Tunisia

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LEGAL RESOURCES FOR TUNISIA

LEGAL TRAINING RESOURCE CENTER

Background

The capitol of the Tunisian Republic is located in Tunis, an important port city that has long linked Northern Africa to the European continent (CIA Factbook available at http://www.cia.gov/library/publications/the-world-factbook). Due to its integral location, Tunisia has long been fought over by the European powers (CIA Factbook) (CIA Factbook). In 1881, France defeated Italy for control over Tunisia and declared the territory a protectorate of France (CIA Factbook). It wasn’t until the anti-imperialist era after World Wars I and II that France finally recognized Tunisia as an independent state in 1956 (CIA Factbook). The country’s first president, Habib Bourguiba, quickly established one party rule in the country and went on to control Tunisia for 31 years (CIA Factbook). His regime can best be characterized by the repression of Islamists and the establishment of women’s rights that are unparalleled in other Arab countries even today (CIA Factbook). In 1987, Bourguiba was deposed in a bloodless coup that placed Zine el Abidine Ben Ali in power (CIA Factbook). Under Ben Ali, Tunisia saw the repression of human rights, civil liberties, and political freedom (CIA Factbook). In December 2010, Tunisia experienced a series of violent uprisings protesting high food prices, corruption, unemployment, and poverty (CIA Factbook). These riots culminated in the resignation of President Ben Ali and the formation of the new “national unity government” headed by interim President Fouad M’Bazaa (CIA Factbook). Like many Middle Eastern countries, Tunisia has a high population of young people with a median age of 30 years old (CIA Factbook). 98% of the Tunisian population is of Arabic descent, while 1% is European and 1% is Jewish (CIA Factbook). Arabic is the official language of Tunisia, but many Tunisians speak French as a relic of the country’s colonial past (CIA Factbook). 98% of the population identifies as Muslim, while 1% identifies as Christian and 1% is Jewish (CIA Factbook available at http://www.cia.gov/library/publications/the-world-factbook).

Type of system

Tunisia has a French civil law system, with some aspects of Islamic law. In matters of family and inheritance disputes, when civil and Islamic law conflict judges often enforce Islamic law over civil law. [1] Tunisia has a four tiered hierarchy of the courts: the District Courts, the Courts of First Instance, the Courts of Appeal, and the Court of Cassation. In the District Courts, a single judge hears minor civil cases. In the Courts of First Instance, a panel of three judges hears appeals from the District Courts. This court also has original jurisdiction over more serious criminal cases. The Courts of Appeal hear appeals from the Courts of First Instance, and the Court of Cassation is the final court of appeal for all lower courts in the normal court system. The Court of Cassation is divided into one criminal and three civil divisions. [2]

Source of defendants’ right

The majority of the defendants’ rights are guaranteed by the Tunisian Constitution or the Tunisian Criminal Procedure Code. Article 5 of the Tunisian Constitution guarantees all individuals “fundamental freedoms and human rights”, upholds the rule of law and the protection of human dignity, and ensures the inviolability of the person. [3] Furthermore, Article 6 states that all citizens are equal before the law and have the same rights and obligations. [4] Article 12 additionally states that police custody must be subject to judicial control and that preventative and arbitrary detention are prohibited. [5] Article 13 goes even further and ensures that those in police custody must be treated humanely and have their dignity respected according to the conditions of the law. [6] The Tunisian Penal Code also provides a thorough definition of torture and the subsequent consequences for its use. Finally, Tunisia has ratified the Convention on the Elimination of all Forms of Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR). [7]

Pre-trial phase

Article 13a of the Criminal Procedure Code states that the arresting police officer must inform the suspect of the charges brought before him in a language that he understands. The officer must also notify the suspect of the time and location of his trial and of his right to receive a medical examination before and after his detention. In addition, the arresting officer must notify the detainee’s relatives of his whereabouts and of the charges brought against him. [8]


A 1999 amendment to the Criminal Procedure Code states that a suspect may not be held for more than three days. If the prosecutor has significant evidence that the suspect must be detained for a longer period of time, he may extend the detention to six days. Human rights workers and lawyers, however, report that police officers often falsify the date of arrest in order to prolong detentiontime. [9] Additionally, Article 12 of the Tunisian Constitution states that police custody must be subject to judicial control and that preventative detention be exercised only after judicial instruction. [10] . Article 84 of the Criminal Code states that preventative detention is an exceptional measure. [11]Article 85 of the Criminal Code states that those accused of egregious crimes may be subjected to preventative detention in order to ensure maximum security. This detention may not exceed six months, however. [12]

Article 69 of the Criminal Code states that in the event that the defendant requests that the court appoint him counsel, the court must oblige. The same article states that if the accused refuses to choose an attorney, or if the attorney does not appear, the judge merely precedes with the case.[13]

Court procedures

For crimes that carry a sentence of more than five years or that involve national security, preventative security may last six months, with two possible court ordered four month extensions. For crimes that carry sentences of less than five years, there is an initial detention of six months that may be extended to three months. [14]

Tunisian law maintains that all individuals are innocent until proven guilty. Trials in the Court of First Instance and the Court of Appeals are open to the public and government officials have allowed foreign diplomats and journalists to observe trials. Tunisia does not have trial by jury. [15]

Tunisian law provides the accused the right to be present at trial, to have access to legal counsel, to question witnesses against him, and to prevent witnesses or evidence. Judges, however, rarely respect these rights. Defendants do not have the right to a speedy trial and there is no time limit on trials. [16] Article 69 of the Tunisian Criminal Code states that even if the accused confesses to a crime the judge still has the responsibility to investigate the evidence. [17]

Confessions obtained under torture are systemically used as evidence against defendants. Reports also indicate that judges did not allow lawyers access to government held evidence or records. [18] Article 59 of the Tunisian Criminal Procedure Code states that the judge has the responsibility to hear the testimony of all individuals whom he believes will be helpful to the case. [19] In reality, however, judges often decline the defendant’s request to call witnesses. This means that many people are convicted without being provided their basic confrontation rights. For cases in which an individual has been charged under the 2003 Anti-Terror Law, the government has the ability to withhold the identity of all witnesses. [20]

The Tunisian judiciary is not independent from the executive branch, and thus obtaining a fair trial in Tunisia is very difficult. The executive branch influences the judiciary through the appointment, transfer, and tenure of judges. Also, the President of Tunisia is the head of the Supreme Judicial Council, the same body that is responsible for appointing all judges. Although the judge does not have the right to question the defendant without his lawyer present, judges seldom notify lawyers of the questioning. Additionally, the judge has the right to hear all of the defendant’s witnesses, but in most cases the judge will decline this right and convict the defendant. In many circumstances judges will refuse to hear a defendant’s allegations of police abuse and will order their statements to be stricken from the record. [21]


See Criminal Justice Systems Around the World

References

  1. http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136081
  2. http://www.nyulawglobal.org/globalex/Tunisia1.html
  3. Constitution of Tunisia, Article 5
  4. Constitution of Tunisia, Article 6
  5. Constitution of Tunisia, Article 12
  6. Constitution of Tunisia, Article 13
  7. http://carnegieendowment.org/arabpoliticalsystems
  8. Tunisian Criminal Procedure Code, Article 13a
  9. http://carnegieendowment.org/arabpoliticalsystems
  10. Tunisian Constitution, Article 12
  11. Tunisian Criminal Procedure Code, Article 84
  12. Tunisian Criminal Procedure Code, Article 85
  13. Tunisian Criminal Procedure Code, Article 69
  14. US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009
  15. US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136081
  16. US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009
  17. Tunisian Criminal Procedure Code, Article 69
  18. US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009
  19. Tunisian Criminal Procedure Code, Article 59
  20. http://www.hrw.org/en/reports/2007/09/04/ill-fated-homecomings
  21. http://carnegieendowment.org/arabpoliticalsystems

QUICK FACTS

  • The total prison population of Tunisia is 31,000, with every 297 per 100,000 people in prison.
  • Approximately 22.7% of the Tunisian prison population is comprised of pre-trial detainees
  • Tunisia currently has 29 prison institutions and 7 juvenile facilities
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