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.

Exchange of Experiences in Tunis on combating Corruption in Sport

The participants with the INLUCC President, Shawki Al-Tabib (centre), and the German expert Dr. Helmut Brocke (on his left) (photo: Wassim Bougdar,  INLUCC)
The participants with the INLUCC President, Shawki Al-Tabib (centre), and the German expert Dr. Helmut Brocke (on his left) (photo: Wassim Bougdar, INLUCC)

On 10 and 11 March 2020, IRZ organised an exchange of experiences on “Combating Corruption in Sport – Applying the Law in Sport” in partnership with the Tunisian National Anti-Corruption Authority (INLUCC = Institution Nationale de Lutte Contre la Corruption). Whilst Tunisia has already ratified all the relevant international and regional conventions on preventing and combating corruption, the subject continues to be topical. Corruption is a relevant topic in politics, public administration, justice and civil society, such as sports associations. Prior to this event, it was reported in Tunisia that sports clubs are increasingly being financed by companies and that the bribery and corruption of referees is rising. There are also problems with invitations to tender and with elections within sports associations. It was reported that there has recently been an increase in tax fraud and money laundering in the sports industry. The Tunisian justice system does not include any form of arbitration to cover sports issues.
This led to the establishment of the following main topics of conversation for the exchange of experiences:

  • good governance in sports associations in Germany and Tunisia
  • codes of conduct and the management of sports associations
  • mechanisms for combating and preventing corruption in Germany and Tunisia
  • arbitration and alternative dispute resolution

Sport is also the largest civilian movement in Tunisia and, following the 2010 revolution, sports associations now need to establish their new roles in the division from politics. At the same time, sport has high expectations of the government and state administration. Over the course of the two-day event, all the important representatives from the Ministry of Sport, state controlling bodies and sports associations were represented and positioned themselves with speeches and interventions. On the Tunisian side, the event was organised by

  • Shawki Al-Tabib, President of the National Anti-Corruption Authority,
  • Ahmed Galoul, Minister for Youth and Sport, and
  • Mehry Boussaine, President of the National Olympic Commission in Tunisia.

Representing IRZ at the event was Dr. Helmut Brocke, a lawyer and former Senior District Manager.

The topic of "Combating Corruption in Sport” was met with a great deal of interest from sports associations, as well as from the worlds of politics, justice, administration and, not least, the media. With participants from a wide variety of backgrounds, many different points of view were presented and discussed. An intense exchange of experiences took place throughout both days of the event. There are plans to continue the cooperation with the INLUCC.

Background information

With the help of institutional funding, IRZ has been organising bilateral projects on legal reform with its Tunisian partners since 2011. The exchange of experiences detailed above was a continuation of the opening event on “Combating Corruption – Mechanisms and Prevention”, part of the working programme for 2019 and 2020 organised by the German Federal Ministry of Justice and Consumer Protection and the Tunisian Ministry of Justice, which took place in Tunis in October 2019.

Conference in Tunis on “The Principle of Proportionality: Significance, Scope, Control Mechanisms”

Work session on the first day of the conference
Work session on the first day of the conference

On 18 and 19 December 2019, the IRZ, in partnership with the “Provisional Authority for the Examination of the Constitutionality of Draft Laws” (IPCCPL) and the Supreme Judicial Council of Tunisia, organised a two-day conference in Tunis on “The Principle of Proportionality: Significance, Scope, Control Mechanisms”. The event was held as part of the judicial reform project in Tunisia, which the IRZ implemented between 2017 and 2019. The project was supported by the German Federal Foreign Office.

The conference was part of project component III supporting the development of the Constitutional Court in Tunisia. The creation of a Constitutional Court was set out in the Tunisian constitution of 2014.

The conference dealt with the principle of proportionality, its significance and historic roots in German and Tunisian law and with issues concerning the suitability of the principle for dealing appropriately with the limits, challenges and considerations in the context of constitutional law.

The following experts from Tunisia and Germany gave lectures at the event:

  • Prof. Dr. Sami Jerbi, IPCCPL and a professor in private and commercial law at the University of Sfax in Tunisia
  • Winfried Schubert, former President of the Constitutional Court of the State of Saxony-Anhalt
  • Sondes Bachnaoui, a judge at the Constitutional Court of the North Tunisian province of Kef
  • Prof. Dr. Reinhard Gaier, a former judge at the German Federal Constitutional Court
  • Prof. Dr. Mustapha Ben Letaief, a professor in public law at the Law Faculty of the University of Tunis, Tunisia

The experts established that the lack of uniformity in the way judges interpret the law in Tunisia is down to the absence of a functional constitutional court in Tunisia. Without a constitutional court, the implementation of “straightforward” standardised legal principles presents a problem for members of the supreme courts. In Tunisia, this affects judges at the Court of Cassation as well as administrative judges. After all, the passing of unconstitutional legislation can only be revoked by a constitutional court. The absence of this controlling body also hinders straightforward civil and criminal jurisdiction in general and implies legal uncertainty for all judicial authorities.

The principle of proportionality was generally perceived by the Tunisian participants as a suitable test for the administration and application of the law and is increasingly being applied not only in public law but also in a similar form in Tunisian civil and criminal law.

Since the parliamentary elections held in Tunisia in September and October 2019, the Tunisian government has been working intensively under the newly elected President without a party, Kais Saied, to set up a workable constitutional court. Once the act on setting up a constitutional court law has come into force, the court will be able to formally start work. However, this is being prevented from happening because of the failure of Parliament to agree on the appointment of suitable candidates for judges.

Until the time when the Tunisian Constitutional Court becomes fully functional, the IRZ is advising the IPCCPL with specialist expertise. The aim of this project is to support the political and legal institutions of judicial and executive authorities in the execution of the functions that are embedded in its constitution. In concrete terms, this means that the IRZ plans to continue with the constitutional support it has provided until now. However, more time is still required to achieve these objectives.