Several “influencers” have received harsh prison sentences for publishing content on social media deemed contrary to “society’s values.”
On November 5, the spokesperson for the Court of First Appeal in Tunis reported on radio station Diwan FM that four “influencers” had received prison sentences ranging from 18 months to more than four years.
Days earlier, on October 27, the Ministry of Justice published an official statement outlining legal penalties for individuals who publish content considered to be at odds with society’s moral standards.
During a parliamentary hearing on Monday, November 11, Justice Minister Leila Jaffel stated that the laws which apply in cases of “lewd conduct” are not new, but in fact constitute long-standing provisions of Tunisia’s Penal Code. This legal text represses anything deemed to be in violation of moral standards or common decency, or deemed incitement to immoral behavior. Ambiguous expressions with legal implications, as outlined in article 226 of the Penal Code:
Whosoever publicly violates moral standards or common decency through gesture or speech or intentionally disturbs others in a way which defies decency may be sanctioned with prison sentence of six months or a fine of one thousand dinars. The same sentences may apply to anyone who draws public attention to an incident of debauchery, whether in writing, recordings, or audio, visual, electronic or optical messages.[1]
The ambiguity of article 226 lends itself to use as extension of repressive practices.
Arbitrary and undue rulings
Tunisia’s prisons are filled with inmates who have committed acts of murder, others who have written bounced checks, and still others considered to have violated moral standards. Smoking a joint is another crime for which Tunisians can find themselves behind bars.
Whether or not rulings are fair and equitable—as they are guaranteed to be by the justice system—is questionable. On November 5, a man was sentenced to three years in prison for murder. A few days later, “influencers” were sentenced to five years behind bars for their so-called blasphemous activities diffused on social media.
The justice’s tendency to act arbitrarily is also manifest in the time lapse before a verdict is pronounced. It took more than six years for the Criminal Chamber of the First Appeals Court of Ben Arous to conditionally sentence 12 security agents to one year of prison for involuntary homicide, and to acquit two others. The impunity of Tunisia’s police is indicative of the double standards applied in judicial rulings.
Some held in preventative detention languish behind bars for years as they await a ruling in their case. Intended in theory to be “exceptional,” applied only when “absolutely necessary,” and limited to a maximum term of six months, preventative detention in practice is renewed, thus enabling the extended incarceration of the accused. Prolonged waiting periods mean that detained persons thus remain without a ruling due to the repeated deferral of their hearings, and for reasons that remain ambiguous.
Nearly systematic incarceration
Chadi Trifi with the executive office of the Tunisian Human Rights League (LTDH) denounces the normalization of prison sentences pronounced by magistrates, notably after this year’s judicial recess. During an interview with Nawaat, Trifi highlights this trend among public prosecutors in particular:
“The latter tend to send accused persons to prison without a thorough examination of their cases. In reality, they don’t know what it means to put a person behind bars in Tunisia,” Trifi remarks.
The result: over the summer, the rate of overcrowding in Tunisia’s prisons rose from 170% to 300%. “The Ministry of Justice is aware of these statistics,” Trifi notes. This overcrowding produces “deplorable,” “inhumane” conditions in “violation of the rights of those detained,” he explains.
To remedy this situation, recourse must be taken to sentences other than incarceration. Such alternatives have existed within Tunisian law since 1999, when community service became a potential substitution for a one-year prison sentence.
Penal Code and Code of Criminal Procedure reforms—which have been lagging for years—should strengthen recourse to alternative sentences such as electronic surveillance, the parole system or fines. This system should especially be reserved for misdemeanors that do not affect the public interest.
“Not all acts determined to be against the law are equal. It is imperative that we revise the repressive nature of the Penal Code,” Trifi insists, noting that the Ministry of Justice has a budget for electronic bracelets which it does not use. According to Trifi, this is due to a lack of earnest political will to reform the justice system.
Instead, the push has been to weaken the power exercised by magistrates, many of whom thus work in fear and operate in the government’s pay. The dismantling of the High Judicial Council (CSM) has certainly not helped the situation. In a publication from 2019 called “Lutter contre la surpopulation carcérale en Tunisie” [“Combatting the overcrowding of prisons in Tunisia”], the organization Lawyers Without Borders (LWOB) recommended that the CSM raise awareness among magistrates about the importance of pronouncing alternative sentences.
Ultimately, this repressive approach is a generalized policy that extends well beyond the cases of certain “influencers.” It is reminiscent of the freedom-restricting transgressions committed by Egypt’s Abdel Fattah El-Sisi regime which attacked influencers in the name of “family values.” Similarly, Kais Saied has implemented a policy of repression wherever “moral standards” are in question. Until, of course, he decides to apply the same policy to still other types of cases.
[1] Editor’s Note: “optical messages” refers to image-based communication methods.
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