Capital Punishment in Tunisia: Suspension is Not a Solution

2017-06-27    |   

Capital Punishment in Tunisia: Suspension is Not a Solution

On April 12, 2017, Amnesty International issued its annual report on the death penalty for 2016.[1] The report revealed that Tunisian courts issued 44 death sentences in 2016, all the while keeping a stay of execution in place. In his report presented at the Human Rights Council on May 2, 2017,[2] the United Nations High Commissioner for Human Rights commended the moratorium on the death penalty, but condemned Tunisian legislation encouraging its reinstatement. The two reports indicate that differences over the death penalty in Tunisia has turned into a disparity of practice among official institutions of which some disrupt carrying out executions, while others issue laws and provisions that tend to reinforce this punishment.

Article 342 of the Tunisian Code of Criminal Procedure stipulates that the minister of justice submit final rulings of the death penalty to the president of the republic for consideration. The latter may issue a special pardon (commuting the sentence into life imprisonment).[3] Since the end of 1991, the presidency has exerted that power to stay executions.[4] Up until the revolution, amnesty requests that were referred to the presidency were shelved. At the time, authorities adopted a pragmatic stance to avoid repercussions in relation to Tunisia’s human rights record. The authority did not have an initial position on the legitimacy of this penalty. Under the presidency of Moncef Marzouki, that stand progressed into a preliminary rejection of the death penalty when a pardon was granted to all those who were sentenced to death, regardless of their crimes.[5] The death penalty was commuted to life imprisonment. It is likely that President Beji Caid Essebsi will refrain from executing this penalty, although the question remains as to what approach he shall adopt in this regard.

Despite the fact that over 25 years have elapsed since the suspension of the death penalty, the legal system -whether at the level of legislature or the courts- has not witnessed any significant development in this area. This raises questions not only about the difference between the legislative and executive authorities on this matter, but also about the judges’ perception of their social role.

The Legislation: From Keeping the Death Penalty to Reinforcing its Presence

In 2012, the second comprehensive periodic review of Tunisia’ human rights record recommended that the death penalty be abolished.[6] At the time, the Tunisian government did not reject the recommendation, but sought a grace period before making a decision on the matter. The government justified its hesitance with regard to this issue in the context of national consensus. At the end of the grace period, Tunisia admitted its inability to decide on the recommendation. The then Tunisian Minister of Human Rights and Transitional Justice Samir Dilou justified this indecisiveness by stating that the death penalty is tied to an Islamic religious reality present in all Arab Islamic countries, and as a result, its abolition requires broad consensus within states and among them.[7]

Seeking such consensus has kept Tunisia’s first post-revolution government from fulfilling its obligation to accede to the Second Optional Protocol[8] to the International Covenant on Civil and Political Rights (ICCPR).[9] Meanwhile, the political consensus that governed the drafting of the Tunisian Constitution[10] resulted in the ratification -in chapter 22- of the death penalty for cases described as extreme.[11]

Subsequently, the phobia of the “war against terrorism” led to a strong legislative return to the death penalty through the passage of Anti-Terrorism Law No. 26 of 2015. Post-revolutionary legislative action fueled by human rights endeavors to abolish the death penalty thereby suffered a major setback. Public debate on the Constitution and the law on terrorism indicates that religious and national feelings [about the death penalty] have paved the way for this setback.

Rise in Death Sentences: What Role Does the Judge Have?

In 2010, Tunisian courts issued 22 death sentences. The courts issued the same number of executions in 2011 as well.[12] In 2016, the number, according to Amnesty International, doubled. With the succession of death sentences in both terrorism-related offenses and public right cases, the number is expected to continue to increase in 2017.[13]

It should be noted that the courts’ issuance of death sentences is consistent with the law that judges have to enforce. In addition, over 70% of Tunisians believe that those who have committed horrendous crimes should be executed.[14] However, the frequency of such judicial rulings raises two questions: Why do judges continue issuing sentences that are not being implemented? And how do they perceive their constitutionally-defined social role in this regard?

The discourse of political authorities confirms that the difference over the death penalty is met by a firm agreement not to implement it.[15] This would turn the death penalty into a tool of torture in that the convicted person is not only sentenced to death, but also in constant fear of the implementation of the execution any day, beyond the normal timeframe. This reality poses additional questions about the position of the judge who -according to the Constitution- has the duty to protect rights and freedoms, and who should oppose all forms of torture resulting from “impracticable executions”. Such questions can serve as the basis of a judiciary that plays its role as a driving force towards the development of the justice system in Tunisia in all its dimensions.

This article is an edited translation from Arabic.


[1] See: “Death Sentences and Executions in 2016”, Amnesty International report, April 4, 2017.
[2] In the framework of the third comprehensive periodic review of the human rights record in Tunisia.
[3] Article 342 of the Code of Criminal Procedure states: “If a death sentence is issued, the attorney-general of the republic –once the ruling becomes final– shall inform the state secretary of justice who shall submit it to the president of the republic to exercise his right to pardon. The sentence may not be implemented unless a pardon has not been granted”.
[4] Between 1987 and the date Zine El Abidine Ben Ali assumed his position as the President of the Republic of Tunisia and October 19, 1991, six death sentences had been carried out; see file on the death penalty, Leaders Magazine, Issue No. May 23, 2013.
[5] On January 1, 2012, the President of the Republic issued amnesty decrees that included all 120 convicted persons sentenced to death. The majority of them had submitted requests for amnesty during the time of Zine El Abidine Ben Ali.
[6] Held on May 22, 2012.
[7] Samir Dilou before the Human Rights Council: “Our final position on the abolition of the death and equality in inheritance is yet to be decided”, Journal al-Chourouok Tunisien, September 26, 2012.
[8] Stipulates the abolition of the death penalty, and was approved by the United Nations General Assembly on December 15, 1989.
[9] See: The Tunisian Government Spokesperson's statement on February 1, 2011 on Tunisia’s intention to accede to the two Optional Protocols to the International Covenant on Human Rights, and the statement welcoming this decision, issued by the Tunisian League for the Defense of Human Rights on February 2, 2011.
[10] The Constituent Committee’s report on the section on rights and freedoms included that the wording of the chapter on the right to life was not unanimously agreed upon by members of the committee. The subject of difference was the death penalty. Some members of the committee demanded abolition thereof, while others demanded the death penalty be applied. Other members suggested leaving this penalty issue to the law to decide on it; see page 39.
[11] Article 22 of the Constitution stipulates: “The right to life is sacred and cannot be prejudiced except in exceptional cases regulated by law.”
[12] Statistical data in a Leaders Magazine file on the death penalty, May 23, 2013.
[13] Judge Farid Ben Juha, spokesman of the Court of Appeal in Monastir, confirmed that his court issued five death sentences up to the month of April 2017.
[14] In 2013, a questionnaire concluded that only 27% of Tunisians support the abolition of the death penalty. The opinion poll was conducted by 3S Foundation and the results were published in Leaders Magazine on May 2013.
[15] Minister of Human Rights and Transitional Justice Samir Dilou, in 2012, who is politically considered an affiliate of the Ennahdha Party, said in his intervention before the Human Rights Council in Geneva on the occasion of the periodic review: “We have stopped the implementation of the death penalty, and we will continue this and will not carry out any death sentence. Additionally, all death penalty sentences have been replaced with life imprisonment, and this will continue.”

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