ILF-Tunisia Case Notes: Quality Representation is Early Representation

The following cases illustrate the positive impact of access to defense counsel at the police station. Early representation is critical to protect individuals from coercive interrogation tactics and ensure that they are not unlawfully detained. Representation during the investigation phase allows defense counsel to advocate against pre-trial detention, which not only serves the interests of the client but also helps impact the outcome of the case. Additionally, early representation means that defense counsel is better equipped to develop a defense and provide quality representation.

While the Tunisian Constitution provides for the right to early access to counsel, and recent procedural amendments to Tunisian law support the right of every person to a lawyer during the initial interrogation and confrontation, these rights have not been meaningfully implemented, and lawyers generally only begin providing representation after their clients have been charged with crimes. To address this gap between law and practice, ILF-Tunisia recently launched a groundbreaking project at a National Guard Station in Manouba Governorate, under which ILF- Tunisia consultant lawyers are called to represent clients who have been arrested or brought to the station for questioning on misdemeanor offenses. By providing legal representation promptly at the earliest stage of the case, the ILF-Tunisia consultant lawyers are able to protect their clients’ Constitutional rights to counsel, to a fair trial, and to equal protection.

In the matter of M.A. and B.A.* (ILF 177/181, Consultant Attorney Hanen Fathallah)

*Note: ILF-Tunisia does not normally represent co-defendants or two people accused of the same crime in the same case. However, after explaining the conflict of interest to the clients and obtaining their consent to waive any potential conflict, such representation may occur if the interests of justice require.

The clients, M.A. and B.A., and the complainant are all brothers. According to the complainant, the three brothers worked together, and M.A. and B.A. owed him 800 TND, which they kept refusing to pay. The complainant alleged that during a heated argument with M.A. and B.A. about the money, B.A. tripped him and M.A. hit him with a stick, injuring his hand and arm.

When M.A. and B.A. were invited to the police station for questioning, Attorney Hanen Fathallah was called to represent them as per an agreement between ILF-Tunisia and the police station to facilitate early access to legal aid services. At the police station, Ms. Fathallah interviewed the clients and participated in the confrontation with the complainant, and was able to uncover information which contradicted the complainant’s story and undermined his credibility. She also ensured that this information was included in the police investigation report.

Based on information given to her by the clients, she asked police to verify prior reports of violence filed by the clients against the complainant, and she highlighted the fact that neither client had a criminal history, while the complainant had a lengthy criminal history. In addition, during the confrontation with the complainant, she asked questions of the complainant that led to him making an important contradictory statement, switching which brother it was who hit him from his original statement. She also confirmed that the complainant could not provide any witnesses to the alleged altercation. Furthermore, she noted for the record that the police had violated M.A. and B.A.’s rights when they subjected them to an interrogation. Under the new procedural code, the police do not have a right to ‘interrogate’ detainees; they can only ‘hear’ them.

Based on the ILF Consultant Lawyer’s advocacy and the inconsistencies she uncovered during the investigation, the prosecutor declined to detain the clients at the police station. However, he did decide to press charges against the clients, and the case proceeded to court.

During the pre-trial period, Ms. Fathallah was able to investigate the case and develop a defense based on her investigations. After speaking with the clients and other members of the family and community who corroborated their story, she learned that the complainant was engaged in an ongoing campaign of violent harassment against M.A. and B.A. orchestrated by their mother. The clients had been the main providers for their family once their father died (the complainant was very young at the time). They were successful financially for some time, and built a home for their mother and younger siblings that allowed them to earn rental income from additional units. When they began to earn less money, M.A. and B.A. stated that their mother became demanding, even suing them for alimony, and turned their younger siblings against them. At one point, the complainant came to the clients’ job looking to attack them with a knife and neighbors had to intervene. The mother and the complainant also physically assaulted the wife of one of the clients, as they believed that the client was giving his wife money instead of giving it to the family. The clients had previously pressed charges against the complainant for these incidents, as well as against their younger sister for verbally insulting them.

In addition to this background, Ms. Fathallah learned that the complainant has a long criminal history and frequently gets into fights. Using the documentation in the case file, she investigated the complainant’s alleged injury and discovered that it was consistent with a Bennett fracture, which is commonly associated with boxers hurting themselves while throwing punches.

When M.A. and B.A. were interrogated by the judge in their initial hearing, Attorney Fathallah made an oral pre-trial motion to dismiss the case. She explained the background of the feud between the complainant and her clients, her clients’ lack of criminal history vs. the complainant’s extensive criminal history, the fact that no alleged witnesses were invited to the police station and the lack of corroboration for the complainant’s story, the inconsistencies in the complainant’s story, and the fact that the complainant’s alleged injury was consistent with the complainant, who is known for fighting, throwing a punch rather than being hit with a stick. The judge issued an immediate decision acquitting the clients and dismissing the case.

In the matter of H.T. (ILF 171, Consultant Attorney Hanen Fathallah)

The client, H.T., is a 23-year-old man who is disabled in his right leg and has limited mobility after a recent surgery. He is not married, lives at home and works when he can as a day laborer.

The client was called to the police station for questioning regarding an alleged break-in and theft at a local kiosk. The complainant alleged that 5000 TND cash, 2000 TND worth of cigarettes, and some documents, including his passport, had been stolen. The police report stated that there were no signs of forced entry, and that the kiosk was secured only by a piece of plywood covering the opening. The complainant originally stated that he suspected his landlord committed the theft due to a prior dispute. However, the police invited H.T. to the station for questioning based on information received from a third party that H.T. may have been involved.

As per the early access agreement with the police department, Attorney Hanen Fathallah was notified of H.T.’s presence at the station, and she immediately went to represent him. At the police station, she interviewed her client and posed questions to the third party and the complainant over the telephone through the officers (neither party was present at the station) and uncovered various inconsistencies, which were then documented in the case file. For example, when police spoke to the third party, he recalled telling the complainant of H.T.’s alleged involvement, but after Ms. Fathallah asked for clarification, the third party admitted that in fact he had merely overheard someone talking about the crime and the possibility that someone with the same nickname as H.T. may have been involved. He was not a witness and he had no firsthand knowledge of the theft.

During the phone conversation with the complainant, the complainant claimed that the 5000 TND alleged to have been stolen had been earned from selling telephone cards. However, when asked by Ms. Fathallah if he could produce the receipts for those cards, the complainant stated that he could provide only two receipts, which were from May and June of 2016 and only reflected 500 TND of sales. He had no receipts at all for the 2000 TND worth of cigarettes that he claimed were stolen. The complainant refused to come down for an in person confrontation.

Ms. Fathallah also observed that her client’s lack of physical mobility made him physically incapable of committing the alleged crime, as entering the kiosk would have required scaling a high counter after removing the plywood. Ms. Fathallah therefore requested that the police order a medical examination for the client, as provided for under the Code of Criminal Procedure.

Ms. Fathallah then advocated for the prosecutor to release her client, and the prosecutor agreed. The client was invited to be heard by the prosecutor four days later, and again he was not detained. Six days after that, the case against H.T. was dropped, as the Prosecutor declined to prosecute.

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