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Tunisia: Three years in prison for homosexuality 6 students subjected to an anal exam

(Tunis, December 16, 2015) - A Tunisian court sentenced six young students accused of sodomy to three years in prison on December 10, 2015, 13 human rights organizations say today. These sentences contradict international law and are contrary to the right to privacy and non-discrimination under the Tunisian Constitution adopted in 2014.

Tunisian authorities subjected the defendants to an anal examination, to use as evidence in the case. The court also banned students from the city of Kairouan for three years after their prison terms have expired.

“While Tunisians celebrated the Nobel Peace Prize for the Tunisian National Dialogue Quartet on World Human Rights Day, a Tunisian court sentenced six students to a sentence worthy of the Middle Ages, with a flagrant attack on their privacy and bodily integrity, ”said Amna Guellali, Tunisia director at Human Rights Watch.

Police in Kairouan, 150 kilometers south of Tunis, arrested the six students, whose names are withheld for their safety, on December 5. One of the students’s lawyer, Bouthaina Kerkeni, told the signatory organizations that police arrested the six men in one of the students’s apartment at 7:00 pm following a complaint from neighbors. They searched the house, seized computers, and led the men to the police station.

The next day, the Kairouan District Court prosecutor charged them with sodomy, under article 230 of the penal code, ordered their detention and an anal examination. The forensic pathologist from Kairouan public hospital carried out the examinations. The prosecution thus introduced into the file the medical report drawn up by the doctor as proof of homosexual relations.

On December 10, the judge of the Kairouan Court of First Instance sentenced all six young people to the maximum sentence provided for in Article 230, namely three years in prison, said Kerkeni, who was present at the hearing and of judgment. Article 230 provides that sodomy, if practiced in a non-public place, can be punished with up to three years' imprisonment.

The Tunisian justice ministry must immediately issue a directive ordering prosecutors to stop sending detainees for anal examinations as part of police investigation procedures to determine the sexual behavior of individuals. The Tunisian health ministry should also advise all forensic pathologists under the ministry's authority to stop all anal examinations for these purposes and to respect people's rights to dignity and physical integrity. The signatory organizations finally reiterate their appeal to the Tunisian authorities to repeal article 230 and revise all the freedom-killing provisions of the Tunisian penal code.

The judge also handed down an additional sentence by banning the defendants from Kairouan for three years, under article 5 of the penal code. One of the defendants was also sentenced to an additional six months under section 226 for "public indecency," on the grounds that police found pornographic videos on his computer.

"Even in Ben Ali's time, the courts have never, to my knowledge, issued a stay ban. Each person has the right to dispose of his body and the inviolability of his home, this sentence thus constitutes a violation of the fundamental rights enshrined in the Tunisian constitution and guaranteed by the international conventions ratified by Tunisia ”, declared Mokhtar Trifi, President from the Tunis office of FIDH.

Two defendants were represented by a lawyer during the hearing. All six are currently held in Kairouan prison. They have until December 20 to file an appeal, and one of them has already done so.

Prosecutions for consensual sex in private, between adults, violate the rights to privacy and non-discrimination guaranteed by the International Covenant on Civil and Political Rights, to which Tunisia is a party. The United Nations Human Rights Committee, which monitors the implementation of the Covenant, has made it clear on several occasions that sexual orientation is a protected status against discrimination under these provisions. The United Nations Working Group on Arbitrary Detention has ruled that arrests for homosexual conduct between consenting adults are, by definition, arbitrary.

These rights are reflected in the Tunisian constitution of 2014. Article 24 obliges the government to protect the rights to privacy and inviolability of the home. Article 21 provides that "all citizens, men and women, are equal in rights and duties, and are equal before the law without any discrimination."

“Almost two years after the adoption of the constitution, it is regrettable that no serious effort has been made by the authorities to ensure that the Penal Code complies with the new constitution,” said Antonio Manganella, head of mission. of ASF in Tunisia. "The government should immediately institute a moratorium on all unconstitutional criminal provisions, which is the case with article 230," he added.

On September 22, a court in the city of Sousse sentenced a 22-year-old student, known as Marwen, to one year in prison on sodomy charges, after giving him a court-ordered anal examination. He was released on bail. The Sousse Court of Appeal is expected to rule on his appeal on December 17th.

On September 28, after Marwen's conviction, the Council of the Order of Physicians of Tunisia issued a statement condemning the use of anal examinations as part of the application of Article 230. The Minister of Justice then, Mohamed Salah Ben Aissa, had declared that article 230 was unconstitutional, should not be applied, and should be repealed. Ben Aissa, however, has not issued any official directives to prosecutors in this regard.

On October 5, President Beji Caid Essebsi declared on Egyptian television station CBC his opposition to any attempt to repeal the article.

“Instead of defending repressive laws like the one criminalizing homosexuality, the President of the Republic should lead efforts to reform laws that conflict with the rights enshrined in the 2014 Constitution,” said Ramy Salhi, director Maghreb EMHRN

Human Rights Watch has documented cases in several countries where police or prosecutors subjected men to anal examinations as part of their efforts to "prove" that they had engaged in anal penetration. These invasive examinations violate the rights of the individual to dignity, privacy and physical integrity.

They constitute cruel, inhuman and degrading treatment and may amount to acts of torture, in violation of the African Charter on Human and Peoples' Rights, the Convention against Torture and the International Covenant on Civil Rights and policies, ratified by Tunisia. Furthermore, they have no probative value and their conclusions should not be considered probative in a court of law.

In 2011, the Office of the United Nations High Commissioner for Human Rights stated:

One problem highlighted by United Nations experts is the “medically unnecessary” practice of subjecting men suspected of same-sex conduct to non-consensual anal exams to “prove” their homosexuality. These reviews were condemned by the Committee against Torture, the Special Rapporteur on Torture and the Working Group on Arbitrary Detention, which found the practice to contravene the prohibition of torture and ill-treatment.

Court-ordered anal exams for the determination of sexual activity are also unethical of medicine, according to the World Medical Association and the Principles of Medical Ethics Applicable to the Role of Healthcare Personnel, Especially Physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment.

List of signatory organizations:

ASF

Association for the promotion of the right to be different - Bizerte

Tunisian Association for the Defense of Individual Freedoms

Chouf

CRLDHT

Euromedrights

FIDH

HRW

Mawjoudin Initiative for Equality

OCTT

OMCT

EMHRN

Waai

For more information:

Haifa Gebs, Communication Officer ASF Tunisia, Tel: +216 21 99 68 86, E-mail: tun-com@asf.be

Dated: 

Wednesday, December 16, 2015

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