Two months after a 26-year old in Tunisia approached the police to file a complaint against another man over an outstanding loan, both men have been sentenced to one year in prison under the North African country’s law that criminalises homosexuality.

Human Rights Watch reported that a Tunisian appeals court on July 28 upheld the convictions of the men on charges of sodomy and punished them with one year imprisonment.

Under Article 230 of the Tunisian Penal Code, same sex acts between consenting adults in private is an offence punishable with a maximum jail term of three years. In this case a local court in the city of Le Kef had sentenced them to two years in prison, which has been reduced to one year by the appeals court.

Damj, a Tunis-based LGBTQI rights organisation said that the court in Le Kef had ruled that the men’s refusal to undergo an anal examination was to be held as evidence against them. The organisation said that the ruling of the highest court was a dangerous precedent and petitioned the President, the Ministry of Justice and the Superior Judicial Council to order the release of both men unconditionally and abolish Article 230. They sought immediate suspension of the practise of forced anal tests as admissible evidence in criminal cases.

خطير جدا و عاجل 🛑 #يسقط_الفصل_230 ❌حكمت محكمة الاستئناف بالكاف و المنتصبة اليوم 28 جويلية 2020 بالسجن #سنة على كل من…

Posted by Damj on Tuesday, 28 July 2020

A letter signed by 17 rights-based organisations, including Damj, said that there were numerous other cases relating to convictions under Article 230. “[The cases] reflect the relentlessness of some judges against individuals with non-cis-heteronormative sexuality. These judges arbitrarily use the discretionary power granted to them by law not only to consider the refusal of anl examination as proof of conviction, but also to inflict the most severe sanctions on individuals, even those who stand before the court for the first time, based on outdated legal articles that contradict the Tunisian Constitution and the international treaties ratified by Tunisia,” the statement said.

In a 2018 report, HRW had said that police were confiscating and searching the phones of men they suspected were gay and forcing them to take anal exams and confess to homosexual activity. This would then be used by prosecutors to seek convictions under the sodomy law.

Media reports have said that Tunisian President Kais Saied supports the criminalisation of homosexuality and had described gay people as “deviants.” In February 2020, there were reports that Tunisia had recognised same sex marriage, however, the government had dismissed the reports as false.

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 In 2017, Tunisia had accepted a United Nations Human Rights Council recommendation to end forced anal exams, but said they would still be conducted if the person consented to it. HRW said that the refusal of consent was taken by the courts as a presumption of guilt.

The case had its origins when one of the men approached the police in the city of Kef seeking to register a complaint against another man over an outstanding loan. According to the lawyer representing the men, the police told one of them that his appearance indicated that he was gay. The lawyer said that the police bullied and forced them to confess that they were gay.

In the court, the men denied all the charges. A court in Le Kef held the men guilty and sentenced them to two years imprisonment. After the appeals court upheld the conviction, the men were lodged in a prison in Ben Arous, near Tunis, HRW reported.

“The court’s insistence on upholding sodomy charges against the defendants and locking them up for one year is a grave injustice. Tunisia needs to step up to its image as a guardian of individual freedoms and stop convicting people under article 230, while acting swiftly to abolish this law altogether,” HRW quoted its LGBTQI rights researcher Rasha Younes.

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