Tunisia: Three Years for Homosexuality: 6 Students Subjected to Anal Examinations
(Tunis, December 16, 2015) – A Tunisian court sentenced six students accused of sodomy to three years in
prison on December 10, 2015, 13 human rights organizations said today. The
convictions contradict international
law and are contrary to the rights to privacy and nondiscrimination under Tunisia’s 2014 constitution.
Tunisian authorities subjected the defendants to
anal examinations, to use it as evidence in the case. The court also banned the
students from the town of Kairouan, for three years, after their release from
“While Tunisians were celebrating the Nobel Peace Prize for the Tunisian
National Dialogue Quartet on Human Rights Day, a Tunisian court was handing
down a medieval sentence to six students on the basis of a gross invasion of
their private life 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 the signatory organizations are withholding
for their security, on December 5. The lawyer of one of the students, Bouthaina
Kerkeni, told the signatory organizations that the police arrested the six men
at the apartment of one of them, at 7 p.m., acting on a complaint by neighbors.
They searched the house, seized computers, and took the men to a police station.
The following day, the prosecutor at the First
Instance Court of Kairouan charged them with sodomy, under article 230 of the
penal code, ordered them detained, and ordered anal exams. The forensic doctor at
the Kairouan public hospital performed the exams. The prosecutors introduced
into evidence a medical report prepared by the doctor, as evidence for homosexual
On December 10, the judge of the First Instance Court
in Kairouan sentenced all six to the maximum penalty under article 230, three
years in prison, said Kerkeni, who was present during the hearing and judgment.
Article 230 provides that sodomy, if practiced in a non-public location, shall
be punished by imprisonment for up to three years.
Justice Ministry should immediately issue a directive ordering prosecutors
to stop sending detainees for anal examinations as part of police investigative
procedures to determine individual’ sexual behavior. Tunisia’s health minister
should also direct all forensic doctors under the ministry’s authority to cease
all anal examinations for these purposes and to respect people’s right to
physical dignity and integrity. The signatory organizations reiterate, finally, their call on the Tunisian authorities to abrogate Article 230 and to
revise all draconian provisions of the Tunisian Penal Code.
The judge also delivered an additional penalty by
banning the defendants from Kairouan for three years, under penal code article
5. One defendant was sentenced to an additional six months under article 226
for “indecent behavior in public,” on the grounds that police found pornographic
videos on his computer.
"Even in the days of Ben Ali, the courts
have never, as to my knowledge, pronounced judgment of banishment. Each person
has the right to dispose of his body and the inviolability of his home,
punishment and violates fundamental rights enshrined in the Tunisian
constitution and guaranteed by international conventions ratified by Tunisia,
"said Mokhtar Trifi, President of the Tunis office FIDH.
Only two defendant were represented in court by a
lawyer. All six are in the Kairouan prison. They have until December 20 to file an appeal, and one of them has.
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 compliance with the
covenant, has made it clear on several occasions that sexual orientation is a status protected
against discrimination under these provisions. The UN Working Group on
Arbitrary Detention has found that arrests for same-sex conduct between consenting adults are, by
These rights are reflected in Tunisia’s 2014 constitution. Article 24
obligates the government to protect the rights to privacy and the inviolability
of the home. Article 21 provides that “All citizens, male and female, have
equal rights and duties, and are equal before the law without any
two years after the adoption of the constitution, it is regrettable that no
serious effort has been made by the authorities to ensure compliance of the
Penal Code with the new constitution" said Antonio Manganella, head of the
ASF Tunisian Mission, "The government should immediately implement a
moratorium on all criminal provisions unconstitutional tainted, which is the
case of Article 230, "he added.
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 he underwent a
court-ordered anal exam. He was later released on bail. The Sousse Appeals
Court is scheduled to rule on his appeal on December 17.
September 28, following Marwen’s conviction, the Tunisian Medical Syndicate, issued a statement condemning the use of anal exams in the
enforcement of article 230. The then-minister of justice, Mohamed Salah Ben Aissa, declared that article
230 is contrary to the constitution, should not be applied, and should be
repealed. However, Ben Aissa, issued no official directive to prosecutors to
stop using it.
October 5, the President Beji Caid Essebsi said on the Egyptian TV station CBC that he would
oppose 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 the laws that conflict with the rights enshrined in the 2014
constitution,” said Ramy Salhi, REMDH Maghreb Director.
“The current state practice of humiliating and punishing citizens for
consensual adult sexual conduct is in stark contrast to the Tunisian
constitution and goes against the revolution’s call for a democratic and equal
Tunisian society”, stated Gabriele Reiter, country director of OMCT in Tunisia.
Rights Watch has documented cases in several countries, in which police or
prosecutors subject men to forensic anal examinations as part of their effort
to “prove” that they have engaged in anal penetration. Such invasive examinations
violate the individual’s rights to dignity, privacy, and physical integrity.
constitute cruel, inhuman, and degrading treatment and may amount to torture,
violating the African Charter on Human and Peoples’ Rights, the Convention
Against Torture, and the International Covenant on Civil and Political Rights,
all of which Tunisia has ratified. In addition,
they have no evidentiary value and their findings should not be regarded as
probative in a court of law.
the Office of the UN High Commissioner for Human Rights stated:
One issue highlighted by
United Nations experts is the “medically worthless” practice of subjecting men
suspected of homosexual conduct to non-consensual anal examinations to “prove”
their homosexuality. Such examinations have been condemned by the Committee
against Torture, the Special Rapporteur on torture and the Working Group on
Arbitrary Detention, which has held that the practice contravenes the
prohibition of torture and ill-treatment.
anal examinations for the purpose of determining sexual activity are also
contrary to medical ethics, according to the World Medical Association and the
UN Principles of Medical Ethics Relevant to the Role of Health Personnel,
Particularly Physicians, in the Protection of Prisoners and Detainees against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
List of signatory organizations:
Association for the promotion of rights and differences
Tunisian Association for
the defense of individual liberties
Initiative Mawjoudin pour l'égalité
For more information:
Halim Meddeb, OMCT
Legal Adviser, Phone : +216 23 660 689, E-mail : email@example.com