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ADLI press release for December 1, 2012



The issue of HIV / AIDS and STIs concerns Tunisian law since the promulgation of law n ° 92-71 of July 27, 1992, relating to communicable diseases, as amended by law n ° 2007-12 of February 12 2007, and implemented by decree n ° 93-2451 of December 13, 1993.

Examination of Law No. 92-71 reveals that the legislator has, on the one hand, ensured that the person infected or affected by HIV / AIDS and STIs does not suffer from discriminatory treatment and has on the other hand, taken care to protect society against the spread of HIV / AIDS.

Law No. 92-71 ultimately reflects a concern for the protection of public order and a firm desire to join in the movement of the 3rd generation of human rights.

The 1992 law reflects the complexity of the situation:

        - Respect for the rights of people in their dealings with HIV and STIs: a human rights and fundamental freedoms approach and

        - The protection of society against HIV and STIs: an approach to controlling and restricting rights.

The 1992 law, while constituting a clear legal framework and directly related to HIV and STIs, should not be isolated from the rest of the legal texts which relate to the various rights and freedoms that may have an effect on infection with HIV. HIV and STIs and the rights and freedoms of people related to these STIs.

The shortcomings and obstacles to a relevant application of the fundamental principles in this area arise both from the law of 1992 and from legal texts relating to key and vulnerable populations.

1. Deficiencies and obstacles inherent in the 1992 law

Public health is one of the essential components of public order. As the action aimed at maintaining public order is concretized in particular by the enactment of legal standards, punishable by law, recourse to the legislation is often perceived as a panacea making it possible to interrupt or prevent the spread of infections. transmissible diseases such as HIV.

1.1 The involvement of physicians: mandatory reporting

It is possible to infringe the confidentiality of professional data relating to HIV / AIDS and this within the framework of the law relating to communicable diseases, there is a legal exception to medical confidentiality. Indeed, Law No. 92-71 provides for mandatory reporting of communicable diseases (According to Article 7 of the 1992 Law "the declaration of diseases provided for in Article 3 is mandatory"). It is also curious to note that this law considers that "the statements made ... do not constitute a violation of professional secrecy" (article 7 of the law of 1992).

The legislator adds that a decree will set the conditions and forms according to which these mandatory declarations will be made (Decree No. 2451 of December 13, 1993 (JORT No. 97 of December 21, 1993, p. 2140).

This mandatory measure can be a dissuasive argument for HIV / AIDS testing. Indeed, the fear of being listed and "having a file" with the health authorities can only discourage people wishing to take an HIV test. Thus, considering instituting an anonymous screening may increase the number of people diagnosing sexually transmitted infections, especially HIV.

Thus, and after the amendment of law n ° 92-71 of July 27, 1992, relating to communicable diseases, by law n ° 2007-12 of February 12, 2007 we proceeded to the creation and the institution of about twenty Free and anonymous counseling and testing centers, thus strengthening the right to secrecy and allowing a large public to perform the test. (

1.2. The binding and repressive part of the 1992 law

Different public authorities are intervening to fight against the spread of HIV infection. These are the health and judicial authorities.

1.2.1. Binding role of the Minister of Public Health.

Law n ° 92-71 specifies that when the PLWHIV refuses to undertake or continue the prescribed treatments despite the injunction to have to be treated regularly and to prove it or when he deliberately contributes by his behavior to the transmission of his infection to other people, the Minister of Public Health or his representative must apply by way of a request for the compulsory hospitalization of this person, the competent court of first instance so that it rules in referred on their requests (article 12 of the law of 1992). The compulsory hospitalization which aims for prophylactic isolation is pronounced without delay in the chamber of the court council, after hearing the patient and, if necessary, his representative. Immediate execution of hospitalization decisions is carried out.

The Minister of Public Health or his representative are also empowered by law to initiate proceedings against doctors and biologists who do not fulfill the aforementioned information and declaration obligations (subject of Articles 6, 7 and 8 of law n ° 92-71). The latter are then liable to a fine of 100 to 500 dinars. In the event of a repeat offense, the penalty is doubled (article 17 of the 1992 law).

1.2.2. Role of the courts: they intervene in the fight against HIV infection.

The criminal courts are competent, as has been said, to penalize doctors and biologists who do not comply with the information and declaration obligations (subject of articles 6, 7 and 8 of law n ° 92-71) and they are also competent to sanction the behavior of certain carriers or patients.

They can sanction:

      - a prison sentence of 1 to 3 years, any person found guilty of deliberately wanting by his behavior to transmit the HIV infection from which he is infected to other people (article 18 of the law of 1992).

      - a prison sentence of 1 to 6 months, any person automatically hospitalized who leaves the establishment where he is admitted without authorization (article 19 of the law of 1992).

It should be noted that these penalties of imprisonment are under section 20 of the law served in an appropriate hospital setting.

In addition to these penalties provided for in Law No. 92-71, the criminal courts may pronounce against patients or PLHIV, in the event that their guilt is proven, the penalties provided for by the penal code in the event of homicide. intentional or in the event of manslaughter (Articles 201 to 217 of the Criminal Code). It is the same for doctors and biologists.

2.1.3. Rights lacking in the 1992 law

While the 1992 law insists on the principle of non-discrimination against people infected, affected or living with an STI, it does not detail the mechanisms for implementing this very important principle in this area (except and 'an incomplete way in terms of free care for people in public health establishments).

This shortcoming opened the way to different interpretations of provisions of the 1992 law. It would be interesting to detail these rights and integrate them into this law. Thus, the 1992 law can include the rights of people living with HIV.

It should also be remembered that the 1992 law makes no reference to legal services related to HIV / AIDS and STIs.

2 Deficiencies and obstacles inherent in legal texts relating to key and vulnerable populations

These shortcomings and obstacles consist mainly in the penalization of key and vulnerable populations.

It is now known that the repressive approach towards key and vulnerable populations can only have negative effects on:

- access to these populations to reach them with prevention messages;

- Access of these populations to social and health services, without discrimination

- the work and dedication of programs adapted to meet the specific needs of these populations;

- the fear and suspicion that characterizes these populations towards the authorities.0

2.1. Legislation sanctioning key and vulnerable populations

2.1.2. The repressive approach to narcotics

Reading the law of May 18, 1992 confirms that this law is part of a rather repressive dimension and only affects preventive and curative aspects in a limited way.

2.1.3 Penalization of MSM (MSM)

Article 230 of the Tunisian Penal Code (This code was promulgated by the Beylical decree of July 9, 1913, Official Journal of October 1, 1913, n ° 79) provides that: "sodomy, if it does not fall under any of the cases provided for in previous articles, is punishable by imprisonment for three years ”(this article has never been modified).

This clear and firm criminalization of the homosexual act, and which has been pronounced many times by the criminal judge, does not help in reaching this population and engaging in legally recognized awareness-raising work.

2.1.4 The criminalization of illegal sex workers

In matters of sex work, Tunisian law establishes a double distinction:

 ■ On the one hand, Tunisian law only recognizes authorized sex workers; It thus excludes and penalizes (male) sex workers;

■ On the other hand, Tunisian law distinguishes authorized sex workers (subject to strict regulations: clearly defined places of work, periodic health checks, etc.) from illegal workers whose activity is heavily penalized: imprisonment.

This legal regime of double exclusion (of sex workers and illegal sex workers) and heavy criminalization of this activity constitutes a major handicap in the face of access to these key populations and the organization of campaigns in their favor.

2.1.5 The detention and imprisonment regime

According to Law No. 2001-52 of May 14, 2001 relating to the prison regime, the principles of detention and imprisonment are as follows:

 The separation of inmates according to age, sex, type of offense committed and whether the inmate is a repeat offender or not. At this level, we notice a practice of separating MSM from other prisoners;

 ■ Separation of children (under 18) and their detention away from adults (at night);

 ■ Periodic and systematic monitoring of places of detention, rooms, dormitories and detainees' belongings, day and night;

 ■ Systematic medical examination of detainees upon their arrival at the place of detention: test for contagious and transmissible diseases, this examination does not concern the HIV test;

 ■ The Tunisian penitentiary regime does not recognize and sanction new methods of prevention against HIV (condoms and sterile injection equipment); it remains impregnated by the classic modes: separation and control ...

2.3. Conclusions and recommendations

The Tunisian legal framework in the field of HIV / AIDS / STI is characterized by the following duality: the protection of public health order, on the one hand, and the consideration of certain rights of PLWHIV and people infected with STIs, 'somewhere else.

This legal framework is reflected in the 1992 law on communicable diseases and common law which affects the various rights and obligations of all citizens.

This right (the law of 1992) remains incomplete on a large number of elements.

- Indeed, the law while announcing the principle of non-discrimination with regard to the PLWHIV or infected by STIs, it does not detail this principle and does not make it possible to clearly define the rights of the aforesaid people and in particular the respect of their rights to privacy, to work and to various economic and social rights.

- The same is true of the principle of confidentiality. The 1992 law, even after its amendment in 2007, remains characterized by the principle of compulsory declaration (except for people screened in the CCDAGs). It is time to make confidentiality a core tenet of the 1992 law and relegate reporting to the emergency rand.

- The 1992 law does not insist on the principle of universal access. It is true that the law allows people treated in public health establishments to benefit from full and free care, however, the principle of universal access is not clearly recognized under this law.

- As for the gender dimension and the specificity of children living with HIV and / or affected by HIV / AIDS / STIs, the 1992 law remains silent.

- Finally, the 1992 law only briefly mentions psychological and social support for PLWHIV and people infected with STIs and makes no allusion to legal services related to HIV / AIDS / STIs.

Mis à part la loi de 1992 qui demeure lacunaire, le droit tunisien en général, et malgré sa tendance à l’ouverture et à l’intégration d’une dimension complémentaire, interdépendante, universelle et globale des droits humains et des libertés fondamentales (article 5 de la Constitution tunisienne suspendue en mars 2011), demeure, à certains égards défavorable à une prise en considération de la spécificité des VIH/SIDA/IST.

– En effet, le droit tunisien est caractérisé par une approche répressive à l’égard des populations clés : les T. (clandestin-e-s), les HSH et les UDI. Cette pénalisation des populations clés ne saurait permettre une meilleure intégration de ces populations dans le processus de lutte contre le VIH/SIDA et les IST.

A more preventive approach that respects human rights can only improve access to these populations and better prevention against HIV and STIs.

Ultimately, it would be appropriate to:

 ■ Take up the 1992 law and modify it in order to open up and integrate recent developments in legal developments related to HIV / AIDS / STIs and to overcome its shortcomings which represent serious obstacles to a good response to HIV. / AIDS / STIs;

 ■ Relax the legal framework relating to key populations by reconsidering excessive penalization and removing unjustified elements.

 the ADLI office

President Wahid Ferchichi

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