2017 State of Individual Liberties: Continuous and Intensifying Violations Report prepared by the Civil Coalition for Individual Liberties

1. With the support of :
Civil Coalition
For Individual Liberties
2017 State of Individual Liberties:
Continuous and Intensifying Violations
Report on Major Violations of Individual Liberties in 2017

3. Civil Coalition
For Individual Liberties
2017 State of Individual Liberties:
Continuous and Intensifying Violations
Report on Major Violations of Individual Liberties in 2017

5. 1
2017 State of Individual Liberties:
Continuous and Intensifying Violations
Report on Major Violations of Individual Liberties in 2017
Four years have elapsed since the promulgation of the Constitution on
January 27th, 2014, which clearly enshrined freedom of conscience
(Article 6), the equality for all and every individual before the law
without discrimination (Article 21), the guarantee by the State of
individual and public liberties and rights (Article 21), the guarantee of
human dignity and physical integrity (Article 22), the protection of
privacy, inviolability of the home, confidentiality of correspondence,
communications and personal data (Article 23).
Authorities continue to arrest, convict and imprison Tunisian and non-
Tunisian men and women based on unconstitutional and therefore
obsolete police and judicial practices and legal texts. Fundamental
liberties continue to be challenged by concepts, automatisms and
considerations stemming from the dictatorship which claimed the right
to invade the privacy of individuals, by incriminating undefined acts such
as good morals, infringement to decency or homosexuality. These
invasive practices continue to violate human dignity and physical
integrity of individuals, opening the door to searches, the seizing of
means of communication, and the practice of the so-called examinations
of shame: anal test, virginity test, urine analysis... Hundreds, and even
thousands of people, especially young people, are arrested and judged
following such examinations. These practices, which have become
“legal”, encourage people to interfere with the lives of others, to resort
to denunciation, control, stigmatization, harassment and to physical and
psychological violence against people whose only crime is to claim their
right to be different. This threatens individual liberties as much as the
cohesion of the social construct and the effectiveness of the recently
concluded pact (The 2014 constitution).
In this context, and since its creation on January 19th, 2016, the Civil
Coalition for Individual Liberties CCLI (The Collectif Civil pour les Libertés
Individuelles, which brought together 36 CSOs working for the defense
of human rights and in particular individual liberties, has been a force for
observing, alerting and acting to denounce serious human rights abuses
and violations. CCLI has been speaking out against abuses and violations

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and fighting for the enforcement of constitutionally protected rights and
liberties based on equality, and without discrimination on the grounds of
"birth, gender, sexual orientation, opinion, religion, social condition,
health or other."
During the year 2017 CCLI conducted campaigns and actions aimed at
making individual liberties and free choice the fundamental principles
driving community life: the campaign to repeal the circular banning the
marriage of Tunisian women with non-Muslims, the campaign for the
revision of the law on drugs, the campaign to end impunity for rape and
forced marriage of minors, actions to prohibit the use of anal and
virginity tests. CCLI played a very active role in the universal periodic
review of Tunisia before the Human Rights Council, with the submission
of numerous shadow reports, including one – and for the first time-
dedicated to the situation of the LGBTQI ++ individuals.
CCLI intends to make 2018 the year of individual liberties and will
engage the Committee of Individual Liberties and Equality (COLIB), the
Assembly of the Representatives of the People, the Government, in
particular, the ministries of the interior and justice, and the media
through several actions including argument development and judicial
cases evidence-based advocacy.
Synthesis of major violations
In its 2017 report, CCLI submits the evidence covering a sub set of
violations of human rights across the following areas:
• Violations of liberties on the grounds of protection of decency and
good morals,
• Violations of the rights of minor girls forced into marriage with
adults with whom they had allegedly consensual sexual relations,
• Violations on the basis of sexual orientation and gender
expression,
• Violations of the right of Tunisian women to freely choose their
spouses
• Violations related to freedom of conscience.
The full English report will include a non-exhaustive list of violations,
which were collected by the respective CSOs under CCLI. Such examples
have been summarized as follows:

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1-1 Violations on the grounds of offense to decency and good morals
(Penal Code articles 226 and 226 bis)
The concepts of “decency”, “good morals” and “public morality” are
vague and of indefinite nature, but can constitute criminal offenses and
are widely used to arrest, prosecute and punish Tunisian and non
Tunisian citizens of both sexes.
In 2017, a large number of cases of violations were documented out of
information from digital press and reports from various member
associations of CCLI. The number of reported cases is believed to be
underestimated. The cases occurred in the hands or supervision of
public authorities and set a precedent for citizens of all wakes to self
appoint themselves up as guardians of decency and morality.
Furthermore, zealous citizens, preachers, leaders of political parties have
perpetrated similar violations in the form of non pacific demonstrations,
the closing down of shops, the impediment of public access,
denunciations etc.
Instances of violations on the grounds of 226 and 226 bis have
provoked specifically:
- Relentless harassment of women and LGBTQI ++ community (cases
reported in Nabeul, Hammam Sousse, Tataouine, Soukra, Tunis)
- Closing down of alcoholic beverage shops-
Although the sale and consumption of alcohol are legal in Tunisia,
stigmatization is common (cases reported in El Jem, Msaken, Metline,
Djerba).
- Hunting Down non-fasters (“fattaras”) during the month of Ramadan
(in Ariana, Bizerte, Sfax, Beja)
- Case of a DJ mixing western music with the call to prayer that resulted
in suing the night club managers
- Arrest of a French man and a Tunisian woman found together sitting in
a car parked away from the main driveway. This famous case called the
“fatal kiss” led to a jail sentence for the two concerned persons.
Setting a precedent with a dangerous procedure: Illegal/non consented
filming of arrested Individuals
The broadcasting of videos of arrested citizens during detention illegally
filmed by police officers using their mobile phones and egged on by their

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unions set extremely dangerous precedents. They constitute illegal
practices that the judges must consider as nullifying all the judicial
proceedings (cases of the two women arrested in Nabeul in January, the
university teacher in Tunis, the kiss case).
These cases of violation are in conflict with the following Constitution
articles: the right to moral and physical integrity and dignity of the
person (Article 23); equality of all persons before the law without
discrimination (Article 21); the right to privacy, the inviolability of the
home and the confidentiality of communication (Article 24).
1- 2 Violation of the rights of the child: forced marriage of the girl child
(Article 5 of the Code of Personal Statute and Article 227 bis of the
Penal Code)
Under this jurisdiction girls are married to their rapist, with their family’s
agreement and the judge’s ruling.
The year 2017 was characterized by an increase in the number of
minors’ marriage family requests, and most importantly by the increase
of the number of authorizations granted to those requests.
Cases reported in 2017 include the forced marriage of the 13 year old
girl in El Kef and 104 marriages of minors in Mahdia alone. The El Kef
case played a decisive role in the repeal and replacement of Article 227
bis of the Penal Code, in the framework of the Law on the Eradication of
Violence against Women, adopted on August 11th
, 2017.
These cases are in violation with the Constitution articles: protection of
physical integrity (Art. 23); Child protection Code (Art. 20 and
subsequent); the right to education (Art. 39); and the Child’s
constitutional right (Art. 47), which stipules that the best interest of the
child overrides interpretation and implementation of the law.
1.3. Violation of the Human Rights of LGBTQI ++ individuals (Penal code
Art. 230)
The Arabic text stipulates that female and male homosexuality
constitute criminal offences and are punishable by a 3 years
imprisonment.
In 2017, Article 230 had devastating effects. The number of convicted
persons, that were documented by the CCLI CSO members, or

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mentioned by the media alone, account for 70 cases. This does not
include cases of persons arrested without trial. Art. 230 opens the door
to all forms of discrimination based on sexual orientation, apparent or
presumed gender expression. It legitimizes discriminatory social
behaviors, stigmatization and violence -reaching public lynching in its
extreme expression- towards people whose appearance and/or
expression does not correspond to “the norm”. It should be noted that
the anal test was defined as torture by the International Committee
Against Torture.
In addition to the several arrests reported, art 230 was used to legitimize
extreme forms of violence:
- Homophobic Murders :
In Gabes, a young man is tortured, burned and murdered; homophobic
homicide in Tunis (Omrane Supérieur); hairdresser was killed in El Kef.
- Public Lynching: the Plight of Transgender People:
A transgender person was lynched in the medina of Kairouan; a
transgender person is abused and beaten in a police station; in Sousse,
two people file complaints for police violence on homophobic grounds.
- Assaults and violence inciting campaigns
In 2017, assaults and violence inciting campaigns related to gender
orientation and expression were carried out assimilating homosexuality
to terrorism.
- And the Medical Examination of Shame Goes On
In response to the recommendation of the Committee of the Human
Rights Council (Geneva in May 2017) following the review of the
submission of Tunisia PRU report, the government head of delegation
rejected the repeal of Penal code Art 230 and the decriminalization of
homosexual relations. It set a four-year period to address the
recommendation to abolish anal tests, stigma, discrimination and
violence against LGBTQI++ persons. Accordingly, judicial police and
judges have continued the practice of anal tests.
These cases are in violation with the Constitution articles: Violation of
human dignity and moral and physical integrity (Art.23); privacy and
confidentiality of correspondence, of personal data and privacy of the
home (Art. 24); equality of all before the law (Art. 21);

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1.4. Violation of the Fundamental Right to Choose One's Spouse
On September 8th, 2017, the Minister of Justice signed a circular
canceling circular 216 of November 5th, 1973, which prohibited Tunisian
women from marrying non-Muslims. The circular was contrary to the
founding principles of the Tunisian Constitution and to the international
agreements duly ratified by Tunisia. In spite of this cancellation, in
practice violations have been recorded during the year 2017.
The non application of the procedure is attributed to:
- Administrative Slowness in the Implementation of the New Circular
- Resistance from the Council of Judicial Officers: the Council refusal to
implement the new circular is a clear impediment to the rule of law
- Ambiguity in the Registration of Marriages Concluded Before
September 8th, 2017. The new circular raises the issue of how to settle
thousands of marriage contracts that were signed prior to September
8th, 2017.
1.5. Violations of the Fundamental Right to Freedom of Conscience
Whereas Article 6 of the Constitution clearly states that "The State
guarantees freedom of conscience and belief...", official practices and
social behavior are not consistent with this fundamental constitutional
provision.
Accordingly, frequent violations of the freedom of conscience took place
in 2017.
-Violations of the Freedom of Conscience by Public Authorities towards
people of non-muslim sunni faith (ex. Bizerte, Beja).
- Violations of the Freedom of Conscience by Religious Leaders: A
number of Imams, especially known for their radicalism convey
messages against people who do not share their religious views.
- Violation of the Freedom of Conscience by the Population
The fanatic speech propagated by some religious leaders and the
interventions by public institutions encourage individuals or groups, to
self-appoint themselves as censors, acting as a religious police. 2017
recorded many cases of interference of individuals in the lives of others
on the basis of freedom of conscience.

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2. Summary of Progress in Terms of Individual Liberties
Progress in the area of individual liberties was achieved, in particular at
the legislative, regulatory and institutional levels and in terms of
mobilization of civil society.
2.1. Legislative and Regulatory Progress
Three achievements characterize the year 2017:
1- The law of August 11th, 2017, on the eradication of violence against
women:
The law holds a clear definition of sexual violence, extended to men, the
spell-out of incest. Sexual consent of the minor victim is no longer
accepted (Article 227 bis). It also contains preventive components,
including education on human rights, non-discrimination and non-
violence and provides for the care and protection of victims.
However, it still contains obsolete concepts and a number of ambiguities
such as the criminalization of consensual sexual relations between
minors of the same age (between 16 and 18 years old) or with a young
adult. Indeed, the law sets an irrefutable presumption of non-consent
until the age of 16 but sets the age of sexual consent at 18 years old. Any
relationship between 16 and 18 years old falls therefore under the law,
leading to the criminalization of sexual relations between minors.
2- The Repeal of the Circular of November 5th, 1973:
It leaves room for the application of the Constitution articles 21 (on
equality) and 46 (women’s rights protection) and achieves compliance
with the international conventions ratified by Tunisia such as CEDAW
and the Law of August 11th
, 2017 on the eradication of violence against
women.
3- The Ratification of Convention 108 and Protocol 181 of the Council of
Europe:
The ratification is a step further towards the Protection of Individuals
with regard to Automatic Processing of Personal Data.
4- Minimalist Reform of the Law on Narcotics:
In addition to the 3 achievements the year also recorded a small revision
of the law on narcotics. CCLI played a major advocacy role with the
Assembly of the Representatives of the People. The reform allows the
application of Article 52 of the Penal Code to consumption and

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possession of drugs, and allows judges to assign attenuating
circumstances, and grant a one-time non-execution of the sentence.
2.2. An Institutional Progress: The Committee on Individual Liberties
and Equality
The creation of the Committee on Individual Liberties and Equality
(COLIBE), by the President of the Republic, a multidisciplinary committee
of experts chaired by the Member of Parliament and human rights and
women's rights activist (Bochra Belhaj Hmida) was a major achievement.
Its mission is to assess the state of liberties and gender equality in
Tunisia and to propose reforms to the Head of State before the end of
February 2018. The COLIBE has engaged very effectively with civil
society.
2.3. Strong Momentum of Civil Society
The Role of Civil Society in the Universal Periodic Review (UPR):
UPR gave an opportunity for a strong civil society participation in the
situation analysis and for the development of solid shadow reports on
various subjects (specialized reports), namely on the situation of LGBTQI
++ individuals and on Sexual and Reproductive Rights; it also allowed an
active CSO participation in Geneva during the discussion of the Tunisian
report.
Defended Causes and Achieved Results of CCLI in 2017:
In summary, CCLI developed arguments and advocated with different
public, executive and law making actors leading to results in the
following areas:
- Reform the law related to narcotics
- Repeal the Circular of November 5th
, 1973;
- Repeal of Article 227 bis of the Criminal Code
- The ban on the use of anal testing and the decriminalization of
homosexuality. Special mention of the advocacy and pressure carried
out by CCPI and in particular the Tunisian coalition for the rights of
LGBTQI++ individuals with the National Council of Physicians (CNOM)
and with the Human Rights Council in Geneva to put an end to anal
tests.
- Enforcement of liberties during Ramadan

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3. Challenges and Priorities for 2018
CCLI list of challenges and plan of action for 2018 include:
1- Legislative and regulatory challenges addressed through continuing
advocacy for the repeal of Article 230 of the Penal Code; the revision of
the protection of morality, decency and good morals (Articles 226 et seq.
of the Penal Code); the revision of the Law on Narcotics;
- Ensuring the implementation of the Council of Europe Convention
N°108 on the Protection of Personal Data;
- Ensuring the implementation of the Lanzarote Convention on the
Protection of Children against Sexual Exploitation and Sexual Abuse;
- Continuing the identification of circulars threatening individual liberties
and taking legal action against these texts;
2- Institutional Challenges:
- Establishing the Constitutional Court and granting it with the necessary
resources for a proper functioning, to enable it play its full role of
overseeing the constitutionality of laws and protecting individual
liberties.
- Adopting the law on the Human Rights Authority in accordance with
the provisions of the Tunisian Constitution and the Paris Principles.
3-Challenges of Practical Follow-up:
Ensuring the implementation of the measures decided before 2018 and
in particular:
- Effective application of the marriage of a Tunisian woman with a
spouse of her choice, the registration of marriages prior to September
8th, 2017,
- Enforcement of the Law on the Eradication of Violence against Women,
- Effective implementation of the presence of a lawyer with
apprehended individuals from the first hours of arrest;
- Implementation of the recommendations of the United Nations
mechanisms, specifically those adopted by the Committee against
Torture and the Human Rights Committee
- Support to COLIBE work of and its subsequent implementation.