Judicial Foundation and Legal Codification
The legal system of Tunisia is based on Islamic legal principles and has been influenced by Civil Law traditions. Article 65 of the Tunisian Constitution of 1959 guarantees the independence of the judiciary. There are multiple codifications of the law that serve as the primary guides in judicial decision-making. Among these are the Civil Code of 1957, which establishes the guidelines for all personal status matters, and to which all Tunisians, regardless of race and ethnicity, are subject; the Commercial Code of 1959; the Criminal Code of 1913; and the Code of Criminal Procedure of 1921. The law is reported through the Journal Officiel. The Superior Judicial Council serves as the administrative authority of the judiciary. The Council is presided over by the President of the Republic and is composed of senior jurors. The Ministry of Justice administers the judiciary.
Judicial Structure and Court System
Shari’a courts were abolished in 1956 and since then Tunisia has had a single unified judiciary structure. The current judicial system has civil, criminal, and administrative departments. The civil court system is composed of a four-tiered hierarchy of courts. At the base of the structure are the 51 District Courts, in which a single judge hears each case. The jurisdiction of the District Courts extends to civil cases of lesser value, as well as cases related to issues of labor and nationality. At the next level are the Courts of First Instance, which serve as the appellate courts for the District Courts. There is a Court of First Instance located in each region of Tunisia, and these are empowered to hear all commercial and civil cases, irrespective of the monetary value of the claim. Each Court is composed of a three-judge panel. At the next level of the structure are the Appeals Courts, which serve as the appellate courts for decisions made in the Courts of First Instance. The three Appeals Courts are located in Tunis, Sousse, Sfax. Cases that were originally heard in the District Courts and appealed to the Courts of First Instance may be further appealed to the Supreme Court.
The organization of the criminal court system is similar to that of the civil court system. The District Courts have jurisdiction to hear all misdemeanor cases, while the Courts of First Instance hear all other criminal cases except felonies. Felony crimes are first heard by a grand jury. Once a judge issues an indictment based on the grand jury proceedings, the case is submitted to the criminal court division of the Appeals Court. The criminal division of the Court of Cassation serves as the final appellate court for criminal matters. There is also a system of military tribunals with jurisdiction over military personnel and crimes related to national sovereignty.
Judicial Authority and Appointment of Judges
The Superior Council of the Judiciary is charged with the appointment, promotion, transfer and dismissal of judges. Since the President is the head of this council, the executive branch exercises an indirect authority over the judiciary, despite the guarantee of an independent judiciary provided by Article 65 of the Constitution.
At the apex of the judicial structure is the Supreme Court, or Court of Cassation, which is located in Tunis and serves as the final court of appeals. The Court has one criminal and three civil divisions. The Supreme Court only considers arguments pertaining to points of law, and does not deal with factual contentions.
Constitutionality of Laws – Judicial Review
Although Tunisia has a Constitutional Council charged with determining the constitutionality of laws, the council is not part of the judicial system, and can only review laws once, prior to their enactment.
Judicial Education and Profession
Tunisia possesses seven legal faculties. Six are located in Tunis, the capital, including those at the Free University of Tunisia, the University of Letters, Arts and Humanities, and the University of Zaitouna. The University of Sfax is home to the only law faculty outside of Tunis.
The Tunisian Bar Association has existed for over a century, and its members were very active in opposing colonial occupation, with Habib Bourgiba, former president for life, among them. Within the past decade, however, lawyers engaged in civil rights trials have encountered difficulties in obtaining legal documents and receiving permission to visit their clients in prison. Some lawyers have reported being put under surveillance by the secret police, having documents and personal effects confiscated, and, in one case, even being prevented from arguing cases in court. One judge in the Courts of First Instance was removed from his post for writing a letter to President Ben Ali denouncing government harassment of the judges and the lack of an independent judiciary.