For almost a quarter of a century, Tunisia’s drug laws have mandated long prison sentences for drug offenses resulting in large numbers of low-level offenders in Tunisian prisons. Long prison sentences are cruel, disproportionate, and counterproductive punishment for recreational users.People convicted for drug use or possession leave prison with a criminal record that often prevents them from gaining employment and subjects them to social stigma and police harassment.
Law n.92-52 on Narcotics (referred to as Law 52), adopted in 1992, requires courts to impose a minimum mandatory sentence of one year in prison on any person found guilty of use and possession of an illegal drug, including cannabis. The law imposes a minimum sentence of five years in prison on repeat offenders. For both offenses, judges have no discretion to reduce the sentence in light of mitigating circumstances. Even in cases involving possession of a single joint, judges lack authority to impose alternatives to incarceration such as community-based sanctions or other administrative penalties.
As of December 2015, 7,451 people were prosecuted for drug related offences in Tunisia’s prisons, and 7,306 men and 145 women, according to the Justice Ministry’s General Administration of Prisons and Rehabilitation. Around seventy percent of these – about 5,200 persons, were convicted of using or possessing cannabis, referred to in Tunisia as “zatla.” Drug offences represented 28 percent of the total state prison population.
Human Rights Watch has documented how state enforcement of criminal drug law in Tunisia has resulted in serious human rights violations. Human Rights Watch interviewed 47 people in several locations in Tunisia, including young residents of working-class neighborhoods, students, artists, and bloggers. The interviews showed that abuses accompany enforcement of
Tunisia’s drug control policies, such as beatings during arrest and interrogation, rude, insulting and threatening police behavior, mistreatment during urine tests and searches of homes without judicial warrants.
Once a person is convicted under Law 52 and sent to prison, another kind of ordeal begins. In its last report on Tunisia, the Office of The United Nations High Commissioner for Human Rights cited significant overcrowding in Tunisian prisons, suggesting that some prisons were at 150 percent capacity. Therefore, a person convicted of smoking a joint has to share an overcrowded cell with persons imprisoned for serious crimes.
Precious law enforcement and court resources are expended processing thousands of cannabis possession arrests each year – resources that could be reallocated to handling more serious offenses.
The oppressiveness of the drug law is compounded by the abuses that frequently accompany criminal arrests in general. Tunisia’s code of criminal procedure gives the police broad discretion to arrest persons without reasonable suspicion of illegal behavior. After being placed under arrest, suspects have no right to a lawyer during the first six days they are held in custody before they must be presented to a judge. During this initial period, detainees are particularly vulnerable to mistreatment by law enforcement agents because they cannot receive visits by family members or a lawyer, including during their interrogation by police.
Calls by civil society groups and human rights activists for the revision of Law 52 have been growing for months. During the presidential and legislative electoral campaigns of 2014, the ultimately victorious candidate for president, Beji Caid Essebsi, said that he favors eliminating prison terms for first-time offenders. On December 30, 2015, the government approved a new draft drug law. At time of writing, the draft has yet to be sent to the parliament for discussion and voting.
Human Rights Watch welcomes the draft law’s abolition of prison terms for first-time offenders in drug use or possession cases and its abolition of mandatory sentences for both first-time and repeat offenders, the discretion it grants judges to impose punishments less harsh than prison time, and the greater emphasis it places on access to treatment services.
Despite these improvements, a number of concerns remain.
By maintaining the option of prison sentences of up to one year for repeat use and possession of illegal drugs, the bill ignores calls from international experts on human rights and health urging countries to eliminate custodial sentences for drug use and possession.
Governments have a legitimate interest in preventing societal harms caused by drugs.
However, criminalizing personal drug use per se clashes with a person’s right to privacy and basic concepts of autonomy underpinning all rights.
The decision to use drugs, like the decision to consume alcohol or tobacco, is a matter of personal choice and an exercise of an aspect of the right to privacy under international law, a cornerstone of respect for personal autonomy. Limitations on autonomy and the right to privacy may be imposed, but are justified only if they meet the criteria of legitimate purpose, proportionality, necessity, and non-discrimination. The criteria of proportionality and necessity require governments to consider what means are available to achieve the same purpose that would be least restrictive or pose minimal interference with respect for and the exercise of human rights.
Human Rights Watch believes that arguments for criminalization of personal drug use or possession of drugs for personal use rarely, if ever, meet these criteria. Arrest, incarceration, and a criminal record with possibly life-long consequences are inherently disproportionate government responses to someone who has done nothing more than use recreational drugs.
The draft law contains provisions that may violate the right to free expression and of privacy. The draft adds a new offense of “public incitement to commit drug-related offenses,” which entails half the sentence of the underlying offense.
This new provision, as written, could be used to prosecute members of civil society groups that advocate for the decriminalization of drugs, rappers and singers who sing about drugs, organizations providing services to reduce drug related harms, and others who express themselves peacefully about drugs. The draft has also considerably expanded the special investigative measures available to the police when conducting anti-drug operations, such as surveillance, phone tapping and interception of communication.

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