Excerpts from the Verdict in case 21018/099/6
before the Tunis Court of First Instance,
Judge Mohamed Faouzi Ben Amara presiding, July 14, 1999
[Pages 9-10]
Under questioning, Lotfi Hammami said that, to start with, Interrogation No. 1/74591 which pertained to him, was carried out while he was in custody. He said that the circumstances of his questioning violated the law and [legal] procedures, given that the investigator used violence against him after taking him into custody after February 21, 1998, contrary to what is recorded in the written record of the investigation. He asked to be medically examined in order to verify the truth about what he testified today regarding those circumstances.
Attorney [Mokhtar] Trifi intervened, asking the Court to note [in the record] statements of his client regarding the torture he experienced, including that the investigator used violence on sensitive parts of his body. He denied that the investigator caught him about to distribute the confiscated pamphlets. He also denied stating that there is an organizational relationship between himself and defendant Radhia Nasraoui. He said that in fact it was his investigator who had furnished him with certain information about defendant Radhia Nasraoui. He also denied stating to his investigator that he used to meet Hamma Hammami at the office of defendant Nasraoui. He said that he frequented the office of Radhia Nasraoui in connection with a case involving a traffic accident in which his father had sustained injuries, and that the investigator showed that file to him when he was about to question him. He concluded by requesting an acquittal on all charges against him that link him to defendant Radhia Nasraoui.
[Page 18]
Based on investigations conducted in the case by officers of the State Security Department according to their Minutes No. 38, dated February 21, 1998, and upon investigation, the officers, in accordance with the duties assigned to them, were able on February 21 to apprehend Noureddine Benticha with two copies in his possession of a pamphlet entitled Twelve Years of Sacrifice and Endurance. The contents of that pamphlet indicate the existence of a secret organization and collective activity. Upon investigating the above individual, it was found out that he is active in a group which called itself the Tunisian Association of Young Communists, an association which is active as a student wing of another organization called the Tunisian Communist Workers Party. Based upon that, the officers were able to identify some of the main individuals active in these two organizations and were able to detain some of them. As such, the above-cited minutes, the starting point of the current case, was filed.
[Page 24]
And upon questioning [by the police], defendant Lotfi Hammami confessed to belonging to the secret organization Tunisian Association of Young Communists since 1990 and to actively promoting it through holding regular meetings with individuals belonging to the same organization. He affirmed that he regularly met both Fahem Boukaddous and Ali Jallouli during February 1997. These meetings were held in the framework of organizational meetings in which the two pamphlets Voice of the People and Forward were given to the participants. He added that during April of the same year, he met a leader named Hamma Hammami at [Hamma Hammami's] request. They met at the office of Hamma's wife Radhia Nasraoui. [Hamma Hammami] informed him at that time that he had been selected to supervise the planned structure of the secret organization Tunisian Association of Young Communists at the April 9 College of Literature, and urged him to recruit new individuals and to work on counter-propaganda against the policies of the regime on all levels. He urged him to call boycotts of classes, to issue crippling demands to the school administration, to shape the atmosphere at the university in such a way as to bring it under the sway of the secretorganization, to spread slogans characterizing the ruling regime as "a police and fascist state," and urge people, especially young people, to oppose the authorities. He added that, in order to achieve these recommendations, he regularly met the other individuals who were supervising the central structure which had been set up at the university level at several organizational areas located in Nahj Saïdi al-Kashbatti in Bab al-Khadra and Haï al-Tairan in Mallaseen. The leader Hamma Hammami was also there to discuss the status of the organization and draw action plans inside and outside the university through the publication of propaganda pamphlets against the regime and distributing them to the people to urge them to confront the authorities on all levels. [Lotfi Hammami] said that his activity toward that goal continued until he was detained. But when he was brought before the investigative judge, he denied all the things attributed to him and maintained his innocence at the hearing.
[Page 28]
[The court] responds as follows to the defense arguments:
With respect to violations of basic procedures related to the welfare the defendants, Article 154 of the code of criminal procedure stipulates that the written records issued by the police are authoritative unless proven inaccurate by written evidence or by the testimony of witnesses or show of coercion.
Since the only defense in this context came from the testimony of the defendants who seek to escape punishment and accountability in any way possible, and since the status of defendants is not the same as the status of witnesses, their defense cannot be accepted given that they are defendants. In addition, they did not refute the written records with written evidence or show of coercion. Those written records are authoritative unless proven unequivocally and without doubt to be otherwise in accordance with the above-mentioned article.
And since the defendants' statements regarding their torture was in the form of an uncorroborated defense and since the events took place a year and-a-half ago and the court did not see any evidence that could corroborate this defense, such as marks resulting from violence or other evidence to substantiate it, it could not be relied upon.
Regarding the defense argument that the [police] investigator detained and carried out investigations without prior permission from the state prosecutor general and the investigative judge, this defense is also uncorroborated since by examining the certified and legally uncontested minutes, it becomes clear that the preventive detention notices were timely and the prosecutor general was informed of them in a timely fashion. He gave them the permission and renewed the detention periods in accordance with the law.
As for the defense argument that the interrogation was carried out by the investigator without summons warrants having been issued by the investigative judge, and even assuming that that was what took place, the investigative judge corrected these procedures, involved himself in the investigation, and conducted the questioning anew, depriving this defense argument of factual and legal grounds.
In regard to the defense argument about the court's refusal to order a medical examination, the court's refusal was based on legal and practical issues; among them the fact that this request came a year and-a-half after the date of detention, and the court saw no visible signs or traces of external violence. It was therefore refused due to the length of the period and the pointlessness of carrying out the examination.
The Court's decision not to request the detention register was based on factual and legal grounds, given the unavailability of any evidence proving that violations in the duration of detention took place except the statements of the defendants which continued to be uncorroborated as outlined above.
With respect to the defense argument about applying the Law of Associations instead of the Parties Law, this defense is not relevant to the current case since the crimes attributed to the defendants are crimes against the public in accordance with Law No. 154 of 1959. That law stipulates in its first article, "An association is an agreement upon which information is gathered or an activity carried out for non-material objectives." Its second article also stipulates, "The purpose of the agreement reached shall not aim to violate the laws or be of a nature to disturb the public order." With respect to the defendants, the contrary was proven beyond doubt through the charges filed against them, their explicit confessions, and their testimony implicating one another which was supported by confiscated materials. This defense argument is therefore unacceptable and is rejected.
As for the argument that defense rights were violated when foreign attorneys were not allowed to argue before the court, the French-Tunisian treaty in this area, in accordance with the third chapter and article 44 thereof, stipulates that, "Tunisian citizens in France and French citizens in Tunisia may seek the assistance of an attorney of their nationality to defend them. Such attorney shall obtain the approval of the chief of the court having jurisdiction over the case."
Since it is clear that Tunisian citizens are not allowed to seek the assistance of an attorney to defend them unless that attorney is of their nationality, this was a clear basis for denying the French attorney's representation of the Tunisian citizens. In addition, these foreign attorneys did not obtain the approval of the chief of the court having jurisdiction over the case; the case files show no indication of this having taken place.
The court's refusal to let the Algerian attorneys represent the Tunisian defendants was also in accordance with the law. The Treaty Concerning the Exchange of Assistance and Judicial Cooperation between Tunisia and Algeria clearly stipulates in article five, "Attorneys who are allowed to defend Tunisian citizens and vice versa shall be registered with the Bar Council whether of Tunisia or Algeria," something of which the files show no record. In addition, this treaty stipulates that attorneys registered with the Bar Council of Tunisia may defend and represent the parties before criminal courts..." [sic] It could be understood from the term `parties,' which appears ambiguous here, that it is related to their subjects in Tunisia and not to a Tunisian; therefore, this request was denied as lacking merit.
Given the above, the guilt of the defendants has been proven vis-à-vis the charges. The crime of maintaining an association that preaches hatred shall be considered as maintaining an unlicensed organization [sic]; therefore, all defendants must be held criminally responsible, each to what he/she is charged with, a deterrent must be imposed, and the confiscated material must be destroyed.