Tunisia national standards
International legal framework
UNGA Resolution for a moratorium on exécutions: Yes (in 2016, 2014 et 2012, abstention en 2010, 2008 et 2007)
International Pact on Civil and Political Rights: ratified in 1969
Optional Protocol to the International Covenant on Civil and Political Rights: ratified2011
Second Optional Protocol to the IPCPR: not ratified
Convention against torture or other inhuman or degrading treatments: ratified in 1988
Protocol to the Convention against torture: ratified in 2011
Convention on the Rights of the Child: ratified in 1992
African Charter on Human and Peoples’ Rights: ratified in 1983
Arab Charter on Human Rights: 1994
Under the Universal periodic review (UPR) on 21 September 2017, Tunisia accepted recommendations to continue the dialogue at national level with a view to reaching a consensus on the abolition of the death penalty in the Constitution; to maintain its de facto moratorium on the application of the death penalty with a view to to abolish it and to facilitate a public debate on the death penalty, with the assistance of the Commission on Human Rights and other relevant constitutional bodies and civil society, with a view to the ratification of the Second Protocol Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. Tunisia took note of the recommendations to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights and to abolish the death penalty.
National legal framework
Constitution: article 22 of the new constitution of January 26th, 2014 states “the right to life is sacred” and explains “there can not be violation except for in extreme cases decided by the law.” This exception legitimizes the recourse of the death penalty.
The National Constituent Assembly passed the article with 135 votes out of a total of 174. During the discussion, a proposal of an amendment to abolish the death penalty was rejected by 102 votes.
Penal code: the death penalty is foreseen for two categories of crimes ordinary crimes (murder, rape aggravated, kidnapping aggravated) and political and military crimes (attempt at the state security internal and external, high treason). The political and military infractions are subject to pursuits before the civil or military jurisdiction.
The Penal Code of Tunisia, of 9 July 1913, as amended on 29 June 2010, foreseens the death penalty for aggravted murdes: premeditated murder (art. 201), parricide ( art. 203), murder when it is preceded, accompanied or followed by another offense punishable by a prison sentence and murder committed in order to further or facilitate another offense, including to ensure impunity for the offense (art 204). Then for kidnapping (art 237), sequestration (art 251) and arson (art. 307) when resulting in death; aggravated rape (art. 227); arson or destruction using explosive devices of State-owned goods (art. 76); acts of treason (arts. 60, 60bis, 60ter, 61bis, 63, 72, 74); espionage ( art. 60ter). There are also other offenses not resulting in death, as attempt of a death-eligible offense ( art. 59) and assault on a judge on duty, with threat or use of a weapon (art. 126)
The Code of Military Justice of Tunisia of 10 January 1957, updated until 2010provides for a number of death-eligible crimes (arts. 69, 70, 79, 81, 99, 104, 109, 111, 113, 115, 116).
Crimes of terrorism
The new anti terrorism law adopted by the Assembly of Representatives of the People on 23 July 2015 introduced the death penalty for a series of terrorist crimes contrary to the text of the 2003 law which did not envisage the death penalty.
The law was approved in a few days to beef up powers to confront the jihadist threat, following the March and June deadly attacks in the country claimed by ISIS, which caused the death of dozens of foreign tourists.
Lawmakers voted heavily in favour of three articles imposing the death penalty. Article 26 applies to anyone who “knowingly murders someone enjoying international protection,” a reference to such people as diplomats and international civil servants. The following article applies to cases in which people die in hostage-taking or kidnapping situations, while Article 28 refers to people who commit rape during the course of a terrorism-related crime.
Critics say the new law would erode defence guarantees and due process standards and would undermine the exercise of civil and political rights. Among other things, it would make it easier for investigators to use phone-tapping against suspects and make public expressions of support for terrorism a jail able offense. The law would allow the authorities to detain suspects for 15 days without access to a lawyer or being brought before a judge, as well as put harsh restrictions on journalists.
Categories of Offenders Excluded From the Death Penalty:
Individuals below age 18 at time of crime can be sentenced to a maximum of 10 years imprisonment for a crime committed while younger than 18 years (art. 43 of the penal code) and Tunisia is party to the ICCPR and to the Convention on the Rights of the Child, which prohibit the execution of individuals for crimes committed while under the age of 18.
Pregnant women cannot be executed before she has given birth to her child (art. 9 of the penal code). Additionally, Tunisia is party to the ICCPR, which prohibits the execution of pregnant women. Women with small children, according the Arab Charter on Human Rights (art 7) of which Tunisia is party the execution of nursing mothers within two years from the date of delivery is prohibited.
Mentally ill at the time of the offense are not criminally liable (art. 38 of the penal code)
The death penalty in practice: Tunisia observes a moratorium on capital executions since 1991 when the last 5 executions were carried out in October but carried out 135 death sentences since its independence from France in 1956. Death sentences continue to be issued.
Executions : 0 since 1991
Death sentences: since the revolution of January 2011 to December 31, 2016, at least 71 people were condemned to death
2011 : no condemnations
2012 : 9 condamnations
2013 : 5 at least
2014 : 2 at least
2015 : 11
2016 : 44
Number of people in death row : NC
Regime of detention on death row: those who were condemned were placed in either special wings (of the prisons), or in isolated cells.
They were in chains almost all the time, the chains were removed for morning and afternoon walks. The walks were individual and lasted ten minutes each.
In 1996 their chains were removed with the criminal holding. The first cellular merging started and it was from this date that they were given some money for cigarettes and other extras.
It was not until 1998 that the prisoners learned that there was a moratorium on executions.
The condemned lived in secret and had no way to give or receive news. Their conditions in detention were cruel and inhumane.
The Situation after January 2011
- In February 2011 the death penalty detainees received the right to a visit, to a basket once a month, and to visits from the ONG. Before this period only the CICR were authorised to visit the prisoners.
- The statutory law of February 19, 2011 on the general amnesty exercised the liberation of all the political prisoners including the ones who were condemned to death following the events of Soliman.
- The wings (of the prisons) intended for those who were condemned to death disappeared. Those condemned to death had the same conditions as the other prisoners.