Wakilii

Elyssa v Republic of Tunisia (Application No. 061-2019)

African Court on Human and Peoples' Rights · [2025] AfCHPR 35 · 2025 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the African Court on Human and Peoples' Rights alleging human rights violations arising from domestic divorce and adultery proceedings
Decision
Application partly allowed; violation of right to fair trial established; Respondent State ordered to operationalise Constitutional Court and pay TND 1,000 in moral damages

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Court held it had jurisdiction and the application was admissible only regarding the divorce proceedings and the inability to challenge the constitutionality of Article 236 of the Penal Code. The Court found no violation of the right to terminate marriage, as Tunisian law permits appeals of divorce judgments and the marital bond continues until the appeal is resolved. However, the Court found Tunisia violated the right to a fair trial by failing to operationalise its Constitutional Court, thereby preventing the Applicant from mounting a constitutional challenge to the adultery provision under which she was convicted.

Outcome

Application partly allowed; violation of right to fair trial established; Respondent State ordered to operationalise Constitutional Court and pay TND 1,000 in moral damages

Facts

The Applicant, a Tunisian national, obtained a preliminary divorce judgment from the Ariana Court of First Instance on 4 June 2014, granting her divorce, child custody, and alimony. Her husband appealed on 10 June 2014. On 1 June 2015, the Tunis Court of Appeal upheld the divorce but granted custody to the husband. On 8 November 2014, while the divorce appeal was pending, the Applicant accompanied a male friend to an apartment in Yasmine Hammamet. Her husband, who had been following them, called police and the prosecutor, who authorised a search. Police entered the apartment at 11:25 pm and seized underwear. A forensic examination revealed traces of semen matching the friend's genetic characteristics. On 9 December 2014, the Grombalia Court convicted the Applicant and her friend of adultery under Article 236 of the Penal Code, sentencing them to seven months' imprisonment and ordering them to pay the husband TND 5,000 in damages. The Nabeul Court of Appeal upheld the conviction on 19 January 2015. The Applicant served her sentence and was released on 15 March 2015. She did not appeal to the Cassation Court. She filed a complaint against the forensic officials but it remained in preliminary investigation. Tunisia has not operationalised its Constitutional Court, preventing the Applicant from challenging the constitutionality of Article 236.

Issues

  1. Whether the Court has material jurisdiction to hear an application alleging human rights violations arising from domestic court proceedings.
  2. Whether the Application infringes on the sovereignty of the Respondent State.
  3. Whether the Applicant exhausted local remedies in respect of the divorce case, the adultery case, and the complaint against forensic officials.
  4. Whether the Respondent State violated the Applicant's right to terminate her marriage under the Maputo Protocol and the UDHR.
  5. Whether the absence of an operational Constitutional Court violated the Applicant's right to a fair trial by preventing her from challenging the constitutionality of Article 236 of the Penal Code.

Orders

  • Dismissed the Respondent State's objections to material jurisdiction.
  • Declared that the Court has jurisdiction.
  • Dismissed the Respondent State's objection based on non-exhaustion of local remedies relative to the divorce case and to the procedure on the constitutionality of Article 236 of the Penal Code.
  • Upheld the Respondent State's objection based on non-exhaustion of local remedies in respect of the proceedings related to the adultery case and to the complaint against the officials who signed the forensic report.
  • Declared the Application admissible only with regard to the divorce procedure and inability to challenge the constitutionality of Article 236 of the Penal Code.
  • Held that the Respondent State did not violate the Applicant's right to divorce and termination of marriage.
  • Held that the Respondent State violated the Applicant's right to a fair trial.
  • Dismissed the request for reparation for material prejudice.
  • Ordered the Respondent State to pay the Applicant TND 1,000 as reparation for moral prejudice.
  • Ordered the Respondent State to pay the sum awarded within six months from the date of notification, failing which interest on arrears will be calculated on the basis of the applicable rate of the Central Bank of Tunisia.
  • Ordered the Respondent State to operationalise its Constitutional Court immediately and without further delay.
  • Ordered the Respondent State to publish the judgment, within six months, in Arabic on the official website of the Ministry of Justice and to ensure it remains available for at least one year.
  • Ordered the Respondent State to submit, within six months, a report on steps taken to implement the orders.
  • Ordered each Party to bear its own costs.

Rules and key headnotes

International Human Rights Law — State Sovereignty — Jurisdiction of Regional Human Rights Courts
A State Party to the African Charter and Protocol cannot invoke sovereignty to evade compliance with human rights instruments to which it is a party; ratification of and compliance with international agreements is a manifestation of national sovereignty, not an infringement of it.
Exhaustion of Local Remedies — Availability and Effectiveness of Remedies
The requirement to exhaust local remedies applies only to judicial remedies that are available, capable of being pursued without hindrance, and effective in the sense of being capable of remedying the situation in question; where a Constitutional Court has not been operationalised, the remedy of constitutional challenge is not available and is deemed exhausted.
Divorce — Effect of Appeal on Marital Status
Under Tunisian law, where a spouse appeals a divorce judgment, the marital bond continues until the appeal is resolved and the judgment becomes final; a party who obtains a preliminary divorce ruling has a duty to verify whether an appeal has been lodged and concluded before the divorce becomes final.
Right to a Fair Trial — Access to Constitutional Review
The absence of an operational Constitutional Court constitutes an impediment to litigants' ability to bring constitutional challenges and violates the right to a fair trial protected by Article 7(1)(a) of the African Charter and Article 14(1) of the ICCPR.

Legislation cited (19)

  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 4
  • African Charter on Human and Peoples' Rights Article 6
  • African Charter on Human and Peoples' Rights Article 7
  • Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol) Article 1
  • Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol) Article 7
  • International Covenant on Civil and Political Rights Article 9
  • International Covenant on Civil and Political Rights Article 14
  • Universal Declaration of Human Rights Article 12
  • Tunisian Penal Code Article 236
  • Tunisian Code of Personal Status Article 29
  • Tunisian Code of Personal Status Article 31
  • Tunisian Code of Personal Status Article 32
  • Tunisian Code of Personal Status Article 34
  • Tunisian Code of Personal Status Article 35
  • Tunisian Code of Criminal Procedure Article 258
  • Tunisian Code of Criminal Procedure Article 277
  • Tunisian Code of Criminal Procedure Article 278
  • Vienna Convention on the Law of Treaties Article 26

Cases cited (24)

  • Mouaz Khariji Ghannouchi and Others v Republic of Tunisia (Application No. 004/2023)
  • Alex Thomas v United Republic of Tanzania (merits) (20 November 2015) 1 AfCLR 465
  • Kennedy Owino Onyachi and another v United Republic of Tanzania (merits) (28 September 2017) 2 AfCLR 65
  • Jibu Amir Alias Mussa and another v United Republic of Tanzania (merits and reparations) (28 November 2019) 3 AfCLR 629
  • Masoud Rajabu v United Republic of Tanzania (merits and reparations) (25 June 2021) 5 AfCLR 282
  • Hongue Éric Noudéhouenou v Republic of Benin (merits) 4 AfCLR 749
  • Ingabire Victoire Umuhoza v Republic of Rwanda (jurisdiction) (2016) 1 AfCLR 540
  • Houngue Eric Noudehouenou v Republic of Benin (Application No. 003/2020)
  • Kouadio Kobena Fory v Republic of Côte d'Ivoire (merits and reparations) (2 December 2021) 5 AfCLR 682
  • Andrew Ambrose Cheusi v United Republic of Tanzania (judgment) (26 June 2020) 4 AfCLR 219
  • African Commission on Human and Peoples' Rights v Republic of Kenya (merits) (26 May 2017) 2 AfCLR 9
  • Beneficiaries of late Norbert Zongo and Others v Burkina Faso (merits) (28 March 2014) 1 AfCLR 219
  • Lohé Issa Konaté v Burkina Faso (Application No. 004/2013)
  • Sébastien Germain Marie Ajavon v Republic of Benin (jurisdiction and admissibility) (2 December 2021) 5 AfCLR 623
  • Armand Guehi v United Republic of Tanzania (Merits and Reparations) (7 December 2018) 2 AfCLR 477
  • Nguza Viking & Another v United Republic of Tanzania (Merits) (23 March 2018) 2 AfCLR 287
  • Lucien Ikili Rashidi v United Republic of Tanzania (merits and reparations) (28 March 2019) 3 AfCLR 13
  • Kennedy Gihana and others v Republic of Rwanda (merits and reparations) (28 November 2019) 3 AfCLR 655
  • Norbert Zongo and Others v Burkina Faso (reparations) (5 June 2015) 1 AfCLR 258
  • Ingabire Victoire Umuhoza v Republic of Rwanda (reparations) (7 December 2018) 2 AfCLR 202
  • Christopher Jonas v United Republic of Tanzania (reparations) (25 September 2020) 4 AfCLR 545
  • Brahim Belghith v Republic of Tunisia (Application No. 17/2021)
  • Legal and Human Rights Centre and Another v United Republic of Tanzania (Application No. 039/2020)
  • Penal decision of supreme court No. 1323 dated 04/06/1975

Full judgment

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Elyssa v Republic of Tunisia (Application No. 061-2019) [2025] AfCHPR 35 (4 December 2025)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.