NATIONAL JUDICIAL SYSTEMS
The Member State judicial systems are very diverse, reflecting differences in national judicial traditions.
Judicial Systems In Member States – Tunisia
This section provides you with an overview of the national judiciary system and court system in Tunisia.
Organisation of justice – judicial systems
The Judicial Power
There is a certain apprehension regarding the future of last branch of government: the Judicial Power. Indeed, under the former regime, the Judiciary remained under the control of the executive. One of the requests of the people is for the new constitution to institute the independence of the judiciary. However, the NGO Human Rights Watch stated that after the outset of Ben Ali “Executive branch influence over the judiciary persisted due to the failure to adopt long-awaited reforms of the judiciary, including a law that would set up a temporary judicial council to supervise the judiciary pending adoption of a new constitution. In its absence, the Ministry of Justice has been directly supervising the judiciary, including the appointment, advancement, and discipline of judges”.
However, in 2014, the New Constitution was finally adopted and stressed the importance of the independence of the Judiciary. Indeed, article 102 of the 2014 Constitution on the Judicial Authority prepares the ground to meet the expectations of the people regarding the separation of power. “The judiciary is independent. It ensures the administration of justice, the supremacy of the Constitution, the sovereignty of the law, and the protection of rights and freedoms. Judges are independent with the law being the sole authority over them in discharging their functions”.
Furthermore, article 109 prohibits “All kinds of interference in the functioning of the judicial system”.
The new Constitution also sets the ground for a reshape the Supreme Judicial Council in Part one of Chapter V and the Constitutional Count in Part two. Both bodies are designed to be independent from other branches of government.
The Supreme Judicial Council
According to article 112 “The Supreme Judicial Council is composed of four bodies, which are the Judiciary Council, the Administrative Judicial Council, the Financial Judicial Council, and the General Assembly of the three judicial councils.” The role of the Supreme Judicial Council is to article 114 “ensures the sound functioning of the justice system and respect for its independence”.
The Judicial System itself “is composed of the Court of Cassation, appellate courts and courts of first instance”. Article 115.
On May 15, 2015, the Parliament approved the creation of the Supreme Judicial Council as planned in the new Constitution. However, the NGO Human Rights Watch deemed that some aspect of this law should be amended because it does not provide sufficient independence to this body from the executive branch.
Therefore, several amendments have been made to the law creating the Supreme Judicial Council before being finally promulgated in April 2016 by President Béji Caïd Essebsi. This promulgation paved the way for the elections of the Supreme Judicial Council on October 23, 2016.
This Council is taking over the body that was discredited under Ben Ali for its submission to the government. In December 2012, the Parliament has this body suspended.
This election is a cornerstone of the new Judiciary system and a step toward the independence of the judiciary in Tunisia after decades of interferences.
The Constitutional Court
The Constitutional Court shall be the next step as it creates a safeguard to democracy and a better balance of power with the legislative and the executive.
Article 118 states that “The President of the Republic, the Assembly of the Representatives of the People, and the Supreme Judicial Council shall each appoint four members, three quarters of whom must be legal specialists.” Therefore, it is only now that the Supreme Judicial Council is formed that a step can be made toward the establishment of the Constitutional Court.
The role of a Constitutional Court is to control the constitutionality of draft laws and proposals. Its independence is essential for a proper implementation of the Constitution. In a desire to avoid abuses such as the ones perpetrated by the former regime, the draft will enforce several changes. First, while the Constitutional Council was composed of nine members, the Constitutional Court will be composed of twelve members. Furthermore, the President of the Republic will have less saying in their appointments. Before the Constitution Council “was thus more of a weapon in the hands of the President to keep Parliament at bay than an effective institution of constitutional review”. However, one could have hoped that as stated in the previous draft the President would only propose candidates and not appoint them.
It is important to note that the Constitution of Tunisia will have an important role in whether Tunisia will or will not align to the standard of liberal democracies. Indeed, “the court will have to determine the legal role of a number of international treaties that Tunisia has ratified but are not—or only partly—applied in practice, such as the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)”.
Other Independent Bodies
Article 116 handles the administrative judiciary, mostly deals with institution in charge of judging disputes between the public institution and citizens.
The new Constitution also creates Independent Constitutional Bodies in “support of democracy” (article 125): The Elections Commission, the Audio-Visual Communication Commission and the Human Rights Commission, Commission for Sustainable Development and the Rights of Future Generations, and The Good Governance and Anti-Corruption Commission.
Tunisia, unlike the other Arab countries that underwent a revolution following the Arab Spring, was able to work toward democracy and work to appease the people. To praise this effort, in 2015, the Nobel Peace Prize was awarded to “Tunisian National Dialogue Quartet for its decisive contribution to the building of a pluralistic democracy in Tunisia in the wake of the Jasmine Revolution of 2011.”
Besides, a lot has to be done on transitional justice. The government passed an Organic Law on Establishing and Organizing Transitional Justice in December 2013 and established a Truth and Dignity Commission to deal with cases of torture and intimidation by the former regime. The objective is to “help both state institutions and society recover”. As it has been done by countries such as South Africa.
The EU Supporting Reforms of the Judiciary
The European Union founded the Justice Reform Programme (le Programme D’Appui à la Réforme de la Justice PARJ) in Tunisia. Its objective is to strengthen the rule of law, the transition to democracy while supporting the judiciary in line with European and international norms.
The main points are:
Strengthen the independence and the efficiency of the judiciary
Improve access to law and justice
Modernize the penitentiary system
In the framework of this programme, two institutional twinning agreements have been agreed upon in order to strengthen the ministry of Justice and of jurisdictions and the second to support the training of justice officials.
In Spite of some major accomplishments, one shall not forget that there is a shadow on the picture. Indeed, the risk of authoritarianism is not far. For instance, “Following two political assassinations in 2013, a political party that includes former regime officials won parliamentary elections, putting a number of politicians associated with past abuses back in power”.
Furthermore, almost 40 % of the population is under 25 years old and there are reports within Tunisia and outside of Tunisia of terrorist attacks being carried out by Tunisian nationals.
The District Courts
At the base of the Tunisian judicial structure are the 51 District Courts, in which a sole judge hears each case. The jurisdiction of the District Courts extends to civil cases of lesser value, as well as cases related to issues of labor and nationality, civil affairs, personal estate actions, actions in recovery and injunctions to pay.
The District Courts rules on first or final instance:
demands for alimony introduced on a purely principal basis;
It rules in chambers (référé) in these cases:
The Courts of First Instance
The Courts of First Instance serve as the appellate courts for the District Courts. There is a Court of First Instance located in each region of Tunisia. Each Court is composed of a three-judge panel.
The Courts of First Instance hear all commercial and civil cases, irrespective of the monetary value of the claim.
The court of first degree rules on:
the constitution of the companies or their directions
dissolution or liquidation
rectification of companies facing economic difficulties and bankruptcy
The Courts of Appeal
The Appeals Courts serve as the appellate courts for decisions made in the Courts of First Instance. Cases that were originally heard in the District Courts and appealed to the Courts of First Instance may be further appealed to the Supreme Court.
The Court of Appeal is only qualified to rule on:
appeals of the judgments given in the first resort by the courts of first authority of their district;
appeals of the ordinances of summary procedure returned by the president of the court of first authority as well as injunctions to pay;
The three Appeals Courts are located in Tunis, Sousse, and Sfax.
The Supreme Court
The Supreme Court, or Court of Cassation, is located in Tunis and serves as the final court of appeals. The Court has one criminal and three civil divisions.
The organization of the criminal court system is similar to that of the civil court system.
The District Courts have jurisdiction to hear all misdemeanor cases.
The Courts of First Instance hear all other criminal cases except felonies.
A grand jury hears at first felony crimes. Once a judge issues an indictment based on the grand jury proceedings, the case is submitted to the criminal court division of the Court of Appeal.
The criminal division of the Court of Cassation serves as the final appellate court for criminal matters.
The High Court meets in a case of high treason committed by a member of the Government. The mandate and procedures applied in this Court are determined by the Law.
The Chapter on the Judiciary includes one section on Judicial Justice, another on Administrative Justice and one on Financial Justice. Former structures such as the Council of State (Article 69 of former constitution) will probably be reshaped accordingly. To recall, the Council of State is composed of two committees:
circuit of accounts
The Law determines the organization and panel of the Council, in addition to its scope of work and the procedures applied.
Useful national links
Last Updated March 13, 2021