By David Anderson, Program Director
Opening the office in Tunisia was particularly exciting for the ILF. It was our first program in a civil law country and a test of our model in a different legal structure. That was in 2015. In just under five years, our team has grown into sought-after Tunisian legal experts. They have inspired new practices in courtrooms and defended clients in more than 600 cases. Even in the face of the COVID-19 pandemic, the team has not slowed their advocacy for their clients and for justice. The work has not always been easy, but creating lasting change rarely is.
In Tunisia, it was standard practice for a person accused of a crime to be held in detention for weeks, even years, ahead of their trial. It was normal for a person, if they were granted representation at all, to see their lawyer for the first time on the day of their trial. This arbitrary detention and lack of legal representation violates the right to freedom and the right to counsel, and creates opportunities for a host of human rights violations including torture and abuse. We needed to get lawyers to people in need as early as possible to protect their rights.
After the revolution, Tunisia passed a new constitution with strong guarantees for people accused of crimes, including the right to a lawyer. There had always been a right to counsel in Tunisian law. There was a problem though: there was no law that said when a person would get their lawyer. In practice, lawyers were called very late—often too late—in the criminal process.
Law Number 5 of 2016 changed the rules significantly. It specified that a person accused of crime is entitled to a lawyer very soon after arrest, before the police take the first significant step in the investigation (which is usually to interview the accused). The implementation of Law No. 5 is a testament to our success so far. Within months of the law’s passage, we launched an early access project which places ILF lawyers in contact with police stations, so that they can appear at a moment’s notice to represent a new client.
In 2019, 50% of clients we represented at police stations though our early access project were released pending trial, and 40% of cases were dismissed entirely at the police station.
The earliest stage of a person's trial is the most critical for the defense. It is at this time when torture and forced confessions most often occur and where a lawyer can do the most work to protect a person’s rights. Pretrial motions, though part of the Tunisian legal system, were rarely ever used in the courtroom. Our team overcame opposition from their peers in the justice sector to pioneer the use of these motions.
When our Tunisian legal director Hanen Fathallah filed her first motion to have a client released pretrial, the prosecutor, very literally, laughed at her and the judge denied her request. It was a tough blow, but the team persisted. We filed motion after motion and made argument after argument. Eventually, it began to work. We were getting our clients out of detention ahead of their trials, and other defense lawyers took notice. They began asking for advice on how they too could advocate for their clients rights ahead of trial. Our motions and and the motions of other Tunisian defense lawyers asking for release ahead of trial are now routinely granted. We’ve driven a seismic shift in pretrial justice in Tunisia.
There is a lot of work to be done and seemingly no end to what our fierce, and growing, Tunisian team can achieve. We are still in the early stages of our program in Tunisia but we are already creating the ripples for lasting change.