Preliminary observations on the official visit to Tunisia (27 November to 5 December 2014) by Ms. Gabriela KNAUL, United Nations Special Rapporteur on the independence of judges and lawyers

Tunis, 5 December 2014

Members of the press, ladies and gentlemen,

I am very happy to be here with you today and share my preliminary observations and recommendations at the end of my 9-day official visit to Tunisia. I will further elaborate on the issues identified and my recommendations in the written report that I will present to the United Nations Human Rights Council in June 2015. 

Let me begin by warmly thanking the Government of Tunisia for inviting me to conduct this official visit and for facilitating a rich and interesting program of meetings in Tunis, Nabeul and Grombalia, while respecting the independence of my mandate.

The purpose of this visit was to understand, in the spirit of co-operation and constructive dialogue, the situation of the justice system, and in particular how Tunisia endeavours to ensure the independence of the judiciary, prosecutors and lawyers, their protection and accountability, and what obstacles are encountered which may prevent them from discharging their functions effectively, adequately and appropriately to deliver justice.

During my visit, I had the privilege to meet the Minister of Justice, Human Rights and Transitional Justice, Mr. Hafedh Ben Salah, as well as senior government representatives in the Ministries of Interior and Foreign Affairs and International Cooperation and members of the National Constitutive Assembly. I also met the President of the Provisional Instance for the Supervision of the Judicial Justice (Instance Provisoire de la Justice Judiciaire),the First Presidents of the Administrative Court and the Court of Audit, the First Presidents of the Courts of Appeal of Tunis and Nabeul, the President of the Tribunal of First Instance of Grombalia, the General Prosecutor, the Public Prosecutor of the Court of Cassation,  the Deputy Prosecutor of the Court of Appeal of Tunis, the Prosecutor of the Court of Appeal of Nabeul, and the Deputy Public Prosecutor of the Tribunal of First Instance of Grombalia, as well as other members and representatives of the judiciary.t. I held further meetings with the Director of the Military Justice and the General Prosecutor before the Military Court of Appeal in Tunis. Finally, I met members of the legal profession, , as well as representatives of the Higher Committee of Human Rights and Fundamental Freedoms, the Truth and Dignity Commission, civil society, academia, and United Nations agencies and other inter-governmental organizations . I would like to take this opportunity to thank all those who met me for the wealth of information they shared.

Ladies and gentlemen,

I would like to commend Tunisia’ efforts in establishing a democracy based on the rule of law and the principle of separation of powers. An important reform of the justice system started with the adoption of the Constituent Law of 16 December 2011. One of the main steps of the reform so far was the creation of the Instance Provisoire de la Justice Judiciaire in May 2013 to replace the Conseil Supérieur de la Magistrature, which was headed by the President of the Republic. The creation of the Instance Provisoire, a provisional independent body with financial and administrative autonomy and in charge of decisions on the careers of judges until the new permanent body established by the Constitution becomes operational, was an important achievement made possible by the revolution. Although the Provisional Instance has been facing challenges to fully exercise its functions due to resources and other constraints, it still constituted an important step in the initiation of the process of reform of justice.

The adoption of the Constitution in January 2014 constituted an important historic milestone in the process of justice reform. I welcome that the 2014 Constitution established the judicial power as one of the three branches of State and that it includes important guarantees for the independence of the justice system, judges, prosecutors and lawyers. I also commend the creation of the new Supreme Judicial Council and the Constitutional Court.

I wish to recognize the important efforts made during the transition to reform and strengthen the independence of the justice system in compliance with international human rights standards and principles. Transitions, however, always come with challenges, and very often more challenges are encountered along the way. I have witnessed that in Tunisia, many challenges to the independence of judges, prosecutors, and lawyers remain. This directly affects the access to and the delivery of justice. 

The close ties that used to exist between the judiciary and the executive under the previous regime - where the justice system was heavily centralized and the courts depended on the Ministry of Justice - still needs to be severed so that judges can become independent in practice.

The procedures for the selection, appointment, transfer, removal, discipline and training of judges and prosecutors, which are still partly in the hands of the executive power, will be positively modified with the establishment of the new Supreme Judicial Council.

The question of the independence of the judiciary is also related to the institutional culture and mentality. A mentality of dependence and subservience is not compatible with an independent justice system. It is, therefore, very important to work on developing all stakeholders’ understanding of the principle of independence of the judiciary in order to give effect to the related Constitutional provisions. The new structure foreseen by the Constitution, with the adoption of organic laws compliant with international standards will enable the Ministry of Justice, judges, prosecutors, and lawyers to start promoting real changes as to the role each was attributed by the Constitution.

Despite the provision of the Constitution according to which judges and prosecutors are part of the same judicial corps, it is crucial to establish in the respective organic laws the independence of judges from prosecutors and vice-versa to ensure the distinct role that each group should have, and to promote this clear separation in the laws in line with the United Nations Basic Principles on the Independence of the Judiciary and the United Nations Guidelines on the Role of Prosecutors.

The achievements of the Constitution related to the justice sector now need to be translated into reality. The provisional institutions need to give way to the permanent institutions and bodies. In particular, the Supreme Judicial Council needs to replace the Instance Provisoire de la Justice Judiciaire. The operationalization of the Constitutional Court is also extremely important. This should be done within the timeframe stipulated in the Constitution. I would like to underline here that these instances, as well as all the courts, need to enjoy real administrative and financial independence. This means that they should manage and prepare their own budget. They should also have appropriate human and material resources to ensure improved conditions and methods of work that are conducive to the exercise of their fundamental functions.

As far the Supreme Judicial Council is concerned, its constitutional role should be fully understood and be compliant with international standards. The administrative role of the Supreme Judicial Council is already enshrined in the Constitution. In my opinion, the bodies composing the Supreme Judicial Council - the Financial Judicial Council, the Administrative Judicial Council, the Judiciary Council and the Plenary Assembly - and their attributions were well thought by the constitutional legislator to cover the different aspects of the independence of the judicial system, including budget and material conditions, appointments and career-related matters, and disciplinary matters.

According to article 112 of the Constitution, a specific law should establish the exact and detailed mandate, structure and organization of the Supreme Judicial Council, as well as the procedures of each of its bodies. The law should clearly specify the number of members of the Supreme Judicial Council, the appointment procedure, and the term of the mandates.  Above all, the independence of the Supreme Judicial Council needs to be clearly established in the law in order to avoid its politicization. The law should also ensure that the Council does not become a formal institution without authority or independence, which can open the door to direct or indirect and undue influence from the executive or other types of powers. The Supreme Judicial Council may have plural composition (including legislators, lawyers, academicians and other interested parties), but the majority of its members should be judges elected to the Council by their peers.

Another important safeguard for the independence of judges is to set out fair, transparent and objective criteria and procedures for the selection, appointment and promotion of judges and prosecutors. Such procedures and criteria should be based on merit, competence, integrity and propriety. Initial training, on-going training and continuing legal education should be provided according to the role that judges and prosecutors should play. The security of tenure should be guaranteed up to a fixed retirement age or other fixed term. Disciplinary proceedings should be clearly established in the law and respect fair trial and due process guarantees, including the right to judicial review. A code of conduct or ethics should be put in place that clearly sets out reprehensible behavior and respective sanctions. This code of conduct needs to be sufficiently detailed and comprehensive, in line with the Bangalore Principles of Judicial Conduct and the principle of legality, and elaborated by the judges themselves. Once the code of conduct will have been adopted, adequate training should be organized to ensure the internalization of the provisions.

This brings me to the issue of the accountability of the judiciary. It is important for me to highlight that the requirement of independence and impartiality does not aim at benefitting the judges and prosecutors themselves, but rather the court users, as part of their inalienable right to a fair trial. Integrity and accountability are therefore essential elements of judicial independence and are intrinsically linked to respect for the rule of law. The General Inspection of the Ministry of Justice, which together with the former Supreme Judicial Council used to conduct disciplinary proceedings before the revolution, continued to play a role in disciplinary matters despite the substitution of the former Supreme Judicial Council with the Instance Provisoire de la Justice Judiciaire.

I have learned about the summary dismissal of more than 80 judges and prosecutors by decree of the Minister of Justice in May 2012. I was informed that the dismissals did not respect fair trial and due process guarantees and the procedures stipulated by the law. I am concerned about the chilling effect that such dismissal en masse may have had on the judiciary as a whole. I also was informed that some judges succeeded in challenging the unilateral decision of their dismissal before the Administrative Tribunal; at the moment, there are 32 such cases pending before the Tribunal.

To help strengthen the independence and impartiality of the judiciary, and combat negative perception in the public that the judiciary will never be independent, the organic laws should be aligned with the Constitution and international human rights standards and principles. There should be open and wide consultations including with judges, prosecutors, lawyers, clerk staff, civil society, and other stakeholders, during the drafting and negotiation phase of these laws.

Ladies and gentlemen,

During my visit, one of the major challenges to the independence of the judiciary I have identified is the issue of the corruption of the judiciary. Such a complex and pervasive issue needs to be tackled on various fronts. The salaries of the judges need to be increased, and their material conditions of work (including office infrastructures, basic facilities, and methods of work) need to be improved. Any inappropriate behavior should be duly investigated and disciplinary proceedings, or even criminal proceedings when warranted, should be undertaken.

In this respect, I wish to highlight as a positive step the establishment in the Constitution of the Good Governance and Anti-Corruption Commission as an independent body. The Commission has investigative powers regarding both public and private sectors and has a crucial role to play for ensuring accountability of public officials, including that of members of the judiciary. This would also help to improve the credibility and confidence in the judicial system.

I would like to encourage the Parliament to continue to improve the legal framework which should be reformed in accordance with international human rights law and principles; in particular the issue of pre-trial detention needs to be addressed properly. Indeed, article 29 of the Constitution provides that a person placed under arrest shall be immediately informed of his rights and the charges against him and may appoint a lawyer to represent him. Yet, in the code of criminal procedure, a person is allowed to consult with a lawyer only after having appeared before an investigative judge.

This situation is in contradiction of the right to access legal counsel and represents a serious gap conflict between the law and the guarantees enshrined in the Constitution. The criminal code and code of criminal procedure should be revised thoroughly to comply with the provisions of the new Constitution and international human rights treaties binding Tunisia.

In addition to the aforementioned legislative changes, law enforcement agents, and police officers need to be further trained to fully safeguard and protect the rights of detainees and those kept in pre-trial detention.

In relation to military courts, I received accounts according to which civilians are still being tried by military tribunals. I recommend that the legislation be revised to ensure that the military court system only has jurisdiction to try military personnel for offences committed in the exercise of their military functions in full compliance with relevant international human rights law and principles.

The Constitution has also recognized the importance of the independence of lawyers and its fundamental role in promoting and protecting fundamental rights and freedoms. I am nevertheless concerned about reports that lawyers are sometimes considered to be “enemies” of judges and prosecutors. I would like to highlight that lawyers play an essential role in guaranteeing the right to defense and, in accordance with the United Nations Basic Principles on the Role of Lawyers, they should not be confused with their clients or their clients’ causes. I am very pleased to note that there is an independent bar association that oversees the exercise of the legal profession.

Ladies and gentlemen,

Please allow me now to present some of my preliminary recommendations:

• I urge the Tunisian authorities to adopt the legislation needed to implement the provisions of the Constitution relating to the judicial system within the timeframe stipulated by the Constitution. In particular, the organic laws relating to the Supreme Judicial Council and the Constitutional Court should be adopted in consultation with representatives of the judiciary and other relevant stakeholders. The laws should comply with both the Constitution and international human rights standards and principles in order to ensure their respective independence and clarify their distinct roles as stipulated in the Constitution.

• The laws governing the statutes of judges, prosecutors and lawyers should be urgently reviewed in line with both the Constitution and international human rights standards and principles in order to ensure their independence and distinct roles.

• Other legislative reforms should be undertaken to bring the existing legislation in line with the Constitution and the international human rights obligations of Tunisia, in particular reforms of the criminal code and the code of criminal procedure should be urgently undertaken.

• The authorities should allocate the necessary financial and material resources to strengthen the independence of the judiciary and ensure better working conditions and methods of work in the courts.

• The authorities should work together with all relevant stakeholders to ensure that judicial independence is not only enshrined in law, but also applied in practice.

Let me conclude by calling upon the international community, including foreign partners, United Nations agencies and other international and non-governmental organizations, to strengthen their engagement in Tunisia and continue contributing to the consolidation of the justice sector and the independence of the judiciary and the legal profession with concrete and sustainable programs, whose implementation should be adequately monitored and assessed.

Thank you for your attention