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Tunisia: Appointment and promotion of judges; Security of tenure

Judges should be appointed through an open process on the basis of prescribed criteria based on merit and integrity, and without discrimination.[1]

Only “individuals of integrity and ability with appropriate training of qualifications in law” should be eligible for appointment.[2] 

Steps should be taken to ensure the appointment of qualified women and members of minority communities.[3] 

An appropriate clearly-prescribed method of appointment of judges is a prerequisite for the independence of the judiciary[4] and is a means of ensuring equal access to the profession. Whatever method of judicial selection is adopted must “safeguard against judicial appointments for improper motives”.[5] In other words, election and appointment should be based on an objective assessment and determination of the applicant’s professional knowledge, merits and suitability. Appointments and promotions should be decided by bodies that are independent from the executive,[6] that are plural and are composed mainly (if not solely) of judges and members of the legal profession;[7] and that apply transparent procedures.[8] 

Promotions within the judiciary must also be based on objective factors, particularly ability, integrity and experience.[9] 

To guard against pressure from those who could otherwise influence or make decisions about the renewal of their terms of office, judges’ tenure must be guaranteed until a mandatory retirement age or expiry of the term of office.[10] 

Judges may be removed from office only in exceptional, strictly limited and well-defined circumstances provided for by law, involving incapacity or behaviour that renders them unfit to carry out the duties of their office, and following a fair procedure.[11]

 

The 2014 Constitution provides that judges will be appointed by presidential decree with the assent of the High Judicial Council, while also stating that appointments to senior positions are made by presidential decree after consultation with the Prime Minister, based on a list of candidates prepared by the High Judicial Council.[12]

Senior judicial functions, as defined by Law No. 67-29, comprise the positions of President and Prosecutor-General of the Cassation Court, the President and Prosecutor-General of the Tunis Court of Appeal, the Inspector-General who is the head of the General Inspection Service, the President of the Property Court and the Prosecutor-General Director of Judicial Services.[13]

However, judges of the Constitutional Court are appointed by the President of the Republic, the Assembly of People’s Representatives, and the High Judicial Council, who each appoint four members for a single six-year term. One third of the membership shall be renewed every three years. The members of the Court elect a President and Vice President from among the members who are specialists in law.[14]

The Constitution is otherwise silent on the selection process, to be determined by a new law.

The assessment of judges continues to be governed by Law No. 67-29. Under this law, judges are rated by their hierarchical superiors, following the advice of the prosecutor of the jurisdiction to which they belong.[15] The law does not provide any criteria, but a form from the Ministry of Justice specifies some, including among others, competence, compliance with respect for judicial duties, productivity, relationship with superiors, and management abilities. The judge is not informed or consulted in the process.[16] This vague framework, without detailed and objective criteria for the assessment or any avenue for the affected judge to challenge it, leaves judges vulnerable to their hierarchical superiors.[17]

The 2014 Constitution does not mention how judges are promoted, leaving procedures to the new High Judicial Council.[18] Under the Ben Ali regime, promotion was in the hands of the Executive through its control of the Conseil Supérieur de la Magistrature. In practice, promotion was based on loyalty to the regime.[19] During the transitional period, promotions are made by Prime Minister’s decree, with the assent of the Instance Provisoire de la Justice Judiciaire (IPJJ). The main consideration is still seniority, as provided under Law No. 67-29.[20]

Despite the adoption of some new safeguards against judges’ arbitrary transfer, executive interference continues to be a threat to judicial independence. Under the 1967 law, the Minister of Justice had the power to decide to transfer a magistrate for “nécessité de service”, and arbitrary transfers were used to punish outspoken judges. Currently, under Law No. 2013-13, transfers are made by Prime Minister’s decree, with the assent of the IPJJ, and judges cannot be transferred, promoted or appointed to a new position without their written consent.[21] Transfers for “nécessité de service”, which do not require the judge’s consent, remain possible, but must meet several conditions.[22] Compliance with these new procedures is questionable.[23]

The 2014 Constitution does not guarantee tenure until a stated retirement age, falling short of the requirements under international law.[24]

 

Footnotes    (↵ returns to text)

  1. 1. ”Principle

    Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

     of the UN Basic Principles on the Independence of the Judiciary provides in part: “In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.”. Also, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article A.4(h)-(j);

    (h) The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged. Any method of judicialselection shall safeguard the independence and impartiality of the judiciary.
    (i) The sole criteria for appointment to judicial office shall be the suitability of a candidate for such office by reason of integrity, appropriate training or learning and ability.
    (j) Any person who meets the criteria shall be entitled to be considered for judicial office
    without discrimination on any grounds such as race, colour, ethnic origin, language, sex,
    gender, political or other opinion, religion, creed, disability, national or social origin, birth, economic or other status. However, it shall not be discriminatory for states to:

    1. prescribe a minimum age or experience for candidates for judicial office;
    2. prescribe a maximum or retirement age or duration of service for judicial officers;
    3. prescribe that such maximum or retirement age or duration of service may vary with different level of judges, magistrates or other officers in the judiciary;
    4. require that only nationals of the state concerned shall be eligible for appointment to judicial office.

    Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), para. 19.

    The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception.The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

  2. 2. UN Basic Principles on the Independence of the Judiciary, Principle 10;

    Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

     Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article A.4(i) and (k).

    (i) The sole criteria for appointment to judicial office shall be the suitability of a candidate for such office by reason of integrity, appropriate training or learning and ability.

    (k) No person shall be appointed to judicial office unless they have the appropriate training or learning that enables them to adequately fulfil their functions.

  3. 3. UN Special Rapporteur on the independence of judges and lawyers, Report to the General Assembly, UN Doc. A/66/289 (2011), para. 22-33, 92; Human Rights Committee, Concluding Observations on the United Kingdom, UN Doc. CCPR/CO/73/UK (2001), para. 15;

    The Committee notes that, despite recent improvements, the proportions of women participating in public life, particularly at senior levels of the executive and judiciary and in Parliament, and also in the private sector, remain at low levels.

    The State party should take necessary steps towards achieving an appropriate representation of women in these fields.

    Human Rights Committee, Concluding Observations on France, UN Doc. CCPR/C/FRA/CO/4 (2008), para. 26;

    The Committee notes with concern that persons belonging to racial, ethnic or national minorities are rarely selected for representative bodies, including the National Assembly, and may occupy few positions in the police, the public administration and the judiciary. (articles 2, 25 and 26)

    The State party should facilitate the participation of persons who are members of minority groups in publicly elected bodies, including the National Assembly and local government. In particular, the State party should seek ways to increase the number of candidates belonging to minorities included in the list of political parties running for elections. The appointment of persons from minority backgrounds as members of the police, public administration and the judiciary, is also important to assure the representation of the needs of varied communities in the planning, design, implementation and evaluation of policies and programmes affecting them.

    Human Rights Committee, Concluding Observations on Sudan, UN Doc. CCPR/C/79/Add.85 (1997), para. 21;

    The Committee is concerned that in appearance as well as in fact the judiciary is not truly independent, that many judges have not been selected primarily on the basis of their legal qualifications, that judges can be subject to pressure through a supervisory authority dominated by the Government, and that very few non-Muslims or women occupy judicial positions at all levels. Therefore:

    Measures should be taken to improve the independence and technical competence of the judiciary, including the appointment of qualified judges from among women and members of minorities. Training in human rights law should be given to all judges, law enforcement officers and members of the legal profession.

     Committee on the Elimination of Racial Discrimination: General Recommendation XXXI on the prevention of racial discrimination in the administration and functioning of the criminal justice system, UN Doc. A/60/18 (pp. 98-108) (2005), para. 5(d);

    5. States parties should pursue national strategies the objectives of which include the following: …

    (d) To promote proper representation of persons belonging to racial and ethnic groups in the police and the system of justice;

     Concluding Observations on Guatemala, UN Doc. CERD/C/GTM/CO/12-13 (2010), para. 8;

    While noting the efforts made by the judiciary in the area of training, in the provision of interpreters, in the application of cultural expertise and in the appointment of bilingual staff to the courts to improve indigenous peoples’ access to the official system of justice, the Committee reiterates its concern about the problems experienced by indigenous peoples in gaining access to justice, particularly because the indigenous legal system is not recognized and applied and because of the lack of a sufficient number of interpreters and bilingual court officials who are knowledgeable about judicial proceedings. It regrets, in particular, that, when a number of judges were appointed to the Supreme Court in late 2009, no indigenous person was selected (art. 5 (a)).

    Committee on the Elimination of Racial Discrimination, Concluding Observations on Colombia, UN Doc. CERD/C/304/Add.76 (1999), para. 13.

    It is noted that indigenous and Afro-Colombian communities are underrepresented in State institutions, including in the legislature, the judiciary, government ministries, the military and the civil and diplomatic services.

  4. 4. Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), para. 19.

    The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception.The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

  5. 5. UN Basic Principles on the Independence of the Judiciary, Principle 10;

    Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

     Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article A.4(h).

    The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged. Any method of judicial selection shall safeguard the independence and impartiality of the judiciary.

  6. 6. Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article A.4(h) encourages “the establishment of an independent body”. See e.g. Human Rights Committee, Concluding Observations on: Honduras, CCPR/C/HND/CO/1 (2006), ”para.

    The Committee notes the State party’s implementation of selection procedures for judges in accordance with the Judicial Council Act. It is concerned, however, at the failure to establish an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession (article 14 of the Covenant).

    The State party should take effective action to safeguard the independence of the judiciary, including the prompt establishment of an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession.

     the Congo, CCPR/C/79/Add.118, ”para.

    The Committee expresses its concern at the attacks on the independence of the judiciary, in violation of article 14, paragraph 1, of the Covenant. It draws attention to the fact that such independence is limited owing to the lack of any independent mechanism responsible for the recruitment and discipline of judges, and to the many pressures and influences, including those of the executive branch, to which judges are subjected.

    The State party should take the appropriate steps to ensure the independence of the judiciary, in particular by amending the rules concerning the composition and operation of the Supreme Council of Justice and its effective establishment. The Committee considers that particular attention should be given to the training of judges and to the system governing their recruitment and discipline, in order to free them from political, financial and other pressures, ensure their security of tenure and enable them to render justice promptly and impartially. It invites the State party to adopt effective measures to that end and to take the appropriate steps to ensure that more judges are given adequate training.

     Liechtenstein, CCPR/CO/81/LIE, ”para.

    While noting that the constitutional amendments of 2003 sought to clarify the system of appointment and tenure of judges, the Committee is concerned about some elements of the new mechanism which may not be compatible with the principle of the independence of the judiciary (art. 14).

    The State party should consider amending the mechanism for the appointment of judges to secure tenure, so as to guarantee fully the principle of the independence of the judiciary. The elements to be reviewed should include: the criteria for the appointment of members to the selecting body, the casting vote of the Princely House and the limited nature of tenure.

     Tajikistan, CCPR/CO/84/TJK, ”para.

    The Committee is concerned about the apparent lack of independence of the judiciary, as reflected in the process of appointment and dismissal of judges as well as in their economic status (art. 14, para. 1). The State party should guarantee the full independence and impartiality of the judiciary by establishing an independent body charged with the responsibility of appointing, promoting and disciplining judges at all levels and by remunerating judges with due regard for the responsibilities and the nature of their office.

     Azerbaijan, UN Doc. CCPR/C/AZE/CO/3 (2009), ”para.

    The Committee remains concerned that, despite the reforms undertaken and the progress made during the reporting period, through, inter alia, the amendments in the Judges Act, the adoption of the Judicial Council Act, the establishment of the statute of the Judges’ Selection Committee, the Code of Ethics for Judges, the State party’s judiciary does not appear to be fully independent from the executive branch or from political pressure. The Committee is also concerned about reports that corruption within the judiciary remains a problem (art. 14).

    The State party should strengthen its efforts to ensure a fully independent judiciary. Given the important prerogatives of the Judicial Council, in particular regarding selection, promotion, and disciplining of members of the judiciary, the State party should ensure that the Judicial Council, in its composition and work, is fully independent from the executive so as to create conditions ensuring full independence of the judiciary. The State party should increase efforts to combat corruption, in particular within its judiciary, by investigating promptly and thoroughly all incidents of suspected corruption. If corruption is established, the officials concerned should face criminal and not only disciplinary sanctions.

     Kosovo (Serbia), UN Doc. CCPR/C/UNK/CO/1 (2006), ”para.

    The Committee is concerned about the absence of adequate guarantees for the independence of international judges and prosecutors. It is concerned about the low remuneration of local judges and prosecutors, the low representation of ethnic minorities in the judiciary, the excessive length of civil court proceedings and court backlogs and the frequent failure to enforce judgements (art. 14).

    UNMIK, in cooperation with PISG as required, should establish independent procedures for the recruitment, appointment and discipline of international judges and prosecutors, ensure adequate terms and conditions for local judges and prosecutors whereby they are shielded from corruption, increase the representation of ethnic minorities in the judiciary, assign additional judges to courts with case backlogs and ensure enforcement of judgements without delay.

     Also see Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article

    (a) The process and standards of judicial selection shall give due consideration to ensuring a fair reflection by the judiciary of the society in all its aspects.

    (b) Any methods of judicial selection shall scrupulously safeguard against judicial appointments for improper motives.

    (c) Participation in judicial appointments by the Executive or the Legislature or the general electorate is consistent with judicial independence so far as such participation is not vitiated by and is scrupulously safeguarded against improper motives and methods. To secure the most suitable appointments from the point of view of professional ability and integrity and to safeguard individual independence, integrity and endeavour shall be made, in so far as possible, to provide for consultation with members of the judiciary and the legal profession in making judicial appointments or to provide appointments or recommendations for appointments to be made by a body in which members of the judiciary and the legal profession participate effectively.

     Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, ”Article

    The selection and each appointment of a judge must be carried out according to objective and transparent criteria based on proper professional qualification. Where this is not ensured in other ways, that are rooted in established and proven tradition, selection should be carried out by an independent body, that include substantial judicial representation.

  7. 7. UN Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), ”para.

    28. The composition of this body matters greatly to judicial independence as it is required to act in an objective, fair and independent manner when selecting judges. While a genuinely plural composition of this body is recommended with legislators, lawyers, academicians and other interested parties being represented in a balanced way, in many cases it is important that judges constitute the majority of the body so as to avoid any political or other external interference. In the Special Rapporteur’s view, if the body is composed primarily of political representatives there is always a risk that these “independent bodies” might become merely formal or legal rubber-stamping organs behind which the Government exerts its influence indirectly.

    29. In order to ensure that such a body is apt to select judges in an objective, fair and independent manner, the judiciary and other parties directly linked with the justice system must have a substantial say with respect to selecting and appointing the members of such a body. According to some regional standards, members of the independent body should be selected by the judiciary.

    See International Commission of Jurists, International principles on the independence and accountability of judges, lawyers and prosecutors – Practitioners’ guide, no. 1 (2007), pp. 45-48.
  8. 8. Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article A.4(h);

    The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged. Any method of judicial selection shall safeguard the independence and impartiality of the judiciary.

     UN Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), ”para.

    In this connection the Special Rapporteur refers to the appointment of the judges of the Supreme Court of Ecuador in 2005, which were made in accordance with his recommendations,31 in particular those referring to objective criteria to select candidates with a view to their independence, competencies and integrity. This ensured the transparency of the selection and appointment processes. Furthermore, for the first time in Ecuador’s history, public hearings were held at which backgrounds of the nominees could be openly scrutinized. This experience was qualified by the United Nations as a major example of good practices.

    See UN Special Rapporteur on the independence of judges and lawyers, Preliminary Report to the Human Rights Commission on a mission to Ecuador, UN Doc. E/CN.4/2005/60/Add.4 (2005), ”para.

    5. Various options for resolving the crisis are being discussed in Ecuador. Rather than expressing a view on the various alternatives, the Special Rapporteur believes that, in keeping with United Nations standards, the country should immediately arrive at a formula to govern the appointment of a Supreme Court which will include the following elements:…

    (d) Machinery to ensure transparency in the selection of judges and enable members of the public to be aware of the candidates and express their opinions about them.

  9. 9. UN Basic Principles on the Independence of the Judiciary, ”Principle

    Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.

     Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article A.4(o);

    Promotion of judicial officials shall be based on objective factors, in particular ability, integrity and experience.

     Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article

    Promotion of a judge shall be based on an objective assessment of the judge’s integrity, independence, professional competence, experience, humanity and commitment to uphold the rule of law. No promotions shall be made from an improper motive.

  10. 10. UN Basic Principles on the Independence of the Judiciary, ”Principle

    Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.

     Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article A.4(l);

    Judges or members of judicial bodies shall have security of tenure until a mandatory
    retirement age or the expiry of their term of office.

     Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration),”Article

    Subject to the provisions relating to discipline and removal set forth herein, judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or expiry of their legal term of office.

    and ”Article
    Retirement age shall not be altered for judges in office without their consent.

     Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, ”Article

    A judge cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure. A judge must be appointed for life or for such other period and conditions, that the judicial independence is not endangered. Any change to the judicial obligatory retirement age must not have retroactive effect.

  11. 11.UN Basic Principles on the Independence of the Judiciary, ”Principles

    17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

    18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.

    19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

    20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

     Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), para. 19-20.

    19. The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception.The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

    20. Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary. The same is true, for instance, for the dismissal by the executive of judges alleged to be corrupt, without following any of the procedures provided for by the law.

     While as described below in section 4, there must be effective means for holding judges accountable (for crimes, violations of human rights, corruption for instance), all accountability measures must fully respect guarantees of independence and impartiality including as regards grounds and procedures for removal.
  12. 12. 2014 Constitution, Article 106.

    Judges shall be nominated by presidential decree based on a concurrent proposal by the High Judicial Council.

    Senior judges shall be nominated by presidential decree and in consultation with the Head of Government, based on an exclusive recommendation by the High Judicial Council. Senior judicial posts shall be regulated by law.

  13. 13. Law No. 67-29, Article 7bis.
  14. 14. 2014 Constitution, Article 118.

    The Constitutional Court is an independent judicial body, composed of 12 competent members, three-quarters of whom are legal experts with at least 20 years of experience.

    The President of the Republic, the Assembly of the Representatives of the People, and the High Judicial Council shall each appoint four members, three quarters of whom must be legal specialists. The nomination is for a single nine-year term.

    One-third of the members of the Constitutional Court shall be renewed every three years. Any vacancies in the Court shall be filled according to the same procedure followed upon the establishment of the court, taking into account the appointing party and the relevant areas of specialization.

    Members of the Court elect a President and a Vice President of the Court from amongst its members who are specialists in law.

  15. 15. Law No. 67-29, Article 34.
  16. 16. “Personal Form” of the Tunisian Ministry of Justice. See International Commission of jurists, The Independence and Accountability of the Tunisian Judicial System: Learning from the Past to Build a Better Future (May 2014), p. 26.
  17. 17. International Commission of jurists, The Independence and Accountability of the Tunisian Judicial System: Learning from the Past to Build a Better Future (May 2014), p. 34.
  18. 18. 2014 Constitution, Article 114.

    The High Judicial Council ensures the sound functioning of the justice system and respect for its independence. The General Assembly of the three judicial councils proposes reforms and gives its opinions on draft laws related to the judicial system. Such laws must be reviewed by the General Assembly. Each of the three councils is responsible for making decisions on the professional careers of judges and on disciplinary measures taken against them.

    The High Judicial Council shall prepare an annual report and submit it, in the month of July at the latest, to the President of the Republic, the Speaker of the Assembly of the Representatives of the People, and the Head of Government. The report shall be published.

    The Assembly of the Representatives of the People shall discuss the annual report at the beginning of the judicial year in a plenary session, in dialogue with the High Judicial Council.

  19. 19. International Commission of jurists, The Independence and Accountability of the Tunisian Judicial System: Learning from the Past to Build a Better Future (May 2014), p. 26.
  20. 20. Law No. 67-29, Article 33. International Commission of jurists, The Independence and Accountability of the Tunisian Judicial System: Learning from the Past to Build a Better Future (May 2014), p. 26.
  21. 21. Law No. 2013-13, Article 12 and 14.
  22. 22. See Law No. 2013-13, Article 12.
  23. 23. See International Commission of jurists, The Independence and Accountability of the Tunisian Judicial System: Learning from the Past to Build a Better Future (May 2014), p. 27-28.
  24. 24. International Commission of jurists, The Independence and Accountability of the Tunisian Judicial System: Learning from the Past to Build a Better Future (May 2014), p. 34-35.
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