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Police Violations and Coercive Practices in Tunisia: Anal Test as a Case Study

Introduction:-

Tunisia has witnessed a surge in protests and demonstrations since the 2011 revolution, which began in Sidi Bouzid and spread through the streets of Habib Bourguiba Avenue in the capital. The Bab Bnet courts in Tunis have seen hundreds of voices from various generations calling either for the departure of the ruling political class or for the genuine realization of rights and freedoms.

Despite the numerous and well-organized protests, whether by organizations, political parties, or youth groups, and their constitutional recognition as a universal right, observers of the Tunisian political scene cannot overlook the arrests, police violence, and judicial prosecutions of many civil society activists, especially when the protests have a human rights focus.

In light of the Ben Arous Primary Court’s ruling that sentenced two citizens to two years in prison under Article 230, accompanied by the public prosecutor’s request for anal examinations, the Damj Association and its partners organized a protest from the Bab Bnet Primary Court in Tunis to the 9 April Civil Prison square, and then to the Tunis Court of Appeals on June 26. This protest called for the immediate cessation of anal examinations and highlighted the significance of June 26, the International Day in Support of Victims of Torture.

Some human rights issues, when raised, often remain taboo in the collective imagination, especially since they require individuals to discard preconceived notions ingrained throughout their upbringing without questioning. This stance, adopted by state institutions, supposed to be neutral and operate under the principle of non-discrimination, leads to the rejection of all forms of difference, making peaceful protests centered on human rights issues widely shunned.

Since the issuance of the Penal Code by decree on July 9, 1913, the Tunisian penal policy has seen no revolutionary changes in both legal and social contexts. For over a century, the legislature has not sought to amend the philosophy underpinning the Penal Code, which has become increasingly at odds with the Tunisian Constitution and conflicting with a host of ratified international treaties.

The Penal Code has not only failed to keep up with the developments in criminology but also with the dynamic evolution of comparative legal systems. This stagnation is compounded by the obstruction of the Penal Procedures Code reform, which has yet to materialize. This situation underscores the need for an open dialogue to critique and analyze the state of the penal system in Tunisia, aiming to amend what conflicts with universal human rights.

Some individuals strive to overlook the issue of coercive anal examinations, particularly because of its strong association with homosexuality, which is laden with societal prejudices rooted in moral or religious institutions. However, addressing this issue today is crucial as it provides an opportunity to rethink the human rights framework in light of the current reality and the clear human rights violations.

 

Between Aspirations and Reality: The Gap Between Legal Texts and Lived Experience

The Tunisian Constitution and legal system have often been hailed as the sole successful modern Arab model in the region, creating a kind of taboo around the necessity of amending and reforming the penal system.

The Constitution is the cornerstone of the state and the fundamental guarantor of rights and freedoms. It is the highest document in the legal system, enshrining universal rights, including the principle of non-discrimination and bodily integrity. Coercive anal examinations are unconstitutional practices that blatantly violate the dignity and bodily integrity of individuals, humiliating human dignity.

Anal examinations do not align with the path Tunisia has taken, especially post-2011 revolution. The preambles of both the 2014 and 2022 Tunisian Constitutions are laden with universal values, emphasizing the state’s commitment to enshrine these values in its general policies by protecting and adhering to them as guiding principles. However, there is a stark contrast between these constitutional provisions and the practices on the ground. While the Constitution theoretically serves as a document the state must respect and follow, reality diverges entirely from it. Human rights violations have persisted for decades, filling prisons with individuals whose only “crime” is their difference.

Moreover, evidence collection involves a violation of privacy, including the search of computers and phones, and a breach of communication confidentiality, which contravenes the right to privacy. Judges allow themselves to scrutinize individuals’ personal and intimate lives, which is protected by Article 30 of the Tunisian Constitution.

The lack of legal protection for minorities in the Constitution, except for the rights of persons with disabilities, leaves them vulnerable to societal and police violence. The state’s exclusionary policies have exacerbated social stigma and exclusion from public spaces.

Despite a plethora of agreements emphasizing the necessity of respecting human rights, coercive anal examinations remain in use as evidence for convictions.

Tunisia ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1988 and established the National Authority for the Prevention of Torture in accordance with the Optional Protocol to the Convention Against Torture, which it ratified in 2011. Additionally, Tunisia ratified the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights in 1983, and the Arab Charter on Human Rights in 2004.

In 2016, the Committee Against Torture urged the Tunisian state to prohibit anal examinations in its evaluation of Tunisia’s compliance with the Convention Against Torture. However, these examinations are still used as evidence for convictions today.

Furthermore, various recommendations were made by United Nations member states during the 2017 Universal Periodic Review, calling for the prohibition of anal examinations. Although Tunisia accepted these recommendations, acknowledging the need to end such practices, no concrete steps have been taken to abolish them as evidence for convictions.

By voluntarily ratifying international treaties and agreements, the state assumes responsibility for incorporating the content of these treaties into its public policies, thereby adhering to the rules of international law.

There is no legislative basis for anal examinations, as evidenced under Article 230. Their use is purely customary, a “habitus” in the sociological sense, that Tunisian judges have not dared to abandon.

While anal examinations are purportedly voluntary in judicial circles, in reality, refusal to undergo such examinations is considered incriminating in itself. This can lead to an inference of guilt, making refusal tantamount to evasion of the alleged crime.

Arbitrary arrests lack concrete evidence, leading to violations of personal privacy during preliminary investigations, arrests, and detention. These include breaches of communication confidentiality and home sanctity, despite Decree No. 240 of 2023, dated March 16, 2023, which approves the Code of Conduct for Internal Security Forces under the Ministry of the Interior. Article 26 of this code states, “Security personnel shall not conduct searches outside of flagrante delicto cases except pursuant to explicit judicial orders and in accordance with the procedures stipulated by law. During searches, security personnel must preserve the dignity and sanctity of individuals and their homes and private property.”

It is crucial to understand the arbitrariness of arrests, often based on preconceived notions such as appearance or mannerisms (voice, speaking with men). Arrests may also be based on social media posts and involvement with associations advocating for LGBTQ+ rights, infringing on universal rights guaranteed by the constitution and international treaties, such as freedom of expression and association.

Accusations can be arbitrary. There have been instances where victims were arrested after reporting rape, only to be charged under Article 230.

 

On Shame and Trauma Experienced by Victims:

Many victims have reported enduring psychological trauma from coercive anal examinations, leading to severe depression and social phobia. Some victims have disclosed that these examinations were accompanied by other forms of abuse, such as slapping, severe beating, and verbal insults during detention, violating Article 28 of the Tunisian Constitution and Article 13 bis of the Penal Code.

To enrich this article, it was essential to interview Ali Bousalem, the executive director of the organization ”Mawjoudin,” who works daily with victims of anal examinations. He expressed the common feelings of humiliation and deep shame among victims: “The reader can imagine the victim being ordered to strip in front of an entire medical team, in addition to enduring physical and psychological violence during detention. This trauma remains with the victim for life, especially if they do not have the opportunity to connect with organizations for support and protection.”

Ali Bousalem discussed the profound impact of these abuses on victims’ lives, including the potential for being fired from work or evicted from their homes and the difficulty of continuing daily life without adequate protection and support.

Ali emphasized the necessity of breaking the taboo and freeing ourselves from preconceived notions by opening a societal dialogue based on simplicity rather than remaining confined to elitist rhetoric.

 

In the Courts: Formation Constrained by Legislative Frameworks,

The judiciary plays a critical role in protecting rights and freedoms, acting as the true guarantor of justice. According to Article 102 of the Tunisian Constitution, ”The judiciary is an independent authority that ensures the establishment of justice, the supremacy of the constitution, the rule of law, and the protection of rights and freedoms.” This mandates the judiciary to recognize its value in upholding rights and freedoms and to abandon practices that conflict with the constitution.

The absence of a Constitutional Court prevents challenging the constitutionality of anal examinations in a specific dispute before an ordinary judge. However, a judge can depart from conventional jurisprudence by referring to the constitution, international treaties, and comparative law to pave a new path. This approach was discussed with lawyer and human rights advocate Fadwa Brahim, who stated that the judiciary in Tunisia has yet to fully realize its role due to several reasons, primarily the conservative nature of judicial training, which limits the potential for innovative and bold jurisprudence.

 

Between Fear of Voter Backlash and Neglect: How Politics Addressed the Issue?

Clearly, the solutions for addressing human rights issues may be legal or political. Lawyer Fadwa Brahim considers the matter highly political, as political actors possess the electoral legitimacy to change the status quo.

In 2018, the late President Beji Caid Essebsi appointed the “Individual Freedoms and Equality Committee,” which recommended ending the use of anal examinations in criminal investigations as evidence. Thirteen members of the Tunisian parliament proposed a bill on individual freedoms, which included the abolition of Article 230, in October of the same year. Former Prime Minister Youssef Chahed also promised to end anal examinations.

However, there remains a significant gap between promises and reality, highlighting the lack of genuine political will that has impeded the abolition of anal examinations and the eradication of all forms of discrimination by removing laws that contradict the human rights framework from the sphere of legitimacy.

This issue was addressed during the research phase of this article with Khawla Ben Aicha, a politician and former member of parliament. “In recent years, there has been more discussion about Article 230 than ever before, with opinions ranging from opposition to support, from insular views to those embracing universal values,” Khawla explained. She highlighted the difficulty of addressing the issue of anal examinations in the media and the challenges faced by the Individual Freedoms and Rights Committee.

Khawla worked with fellow MP Yassine Ayari on the issue of anal examinations. They approached Mr. Bashir El Mnoubi, head of the committee for revising the Penal Procedures Code, to discuss the need to abolish anal examinations in the revision process. They also held meetings with former Minister of Human Rights, Fadel Mahfoudh, but their parliamentary terms ended, and the amendment remains pending.

Khawla faced harassment on Facebook, defamation, and pressure, explaining the reluctance of MPs to address sensitive societal issues for fear of being accused of blasphemy or undermining family values, potentially leading to a public backlash and feelings of betrayal among their voter base.

 

Conclusion:-

The Tunisian legal system calls for questioning its core values and whether it fundamentally aims at punishment for its own sake or at ensuring a human rights framework. The philosophy of the legal system determines if universal rights are at the heart of the state’s public policies and whether these rights will be respected even when restrictions are necessary. Peaceful assembly, for example, underscores the importance of legally structuring the authorities’ handling without compromising the essence of this right or using it as an opportunity to target civil society activists.

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