UNDP United Nations Development Programme ������ ����� ������� ��������
Programme on Governance in the Arab Region ������ ����� ����� �� ����� ������� POGAR
Publications: Judiciary
- Introduction
- Sources On Arab Judiciaries
- Algeria
- Egypt
- Jordan
- Kuwait
- Lebanon
- Morocco
- Palestine/PNA
- Saudi Arabia
- Sudan
- Syria
- Tunisia
- United Arab Emirates
- Yemen
- Summary Tables
- Constitutional Provisions On The Judiciary
- Structure Of Court System
- Personal Status Issues
- Prosecution System
- Appointing/ Assigning/ Evaluation Of Judges
- Administration And Relationship With The Ministry Of Justice
- Specialized Courts And Their Jurisdictions
- Judicial Education

Arab Judicial Structures
A Study Presented To The United Nations Development Program
by Nathan J. Brown
Algeria

The Algerian judiciary has continued operating through two difficult periods since independence. First, in the 1960s, the country�s leadership was less friendly to the idea of separation of powers than almost any other Arab state. Second, the political upheaval of the 1990s made it difficult for many state institutions to function for an extended period. Part of the attempt to resolve the disputes that wracked Algeria during that period involved strengthening judicial institutions, but that process has only begun.

  1. Constitutional provisions for the judiciary

    Algeria has experienced some instability in its constitutional order. While constitutions have been in effect, they sometimes insisted that ideological principles be honored by the judiciary even while speaking of judicial independence. Critics charged that the effect was to subordinate the judiciary to official ideology as defined by the ruling party. Algeria�s 1996 constitution, however, has extensive provisions for the judiciary and abandoned the attempt to prescribe a specific ideology.

    Article 138 The judicial authority is independent. It is exercised within the framework of the law.
    Article 139 The judicial authority protects the society and the liberties. It guarantees, to all and to everyone, the safeguard of their fundamental rights.
    Article 140 Justice is founded on the principles of lawfulness and equality. It is the same for all, accessible for all and is expressed by the respect of the law.
    Article 141 Justice is dispensed on behalf of the People.
    Article 142 Punishments should comply with the principles of lawfulness and individuality.
    Article 143 Justice shall provide recourse against the decisions of administrative agencies.
    Article 144 The decisions of justice are justified and pronounced in public hearing.
    Article 145 All the qualified State bodies should ensure, at any time, in any place and in any circumstances, the execution of justice decisions.
    Article 146 Justice is pronounced by magistrates. People�s assessors may assist them in accordance with the conditions defined by law.
    Article 147 The judge is subject only to the law.
    Article 148 The judge is protected against any foam of pressure, interventions or maneuvers that prejudice his mission or the respect of his free will.
    Article 149 The magistrate is answerable before the Supreme Judicial Council and within the forms prescribed by the law on the way he accomplishes his task.
    Article 150 The law protects the litigants against judicial abuse and deviation.
    Article 151 The right for defense is recognized. In penal matters, it is guaranteed.
    Article 152 The High Court is the regulating body for the activities of the courts and tribunals. A Council of State is instituted as a regulating body of activities of the administrative jurisdictions. The High Court and the Council of State are responsible for the unification of jurisprudence throughout the country and see to the respect of the law.
    A Tribunal of Conflicts is instituted to settle conflicts of competency between the High Court and the Council of State.
    Article 153 The organization, the functioning and other attributions of the High Court, the Council of State and the Tribunals of Conflicts are defined by an organic law.
    Article 154 The Supreme Judicial Council is headed by the President of the Republic.
    Article 155 The Supreme Judicial Council decides, within the conditions defined by the law, the appointment, transfer and the progress of the magistrate�s careers. It provides for the respect of the provisions provided for the statute of the magistracy and of the control of discipline under the chairmanship of the First President of the High Court.
    Article 156 The Supreme Judicial Council gives a prior consultative opinion to the exercise of the right of free pardon by the President of the Republic.
    Article 157 An organic law defines the composition, the functioning and the other prerogatives of the Supreme Judicial Council.
    Article 158 A High Court of State is instituted to deal with actions that can be qualified of high treason committed by the President of the Republic, with crimes and infringements committed by the Head of Government during their of office. An organic law defines the composition, the organization and the functioning of the High Court of State as well as the procedures of implementation.
    Article 163 A Constitutional Council is instituted to guarantee respect of the constitution. The Constitutional Council also ensures proper process in referenda, election of the President of the Republic, and legislative elections. It proclaims the results of these operations.
    Article 164 The Constitutional Council is composed of nine members: three appointed by the President of the Republic among whom is the President, two elected by the People�s National Assembly, two elected by the Council of Nation, one elected by the Supreme Court of Nation, one elected by the Council of state. Once elected or appointed the members of the Constitutional Council cease any other mandate, function, responsibility or mission. The President of the Republic appoints the President of the Constitutional Council for a single mandate of six years. The other members of the Constitutional Council fill a unique mandate of six years and are renewed by half every three years.
    Article 165 In addition to the prerogatives explicitly bestowed upon it by other provisions of the constitution, the Constitutional Council pronounces on the constitutionality of treaties, laws and regulations, either through an opinion if these are not enforced or, otherwise, through a decision. The Constitutional Council, called upon by the President of the Republic, expresses a binding opinion on the constitutionality of the organic laws following their adoption by the Parliament. The Constitutional Council also pronounces on the conformity of the rules of procedures of each of the two chambers of the Parliament with the Constitution accordance with the provisions of the above mentioned paragraph.
    Article 166 The Constitutional Council is summoned by the President of the Republic, the President of the People�s National Assembly or by the President of the Council of Nation.
    Article 167 The Constitutional Council deliberates in camera; its opinion or its decision is given within twenty (20) days following the date it was referred to. The Constitutional Council defines the rules of its functioning.
    Article 168 When the Constitutional Council considers that a treaty, an agreement, or a convention is not constitutional, its ratification cannot take place.
    Article 169 When the Constitutional Council considers that a legislative or regulatory provision is not constitutional, it loses its effect from the date the decision is taken by the Council.
    Article 170 An Audit Court is instituted with the task of controlling a posteriori the finances of the State, the territorial collectivities and public services. The Audit Office establishes a yearly report that is addressed to the President of the Republic. The law defines the prerogatives, the organization and the functioning of the Audit Office as well as the sanctions of its investigations.

  2. Structure of court system

    The Algerian court system has three levels. Da'ira courts serve to hear disputes in civil and some criminal matters. The second level consists of wilaya courts that serve as the courts of first instance for remaining criminal cases and as courts of appeal for the da'ira courts. Finally, the Supreme Court sits at the apex of the system, with separate chambers for civil and commercial cases, social cases, and criminal cases.

  3. Personal status issues

    Algeria has a code for personal status cases implemented by the courts of general jurisdiction; there are no separate shari`a courts.

  4. Prosecution system

    While Algeria has a niyaba system, investigation of crimes is often handled initially by the judicial police. In recent years, the government has worked to bring some judicial supervision over the judicial police and ensure that the police follow legal procedures.

  5. Appointing/assigning/evaluation of judges

    The composition of the Supreme Judicial Council in Algeria is prescribed in the constitution as headed by the president of the republic. This gives the executive a direct role in assigning, promoting, and transferring judges.

  6. Administration and Relationship with the Ministry of Justice

    Unlike many other Arab countries, the Algerian judiciary does not have the ability to act as a corporate body with executive leadership of the Supreme Judicial Council. Most administrative matters are therefore not under judicial control.

  7. Specialized courts

    While special courts existed to deal with political crimes, they were abolished in 1995 and their work assigned to the courts of general jurisdiction.

    Military courts do have the ability to try civilians but the law of the military courts restricts this jurisdiction to crimes committed in a military zone or in association with members of the armed forces.

    Like some of its North African neighbors, Algeria has an Audit Court to oversee state finances.

    The constitution also calls for a High Court of State to deal with crimes by the president.

    A Constitutional Council has been created, with its members appointed by the president, the Supreme Court, and the parliament.

    Algeria had a separate Council of State including jurisdiction over administrative cases, but it was abolished in the 1960s. A separate chamber of the Supreme Court heard administrative cases. However, the 1996 constitution called for a return to the older system, and the Council of State was therefore reborn in 1998.

    The addition of the administrative courts to Algeria's judicial system prompted the architects of the 1996 constitution to introduce a new body to settle conflicts of jurisdiction between the Council of State and the Supreme Court; this body is called the Tribunal of Conflicts.

  8. Judicial education

    Algeria requires judges to complete a mandatory year of training at its National Judicial Training Institute.

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