they are in conformity with the standards of a State based on the rule of law and of the Convention.
Independence of the judiciary
17.While welcoming the constitutional, legislative and institutional measures that reinforce the independence of the judiciary (see para. 5 (a) and (b) above), the Committee takes note with concern of reports that the judiciary is still subject to considerable influence of the executive branch and that investigating judges do not always transmit detainees’ allegations of torture during custody to the State prosecutor, as required by law, and that they do not order medical examinations at the request of detainees or the detainees’ counsel (arts. 2, 12, 13 and 16).
18. The State party should:
(a) Expedite the adoption of draft laws and the establishment of the new judicial bodies and ensure that they are in conformity with the Constitution and international standards on the independence of the judiciary;
(b) Ensure that, in cases of alleged torture or ill-treatment, investigating judges promptly order that a psychological and physical forensic examination of the detainee be performed and immediately and systematically report violations to the State prosecutor, in accordance with articles 13 and 14 of the Code of Criminal Procedure, while guaranteeing the protection of the victim;
(c) Carry out more training of judges and public prosecutors, reminding them of their duty to take the necessary measures whenever they have reason to believe that a person appearing before them may have been subjected to torture or duress. The competent authorities should hold responsible those persons whose duty it is to apply the law, including judges who fail to respond appropriately to allegations of torture raised during judicial proceedings.
Impunity for acts of torture and ill-treatment
19.The Committee is concerned about consistent reports of the lack of due diligence exercised by judges and the judicial police, which report to the Ministry of the Interior and are responsible for investigating cases of violence committed by State officials, in the course of investigations into torture or ill-treatment. It also notes with concern that prosecutors dealing with complaints of torture sometimes decide to conduct preliminary inquiries instead of sending the case to an investigating judge, thus preventing the victim from seeking criminal damages. In the light of the above, the Committee expresses its concern that, according to the additional updated report, of the 230 cases of torture brought before the courts between January and July 2014, 165 are still in the investigation stage and the accused have been convicted in just 2 cases, receiving suspended sentences. While also noting the additional information provided by the delegation on legal cases involving torture between March and December 2015 for which investigations are still under way, and on the disciplinary action taken against the perpetrators of such offences in the past five years, the Committee considers it regrettable that no information has been given on the number of criminal convictions and penalties handed down, in particular under article 101 bis of the Criminal Code, and regrets the confirmation that just one sentence of 2 years’ imprisonment has been handed down under that provision (arts. 2, 12, 13 and 16).
20. The State party should:
(a) Ensure that all complaints of torture or ill-treatment are promptly investigated in an impartial manner and with due diligence by independent judicial officials, and that persons suspected of such acts are duly tried and, if found guilty, are punished in a manner commensurate with the gravity of their acts;
(b) Forward complaints of acts of torture or ill-treatment without delay to an investigating judge so that the victim is able to seek criminal damages and take an active part in the investigation;
(c) Ensure the impartiality of inquiries conducted by the police, for example by transferring the judicial police service to the Ministry of Justice;
(d) Ensure that persons suspected of torture or ill-treatment are immediately suspended from duty for the duration of the investigation, particularly when there is a risk that they might otherwise be in a position to repeat the alleged act, to take reprisals against the presumed victim or to obstruct the investigation;
(e) Provide more training for forensic physicians on the Istanbul Protocol and ensure that judicial officials question physicians about their findings;
(f) Ensure that judges launch investigations on their own initiative whenever there are reasonable grounds to believe that an act of torture or ill-treatment has been committed.
Mechanisms for complaints and protection against reprisals
21.In the light of the Committee’s previous recommendations (A/54/44, para. 96), the Committee remains concerned about reports of reprisals committed by the police against the families and counsel of victims with the aim of preventing them from submitting complaints of torture. The Committee also regrets that Tunisian legislation does not explicitly protect the confidentiality of complaints submitted to prosecutors through prison administrations. As for access to a lawyer for the submission of complaints, the Committee notes that such access is hampered by the fact that authorization must be requested from the investigating judge during pretrial detention, and after conviction, from the Directorate-General of Prisons, and that lawyers’ interviews with their clients must take place in the presence of a prison guard (arts. 2, 12, 13 and 16).
22. The State party should:
(a) Put in place an independent, effective, confidential and accessible mechanism to facilitate the submission of complaints by victims of torture and ill-treatment, including by persons deprived of their liberty;
(b) Uphold the principle under which communication between lawyers and their clients is secret and ensure access to counsel without delay for any persons deprived of their liberty;
(c) Establish a system for the protection of victims of torture, witnesses and other persons supporting victims so that they are protected against all forms of reprisals;
(d) Take criminal and disciplinary measures against those who carry out reprisals.
Invalidity of confessions obtained under torture
23.While welcoming the amendment of article 155 of the Code of Criminal Procedure concerning the admissibility of confessions, the Committee remains concerned about reports that confessions made under torture have been admitted as evidence in court in the absence of any investigation into the torture allegations. The Committee is further concerned at the absence of any information on cases in which courts have declared evidence obtained under torture or duress to be null and void (art. 15).
24. The State party should adopt effective measures to ensure full compliance with article 155 of the Code of Criminal Procedure. The Committee thus invites the State party to:
(a) Ensure that in cases of allegations of torture it is for the prosecuting authority to establish that evidence has not been obtained under duress;
(b) Adopt the legislative measures required to permit proceedings to be reopened on the grounds that they have been held on the basis of confessions extracted under torture.
25.The Committee notes with concern that under Act No. 82-70 of 1982, the Statute of the Internal Security Forces Act, military courts are competent to hear cases involving acts carried out by members of those forces against civilians during the performance of their duties (art. 12).
26. The State should amend Act No. 82-70 of 1982 and the Code of Military Justice to preclude the possibility that military courts could have jurisdiction over cases involving human rights violations or offences allegedly committed against civilians by military personnel or members of the internal security forces.
Conditions of detention
27.Despite the efforts made by the State party to improve conditions of detention (see paras. 5 (e) and 6 (b) above), the Committee remains concerned about prison overcrowding, which according to the information it has received is at 150 per cent at some facilities. According to various reports, this situation is in part due to the insufficient availability and dilapidated state of prisons and the high proportion of persons in pretrial detention (55 per cent, as against 45 per cent who are convicted prisoners), as well as the high incarceration rate, even for minor offences such as drug use. The Committee also remains concerned about reports of deplorable sanitary conditions and poor nutrition and the failure to effectively separate convicts from suspects and adults from minors at all facilities. The Committee notes with concern the low numbers of prison staff and medical personnel available at prisons. It is also concerned about reports that, in practice, periods of solitary confinement exceed the limit of 10 days set by the law (arts. 11 and 16).
28. The State party should increase its efforts to improve conditions of detention, including by:
(a) Significantly reducing overcrowding in prisons by making more use of alternatives to incarceration such as suspended sentences for first offenders or for certain minor offences and of alternatives to pretrial detention;
(b) Ensuring absolute compliance with the maximum length of pretrial detention and ensuring that persons in detention are brought to trial without excessive delay;
(c) Continuing its efforts to improve and expand prison facilities in order to remodel those facilities that do not meet international standards, and allocating the resources required to improve conditions of detention and strengthen reintegration and rehabilitation activities;
(d) Putting in place the measures required to ensure the strict separation of accused persons from convicts and adults from minors, and appropriate treatment for them;
(e) Increasing the number of qualified staff working with prisoners;
(f) Ensuring the availability of medical services in all prison facilities;
(g) Ensuring that solitary confinement is used only as a last resort, for as short a time as possible, under strict supervision and with the possibility of judicial review, in accordance with international standards.
Deaths in custody
29.The Committee is concerned about several cases in which people have died in detention in suspicious circumstances and which have still not been elucidated by the judicial authorities, as confirmed by the additional information from the State party regarding the cases of Ali Khemais Louati, Mohamed Ali Snoussi, Walid Denguir, Abdelmajid Jedday, Rachid Chammakhi and Fayçal Baraket. While the Committee appreciates the fact that the State party has provided statistics on the number of deaths in detention since 2013, which has averaged 34 deaths per year, the Committee regrets the lack of information on inquiries into these deaths (arts. 2, 11, 12, 13 and 16).
30. The State party should take the measures required to ensure that:
(a) All deaths in detention are subject to impartial inquiries conducted with due diligence by independent bodies, and that the persons considered responsible for them are brought to justice and, if found guilty, appropriately punished;
(b) Victims and their families can take part in the judicial investigations as a civil party, and on the same footing as the prosecutor.
Monitoring of places of detention
31.While welcoming the measures taken and agreements reached with various national and international bodies to strengthen monitoring at places of detention (see paras. 5 (d) and 6 (c) above) and the recent establishment of the National Authority for the Prevention of Torture, the Committee notes with concern that several bodies have been denied access to the Gorjani judicial police facility on the grounds that it is not a place of deprivation of liberty (arts. 2, 11-14 and 16).
32. The State party should provide all monitoring mechanisms with free access to all places of detention, including pretrial detention and interrogation centres. Such mechanisms should be able to conduct unannounced visits and to interview inmates without witnesses.
National Authority for the Prevention of Torture
33.While welcoming the recent establishment of the National Authority for the Prevention of Torture, the Committee is concerned about the lack of resources available for it to become operational immediately (art. 2).
34. The State party should provide the National Authority for the Prevention of Torture with sufficient resources to allow it to begin to carry out its mandate immediately and to operate in accordance with the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles).
Non-retroactivity of the law and non-applicability of the statute of limitations to the crime of torture
35.The Committee notes with satisfaction that article 24 of Organic Act No. 2013-43, which set up the National Authority for the Prevention of Torture, amended article 5 (4) of the Code of Criminal Procedure, establishing that the crime of torture is not subject to the statute of limitations, and that, in accordance with article 9 of Act No. 53 of 2013 on transitional justice, legal proceedings brought before the specialized judicial divisions authorized to hear cases of torture committed since 1955 are not subject to prescription. Considering the principle of non-retroactivity of criminal law and the fact that the crime of torture was introduced into the Criminal Code only in 1999 under article 101 bis, the Committee remains concerned about the application of the law to acts of torture committed prior to the entry into force of the provision. In this respect, it notes that in two cases concerning torture committed prior to 1999 the perpetrators were prosecuted for committing acts of violence, while offences punishable by heavier penalties were excluded (arts. 2, 12, 13 and 14).
36.Bearing in mind the long-established jus cogens prohibition of torture, the Committee calls upon the State party to take all necessary measures to ensure that acts of torture committed before 1999 are prosecuted as offences punishable by penalties commensurate with the gravity of the crime. The State party should also amend article 5 of the Code of Criminal Procedure, in accordance with article 24 of Organic Act No. 2013-43.
37.While welcoming the measures taken to establish transitional justice mechanisms (see para. 5 (c) above), the Committee should like to draw attention to the scope of the mandate of the Truth and Dignity Commission, which has also been assigned functions relating to reparations and corruption. The Committee also notes with concern that the law gives the Commission just 5 years to determine the truth about violations committed over nearly 60 years, and that it has already received 28,087 complaints, including some 20,000 relating to torture and ill-treatment. The Committee is also concerned about the fact that no budget has been granted to it to allow it to carry out its terms of reference (art. 14).
38. The State party should:
(a) Continue to provide the Truth and Dignity Commission with sufficient resources to allow it to carry out its mission effectively and to ensure that complaints of torture and ill-treatment are forwarded to an independent investigation authority once its mandate lapses;
(b) Ensure that all the perpetrators of acts of torture committed during the period covered by the transitional justice law are brought to justice and ensure the highest level of protection for the victims, witnesses and their families;
(c) Adopt a reparation policy with clear, non-discriminatory criteria, as recommended by the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence (A/HRC/24/42/Add.1, para. 86);
(d) Ensure the right of victims to seek judicial remedies irrespective of the remedies available in the framework of the Truth and Dignity Commission, in accordance with the Committee ’ s general comment No. 3 (2012) on the implementation of article 14 by States parties (para. 30).
Violence against women
39.While welcoming the efforts made to combat violence against women (para. 6 (g), above) and the new bill which, according to information provided by the delegation, will repeal the criminal provisions that make it possible to stay prosecution in the event of the perpetrator’s marriage with the victim and if the victim withdraws the complaint, the Committee regrets the lack of clear statistical data in cases of gender-based violence, disaggregated by type of offence, on the proportion of complaints that give rise to prosecution and convictions and on measures providing compensation (arts. 2, 12, 13, 14 and 16).
40. The State party should:
(a) Expedite the adoption of the law to combat violence against women and ensure that it makes all forms of violence against women a criminal offence, including domestic violence and marital rape, and amend the provisions of the Criminal Code in order to eliminate any possibility of impunity for the perpetrators of violence against women;
(b) Ensure that cases of violence against women are effectively and impartially prosecuted, that the perpetrators are prosecuted and receive punishment commensurate with the seriousness of their acts and that the victims receive reparation;
(c) Train members of the judiciary and law enforcement officials, make them aware of all types of violence against women and strengthen public awareness campaigns.
Forensic examinations as proof of sexual acts
41.The Committee notes with concern that consensual relations between persons of the same sex are criminalized in the State party and that persons suspected of being homosexual are forced by a judge’s order to submit to an anal examination conducted by a forensic physician to prove their homosexuality. Notwithstanding the right to refuse to submit to such examinations, the Committee is concerned about information that several persons have accepted them, under threat from the police, who contend among other things that a refusal would be interpreted as incriminating. The Committee also notes with concern reports of vaginal examinations, sometimes performed without consent, conducted to prove sexual acts such as extramarital relations and acts of prostitution (arts. 2 and 6).
42. The State party should repeal article 230 of the Criminal Code, which makes consensual relations between adults of the same sex a crime. It should also prohibit intrusive medical examinations that have no medical justification and cannot be performed with the free and informed consent of the persons subjected to them, who consequently will then be prosecuted.
Attacks against human rights defenders, bloggers, journalists and artists
43.The Committee is concerned about reports of attacks by police officers against human rights defenders, including Héla Boujeneh and Ahmed Kaâniche, bloggers such as Lina Ben Mhenni, and harassment against journalists and artists. It regrets the lack of statistics on the number of complaints and convictions for attacks against these groups and the lack of information on measures taken to prevent such acts (arts. 2, 12, 13 and 16).
44. The Committee invites the State party to publicly condemn threats and attacks against human rights defenders, journalists, artists and bloggers and not to support, by action or omission, such attacks, by ensuring:
(a) Effective protection of these groups against the threats and attacks to which they may be subjected by virtue of their activities;
(b) That prompt, thorough and effective investigations are carried out of all threats and attacks targeting these groups and by guaranteeing that those responsible for them are brought to justice and punished in a manner commensurate with the gravity of their acts.
45.The Committee requests the State party by 13 May 2017 to provide it with information on the follow-up given to its recommendations in paragraph 16 on allegations of torture and ill-treatment, in paragraph 28 on conditions of detention and in paragraph 38 on transitional justice, in particular subparagraph (a), on the mandate of the Truth and Dignity Commission. In this context, the State party is invited to inform the Committee of its plans to implement, during the period covered by the next periodic report, some or all of the rest of the recommendations contained in these concluding observations.
46.The Committee invites the State party to consider ratifying the other United Nations human rights instruments to which it is not yet party, namely:
(a)The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty;
(b)The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;
(c)The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights;
(d)The Optional Protocol to the Convention on the Rights of the Child on a communications procedure.
47.The State party is requested to disseminate widely the reports submitted to the Committee and the Committee’s concluding observations, in the appropriate languages, through official websites, the media and non-governmental organizations.
48.The State party is invited to update its common core document (HRI/CORE/1/Add.46) in accordance with the harmonized guidelines on reporting under the international human rights treaties (see HRI/GEN/2/Rev.6, chap. I).
49.The Committee invites the State party to submit its next periodic report, which will be its fourth, by 13 May 2020. To this end, the Committee invites the State party to agree, by 13 May 2017, to prepare its report under the optional reporting procedure whereby the Committee will transmit to the State party a list of issues prior to reporting. The State party’s response to this list of issues will constitute, under article 19 of the Convention, its next periodic report.