Tunisia – annual report 2020

Online expert talk on consumer protection during the COVID-19 pandemic with Dr Dorothee Weckerling-Wilhelm, Head of Division at the Federal Ministry of Justice and Consumer Protection
Online expert talk on consumer protection during the COVID-19 pandemic with Dr Dorothee Weckerling-Wilhelm, Head of Division at the Federal Ministry of Justice and Consumer Protection

Strategic Framework 

Legal Policy Starting Point 

Even ten years after the revolution Tunisia has not achieved political stability, although it has made significant progress on the road to becoming a democratic constitutional state. The constitutional lawyer Kais Saied, an independent candidate and political novice, was the surprise winner of the presidential elections in September and October 2019. Parliamentary elections in October 2019 also resulted in strong fragmentation in the composition of parliament. This presented obstacles to the formation of a government, and agreement on a new cabinet was not reached until February 2020.

President Saied continued the reforms initiated by the previous government in the areas of promoting democracy, the rule of law and economic recovery. Policy to fight corruption and counter terrorism remain the top priorities. But the economic crisis has not yet been overcome, which has led to austerity measures, tax increases and job cuts in the public sector.

Tunisia also suffered economic setbacks due to the spread of the COVID-19 pandemic. In spring, the Tunisian government showed an early response to contain the pandemic by introducing travel restrictions, suspending public services and curtailing public life. But the collapse of tourism and the cessation of production in many companies led to a heavy loss of jobs. The judiciary was also caught unawares by the restrictions. Many courts, authorities and other public institutions were unable to operate or only to a very limited extent. This made it difficult for citizens to access the legal system and judiciary for weeks. In addition, the government issued numerous ordinances with the force of law in the spring, when parliament was unable to meet due to the pandemic, prompting political and legal debates about a possible threat to parliamentary democracy.

Despite the difficult circumstances and numerous changes of government, Tunisia continues to show great commitment to the legal and social reform process.

Overall Concept 

The bilateral project activities in support of legal reform in Tunisia that were launched by IRZ in 2011 are currently based on the Memorandum of Understanding on Cooperation between the Federal Ministry of Justice and Consumer Protection and the Ministry of Justice of the Republic of Tunisia that was concluded in early 2017. IRZ has already successfully implemented two work programmes between 2017 and 2020 as part of this Memorandum of Understanding. The Supreme Judicial Council is a key project partner for IRZ in these work programmes, in addition to the Tunisian Ministry of Justice. The Provisional Authority for the Examination of the Constitutionality of Draft Laws (IPCCPL), the Administrative Court, the Chamber of Notaries and the Bar Association, the General Directorate of Prisons and Rehabilitation, the Centre of Legal and Judicial Studies (CEJJ) as well as the National Anti-Corruption Authority (INLUCC) and the Association for Consumer Protection are also important partners for cooperation in Tunisia, depending on the area in question.

In addition to long-standing priorities, such as promoting the independence of the judiciary, attention shifted to some extent in the reporting year to the impact of the COVID-19 pandemic on public life and the judiciary. This brought issues such as digitisation of the judiciary and expansion of electronic legal correspondence to the forefront of cooperation.

Focus of Activity in 2020

Constitutional Law, Human Rights and their Enforceability 

  • Online exchange of experiences “State action in times of crisis and the principle of proportionality – implications for everyday life and the judiciary” with the Tunisian Ministry of Justice and the Centre of Legal and Judicial Studies (CEJJ)

Civil and Commercial Law 

  • Online conference “Proportionality of restrictions associated with COVID-19 and its impact on contract law by “force majeure”
  • Online conference “Apostille, new technologies and German-Tunisian relations” in cooperation with the Tunisian Chamber of Notaries
  • Online expert talk “Protecting consumers – good legal guidelines and challenges during the COVID-19 pandemic” with employees of the Tunisian Association for Consumer Protection (ODC)
  • Trilateral online exchange of experience with the Tunisian and Moroccan Ministries of Justice on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

Administration of Justice

  • Online conference “Digitisation of the judiciary” with the Tunisian Ministry of Justice
  • Online regional conference “Electronic legal correspondence – digitisation of the judiciary” in cooperation with the German Federal Bar
  • Support for the technical library at the Tunisian Ministry of Justice

Criminal and Penitentiary Law

  • Exchange of experience in Tunis on “Combatting corruption in sports handling of sports law” with the National Anti-corruption Commission in Tunisia
  • Online seminar “Reforms in Tunisian criminal law and criminal procedural law” with the Tunisian Ministry of Justice

Basic and Further Training

  • Development and editorial work of an IRZ departmental blog on German and African law
  • Print magazine “Juristische Blätter” in cooperation with the University of Tunis El Manar (Faculty of Law and Political Sciences)

Outlook

The activities planned for 2021 will continue to aim at supporting the implementation of judicial reform in Tunisia and will remain focused on current need for reform, such as in civil and commercial law. A new work programme for the years 2021 to 2022 will be introduced to continue the interministerial cooperation between the Federal Ministry of Justice and Consumer Protection and the Tunisian Ministry of Justice. It will include, in particular, cooperation in the areas of international private law, criminal law and criminal procedural law, combatting corruption, consumer protection and the independence of the judiciary. The year 2020 demonstrated without a doubt that efforts are necessary to ensure more comprehensive and effective digitisation within the Tunisian judiciary. Penitentiary law and administrative court jurisdiction will equally be featured in the advice and consultation provided by IRZ.

Tunisia - annual report 2019

Study trip on the topic “Integrity of constitutional court judges“
Study trip on the topic “Integrity of constitutional court judges“

Strategic Framework

Legal Policy Starting Point

Even eight years after the revolution, and although Tunisia has made significant progress towards a democratic constitutional state, the country is still not politically stable. After the death of President Beji Caid Essebsi, who was democratically elected in 2014, at the end of July 2019, presidential elections were held in September and October, from which the constitutional law expert Kais Saied, an independent candidate and political novice, surprisingly emerged as the winner. It remains to be seen which impetus this election will ultimately give to the political, economic and legal development of the country.

So far it is reasonable to assume that the newly elected President Saied will maintain the three policy pillars adopted by the former government:

  • security and enforcement of the rule of law,
  • strengthening of democracy and
  • continuation of economic development and implementation of the necessary projects.

Urgent reforms are also needed in Tunisia to stimulate economic growth. In spite of the difficult political and economic environment, the Tunisian authorities and civil society continue to drive the process of reforming legal and social policies. Despite numerous changes of government, many are working with tireless commitment and immense sincerity to democratise Tunisia.

Overall Concept

IRZ‘s bilateral project activities to support legal reform in Tunisia, which have continued since 2011, were further intensified at the beginning of 2017 by the joint declaration of intent on legal cooperation between the Federal Ministry of Justice and Consumer Protection and the Ministry of Justice of the Republic of Tunisia. An initial work programme for the years 2017 and 2018 was brought to a successful conclusion as part of this declaration of intent. Subsequently, a follow-on work programme was adopted for the period 2019 to 2020, on which IRZ is currently working. Funded by the Federal Foreign Office, the project to promote judicial reform in Tunisia, that has been implemented by IRZ since 2017, was successfully completed after a term of over two years.

The Supreme Judicial Council is still the central project partner to IRZ within the Tunisian judiciary. Its task is to guarantee the independence of the Tunisian judiciary and, in this role, to provide additional security for the rule of law and for the rights and freedoms of citizens. It follows, therefore, that IRZ‘s activities in Tunisia are primarily focused on the independence of the judiciary.

So far, the Constitutional Court has not been able to formally commence its work due to continuing disagreement over the election of its members. Nonetheless, IRZ is continuing its work on issues of constitutional law, particularly in cooperation with the Tunisian „Provisional Commission to Review the Constitutionality of Draft Legislations“, which is tasked with performing matters of constitutional adjudication until the Tunisian Constitutional Court actually starts work. This consultation focuses on questions concerning the position and competences of a Constitutional Court within the judicial system.

Administrative court jurisdiction is also undergoing an intensive reform process with the aim of developing and adopting a law on administrative courts. The decentralisation process initiated in the course of the reforms was implemented both in the administrative sector and within administrative court jurisdiction in order to help enhance self-administration. IRZ also provides consultation to the Tunisian Administrative Court on practical issues of electoral disputes and election review procedures due to the great need for counselling in this area.

With regard to the penitentiary system, project work focuses mainly on reform approaches within the four-year plan to reform the judiciary and penitentiary system, which was adopted by the government for 2015 to 2019. The advice focuses primarily on issues of rehabilitation planning, preparing inmates for release, transition management and the resocialisation of inmates after release.

Focus of Activity in 2019

Constitutional Law/Human Rights and their Enforceability

  • Conference in Tunis “Constitutional courts and their role in ensuring legal certainty“
  • Conference “The principle of proportionality: Importance, scope and control mechanisms“ in Tunis
  • Study trip of a Tunisian delegation to Karlsruhe, Hamm and Düsseldorf on the topic “Integrity of constitutional court judges“

Civil and Commercial Law

  • Participation of Tunisian experts in the International Conference on Competition in Berlin
  • Participation of Tunisian experts in the International Lawyers‘ Forum in Berlin
  • Exchange of experience in Tunis on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
  • Exchange of experience in Tunis on the topic of “Consumer protection in the Tunisian and German legal system“
  • Exchange of experience in Tunis on the issue “Practical aspects of the Apostille process and notarial professional law“

Public Law

  • Seminar “Election complaints and the legal review of election results in election disputes“ in Tunis
  • Conference “Administrative justice and election disputes“ in Tunis

Administration of Justice

  • Seminar on the topic of “Judiciary and the media“ in Tunis
  • Round table discussion on “Coordination of legal cooperation with Tunisia“
  • Seminar in Tunis on the topic of legislation technique
  • Exchange of experience on the efficiency of the judiciary in Tunis

Criminal Law and Penitentiary Law

  • Study trip by a Tunisian delegation to Berlin on the topic “Involvement of economic actors and adaptation of education and training opportunities taking into account the needs of the German labour market“
  • Exchange of experience in Tunis on “Combating corruption – mechanisms and prevention“
  • Symposium in Berlin on the practice of international legal assistance in criminal matters, with participants from the Ministries of Justice and the Public Prosecutors‘ Offices of Algeria, Jordan, Morocco, Senegal and Tunisia

Basic and Further Training

  • Seminar in Tunis on personal, social and methodological skills in professional practice (soft skills) for the judiciary

Outlook

The activities planned for 2020 continue to aim at strengthening the consolidation and implementation of Tunisia‘s new Constitution of 2014 and supporting both the judiciary and the executive in the forthcoming reform projects. IRZ plans to move forward with its assistance to the Constitutional Court until it is fully established and operational. The same applies to the Supreme Judicial Council as a means of ensuring the independence of the judiciary. Project activities will also prioritise the fight against human trafficking. This will be complemented by advisory services and training in the field of legislation technique, which will be aimed primarily at project partners at ministerial level. By supporting the drafting of good and effective laws, IRZ aims to contribute to strengthening legal certainty.

In addition, the implementation of the work programme between the Federal Ministry of Justice and Consumer Protection and the Ministry of Justice of the Republic of Tunisia will continue in 2020. In particular, the work programme sets out cooperation in the fields of international private law, criminal law and criminal procedure law, combating corruption, human rights and consumer protection and the independence of the judiciary.

Tunisia - annual report 2018

Opening of the regional conference in Tunis to support in structuring the Tunisian Constitutional Court: among others, Taieb Rached (centre), President of the Provisional Instance to Review the Constitutionality of Draft Legislation, and Carsten Meyer-Wiefhausen (on the right), Deputy Ambassador for the Federal Republic of Germany
Opening of the regional conference in Tunis to support in structuring the Tunisian Constitutional Court: among others, Taieb Rached (centre), President of the Provisional Instance to Review the Constitutionality of Draft Legislation, and Carsten Meyer-Wiefhausen (on the right), Deputy Ambassador for the Federal Republic of Germany

Strategic Framework

Legal Policy Starting Point

The Arab Spring is widely considered to have originated in Tunisia. Despite strong reform efforts and an initial euphoria, the North African country continues to struggle with political and economic problems. There were nationwide protests and riots in early 2018, provoked by the poor economic situation in the country. Nevertheless, Tunisia is persevering in its efforts to introduce political reforms and to decentralise administration. In this regard, the local elections held in March 2018 represented another step forward in the political reform process.

Changes have also been noted in terms of the legal structures. The Supreme Judicial Council, whose members were elected for the first time in October 2016, is the self-regulatory body within the Tunisian judiciary. Preparations are also under way for the timely replacement of the Provisional Instance to Review the Constitutionality of Draft Legislation with an ordinary Constitutional Court. In addition, a number of commissions have been established to act as supervisory bodies, among them an Electoral Commission and a Commission on Policy to Combat Corruption and Good Governance. In spite of the difficult political environment, the Tunisian authorities and civil society continue to drive the process of reforming legal policies. Seeking to overcome the political crisis, Prime Minister Youssef Chahed initiated a cabinet reshuffle in November 2018, which also involved appointing a new Minister of Justice. Additional impetus for reform may result from the parliamentary and presidential elections that are scheduled for 2019.

Overall Concept

The IRZ has been carrying out bilateral legal reform projects with Tunisian partners within the framework of its institutional subsidy since as early as 2011. Support from the Federal Foreign Office as part of its transformation partnerships was added in 2012. Scheduled to run until the end of 2019, the IRZ has implemented, within the framework of its current project under the transformation partnerships, measures to support judicial reform in Tunisia since autumn 2017. Moreover, implementation of the work programme on the joint declaration of intent on legal cooperation between the Federal Ministry of Justice and Consumer Protection and the Ministry of Justice of the Republic of Tunisia was extended from 2017 to 2018.

Following three years of intense and controversial discussions, the Supreme Judicial Council, which was newly elected in October 2016, should regulate the position of the judiciary within the Tunisian state structure and ensure its independence. In accordance with the new constitution of 2014, its establishment will be followed by the founding and development of the Constitutional Court, which will create additional security for the rule of law and the rights and freedoms of citizens. The selection process for members of the court is currently ongoing. Of the twelve members of the Constitutional Court, four will be chosen by the Tunisian Parliament. So far, however, Parliament has only managed to agree on the selection of one single candidate. Hence, the IRZ counselling work will mainly focus on issues that relate to establishment of the institution itself. Among the particular tasks in this regard are issues of court procedure and business processes, court administration and questions of funding.

Administrative court jurisdiction is also experiencing a significant reform process that is aimed at the drafting and passage of an administrative court act. Initial reform measures were implemented in 2018, but further efforts will be required in a variety of areas to ensure their finalisation.

Since 2011, all reform plans by the Tunisian government have prioritised reforms of the country‘s penitentiary system. In particular the conditions in Tunisian penitentiaries require comprehensive change and improvement.

So far, the issues of resocialisation and the release of prisoners have been dealt with as marginal issues but have now been assigned priority status. A Resocialisation Commission has been set up within the penitentiary authorities for this purpose. It brings together stakeholders entrusted with the resocialisation of inmates, with the aim of initiating sweeping reform of the penitentiary system and of placing a clear focus on the resocialisation of inmates.

Overall, the IRZ has continued to make a substantial contribution to the stabilisation process in Tunisia by providing counselling and education.

Foci of Activity in 2018

Constitutional Law/Human Rights and their Enforceability

  • Study trip to Karlsruhe by Tunisian judges on the organisation of a Constitutional Court (court structure, court administration, case management)
  • Regional conference in Tunis with constitutional judges from Jordan, Morocco, Algeria and Germany to hold technical discussions and to support the establishment of a Constitutional Court in Tunisia

Civil and Commercial Law

  • Exchange of experience in Tunis on selected conventions of the Hague Conference on Private International Law
  • Study trip to Bonn by a delegation of the Tunisian Chamber of Notaries on the topic “Practical aspects of the issuance of an Apostille, as well as current issues within notarial professional law“
  • Study trip to Munich by a delegation of the Tunisian Competition Agency on the issue of “Procedures in the field of intellectual property protection and competition law according to the German practice“

Administration of Justice

  • Seminar in Tunis on the topic of “Administration and the role of the Ministry of Justice and Supreme Judicial Council within the judicial system in Tunisia“
  • Study trip to Berlin by a delegation of the Supreme Judicial Council of the Republic of Tunisia on the independence of the judiciary

Criminal Law and Penitentiary Law

  • Study trip to Berlin by a Tunisian delegation on the topic of “Classification of inmates“ and “Transition management and post-release supervision in the penitentiary system“
  • Seminar in Tunis on international cooperation in criminal law, with particular consideration of extradition proceedings
  • Regional conference in Tunis on the topic “Deradicalisation of inmates within the framework of the rehabilitation plan for prisoners“

Project funded by the European Union

EU Twinning project: Renforcement des institutions de l’administration pénitentiaire

The final conference of the EU Twinning Project for reform of the penitentiary system was held in Tunis in a festive setting on 26 September 2018. The IRZ successfully implemented this project as a junior partner under the leadership of the French organisation Justice Coopération Internationale (JCI) between October 2015 and September 2018. The event was attended by high-level guests from the partner states, as well as by representatives of the beneficiary institutions in Tunisia (Ministry of Justice, Directorate General for Prisons and and Reeducation, National Academy for Prisons and Reeducation ).

Equipped with a budget of €1.8 million, the project achieved the following goals:

  • strengthening of institutional capacities at the Directorate General for Prisons and Reeducation through the provision of basic training to correctional officers;
  • support for reform of the National Academy for Prisons and Reeducation through the development of a new programme of training and courses;
  • establishment of a national probation system through the development of a new manual, as well as basic training for new probation officers.

Implementation of the project objectives took place within the framework of regular seminars, study trips and training courses in close cooperation between the expert team and the respective Tunisian partners. In addition, the technical experts from France, Germany and Spain worked with the Tunisian partners on the ground to produce proposals for the improvement of basic training for Tunisian correctional officers.

Given that an increasing focus is being placed on reforming the penitentiary system in Tunisia, a significant need for counselling in this field continues to exist.

Outlook

The most recent events in Tunisia make clear that the country still requires support in its democratisation and reform processes. Hence, the IRZ plans to continue its commitment in the aforementioned fields in 2019 as well. They are all highly topical and require sustained cooperation.

In regard to constitutional court jurisdiction, prioritisation should shift to the establishment and organisation of the Constitutional Court itself once the process of selecting the judges is complete. Cooperation with the prison administration will also proceed and will involve advice for the Rehabilitation Commission. A new work programme between the Federal Ministry of Justice and Consumer Protection and the Ministry of Justice of the Republic of Tunisia is in preparation for 2019 to 2020.