Trinational exchange of experiences on the HCA with Morocco and Tunisia

Graphics: IRZ
Graphics: IRZ
Morocco and Tunisia

On 5 November 2020, IRZ and the Moroccan and Tunisian Ministries of Justice organised an online exchange of experiences on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (HCA). Morocco acceded to the HCA in 2010. Germany has already accepted Morocco’s accession, whereas it has yet to accept Tunisia's entry to the HCA in 2017.

Around forty representatives from both countries’ Ministries of Justice and justice systems took part in the discussions. Also in attendance was a representative of the Legal and Consulate department at the Germany Embassy in Rabat.

The experts taking part in the event on behalf of IRZ were Sabine Brieger, a former judge at the Local Court of Pankow/Weißensee and a former German liaison magistrate, and Martina Erb-Klünemann, a judge at the Local Court of Hamm and a German liaison magistrate.

The participants discussed the following three main topics:

  • mechanisms and instruments in national laws on the implementation of the HCA
  • judicial repatriation processes including enforcement
  • mediation in international child abduction proceedings

There were lectures on the first two subjects to outline current developments in the countries concerned and to discuss their respective experiences. Various aspects of the practical application of the Convention were discussed. For example, the HCA provides for support by a central state authority. This function is fulfilled in Germany by the German Federal Office of Justice, whereas in Morocco and Tunisia the Ministry of Justice is responsible as the central authority in international child abduction affairs. The participants also discussed the specific nature of proceedings to comply with the HCA. Afterwards, the German participants presented the mediation approach in connection with the HCA. Mediation is not yet in use in either Morocco or Tunisia.

This regional event led to a lively and wide-ranging exchange of experiences, with many people getting involved in the discussions. Both Morocco and Tunisia have expressed their needs and interests in continuing and expanding on cooperation in this field. IRZ is therefore planning a follow-up event for next year. The exchange of experiences was supported by the German Federal Ministry of Justice and Consumer Protection.

Online seminar on “Apostille, new Technologies and Notary Services”

Graphics: IRZ
Graphics: IRZ

On 10 June 2020, IRZ organised a online seminar on “Apostille, new Technologies and Notary Services”. The online event was aimed at thirty or so notaries from all over Tunisia. The experts participating in the online seminar from Tunisia and Germany were:

  • Kais Kabada, President of the Tunisian Chamber of Notaries,
  • Richard Bock, Justizrat and former Vice-President of the German Federal Chamber of Notaries,
  • Dr. Torsten Jäger, notary,
  • Houcine Lagrem, Secretary of the Tunisian Chamber of Notaries,
  • Dr. Peter Stelmaszczyk, Managing Director of the German Federal Chamber of Notaries in Brussels, and
  • Sourour Abidi, notary.

The initiative for the online seminar came from the Tunisian Chamber of Notaries, due to the restrictions and hurdles resulting from the current legal and political situation during the coronavirus pandemic. The event focussed on the challenges facing notarial services because of the restrictions, curfews, closures and distancing measures in place. The aim was to find solutions to these challenges. The participants also discussed the effects of the coronavirus pandemic with a view to economic and private law issues.

Since notarial certification, the verification of the authenticity of documents, seals, signatures, identities and stamps, is usually almost exclusively carried out in person and on presentation of original documents, the coronavirus pandemic is hitting notarial transactions particularly hard. Many notary’s offices have been affected by the restrictions in the wake of the crisis and have remained closed, which means that citizens have to a large extent been unable to gain access to the law and legal transactions.

During the online seminar, individual problems concerning notary services and legal transactions in Tunisia and Germany were discussed, as well as potential solutions such as the e-Apostille system. At present, both countries have a low level of digitalised legal transactions. Within this context, the participants discussed the e-Apostille system, as well as the dangers, advantages and disadvantages of digital legal transactions. They talked about how the safety, confidentiality and authenticity of persons, documents and contents can be protected, without any obvious inspection being carried out. They also discussed the risk of authenticating and legalising documents, which could be counterfeits. The experts put forward proposals for the conditions under which the digital verification of documents could be possible. In this context, the Belgian model was presented: A third-party online platform provides all verified documents with an encrypted code to prevent any manipulations.

There are also efforts at EU level to set criteria and standards for harmonising legalisation procedures, with a regulation due to come into force in 2022. The envisaged procedures will require an electronic identity document with PIN and video identification with PIN. Since not all EU countries allow the collection of biometric data, it will be difficult for members to agree on a standardised procedure to cover the entire EU. The participating Tunisian and German notaries did, however, agree that the simplification and harmonisation of legal transactions must also be reflected digitally.

Whilst Tunisia has joined the Hague Apostille Convention, the Convention does not yet apply with relation to Germany. There is therefore not yet any universally valid and recognised digital process to qualify and legalise documents, seals, signatures and stamps. The participants also agreed that the certification process should not be allowed to proceed exclusively via an app and algorithms, without any human intervention.

Background information

With the help of institutional funding, IRZ has been organising bilateral projects on legal reform with its Tunisian partners since 2011. These are currently established between the German Federal Ministry of Justice and Consumer Protection and the Tunisian Ministry of Justice as part of the working programme for 2019 - 2020. Within the framework of this programme, the IRZ has a partnership with the Tunisian Ministry of Justice and therefore also with the Tunisian Chamber of Notaries, which itself has good relations with the German Federal Chamber of Notaries. The continuation of these relations is fundamental for the improvement of legal transactions between Tunisia and Germany.

Legal mechanisms for tackling the Coronavirus – state actions during the crisis and the principle of proportionality

Graphics: IRZ
Graphics: IRZ

On 20 May 2020, the IRZ, together with the Tunisian Centre d’Études Juridiques et Judiciaires (CEJJ), provided the first exchange of experiences on the current legal and political situation with regards to the Coronavirus pandemic. The online event took place as part of the current working programme between the German Federal Ministry of Justice and Consumer Protection and the Tunisian Ministry of Justice. The discussions focussed on the restriction of basic and constitutional rights aimed at limiting the spread of Covid-19, and on the proportionality of these restrictions. The participants also discussed the effects of these measures on everyday life and on the legal system.

The following experts took part in the online event:

  • Prof. Dr. Michaela Wittinger, a professor in Constitutional, State, European and International Law at the Federal University of Applied Administrative Sciences in Mannheim
  • Stefan Schlotter, Public Prosecutor, Public Prosecutor's Office Frankfurt am Main
  • Samar Jaiidi, a researcher at the CEJJ and judge on constitutional issues
  • Iyadh Chaouachi, a judge and Group Leader in Administrative Law at the CEJJ
  • Yassine Ammar, a judge and researcher on criminal cases at the CEJJ

Since Tunisia is a young democracy, with a constitution adopted as recently as 2014 and as yet no operational constitutional court, the laws and regulations approved by decree by the executive authorities to deal with the Coronavirus pandemic weigh particularly heavily. They may threaten the still fragile parliamentary democracy. Since there is not yet an active Constitutional Court, which can declare laws or government actions as unconstitutional, it is particularly important to handle restrictions appropriately and proportionately in this legal and political vacuum.

Discussions between experts from different legal cultures and backgrounds encourage a critical and committed approach to maintaining and developing the rule of law. With this in mind, the exchange of ideas dealt with the principle of proportionality and the legal measures imposed by states during the Coronavirus pandemic. This included the restriction of citizens’ freedom and the effects of the measures on the judicial system.

The participants looked at the course of the pandemic in Tunisia and Germany and the related restrictions and regulations imposed. They discussed the effects of infringements on the penal policy. In doing so, they established a trend towards the criminalisation of citizens and a shift from regulatory law towards criminal law. They also talked about the digitalisation of the judicial system, which is still insufficient in both countries. There was a general consensus amongst the participants that this has a negative effect on fast access to the law and legal remedy. They called for the rapid expansion of digital infrastructure to allow the further development of electronic legal transactions.

One objective of the IRZ is to offer its Tunisian partners advice, even at short notice, resulting from current issues concerning the rule of law, as was the case for this online exchange of experiences. IRZ will also continue to provide Tunisia with rule-of-law support that has been in place since 2011.