ASF joins more than 500 signatories from associations, universities, the judiciary and civil society in warning of the danger of the introduction in the new Belgian criminal code of the offence of malicious attack on the authority of the State (‘atteinte méchante à l’autorité de l’État’).
On 22 February, the Belgian federal parliament approved the adoption of a new criminal code. A necessary reform, but one in which certain provisions worry the actors of civil society, particularly the one provision concerning the introduction of an offence of malicious attack on the authority of the State. What lies behind this article is the possibility for the State and the magistrates to criminalise the use of a tool that is fundamental to the proper functioning of our democracies: civil disobedience.
This text is part of a growing trend, in Europe and elsewhere, towards the criminalisation of social movements and attacks on the right to demonstrate and freedom of expression.
This article of the penal code on ‘malicious undermining of the authority of the State’ could be used to attack social movements, and its broad definition leaves a lot of room for arbitrariness and the discretion of magistrates.
Such a situation would undermine the principles of legal certainty, legality, equality before the law and freedom of expression, which are essential in any democratic society.
Civil disobedience: a fundamental democratic tool
Civil disobedience is the act of publicly, consciously and non-violently breaking the law in order to denounce and call for the reform of a law or public policy that infringes people’s fundamental rights.
It does not call into question the rule of law, but targets specific legislation or policies. Its aim is to put certain issues back at the heart of public debate, thereby nourishing the democratic life of a state.
Not only is it compatible with democracy, it is essential to its proper functioning, particularly when legal and political avenues have been exhausted.
Combined with other legal means of action, it makes it possible to win battles for rights and justice.
This 11th ExPEERience Talk will be devoted to the Campaign for the Decriminalisation of Poverty, Status and Activism. Several of its members will present its history and how it operates. They will discuss the challenges encountered and the opportunities presented by the networking of a multiplicity of actors to tackle a global and systemic issue of such magnitude.
In many countries, criminal procedure, penal codes and policing policies continue to reflect a colonial legacy. Offences dating from the colonial era, such as vagrancy, begging or disorderly conduct, are commonly used against people already in a vulnerable or marginalised situationt (homeless people, people with disabilities, drug users, LGBTIQ+ people, sex workers, migrants, etc.), with the sole aim of criminalising what they represent in society rather than the offences they have committed. Many countries are also witnessing a narrowing of civic space and the use of criminal law to repress activism and stifle dissent. These phenomena are deeply rooted in the legislation, institutions and practices of States around the world.
During this ExPEERience Talk, speakers from several of the campaign’s member organisations will illustrate the very real consequences of these repressive laws and practices for civil society and the general public. They will also talk about the various actions undertaken as part of the campaign: joint research, litigation and lobbying actions before national and international institutions.
To date, the campaign is supported by some fifty civil society organisations from many countries. Its ambition is to create the conditions for a global change in criminal and social laws, policies and practices by adopting a transnational and multisectoral strategy.
Speakers
Khayem Chemli – Head of advocacy at ASF – Euromed region (moderator)
Soheila Comninos – Senior program manager at Open Society Foundations
Arnaud Dandoy – Research & Learning Manager at ASF – Euromed region
The next ExPEERience Talk (webinar) organised by ASF and its Justice ExPEERience network will address the theme of the Campaign for the Decriminalisation of Poverty, Status and Activism. It will take place on Thursday 5 October 2023 at 12pm (Tunis) – 1pm (Brussels). You can register now, participation is free.
The Campaign for the Decriminalisation of Poverty, Status and Activism, launched in Africa, South Asia, North America and the Caribbean, is led by a coalition of civil society organisations calling for the revision and repeal of laws that target people because of their status (social, political or economic) or their activism.
In many countries, criminal procedure, penal codes and policing policies continue to reflect a colonial legacy. Offences dating from the colonial era, such as vagrancy, begging or disorderly conduct, are commonly used against people already in a vulnerable or marginalised situationt (homeless people, people with disabilities, drug users, LGBTIQ+ people, sex workers, migrants, etc.), with the sole aim of criminalising what they represent in society rather than the offences they have committed.
At the same time, in several of these countries, the criminal law is being used to repress activism and stifle dissent. Sedition laws dating back to colonial times and more recent public order laws, for example, are ubiquitous tools deployed by states to stifle protest and limit freedom of expression. States use the security apparatus, justice and detention against individuals and groups who do not represent a danger to the safety of citizens, but rather to maintain the status quo and the privileges of a minority.
This abuse of power has a profound cost in terms of human rights, manifesting itself in discrimination, the use of lethal force, torture, arbitrary and excessive imprisonment, disproportionate sentences and inhumane conditions of detention. This situation is compounded by intersecting forms of oppression based on the gender, age, disability, race, ethnic origin, nationality and/or social class of people who are already marginalised. The populations most affected by this criminalisation of status, poverty and activism are also those most affected by phenomena such as prison overcrowding, pre-trial detention, loss of family income, loss of employment, etc.
In 2021, the campaign, which brings together lawyers, jurists, members of the judiciary, activists and experts from more than 50 organisations, won some important victories, including landmark cases against various laws before national courts in Africa. These include the adoption of principles on the decriminalisation of minor offences by the African Commission on Human and Peoples’ Rights, and the establishment by the Pan-African Parliament in 2019 of guidelines for a normative/model law on policing.
The Campaign therefore represents a real opportunity for a global change in criminal and social laws, policies and practices. For the first time, civil society is focusing on the common dysfunctions of the criminal justice system and establishing, among other things, the links between colonial criminal legislation and the criminalisation of poverty, in a global context of shrinking civic space.
The campaign has been organised through several committees: a global committee, of which ASF is a member, and thematic and geographical sub-groups to ensure greater representativeness of stakeholders and greater impact.
Avocats Sans Frontières is a member of the coordinating committees of the Francophonie and North Africa sub-groups respectively. This structuring is intended to further strengthen the campaign’s research objectives, priorities and targets in terms of advocacy and awareness-raising.
On the occasion of the 18th Summit of the Francophonie, held in Djerba on 19 and 20 November 2022, ASF and its partners in the Tunisian coalition for the decriminalisation of minor offences and poverty, organised a parallel event in Djerba during which demands were made to the Organisation Internationale de la Francophonie (OIF), contained in a public document entitled the “Djerba Declaration”. The signatories believe that the OIF could and should play a central role in promoting the values of human rights, and promote the decriminalisation of minor offences which, in addition to their discriminatory nature, exacerbate the phenomena of prison overcrowding, which are themselves responsible for the worsening of inhumane and degrading conditions of detention.
The French-speaking sub-group, of which ASF is a member, started a series of internal consultation meetings in March 2023. These should lead to the drafting of a common vision and common objectives for its members, aligned with the campaign’s overall strategy charter that will bring together the common vision and objectives of its members. It will serve as the basis for an advocacy strategy vis-à-vis influential players such as the European Union and its member states, the African Union and its member states, the various European institutions responsible for cooperation policies, and the institutions and mechanisms of the United Nations.
The Avocats Sans Frontières team is delighted to present its latest annual report.
We have come a long way since ASF was founded in 1992 by a group of Belgian lawyers. Over these 30 years, hundreds of people have contributed to making the organisation what it is today: a militant organisation active in a dozen countries, working to promote access to justice and the rule of law based on human rights, in close collaboration with local actors.
These thirty years of action, the local roots we have developed and the links we have forged with human rights defenders from the four corners of the world give us a great deal of strength and confidence as we look to the future and continue to deploy impactful action in the service of populations in vulnerable situations (women, children, the LGBTQI+ community, ethnic minorities, people in detention, people in migration, etc.).
But the challenges are many. All over the world, civil society organisations and human rights defenders are faced with worrying developments and trends: the rise of authoritarianism, the shrinking of civic space, growing public distrust of institutions, heightened social tensions, etc.
Defenders of human rights and access to justice have to work in contexts that are increasingly hostile to them. The very notions of human rights and the rule of law are being called into question. Activists, lawyers and journalists working to defend the fundamental rights of populations in vulnerable situations are increasingly systematically targeted by repressive policies.
Every page of this report bears witness to the vigour of the flame that drives those who are committed to upholding human rights at the very heart of our societies, at the risk and peril of their own freedom. This report is a tribute to each and every one of them.
At the 10th ExPEERience Talk, Nadia Ben Halim (consultant) and Zeineb Mrouki (Programme coordinator at ASF Tunisie) will present a study on corporate responsibility with regard to human rights in the textile sector in the governorate of Monastir in Tunisia.
The textile industry is now worth 3,000 billion dollars and is one of the world’s most important economic sectors. In Tunisia, clothing production accounts for a quarter of the country’s industrial output in terms of gross domestic product, making it a central sector of the Tunisian economy. However, for years, human rights organisations and official reports have documented systemic violations of workers’ rights (undignified working conditions, informal and illegal work, etc.). Among the companies guilty of flagrant violations of workers’ rights are many subcontractors of multinational companies. These systematically fail to meet their obligations and apply the duty of care throughout the supply chain, as required by international standards.
The study, based on documentary research, field surveys and, in particular, consultations with women workers in the textile sector in the governorate of Monastir, reveals systematic violations of workers’ rights, including the lack of social security cover, unfair dismissals, failure to account for overtime, and discrimination specifically targeting women. Recommendations are made to combat the impunity of companies in the face of the legal violations they commit.
This study is part of the PREVENT – Pour une Responsabilité et une Vigilance des Entreprises project, carried out in collaboration by Avocats Sans Frontières (ASF), the Tunisian Forum for Economic and Social Rights (FTDES) and I Watch. In particular, this project has led to the establishment of a mechanism to provide access to information and legal assistance to those most exposed to violations by industrial companies, particularly in the textile sector.
The study will be published on the ASF website at the end of June. You can already read the policy brief on the ASF website: “Les travailleueur‧euse‧s du textile tunisien en quête de dignité et de justice face à des pratiques abusives et discriminatoires”.
The Alliance for Security and Liberties (ASL), of which ASF is a member, has published its fifth report on the rule of law and the state of freedoms in Tunisia. Begun in the aftermath of President Saïed’s coup de force on 25 July 2021, ASL’s quantitative and qualitative monitoring and analysis of the events, decisions and reactions that followed the controversial vote on the new Tunisian Constitution on 25 July 2022 is presented in this fifth edition.
More than a year and a half ago, on 25 July 2021, President Saïed activated Article 80 of the Constitution and established a state of emergency. This date marked the beginning of his dismantling of the institutions resulting from the post-2011 transition: parliament frozen and then dissolved, constitutional bodies dissolved, full powers by decree, ratification of a Constitution unilaterally drafted by Saïed and voted under deleterious conditions…
The picture painted by this bulletin leaves little doubt as to President Said’s autocratic intentions and his desire to close the chapter of democratic transition in Tunisia once and for all. He unilaterally imposes a political project with vague outlines but which is certainly vertical, authoritarian and populist.
Several trends and developments emerge from the monitoring and analysis work of the Security and Freedom Alliance.
At the institutional level, the period was marked by the vote and ratification of the new Constitution, which established the hypertrophy of the executive to the detriment of the legislative and judicial powers, which were considerably weakened. The polls leading up to the vote on the Constitution and the election of the first chamber of Parliament were characterised by their incompatibility with electoral norms and historically low turnout. The judiciary continues to be attacked and dismantled against the backdrop of a major socio-economic crisis.
At the same time, rights and freedoms continue to be eroded, in a context of instrumentalisation of the judiciary and the security apparatus, and repression of opponents, the press and trade unions. Arbitrary administrative measures to restrict freedoms and the adoption of liberticidal decree-laws have become common practice. The last few months have also been marked by a campaign of racist violence – supported by the state’s hateful rhetoric – against sub-Saharan populations, at a time when more and more migrants (Tunisian or not) are trying to reach Europe by sea, risking their lives.
Finally, the vice is tightening ever more on an opposition that is struggling to form a united front against the regime. The political scene remains unstable and shifting. Several opposition initiatives (civil and political) coexist but do not manage to constitute an opposition force capable of challenging the President’s authoritarian designs, while some of his allies are distancing themselves.
On the international scene, Tunisia is isolating itself. Condemnations have been mounting and even intensifying since the waves of arrests of public figures in recent months and the deployment of xenophobic rhetoric against sub-Saharan migrants. It is in this context that the President is undertaking diplomatic efforts, particularly with Arab states, to obtain international support.
The Alliance for Security and Liberties (ASL) is an alliance of Tunisian and international civil society organisations based in Tunisia which, in the continuity of the Revolution of Freedom and Dignity, reflects, mobilises and acts so that Tunisia consolidates the construction of a democratic state whose public policies are at the service of the citizens guaranteeing peace, respect for their human rights and equality between all.
Tunisia: From a state of exception to a populist and authoritarian turn
Tunisia was considered the democratic exception in the region after the Arab revolutions of 2011 until the activation of article 80 by President Saied on 25 July 2021. That day, the country entered a state of exception (suspension of parliament, dismissal of the head of government and the President’s takeover of the executive and legislative branches) and it generated a rule of law crisis that now threatens to put an end to Tunisia’s democratic transition process.
This authoritarian turn, the end of the separation of powers, ratified by the new Constitution voted one year later (July 2022) by less than a third of the electorate, has been accompanied by increasing and major attacks on the rule of law and on rights and freedoms. The arbitrary dismissal of judges, the press and media being increasingly hindered, opponents, lawyers, trade unionists and journalists being prosecuted and arrested. Civic space is shrinking every day and civil society organisations seem to be the next target. The independent institutions created by the 2014 Constitution, such as the Supreme Council of the Magistracy (CSM), the Constitutional Review Body for draft legislation (IPCCPL) and the Anti-Corruption Commission (INLUCC) have also been meticulously dismantled. The ISIE, the body in charge of elections, which is now subservient to the government, organised legislative elections in December and January to which the overwhelming majority of Tunisians (89%) refused to participate. Finally, the rise in xenophobia, fuelled by the President’s racist and conspiratorial remarks in February 2023, has generated an unprecedented wave of violence against black people, mainly sub-Saharan migrants.
Furthermore, an economic and social crisis continues to worsen, generating impoverishment and the departure, at the risk of their lives, of many Tunisians and migrants from the coast. The country is also still struggling to reach an agreement with the International Monetary Fund (IMF) and the prospect of default is getting dangerously close.
Since 25 July 2021, ASF and the members of the Alliance Sécurité et Libertés have been monitoring the consequences of President Kais Saied’s actions on the situation of the rule of law and freedoms in Tunisia. Through a qualitative and quantitative analysis, four periodic bulletins have already been published 50, 100, 200 and 365 days after 25 July 2021. The next bulletin to be published, which will cover developments since the vote on the new Constitution unilaterally drafted by President Saied, will offer an analysis of the serious deterioration of the country’s situation in recent months.
The analysis of the political and institutional landscape (I) will focus on the new distribution of powers under the 2022 Constitution, the massive abstention in the last year’s elections following electoral processes that flouted all standards of free elections and the emergence of new institutions of dubious legitimacy and independence, as well as on the situation of the judiciary and the socio-economic crisis the country is going through.
Rights and Freedoms (II) will address the instrumentalisation of justice against opponents of the regime, the repression of the press and media and of trade union work, as well as the migration situation in Tunisia and the massive violence suffered by black people in the country.
Finally, the positioning (III) will analyse the recompositions of the Tunisian political scene and their positions regarding the President’s “roadmap”. It will also analyse foreign reactions to the regime’s excesses as well as Tunisia’s diplomatic policy, in particular its efforts at rapprochement with the Arab states and Italy.
ExPEERience Talk
How did it come to this? What is the state of resistance to these abuses? What are the prospects for the future?
In order to provide answers to these questions and provide an analysis of the authoritarian turn in Tunisia, we will welcome Lamine Benghazi (programme coordinator for ASF in Tunisia) and Mahdi Elleuch (coordinator of the research department for Legal Agenda in Tunis) on Thursday 30 March for our 8th ExPEERience Talk. Entitled “Authoritarian drift in Tunisia: diagnosis and power mapping“, this Talk will take the form of a dialogue between our two guests, followed by an exchange with the participants, concerning the current situation in Tunisia, its stakes and its consequences, based on the analysis carried out within the framework of the report “500 days after article 80” which will be published soon.
The Alliance Sécurité et Libertés (ASL) is an alliance of Tunisian and international civil society organisations based in Tunisia which, in the continuity of the Revolution of Freedom and Dignity, reflects, mobilises and acts so that Tunisia consolidates the construction of a democratic state whose public policies are at the service of the citizens guaranteeing peace, respect for their human rights and equality between all.
Reports
Find all the reports of the Alliance Sécurité et Libertés. The report ‘500 days after Article 80’ is currently being written and will be available soon.
ASF joins the Open Society Foundation, APCOF, PALU, and ACJR in a campaign to promote the decriminalisation and declassification of minor offences. “Vagrancy”, “disorderly behaviour” or “idleness” remain valid grounds for arresting and imprisoning individuals, contributing to the endemic overcrowding of prisons throughout the world. Particularly affecting people in vulnerable situations, these laws and their application are both arbitrary and discriminatory.
In many countries on the African continent, such offences date back to colonial times. But while these laws have been repealed in the former colonial powers, they remain in force in many African states.
By providing a criminal response to socio-economic issues, vulnerable populations are further marginalised. Maintaining these minor offences in the penal code therefore fuels a vicious circle. In many countries, the criminalisation of minor offences is one of the main sources of prison overcrowding. Decriminalising these offences and ending the detention of people who are not a danger to public order is the only way out in the long term.
Within the framework of thePoverty is Not a Crime campaign, several organisations have united to decriminalise these minor offences. Advocacy actions are being organised at national and regional level, mobilising ASF’s teams and partners.
Following an interpellation launched at the initiative of the Pan-African Lawyers Union (PALU), the African Court of Human and Peoples’ Rights ruled unanimously on December 4th 2020in favour of the decriminalisation of minor offences. It declared these laws and regulations incompatible with the African Charter, the Children’s Charter and the Maputo Protocol. It is in accordance with this opinion that it ordered the States concerned to review, repeal and, if necessary, amend these laws and regulations.
The criminalisation of minor offences is incompatible with the constitutional principle of equality before the law and non-discrimination. It has a considerable impact on the poor, vulnerable people and women and infringes on many of their freedoms, including freedom of movement and freedom of expression.
Following the positive decision of the African Court, ASF joins civil society organisations to call for the repeal of such offences and all forms of unjustified repression.
Tunis, 28 February 2019 – For the victims of human trafficking, Tunisia could be their country of origin or their destination country, or they could be in transit. Since 2016, Tunisia has had a strong legal framework for combatting the phenomenon, but how can effective collaboration between the actors involved be ensured? On 23 January, National Day of the Abolition of Slavery, ASF and the Instance Nationale de Lutte Contre la Traite des Personnes (the national anti-trafficking body) organised an international conference to take stock of the issue.
“To combat trafficking, it is essential that the different actors involved collaborate and coordinate,” explains Zeineb Mrouki, ASF Project Coordinator in Tunisia (photo). “The Instance Nationale de Lutte Contre la Traite des Personnes is responsible for establishing a National Referral Mechanism (NRM) to organise cooperation between governmental agencies and civil society. It should make it possible to identify victims, to signpost them to the appropriate services, and to assist and protect them.”
Ministries, law-enforcement and customs officials, social workers, labour inspectors, child protection officers, civil society, etc. came together to share their experiences of victim referral and to develop recommendations for the establishment of the future NRM.
Two main considerations emerged from the discussions: the need for the actors involved to be trained in the provisions set out in Organic Law No. 2016-61 on preventing and combatting trafficking in persons; and the need for each of the actors to bring their practices into line with the law.
Illegal aliens have, for example, the right to protection when they have been victims of trafficking. More often than not, however, they are expelled from the country by the police without recourse to that protection, because they are not identified and recognised as victims of trafficking. Furthermore, the techniques for investigating and for providing assistance to victims are not suitable for trafficking cases.
Since the law on trafficking came into effect, 780 cases of human trafficking have been recorded. More and more victims are pressing charges. To this day, however, nobody has been convicted of trafficking, either because judges don’t understand the law or because they favour shorter sentences.An appeal is therefore being made to the judges in charge of trafficking cases to use the tools that the law has given them.
“We also appeal to the relevant ministries, such as the Ministry for Health and the Ministry for Women, to implement the provisions of the law,” says Zeineb Mrouki. “Those include free health care and the provision of accommodation for victims.”
On 24 January, the day after the conference, awareness-raising sessions were organised in the city centre in Tunis, to inform the general public about the realities of trafficking and the rights of victims.
The conference and the day of awareness-raising were organised by the Instance Nationale de Lutte Contre la Traite des Personnes and Avocats Sans Frontières, with the participation of the Council of Europe, the International Organization for Migration, the United Nations Development Programme, the Office of the United Nations High Commissioner for Human Rights, and the United Nations Office on Drugs and Crime.
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