In its judgment of 4 December 2025, the African Court on Human and Peoples’ Rights found Tunisia internationally responsible for violating the right to a fair trial and the right to have one’s cause heard by competent national bodies for the protection of fundamental rights, as guaranteed by Article 7(1)(a) of the African Charter on Human and Peoples’ Rights and Article 14(1) of the International Covenant on Civil and Political Rights. The violation was linked to the persistent absence of an operational Constitutional Court in the country, which prevented the applicant from raising a constitutional challenge to the criminal provision applied in her proceedings.

The case arose from the applicant’s conviction for adultery, following a complaint lodged by her former husband in the context of divorce proceedings initiated by her. A local court sentenced her to seven months’ imprisonment and imposed a fine under the Tunisian Penal Code.

Before the African Court, the applicant alleged several violations of her right to a fair trial. She argued, inter alia, that she had been unlawfully detained, subjected to irregular procedures, and convicted on the basis of invalid evidence, including a forensic report that she claimed had been falsified. She further contended that the criminal provision applied in her case was unconstitutional, as it failed to define with sufficient clarity the elements of the offence of adultery. According to the applicant, the absence of a Constitutional Court prevented her from challenging the constitutionality of that provision.

The Court declared inadmissible the allegations concerning the overall fairness of the criminal proceedings, finding that the applicant had failed to exhaust available remedies before higher domestic courts. However, it upheld the complaint regarding the impossibility of submitting the criminal provision to constitutional review. In particular, the Court held that the continued absence of a Constitutional Court constitutes a concrete obstacle to access to constitutional justice and prevents an accused person from invoking the potential incompatibility of a criminal law provision with the fundamental rights guaranteed under international instruments ratified by the State.

The judgment follows a line of prior case law in which the Court had already criticized Tunisia for failing to establish the constitutional body provided for under the 2014 Constitution (see Brahim Belghith v. Tunisia (2022)). Despite this constitutional requirement, attempts to establish a Constitutional Court have remained unsuccessful.

The decision is of particular significance because it recognises access to constitutional review as an integral component of the right to a fair trial. In doing so, the Court reinforces the view that rights guaranteed under regional and international human rights instruments require the existence of effective judicial remedies capable of assessing the conformity of domestic legislation with fundamental rights.

 

(Comment by Bernardo Mageste Castelar Campos)