A/HRC/19/61/Add.1
Committee in May 2011, the interim Government has not made significant progress
towards establishing the new NHRI. The Special Rapporteur notes that a new President of
the Higher Committee was appointed in late August by the interim President of Tunisia.
However, he stresses that this appointment should not be at the expense of enabling
legislation which would provide for the establishment of a NHRI in compliance with the
Paris Principles.
1.
Prohibition of torture in national legislation
15. Torture is outlawed by article 101bis of the Criminal Code. The article, which was
added to the Code by Law No. 89 of 2 August 1999, stipulates that:
Any public official or equivalent found guilty of subjecting any person to torture
while in the line of duty or while conducting official business shall be sentenced to
eight years in prison. Torture means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for such purposes
as obtaining from him or a third person information or a confession, punishing him
for an act he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind.
16. The Special Rapporteur notes that this definition of torture is incomplete and not fully
in conformity with article 1 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. The current legislation does not provide for victims to
pursue the criminal liability of commanders for acts of torture committed by their
subordinates. The Special Rapporteur emphasizes the importance of penalizing all acts of
instigation, consent or acquiescence of torture by public officials or other persons acting in
an official capacity, including those who order subordinates to torture or who cover up
torture after the fact.
2.
Safeguards against torture and ill-treatment during arrest and detention
17. The Special Rapporteur notes that article 152 of the Code of Criminal Procedure
stipulates that the validity of a confession, like any other piece of evidence, if to be
admitted must be left to the discretion of the presiding judge (Cassation Criminal Decision
No. 12150 of 26 January 2005), and that the Code of Criminal Procedure renders any
confession under duress null and void and provides for possible prosecution of those
responsible for acts leading to such conditions. However, he expresses concern that in
practice there appears to be no instruction to the courts with regard to implementing the
latter rule or ordering an immediate, impartial and effective investigation if the rule is
violated. Moreover, the Special Rapporteur observes that, in practice, confessions obtained
under torture are not expressly excluded as evidence in court. He is further concerned that
there are no clear procedures in place prescribing the measures to be taken by courts should
evidence appear to have been obtained through torture or ill-treatment, in order to ensure in
practice the absolute respect for the principle of inadmissibility of evidence obtained
through torture, except against a person accused of torture, in accordance with article 15 of
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. He recommends that the State legislation provide for a means whereby an
individual could challenge the legality of any evidence, in any proceeding, plausibly
suspected of having been obtained by torture.
18. Article 13bis of the Code of Criminal Procedure limits the period of garde à vue
(police custody) to three days, with one extension for a similar duration. Police custody
comes under the oversight of the Prosecutor General, who has the sole authority to extend
the period of custody in exceptional circumstances and to order a medical examination of
6
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