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Challenging torture evidence in Tunisia

admin - July 17, 2019 - Torture, UN Convention Against Torture, Audio-visual recording

 

In June 2019, Fair Trials co-organised a seminar for Tunisian defence lawyers on how they can seek to exclude evidence obtained by torture in criminal proceedings. The seminar took place in Tunis and was co-hosted by Danish NGO DIGNITY, who have been working in Tunisia for several years on the prevention and documentation of torture. During their work with criminal justice actors in Tunisia, DIGNITY identified the failure to exclude evidence obtained by torture at trial as a key gap in the torture prevention framework.

The collaboration came after the publication of the report ‘Tainted by Torture’, which Fair Trials and REDRESS co-authored in 2018, on the operation of the ‘exclusionary rule’ for evidence obtained by torture. The report compares  law and practices on the exclusion of torture evidence in 17 countries, including Tunisia. The country is signed up to the UN Convention Against Torture (UNCAT), which prohibits torture and cruel, inhuman or degrading treatment or punishment. However, our report revealed that despite reforms to Tunisia’s Code of Criminal Procedure in 2011, which enacted an exclusionary rule, the new provision has reportedly never been used in practice.

The seminar brought together defence lawyers and investigative judges from Tunisia, as well as Christophe Marchand, a defence lawyer (and LEAP Advisory Board member) and Serge Kalugina, a judge from Belgium, to discuss international standards, and explore some of the key challenges faced in Tunisia and potential solutions to address them.

There is little guidance in international law on the procedure that judicial authorities must follow where an allegation of torture is raised in order to have evidence excluded. The European Court of Human Rights (ECtHR), in its El Haski ruling of 25 September 2012, ruled that it would be unfair to ask the person alleging torture to demonstrate anything more than a “real risk” that the evidence in question had been obtained through the use of torture.

At the seminar, Christophe (who represented Mr. El Haski in the successful application against Belgium) presented his experiences of challenging torture evidence in Belgium, which has a similar system for the exclusion of evidence as Tunisia. Christophe highlighted the importance of raising allegations of torture at the earliest possible stage in domestic proceedings, and turning to regional and international human rights bodies when allegations are not dealt with in a satisfactory way. He also stressed the key role of NGOs in documenting instances of torture, and producing reports that can help support a claim that there is a real risk that a person was subject to torture. Even if there’s no systemic use of torture, the absence of effective investigations into allegations of torture may indicate that there is a real risk.

Participants also heard presentations from judges Serge Kalugina, from la Chambre des mises en Accusation in Brussels, on European standards for the exclusion of torture evidence, and Hatem Hfaiedh, an investigative judge of le tribunal de première instance in Tunis, on Tunisian standards for the exclusion of evidence. Participants highlighted the diverging practices of investigative judges across Tunisia, and were particularly interested in hearing about European standards and ECtHR jurisprudence, which can be used to help guide the development of jurisprudence in this area in Tunisia.

A representative from the Ordre national des avocats de Tunisie, the Tunisian Bar Association, held a brainstorming session for the participants to discuss ways to seek the exclusion of evidence obtained by torture in criminal proceedings in Tunisia, and ensure that Tunisia’s international commitments under UNCAT are effective in practice. The discussion highlighted the key role that lawyers have in torture prevention, in particular during police custody.

The key areas that require improvement to enable lawyers to seek the exclusion of evidence obtained by torture include:

  • A prompt access to a medical examination, to secure evidence of torture: lawyers should request such an examination, even though they often face the reluctance of investigative judges to order an examination;
  • Wider access to a lawyer during detention: the presence of lawyers during interrogations is key to ensure that law enforcement officials do not resort to torture or other forms of ill-treatment;
  • The need for investigative judges to take on a more proactive role and investigate complaints of torture, rather than require lawyers to initiate a separate complaint with the public prosecutor;
  • Legal trainings for lawyers on international standards and case-law, which they can present to judges, on the procedure to turn to international redress mechanisms such as UNCAT and how to draft pleadings for international bodies (including through the development of template requests and pleadings);
  • Training for law enforcement officials on investigative interviewing techniques, to help professional practices move away from confessions; and
  • Strengthening the role of the recently created National Preventive Mechanism against torture in Tunisia.

More broadly, the meeting highlighted that by fighting impunity and promoting the application of international standards, lawyers can participate in the consolidation of the rule of law in Tunisia and its criminal justice institutions.

 

Read the full ‘Tainted by Torture’ report and its findings here.

Read more about Fair Trials’ work on the prevention of coercive interviewing and the use of audio-visual recording to prevent torture in police interviews.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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