According to Tunisian Law No. 5 of 2016, which revises the Code of Criminal Procedure, officers investigating criminal cases are required to run their investigations under “genuine judicial oversight”. The context of this reform, which details various levels of oversight, is an approach that aims to understand how legislative reforms might impact security practices.

Lawyers at Police Stations: A Watchful Eye on the Authorities

Article 13 of the Code of Criminal Procedure now grants criminal suspects in both felony and misdemeanor cases the right to “authorize a lawyer to be present with them throughout their hearing, or to advocate on their behalf before the preliminary investigator”.[1] The same article also recognizes the rights of felony suspects to request a lawyer be appointed for them; and, Article 57 of the Code applies the same right to accused persons whose hearings take place within security facilities in accordance with judicial authorization.

On June 1, 2016, the new law entered into force. Before that date, any discussion of a lawyer at the stage of the initial criminal investigation took the form of a meaningless line devoid of substance. Investigative reports published by officers of the national guard typically quoted a line stating that, “when the suspect was asked about their right to authorize a lawyer, they replied that they chose to answer the investigator’s questions without their lawyer present”. Lawyers were only permitted to be with suspects during the investigation when investigations were taking place in accordance with judicial authorization assigned to officers of the judicial police.[2] In these cases, the lawyers’ involvement was limited to notification before investigations took place, and being present at interrogations – but without the right to pose questions or advocate. The legislation envisioned the role of defense counsel as limited to “working for the psychological satisfaction of the accused, to put him at ease when he is asked questions and gives statements”.[3]

Thus it appears that recognizing a suspect’s right to defense is indeed a legislative revolution. The right is enshrined in the spirit of Article 27 of the Tunisian Constitution, which explicitly stipulates a defendant’s right to “a fair trial in which he/she is granted all guarantees necessary for his/her defense throughout all the phases of prosecution and trial”. Recognizing a suspect’s right to defense emerges as a key dimension of this right. The importance of the amendment to the Code of Criminal Procedure is compounded in light of the crisis of trust regarding the transparency of criminal investigations; a crisis that could not be resolved through the revolution alone. Criminal investigators in Tunisia have been accused of adopting violent procedures including torture, in order to extract confessions. This has been confirmed by Amnesty International and a number of other rights organizations.[4][5]

The hope is that the presence of a lawyer during the initial investigation will produce more positive interactions between defense and law enforcement officers. A lawyer’s presence would motivate investigators to review how they operate their investigations, prompting an attempt to demonstrate how they are restricted by law and procedure in front of an observer.

At first, such [changes] in conduct would likely not happen automatically, given the legacy of a culture of torture and ill treatment. But the hope is that this would create a sense of introspection that, with repetition, might transform conduct into a part of the established culture. Enabling lawyers to play the role of legal oversight adds to the significance of the code’s amendment. One of its most important aspects is the lawyer’s right to record written observations in addition to those of the investigators; these might include facts obtained as a result of the hearing and presentation, and these observations become a part of investigative procedures.

The Public Prosecutor Monitoring Detentions

Article 13 of the new version of the Code requires that the preliminary investigator acquire written permission from the Public Prosecutor in order to detain a suspect. By contrast, the version of the article that was valid up until June 1, 2016 granted this authority to the investigator, requiring only that the prosecutor be informed after a decision to detain had been made. Thus, the new legislation takes the authority to detain suspects away from the investigator and establishes it as belonging to the Public Prosecutor instead.

This change reflects the Tunisian Constitution, which states in Article 115 that the Public Prosecutor is a part of the judicial justice system; this system, according to Article 102 of the Constitution, is responsible for the protection of rights and freedoms. It also conforms to Article 29 of the Constitution, which affirms the exceptional nature of detention, as it is a restriction of freedom. In theory, it would appear that judicial oversight –enacted by way of the Public Prosecutor’s control over detention procedures– should be an entry point for limiting abuse in a system which, in the past, has been thought to adopt what ought to be an exceptional measure as a principle of investigative procedure.

However, realizing this legislative aim will require progress in the culture of the judge as a member of the public prosecution, when it comes to the principle of freedom. There are no official statistics about the number of people detained in Tunisia each year, nor are there statistics about how many are detained without charge or detained without a hearing. But within judicial practice itself there are sayings passed down through the culture of the judiciary, that stress the need to transfer a case for prosecution on the basis of even the weakest suspicion. [There is also a culture of] not keeping criminal records, instead leaving the task of verifying suspects, following a saying implying “the judge will sort it out”. These examples indicate that freedom, while a founding principle, is not culturally established within the judiciary.

Shortening the Detention Period: A Suspect’s Right to Trial and the Duties of Judicial Oversight

The legislative amendment also aims to reduce the period of time a felony or misdemeanor suspect can be detained, limiting it to 48 hours. This could be extended by the Public Prosecutor for an additional 48 hours in the case of felonies, and 24 hours in the case of misdemeanors. Although the Ministry of Justice had proposed such a change, the way it was enacted came as a surprise: the change to the detention period did not actually empower the ministry to change the actual working operations in accordance with the statutes of the new law. For example, there is no document clarifying how shortening the time of detention will ensure that the judiciary takes control of detainees. The judiciary’s inability to enact the legislative revolution in actual practice signals the extent of the divide between human rights slogans and practice.[6]

Conclusion

This new legislation is expected to decrease the length of time spent in detention, a measure intended to guarantee that suspects will appear promptly before the judge in charge of their indictment. This change draws upon the notion that in practice, the judiciary is the safeguarder of freedoms. For the judiciary to carry out this role properly, however, it requires a review of the judicial practices that led to the abuse of pretrial detention [in the first place]. Such abuse has led to a situation in which half of the defendants in penal institutions include detainees who later were given rulings of no conviction, rulings indicating that they were detained in error, or prison sentences but with deferred implementation. This affirms that although a revolution may have been achieved in Tunisian criminal justice through a legislative text, it must also lead to a new judicial culture in multiple dimensions. Its goal must be to overcome the obstacles impeding progress, the first of which is the legacy of the judiciary’s own internal culture.

This article is an edited translation from Arabic.

__________

[1] Tunisian legislation does not define “suspect”, but it might be understood as an individual against whom preliminary investigations have begun on suspicion that they have committed a crime, but without having been legally indicted.

[2] Second paragraph of Article 57 of the Code of Criminal Procedure, added in accordance with Law No. 17 of 2007, enacted March 22, 2007.

[3] Response of the Ministry of Justice regarding the question of the lawyer’s role before an investigator, during the discussion of Law No. 17 of 2007; see page 848, deliberations of the Tunisian parliament’s session on March 6, 2007, Official Gazette, Vol. 19 of 2007.

[4] Amnesty International’s report published on April 20, 2016, which was published alongside Tunisia’s periodic report to the United Nations Committee Against Torture. “Tunisian authorities’ persistent use of torture and other ill treatment during detention tarnishes the progress gained in recent years in the field of human rights.”

[5] See the statement of Colonel Major Abd al-Sitar Bin Musa, president of the Tunisian League for Human Rights, in the Tunisian newspaper al-Sabah, May 4, 2016, which stated, “torture in detention centers continues, and the security establishment has not improved”.

[6] See the report of the UN High Commissioner for Human Rights, “Prisons in Tunisia: International Standards vs. Reality”.