Under Law 52, thousands of young Tunisians have been thrown into jail for minor drug use charges, jeopardising their lives and futures.
On 12 May, Azyz Amami, a Tunisian blogger and human rights defender, was arrested for marijuana possession along with a photographer on the outskirts of Tunis. Amami denies he had drugs in his possession and says it was a police setup. On 15 May, despite the bruises on his face, which his lawyers cited as reason to suspect he had been abused in police custody, the prosecutor ordered his detention. However on 23 May, the First Instance Tribunal of Tunis dropped the charges against him and ordered his release.
The arrest of Amami, who is regarded as having been one of the key figures of the Tunisian revolution, has caused an outcry. But it has also created an opportunity for Tunisia to reform a law that is ruining thousands of young lives and is out of step with current thinking about drug use. Amami is only one of many victims of drug law 52 of 1992, a provision that has crushed the lives and the futures of thousands who, at one moment or another, found themselves caught in the wheels of the police machine.
Human Rights Watch has long documented the human rights violations that accompany the criminalisation of drug use. Throughout the world, there has been individual and collective devastation resulting from this war on drugs, often accompanied by racial or social discrimination and typically affecting the most disadvantaged populations. This is no different in Tunisia.
In the joint for a joint
I was part of a Human Rights Watch delegation that, thanks to an agreement with Tunisia's interior minister, visited four police detention centres in various cities during 2013.
The testimony we collected demonstrated the vast scope of detention on suspicion of cannabis use, the abusive practices that accompany police raids in working class areas in search of the smallest traces of this drug, and the humiliating methods, such as forced urine tests, the police use to prove their cases.
The majority of people we met who had been detained for this crime were youths, some as young as 15 and still students. Once they were arrested, there were few ways out. Since there is a minimum one-year prison if their tests come back positive, the scripts of their convictions are often written in advance. However, even more harshly, Law 52 allows for imprisonment up to five years and fines of up to 3,000 dinars ($1,800) for pretty much any use or possession of drug plants or materials. The law also forbids judges from considering mitigating circumstances. This contrasts with other crimes and offenses under the penal code for which judges may reduce sentences "when the circumstances of the act prosecuted appear of a nature to justify the mitigation."
Another aberration of Law 52 is that it is not just the possession of the drug that is prohibited but "the use." This means that someone taken into custody, for example for an argument in a café or for any other reason, may be subjected to a urine test. A detainee can refuse the test, but will find themselves behind closed doors and without a lawyer for the three to six days before they are brought to court. Often, the accused accepts the test without asking too many questions.
Once a person is charged under Law 52 and in 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 jails were overcapacity by over 150%. According to the prison service's official numbers, more than a third of Tunisia prisoners were detained on drug charges, the overwhelming majority for drug use.
A student arrested for smoking a joint therefore finds himself thrown into a closed world - with all of the risks of overcrowding - and mixed in with those imprisoned for much more serious crimes.
War on youths
The government's policy of deterrence through fear of imprisonment, rather than persuading people not to use drugs, often drives users underground. As in many other countries, this may prevent them from getting health services and other help they may desperately need.
All of this leads us to believe that prison sentences are not an appropriate response to drug use. This view is fortunately starting to gain in popularity in various countries around the world, with some governments seeking alternatives. In Brazil, for example, a law was passed in 2006 that distinguishes between traffickers and users, and provides alternative penalties for those found taking drugs. In 2009, the Supreme Court of Argentina decided that imprisonment for personal use of marijuana was not constitutional. The same year, Mexican authorities adopted a law providing that individuals found to possess less than a certain quantity of drugs would no longer face criminal prosecution. And in Spain, Portugal, and Italy, possession of marijuana for personal use and in limited quantities is no longer punishable by law.
For three years, Tunisia and its partners have been examining reforms to the security forces and judicial system as well as the need to upgrade detention centres and prisons to meet international standards. The revision of Law 52 should be at the heart of these reforms. It causes human tragedy, throwing into prison thousands of youths whose only crime may have been smoking a joint. Law 52 gives the security forces the perfect opportunity to repress youths, often from working class areas, who are idle and rebellious. And it contributes to the alarming prison overcrowding.
Rather than fighting crime, Law 52 pushes young users more deeply into the world of crime and cuts off their options for the future. Calls for its revision have been growing for months, including through Prisoner 52, a citizen initiative to lobby authorities to replace prison sentences for drug use with other sanctions. Following the arrest of Azyz Amami, several political parties have also expressed their wish to change this law. Tunisia should listen to them and take this opportunity to carry out true reform that will keep an unjust law from ruining more young lives.
Amma Guellali is Director of the Human Rights Watch office for Tunisia and Algeria.