Article 230 of the Tunisian criminal code is an outrageous violation of fundamental rights protected by the new constitution and international conventions

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By Houyam Mchirgui

Despite the enactment of a new constitution, safeguard of human rights and individual liberties, Tunisian courts still charge citizens with homosexuality under article 230 of the Criminal Code which, older than the republic, dates from 1913.                                                                                                                                

This article criminalizes private acts of sodomy between consenting adults, its first problem arises when it comes to the non compliance of its Arabic version with the French one;

« اللواط أو المساحقة إذا لم يكن داخلا في أي صورة من الصور المقرّرة بالفصول المتقدّمة يعاقب مرتكبه بالسجن مدة ثلاثة أعوام »

The Arabic version criminalizes both masculine and feminine homosexuality with imprisonment up to 3 years; while the French version criminalizes “sodomy” with the same sentence.

« La sodomie, si elle ne rentre dans aucun des cas prévus aux articles précédents, est punie de l’emprisonnement pendant trois ans. »

This article is unconstitutional for the contradictions it carries with the new constitution’s provisions, obviously inspired by International Conventions:

Discrimination based on sexual orientation:

This article convicts citizens based on their sexual orientation and this constitutes a form of discrimination even though the constitution was clear about equality of citizens before the law in its article 21 stating that: “All citizens, male and female, have equal rights and duties, and are equal before the law without any discrimination. The state guarantees freedoms and individual and collective rights to all citizens, and provides all citizens the conditions for a dignified life”. This article concurs also with several International conventions and treaties that Tunisia has ratified. Article 2 of the International Covenant on Civil and Political Rights, ratified in March18, 1969 and entered into force in March 23, 1976 states that:  “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”  Tunisia has also ratified in 2011 the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits in its first article “…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for any reason based on discrimination of any kind”

Physical integrity

The Tunisian constitution prohibits torture and protects human dignity as its article 23 states: “The state protects human dignity and physical integrity, and prohibits mental and physical torture. Crimes of torture are not subject to any statute of limitations.” But in order to prove consented acts of sodomy between male adults, Tunisian authorities force men, suspected of homosexuality, to undergo an anal test which is a very controversial examination due to the lack of its scientific basis in proving conducts of homosexuality.  

United Nations Committee against torture considers this examination as “a form of cruel, inhuman and degrading treatment that can rise to the level of torture.” The Committee of the Convention against Torture considered in its report published in October 3, 2014 that virginity tests and rectal examinations are considered as acts of torture and recommended the prohibition of these acts to ensure full respect for human dignity (1).

In this regard, the Tunisian constitution seems to be inspired by article 5 of the Universal Declaration of Human Rights: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”  And by article 7 of the International Covenant on Civil and Political Rights which states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

Right to privacy

Article 230 condemns a private sexual conduct between consenting adults, and such condemnation constitutes a flagrant interference in the private life of a citizen. Human Rights Committee considers sexual life as an integral part of one’s privacy and “that the criminalization of homosexual acts of consenting adults violates the right to respect for private life, and that ‘it is undisputed that adult consensual sexual activity in private is covered by the concept of “privacy”’(2).

As for the right  to privacy the Universal Declaration of Human Rights (article 12) and the International Covenant on Civil and Political Rights (article 17) have concerted that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”  

The Tunisian constitution  did not remain silent as well in this regard and mentioned in article 24 that “The state protects the right to privacy and the inviolability of the home, and the confidentiality of correspondence, communications, and personal information…”

All these contradictions point out  the urgent need to abrogate this article, to ensure the respect of the hierarchy of laws which puts at its top the constitution and international conventions and treaties.

[1] Universal Periodic Review of Tunisia May 2017, Tunisian Coalition for the Rights of LGBTQI People

[2] Toonen v. Australia case

Universal Periodic Review of Tunisia May 2017, Tunisian Coalition for the Rights of LGBTQI People

Toonen v. Australia case