Tunisia's Parliament made a significant breakthrough for human rights by approving proposed changes in detainee rights. Provisions to grant suspects the right to a lawyer from the onset of detention, and to shorten the maximum pre-charge detention are included in a revision of the Code of Criminal Procedure (CCP) adopted by the Parliament on February 2.
Legislators should adopt implementing legislation that reinforces those guarantees by narrowing the broad discretion given to the police for placing a person under arrest, and strengthening the right of a detainee to request a medical examination, as a safeguard against ill-treatment. They should ensure that all persons detained will be brought before a judge promptly, in principle within 48 hours and they have speedy access to a lawyer. No one should be denied access to a lawyer on the basis of the category of the alleged offense for which they are being investigated.
The new law has the potential to close loopholes that led to widespread abuses during the presidency of Zine el-Abidine Ben Ali.Given that history, and the persistence of abuses in the five years since Ben Ali's ouster, Tunisia needs stronger safeguards to guarantee that arrests are not arbitrary and that police mistreatment is detected and punished.
"The new law has the potential to close loopholes that led to widespread abuses during the presidency of Zine el-Abidine Ben Ali," said Amna Guellali, Tunisia director at Human Rights Watch. "Given that history, and the persistence of abuses in the five years since Ben Ali's ouster, Tunisia needs stronger safeguards to guarantee that arrests are not arbitrary and that police mistreatment is detected and punished."
The law shortens the maximum time of pre-charge detention for crimes to 48 hours, renewable once by a prosecutor's order, for a maximum of four days. For minor offenses, the time limit is 24 hours, renewable once. While this would reduce the current three-day limit, renewable once for both minor and serious offenses, it is still longer than the emerging international standards, which mandate that judicial review should happen within 48 hours of detention.
Under current Tunisian law, persons who are arrested have no right to see a lawyer until their first appearance before an investigative judge, which by law takes place no later than six days after they are taken into custody. In practice, by that time, many suspects have signed, without a lawyer present, a police statement that could be used against them during trial.
The new law includes a breakthrough provision giving the detainee or a family member the right to request the assistance of a lawyer during pre-charge detention. When the police receive the request, they would be required to inform the lawyer of the accusations against the client and when they would question the person. The police would have to notify the lawyer about all interrogations and all confrontations between the accused and witnesses or victims of the alleged offense and allow the lawyer to be present, unless the accused "explicitly" waives the right to a lawyer or the lawyer does not arrive on time.
When the detainee does not have a lawyer of his own, the law provides that the police shall inform the National Bar Association, which would assign a lawyer from a pro bono list. The detainee would be able to meet in private with a lawyer whenever requested for up to 30 minutes. The draft would give the prosecutor more oversight over police detention decisions, requiring the judicial police to get his prior approval for an arrest. Under the current CCP, the police are required only to notify the prosecutor of a decision to make the arrest.
The new law requires the judicial police or the prosecutors to call a doctor without delay when the detainee, or his lawyer, his family or anyone of his choosing, makes a request. The current law says the police must inform the detainee of his right to see a doctor without compelling them to follow through on a request.
The new law provides for the invalidation of the proceedings in court if the judicial police breached the procedural requirements of the Code of Criminal Procedures.
The new law transfers oversight of the judicial police from the Interior Ministry to the Justice Ministry, through the office of the prosecutor. However, it does not guarantee the independence of the office of the prosecutor or protect individual prosecutors from interference in their cases from the justice minister or other members of the executive.
The new law has several shortcomings. Tunisian authorities should adopt implementing legislation that could close the remaining loopholes.
The implementing legislation should clarify that detention begins at the moment of arrest, to pre-empt alternative interpretations that would delay a detainee's access to a lawyer and presentation to a judge.
The new legislation should further strengthen the right to a medical examination by requiring that it be conducted by a doctor trained in forensic medicine out of earshot of police or prison authorities. The legislation should require that the examination result in a written report by the doctor on a standard form that records the time, place and nature of the exam, and the description of any injuries, consistent with international norms for such reports, such as those found in the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("the Istanbul Protocol"), and that is made available to the detainee. The detainee or his lawyer should be able to request a second examination by a doctor of the detainee's choice.
The implementing legislation should also establish a level of suspicion required to place a person under arrest that is consistent with international norms. The current Code of Criminal Procedure does not mandate a specific threshold of suspicion of commission of a crime for the police to lawfully search and make an arrest. Human Rights Watch has documented how Tunisian police frequently arrest people without a reasonable suspicion of criminal wrongdoing.
The implementing legislation should also make clear that detainees should be brought before a judge to review the legality of their detention within 48 hours of the start of their detention, in line with international standards.
In addition, last-minute legislative amendments to the law gave the investigative judge and the prosecutor the authority to delay access to a lawyer for 48 hours after the beginning of detention in cases where the detainee is accused of crimes of terrorism.
While in exceptional cases, there may be legitimate grounds to delay for a certain period a detained person's access to a particular lawyer, authorities should not be granted discretion to deny a detainee any access to legal counsel on the basis of the alleged offense. As mentioned by the European Committee on the Prevention of torture, the "question whether restrictions on the right of access to a lawyer are justified should be assessed on a case-by-case basis, not determined by the category of offense involved." In addition, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, stated in his 2008 report that "any delay or exclusion of legal representation on security grounds must not be permanent, must not prejudice the ability of the person to answer the case, and, in the case of a person held in custody, must not create a situation where the detained person is effectively held incommunicado."
The International Covenant on Civil and Political Rights (ICCPR), to which Tunisia is a party, in article 9, requires judicial review of detention to be "prompt." Similarly, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa state that anyone detained has the right to prompt judicial review of their detention.
The UN Human Rights Committee, which interprets the international covenant, has held that "48 hours is ordinarily sufficient to transport the individual and to prepare for the judicial hearing; any delay longer than 48 hours should be justified by exceptional circumstances." The Committee has more recently held that pre-charge custody without judicial review should not exceed 48 hours, non-renewable and stated that any delay longer than 48 hours must remain absolutely exceptional and be justified under the circumstances.
The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly in 1988, states that a proper medical examination shall be offered to a detained or imprisoned person as promptly as possible after admission to the place of detention or imprisonment, and thereafter medical care and treatment shall be provided whenever necessary. In addition, it states that a detained or imprisoned person or his counsel shall, subject only to reasonable conditions to ensure security and good order in the place of detention or imprisonment, have the right to request or petition a judicial or other authority for a second medical examination or opinion.
The UN Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment recommends that "every routine medical examinations [be] carried out using a standard form that includes (a) a medical history (b) an account by the person examined of any violence (c) the result of the thorough physical examination, including a description of any injuries .... The medical record should, upon request from the detainee, be made available to him/her or to his/her lawyer."
The ICCPR prohibits arbitrary arrest or detention. The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa also mandate that States must ensure that no one shall be subject to arbitrary arrest or detention, and that "arrest, detention or imprisonment shall only be carried out ... pursuant to a warrant, on reasonable suspicion or for probable cause," as provided for in the Principles and Guidelines on the right to fair trial and legal assistance in Africa.
The African Principles state that any person arrested or detained shall have prompt access to a lawyer and, unless the person has waived this right in writing, shall not be obliged to answer any questions or participate in any interrogation without his or her lawyer being present.