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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.
On 12 and 13 December 2019, the IRZ, in cooperation with the Tunisian Administrative Court (Tribunal Administratif), the Venice Commission of the Council of Europe and the Arab Union of Administrative Judiciary (Union Arabe de l‘ordre Administratif) organised an international conference on “Administrative jurisdiction and election disputes” in Tunis. The event was held as part of the judicial reform project in Tunisia, which the IRZ coordinated between 2017 and 2019 with the support of the German Foreign Office.
The aim of the conference was to enable a multilateral exchange of experiences on the subject with EU member states and partner countries of the entire MENA region. High-ranking representatives of supreme administrative and constitutional courts from Germany, Egypt, France, Iraq, Italy, Jordan, Lebanon and Tunisia took part in the event, speaking about the legal framework for election verification processes in their own countries. The conference was opened by the President of the Tunisian parliament. From Germany, Prof. Dr. Christine Langenfeld, a judge at the German Federal Constitutional Court, and Michael Groepper, a former judge at the German Federal Administrative Court, were appointed by the IRZ to take part in the conference.
Prof. Dr. Langenfeld gave a lecture focussing on the legal framework for parliamentary elections in Germany. She also talked about electoral freedom, which should guarantee that the process of political opinion forming remains free and independent. Michael Groepper pointed out that a specific feature of the German legal system is its federal nature. This makes it very different from the centralist system in France, which the Tunisian legal system, for example, has also largely been based on until now. Due to the considerable differences compared with the German system, the lectures provided an interesting basis for discussions.
The Tunisians talked about the latest developments in the legal system and the 2019 presidential and parliamentary elections. Overall, they found that both elections were a success and this was also confirmed by election observers from other countries. The positive development of the election process has inspired trust and credibility in civil society. However, Tunisia’s transition to a democratic constitutional state still has major challenges to face. In this respect, the participants discussed the role of the media during election campaigns and the role of civil society, political parties and foreign observers in the monitoring of election campaigns.
On 9 and 10 December 2019, the IRZ held a symposium on supporting international legal cooperation in criminal cases. This event, which was financed by the German Federal Ministry of Justice and Consumer Protection (BMJV), was attended by delegations from the IRZ partner countries Tunisia, Algeria, Morocco, Senegal and Jordan. The Managing Director of the IRZ, Dr. Frauke Bachler, and Dr. Ralf Riegel, Head of the International Criminal Law division at the BMJV, welcomed the participants to the symposium. They were very pleased with the fact that the format allowed expert discussions on the first day, followed on the second day by bilateral talks with delegations from the participating partner states. The partner countries thanked the IRZ and the BMJV for the symposium and underlined their desire for closer cooperation.
Dr. Riegel and his colleague Çiğdem Görmez started by presenting the German perspectives and experiences to the participants. During subsequent discussions, the delegations established the basic similarities with practices in their own countries as far as the legal framework, procedures and responsibilities are concerned. For all the participating countries, international cooperation in criminal cases is based on bilateral and multilateral agreements, international law and national law. In Germany, there are also legally binding treaties from the European Council and the EU.
International legal cooperation in criminal matters focusses mainly on individual cases involving help with enforcement abroad or deportations. Most of the problems arising in partner countries are with the issue of requests for legal assistance and these are mainly due to language difficulties. Requests for assurances from countries, which have been asked for legal assistance by a country, are often an impediment to implementation. Steps must be taken to prevent a person being sentenced more than once for the same crime and, at the same time, a balance needs to be found between the different sentences issued by the countries involved.
Within the framework of bilateral talks with BMJV divisions responsible for international criminal law and international legal cooperation, the delegations expressed their desire to strengthen the cooperation in this area and to find effective solutions for the problems in the relevant countries.