| Click here for a summary of the Tunisia’s review at the first cycle and/or the second cycle. |
27th UPR session
Date of review: 2 May 2017
Date of report adoption: 21 Sep 2017
Document number: A/HRC/36/5
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SUMMARY SOGIESC issues during Tunisia’s 3rd UPR review |
I. SOGIESC issues/recommendations identified by NGOs and other stakeholders
Equality and non-discrimination
19. JS1 said that, under article 21 of the new Constitution of January 2014, men and women were equal before the law in rights and duties, without discrimination. Despite that, there was much discrimination against women, children, young people, persons with disabilities, lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) persons and persons living with HIV in both law and practice, which constituted an obstacle to the full enjoyment of sexual and reproductive rights. JS1 recommended the adoption of a law against all forms of discrimination in respect of sexual and reproductive rights and the establishment of a follow-up mechanism.
20. JS2 noted that LGBTQI people continued to endure every day all forms of stigma, discrimination and violence.36 JS2 recommended enacting a law criminalizing all forms of discrimination as well as incitement to hatred and violence against LGBTQI people; and recognizing hate crimes against LGBTQI people as aggravating circumstances for judgments. JS10 indicated that LGBTI organizations had been subject to various forms of harassment, including judicial harassment.
21. JS2 and HRW noted that Tunisia had not acceded to two recommendations in its last UPR, which requested the removal of laws that criminalize sexual activity between consenting adults of the same sex. The Tunisian Government mainly uses Article 230 of the Criminal Code condemning male and female homosexuality with a sentence of up to 3 years of imprisonment. AI, JS5 and Shams Association (SA) made similar remarks. JS2 recommended Tunisia to immediately repeal Article 230; harmonize the Criminal Code and the procedural penal code with the Constitution of 2014 and the various treaties and conventions ratified by Tunisia; grant all citizens access to justice without discrimination, including that based on sexual orientation and gender identity. HRW made a similar recommendation. AI recommended immediately and unconditionally release anyone detained because of their actual or perceived sexual orientation or gender identity. JS6 recommended decriminalizing homosexuality through amendments to Article 230 and other legislation that contradicts Articles 21, 23 and 24 of the Constitution, and introducing additional protections for LGTBI people from discrimination, violence, torture, and ill treatment.
Right to privacy and family life
60. JS1 said that the Tunisian Criminal Code criminalized all extramarital relations, characterizing them as crimes of adultery punishable by 5 years’ imprisonment. Along the same lines, all sexual relations in private between consenting adults of the same sex were criminalized and punishable by a prison term of up to 3 years.
Right to work and to just and favourable conditions of work
62. SA recommended guaranteeing the right to work and equality of all workers in the public sector, and ensuring human dignity for them, without any discrimination on sexual identity or gender.
II. Excerpts on SOGIESC issues from the national report
No references.
III. Excerpts on SOGIESC issues by UN agencies
Equality and non-discrimination
19. The country team reported that article 230 of the Criminal Code criminalized sexual relations between persons of the same sex. The lesbian, gay, bisexual and transgender community continued to be the target of verbal and physical attacks. The authorities did not take appropriate action in response to incitement to murder and hatred. The Committee against Torture 37 and the Committee on Economic, Social and Cultural Rights made similar remarks and recommended that Tunisia repeal article 230 of the Criminal Code.
IV. References to SOGIESC issues during the Working Group review
19. Argentina raised the issue of discrimination against lesbian, gay, bisexual, transgender and intersex persons and mentioned the creation of the Truth and Dignity Commission.
50. Costa Rica welcomed measures against torture and expressed concern about the fact that the Government had not amended the Constitution to exclude the death penalty and that same-sex sexual relations were criminalized.
54. Denmark noted with concern discrimination and violence against lesbian, gay, bisexual, transgender and intersex people, highlighting that article 230 of the Criminal Code was a key obstacle to equal treatment.
67. Iceland noted with regret that anal examinations were used as the main source of evidence to convict men for homosexuality and asked Tunisia how such a practice could be deemed to be compatible with international human rights standards.
98. The Netherlands expressed concerns about the absence of a law criminalizing all forms of discrimination and incitement to hatred and violence based on sexual orientation and gender identity.
122. Concerning discrimination on the grounds of sexual orientation, Tunisia stated that all forms of discrimination, hatred and incitement to hatred were anti-Constitutional. Persons of all sexual orientations enjoyed the full spectrum of rights, including access to education. All aggression against any citizen based on his or her sexual orientation was criminalized and the perpetrators prosecuted. The President had called for a new law concerning individual rights; discussions of that law would provide an opportunity to open a dialogue on article 230 of the Criminal Code. Medical examinations were contingent on the consent of the person concerned and must be conducted in the presence of a medical expert.
V. Conclusions and/or recommendations
Tunisia accepted the following recommendations:
125.48 Immediately cease the practice of forced anal examinations of lesbian, gay, bisexual, transgender and intersex persons, which are contrary to its obligations under the Convention against Torture (Ireland);
126.9 Ensure the protection of lesbian, gay, bisexual, transgender, queer and intersex persons from all forms of stigmatization, discrimination and violence and abstain from random testing (Luxembourg);
Tunisia noted the following recommendations:
126.10 Develop public awareness programmes to address stigmatization of lesbian, gay, bisexual, transgender and intersex persons (Ireland);
127.31 Decriminalize same-sex relations between consenting adults by repealing article 230 of the Criminal Code (Denmark); 127.32 Amend or repeal article 230 of the Criminal Code to end criminalization of same-sex sexual relations (Sweden);
127.33 Amend article 230 of the Criminal Code to end criminalization of same-sex sexual relations (United States of America);
127.34 Repeal article 230 of the Criminal Code criminalizing same-sex sexual relation (Belgium);
127.35 Abolish article 230 of the Criminal Code that criminalizes homosexuality (Netherlands);
127.36 Repeal article 230 of the Tunisian Criminal Code and eliminate discriminatory practices based on sexual orientation and gender identity, such as anal inspections (Canada);
127.37 Modify or repeal article 230 of the Criminal Code in order to decriminalize same-sex relations between consenting adults (Germany);
127.38 Repeal articles 236 and 230 of the Criminal Code to put an end to the criminalization of adultery and same-sex relationships, as well as to methods of collecting evidence that constitute a violation of the dignity and physical integrity of persons (France);
127.39 Derogate article 230 of the Criminal Code (Costa Rica);
127.40 Repeal article 230 of the Criminal Code (Ireland);
127.41 Repeal article 230 of the Criminal Code, which criminalizes same-sex relations between consenting adults and discontinue the practice of forced anal exams to prove homosexual behaviour (Norway);
127.42 Implement additional measures aimed at eliminating discrimination and violence based on sexual orientation (Brazil);
127.43 Eliminate all legislation that penalizes and criminalizes same sex relationships as well as all discriminatory legislation as a result of sexual orientation (Spain);
127.44 Repeal legislation criminalizing consensual sexual conduct between same-sex adults (Iceland);
127.45 Take steps to prevent the harassment or discrimination of lesbian, gay, bisexual, transgender and intersex persons and prosecute perpetrators (Iceland);
127.46 Take all necessary measures to prevent, investigate and prosecute violence against lesbian, gay, bisexual, transgender and intersex persons (Ireland);
127.47 Take immediate measures to derogate from norms that criminalize and stigmatize lesbian, gay, bisexual, transgender and intersex persons and investigate and sanction the perpetrators of acts of discrimination and violence against them (Argentina);
127.48 Introduce legislation to protect against discrimination based on sexual orientation, gender identity and intersex status (Australia);
127.49 Adopt legislative and policy measures to combat discrimination based on sexual orientation and gender identity (Chile);
VI. Further information
You will find all documents relating to Tunisia’s third review at UPR-Info and OHCHR’s websites.