UPR – Third Report of Tunisia

On May 2, 2017, Mr. Mehdi Ben Gharbia, Minister for Relations with Constitutional Institutions and Civil Society and for Human Rights of Tunisia, presented the third national report of the Universal Periodic Review of Tunisia regarding its human rights commitments and application of previous recommendations.

Following the Universal Periodic Review of September 2012, the third report was prepared after inclusive consultations with governmental agencies and civil society and included the measures taken to implement the recommendations of the second cycle.

Presentation of the National Report

The National Report submitted by Tunisia addressed the steps taken by the Tunisian government to protect fundamental human rights and freedoms of the population and to implement the recommendations of the previous session of the universal periodic review.

The legal and institutional framework for the protection and promotion of human rights: in January 2014, the National Constituent Assembly adopted the Tunisian Constitution, which established a republican system of participatory democracy based on citizenship, the will of the people and the rule of law, and enshrines fundamental rights and freedoms of all citizens without discrimination.

Ratification of international instruments and cooperation with United Nations mechanisms: all international treaties approved and ratified by the Assembly of the Representatives of the People have primacy over national legislation but not over the Constitution. Such treaties may therefore be imposed directly by the judiciary. Tunisia has ratified 14 out of 18 international treaties and has withdrawn its reservations.

The institutional framework for the protection and promotion of human rights: the Constitution states that the judiciary is an independent authority, that judges are independent and subject only to the law in discharging their functions, and that nobody may interfere with the functioning of the judicial system. Furthermore, the Constitution provides the framework for the existence of independent constitutional bodies that seek to support democracy, are endowed with legal personality and enjoy administrative and financial independence.

The promotion and protection of human rights on the ground

Development and building of capacities in the area of human rights: the basic public training programme of the human rights module for prison staff and members of the judiciary has been updated and aligned with international human rights norms applicable to penitentiary units.

The process of transitional justice: the Truth and Dignity Commission was established in 2013. Moreover, the military justice system addressed crimes committed against demonstrators and protectors during the revolution of 17 December 2010 to 14 January 2011, as the regular justice system refrained from addressing them.

Combating torture: according to article 23 of the Constitution, the State protects human dignity and physical integrity, and prohibits mental and physical torture. In order to prevent cases of torture, the government is enhancing the monitoring of places of detention and is providing adequate training to the security staff. Furthermore, victims are assisted and supported in the process of reintegration into society. Finally, the Tunisian authorities are working towards the reduction of the duration of prison terms and the reduction of the number of inmates in order to solve the issue of prison overcrowding.

Abolition of the death penalty: while death penalty has not been abolished yet, a number of consultations have been held and, no death penalty has been executed in Tunisia since 17 November 1991.

The fight against human trafficking: an Organic Act provides for the prevention and combating of all forms of exploitation to which people may be subjected, particularly women and children.

Respect for human rights while countering terrorism: in late 2016, the President of the Republic approved a National Strategy to Combat Terrorism and Violent Extremism, which was drafted in compliance with international human rights norms.

Support for general rights and freedoms: Decree No. 115 of 2011, which regulates freedom of the press, printing and publication, is currently being reviewed to align it with the provisions of the Constitution and international norms. Furthermore, the Constitution guarantees the protection of personal data.

Equality and non-discrimination: the Constitution enshrines the principle of equality between women and men. Moreover, Tunisia is working towards the elimination of violence against women – by raising awareness and punishing violators – and towards the empowerment of women in the social, economic and political life.

Enhanced protection of children’s rights: important steps were taken to reduce and combat violence against children as well as child labour

Support for the rights of persons with disabilities: persons with disabilities have access to all basic services, including inclusive education and financial assistance

Elimination of racial discrimination: the National Commission to Combat Racial Discrimination has been created with the aim of analysing the existing situation and devising a strategy to bring about any reforms required at the legislative, institutional, procedural, educational and cultural levels.

Promotion of economic, social and cultural rights

Support for development of the least developed regions: with a view to supporting the least developed regions, a number of programmes have been developed to improve living conditions, to develop the infrastructure and basic communal facilities, to create sources of livelihood and to improve the residents’ income, especially in rural areas.

Guaranteeing the right to health: action is currently being taken to improve access to health-care services for all citizens.

The right to education and higher education: the government is investing large amounts of money to promote and enhance education and improve study conditions.

The right to adequate housing: the government has taken action to provide social housing and financial assistance to those in need.

Despite the concrete efforts that are being made, the Tunisian State is currently facing multiple challenges at all levels. They are basically attributable to the democratic transition, which affected all the country’s institutions, to the economic and financial difficulties and heavy pressure on the State’s budget, and to the security situation faced by the State in the fight against terrorism, which impedes progress in discharging projects, establishing institutions and ensuring the full implementation of rights.

Compilation of the Office of the United Nations High Commissioner for Human Rights

Such compilation includes information contained in the reports of treaty bodies and special procedures and other relevant United Nations documents.

The United Nations country team invited Tunisia to consider ratifying the Second OP-ICCPR, the CMW, the OP-ICESCR, and the OP-ICRC on a communications procedure.

OHCHR assessment of the implementation of the recommendations and the international human rights obligations

Equality and non-discrimination: the OHCHR recommended criminalizing racism, in line with international commitments. The country team reported that article 230 of the Criminal Code criminalized sexual relations between persons of the same sex and expressed concern for cases of discrimination against the members of the Amazigh minority.

Human rights and counter-terrorism: in his 2015 mission report, the Special Rapporteur on torture stated that he had heard that tens or even hundreds of individuals had been subjected to ill-treatment or even torture in the context of counter-terrorism operations.

Civil and political rights

Right to life, liberty and security of person: the Committee against Torture was concerned about reports of incommunicado detention before an arrest had been officially registered in cases relating to counter-terrorism activities and in which claims of torture had been made. The OHCHR received consistent reports that torture and ill-treatment continued to be practised in the security sector, particularly by the police and National Guards, against persons held in custody, especially against terrorism suspects. The lack of effective legal and procedural safeguards governing the arrest, interrogation and pre-charge detention of suspects continues to make arrestees extremely vulnerable to torture and other ill-treatment in practice.

Fundamental freedoms and the right to participate in public and political life: the OHCHR recommended that the Government put an end to all administrative practices that infringe freedom of religion and belief, and ensure full respect for and protection of the freedom to debate public affairs, hold peaceful meetings and demonstrations, express opposition and publish political ideas, particularly for women and young people. Furthermore, the OHCHR invited Tunisia to ensure that prompt and effective investigations were carried out into all threats and attacks targeting human rights defenders, bloggers, journalists and artists.

Economic, social and cultural rights

Right to social security: the OHCHR indicated that social tensions remain high and have increased in intensity.

Right to an adequate standard of living: the OHCHR urged Tunisia to take all necessary measures to reduce poverty and extreme poverty, especially in rural areas and the inland region.

Right to education: the OHCHR urged Tunisia to invest more resources in education in rural areas to close existing gaps, to address the high dropout and illiteracy rates as a matter of urgency, and to encourage women and girls to remain in school

Women: the OHCHR expressed concerns for the persisting discrimination against women and recommended that Tunisia expedite the adoption of the law to combat violence against women; make all forms of violence against women a criminal offence, including domestic violence and marital rape; amend the provisions of the Criminal Code in order to eliminate impunity; and ensure that cases of violence against women are effectively prosecute.

Migrants, refugees, asylum seekers and internally displaced persons: the Special Rapporteur on migrants observed that the system of detention and removal of migrants in Tunisia remains unclear and opaque. He recommended that the Government decriminalize irregular border crossing and strengthen the mechanisms to detect, identify and assist vulnerable migrants at the border, including minors, potential asylum seekers and victims of trafficking.

Summary of stakeholders’ submissions on Tunisia drafted by the OHCHR

The summary was prepared by the OHCHR taking into consideration 23 stakeholders’ submissions to the universal periodic review.

Several stakeholders urge Tunisia to ratify all the relevant UN Treaty Bodies necessary to ensure full protection of human rights, including those of migrants, asylum seekers and refugees.

Stakeholders’ assessment of the implementation of the recommendations and the international human rights obligations

Equality and non-discrimination: one organisation noted that the 2014 Constitution has no provision prohibiting racial discrimination and that there is no law criminalizing such behaviour. It also indicated that the persistence of discrimination against the black population of Tunisia.

Moreover, nine organisations noted that there is much discrimination against women, children, young people, persons with disabilities, and persons living with HIV in both law and practice. Finally, several organisations noted that Tunisia had not acceded to two recommendations in its last UPR, which requested the removal of laws that criminalize sexual activity between consenting adults of the same sex.

Human rights and counter-terrorism: one organisation noted that Act No. 26 on the fight against terrorism provides a broad definition of terrorist offences and other provisions, which would permit abuse of the right to privacy and other fundamental rights

Civil and Political Rights

Right to life, liberty and security of the person: one organisation stated that the use of torture and other ill-treatment is prevalent in Tunisia, especially in pre-charge detention. Moreover, there has been a remarkable increase in torture cases, in particular in the framework of the fight against terrorism and there is no government programme for the rehabilitation of victims of torture, who often suffered from various mental health problems, and, moreover, many victims abandon the idea of taking action against security officers because of harassment and reprisals. Finally, one organisation identified a lack of impartiality of the judiciary, which is reflected in the lack of independent investigations and prosecutions when allegations of torture are made to public prosecutors by detainees presented before them.

Fundamental freedoms and the right to participate in public and political life: Christians and other religious minorities continue to be discriminated against and prosecuted in Tunisia. Discrimination against Christians and other religious minorities is deeply rooted in government policy and in societal views. Moreover, on several occasions, security forces have intimidated and harassed journalists for covering terrorist attacks or anti-government protests.

Prohibition of all forms of slavery: several organisations noted that the practice of human trafficking is a significant issue within Tunisia

Right to privacy and family life: several groups said that Tunisian women were allowed to marry only Muslim men and that the Tunisian Criminal Code criminalises all extramarital relations, characterising them as crimes of adultery punishable by 5 years’ imprisonment. Along the same lines, all sexual relations in private between consenting adults of the same sex are criminalized and punishable by a prison term of up to 3 years.

Women: while Tunisia was praised for its pioneering views in the protection the rights of women, several organisations noted that violence against women remains a widespread problem in Tunisia and that very few women victims of violence in Tunisia report the violence to the authorities. Domestic violence and rape are also underreported due to social and cultural pressures, including concerns to protect the image and reputation of the victim’s family, and the fear of ending up homeless.

Interactive dialogue during the 27th Session of the U P R

During the presentation of the third National Report of Tunisia, Minister for Relations with Constitutional Institutions and Civil Society and for Human Rights of Tunisia, presented the improvements made by the country in the implementation of the recommendations accepted after the 2012 UPR session. Mr. Ben Gharbia drew the information from the National Report and expressed Tunisia’s political will to bring about change and to undertake the necessary legal and practical steps needed to fully protect and promote the fundamental rights and freedoms of its citizens. Mr. Ben Gharbia acknowledged that important gaps remain, but ensured that the country is working for the creation of an inclusive and equal society. In fact, the new Constitution adopted in 2014 enshrines the basic rights and fundamental freedoms of all citizens and abolishes discrimination. Furthermore, Tunisia is now discussing a draft law to enhance the rights of women and to reduce violence against women and is taking steps to improve the protection of children and persons with disabilities. Finally, Mr. Ben Gharbia ensured that Tunisia is using a human rights based approach to counter terrorism and violent extremism and that transparency and free and fair elections are a priority for the future.

The introductory remarks and the presentation of the report were followed by interventions of Member States that, after welcoming the delegation of Tunisia and commending the efforts made to fully implement the recommendations of the previous UPR session and the improvements made after the adoption of the 2014 Constitution, made several recommendations.

Member States welcomed the positive steps taken by Tunisia in promoting gender equality and in updating the national legal framework for the protection of human rights. However, a number of States expressed concerns for the widespread use of torture and ill-treatment, in particular in detention centres, for the refusal to abolish death penalty and for the criminalisation of same-sex relationships – which causes discrimination against LGBTI persons. Moreover, Tunisia was urged to adopt a comprehensive law for the protection of women, to criminalise marital rape, to eliminate all provisions that grant impunity for perpetrators of sexual violence, and to enhance the participation of women in the decision-making process. Several recommendations addressed the need of creating an adequate legal framework that addresses the needs of migrants, refugees and asylum seekers and that fully integrates them in the Tunisian society. Member States also insisted on the importance of fighting structural unemployment, of combating extreme poverty and of investing in rural and less-develop areas. Finally, Tunisia was asked to further promote freedom of expression and freedom of the media, and to halt repression and persecution of human rights defenders and journalists who express views critical of the government.

Answering to some of the questions raised by Member States, the delegation of Tunisia assured that the country is thoroughly working towards the full alignment of the national Constitution with the relevant international conventions, that the security environment is being promoted and that all international treaties are being integrated in the domestic procedures, in particular those concerning the rights of women and children. Moreover, Mr. Ben Gharbia noted that a new, holistic draft law to enhance the protection of women is being discussed: such law insists on the importance of reporting cases of violence and ensures that all perpetrators are held accountable. As far as cases of torture are concerned, the delegation of Tunisia explained that the country has ratified the Optional Protocol to the Convention Against Torture, has set up a body for the prevention of torture, is investigating all alleged cases of ill-treatment and is implementing a new strategy – which includes targeted, human-rights-based trainings for security officers, in particular in detention facilities – to prevent, monitor and punish all cases of torture.

Moreover, while death penalty has not been abolished yet, inclusive consultations have been opened, and no death sentence has been carried out since 1991. The Tunisian delegation also explained that the country has a national strategy for migration – which includes the necessary steps to integrate migrant workers in the society – and that all foreigners are granted equal rights, with no discrimination.

Finally, the delegation ensured that all forms of discrimination are anti-constitutional and can be prosecuted, and that the government has called for an open dialogue on the amendment and possible elimination of Art. 230 of the Penal Code which condemns same-sex relationships.

In his concluding remarks, Mr. Ben Gharbia explained that Tunisia is willing to engage in constructive dialogue with all Member States and that, while challenges and gaps still remain, the country is determined to modify all laws enacted under the previous regime and to promote the respect of all fundamental human rights and freedoms.

Adoption of the Draft Report of the Working Group on the Universal Periodic Review

On Friday May 5, 2017, the Working Group on the Universal Periodic Review adopted the Report on Tunisia. After the presentation of the report, the delegation of Tunisia expressed its support for 182 recommendations and noted additional 55 recommendations. Furthermore, Tunisia will examine the remaining 11 recommendations and will provide its responses no later than the thirty-sixth session of the Human Rights Council in September 2017.

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