Judges must be free to “decide matters before them impartially, on the basis of the facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason”.{{1}} The prohibition on such acts “from any quarter” underscores its application to both state actors and non-state actors alike. Even within the judicial hierarchy, judges of the same or higher level of court must not interfere with a judge’s exercise of judicial functions, other than as provided for by formal procedures such as appeal.”{{2}}
In the exercise of judicial functions, judges must be impartial, and be seen to be impartial.{{3}} Judges “must not allow their judgment to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other.”{{4}}
A judicial code of conduct, drafted primarily by judges and members of the legal profession and consistent with international standards,{{5}} can help to safeguard judicial integrity and protect against conflicts of interest.{{6}} A judicial code of conduct meeting these criteria and enshrined in the law, should serve as the basis for the determination of cases of alleged judicial misconduct.{{7}}
Complaints about judicial misconduct must be processed expeditiously and fairly under an appropriate procedure.{{8}} The judge in question has the right to a fair hearing{{9}} before an independent and impartial body. The body responsible for discipline of judges should be independent of the executive,{{10}} plural and composed mainly (if not solely) of judges and members of the legal profession.{{11}} The judge’s rights to a fair proceeding, including to notice of the accusations against him or her, to adequate time and facilities to prepare and present a defence including through counsel,{{12}} to challenge the evidence against him or her and present witnesses must be respected.
Decisions in disciplinary matters must be based on established standards of judicial conduct, and sanctions must be proportionate. Judges may be suspended or removed only where the incapacity or behaviour of a judge renders the individual unfit to discharge his or her judicial duties.{{13}} Disciplinary investigations and sanctions imposed on a judge should never be based solely on disagreement with a legal opinion or judgment he or she wrote in a decision.{{14}}
Decisions and sanctions in disciplinary proceedings should be subject to independent judicial review.{{15}}
Judges should also enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.{{16}}
Tunisian law requires judges to render justice impartially, and to refrain from any action or behaviour likely to harm the honour of their profession.{{17}}
Under the Ben Ali regime, the provisions regarding judicial accountability were set out in Law No. 67-29, the Code of Criminal Procedure and the Criminal Code. Law No. 2013-13 introduced some changes to the procedure for judicial discipline, but left the substantive standards in force. The Constitution envisages further amendments, such as mandating that disciplinary matters will be decided by the High Judicial Council, but does not provide much detail.{{18}}
Under the 2014 Constitution the High Judicial Council is mandated to ensure the judiciary’s sound performance, and a judge may not be suspended, expelled or subjected to disciplinary punishment “except in such cases and in accordance with the guarantees provided for by the law and by virtue of a justified decision issued by the High Judicial Council”.{{19}}
Law No. 67-29 defines a disciplinary offence as a “failure of the duties of the status, honour or dignity of a judge or prosecutor”.{{20}} Further, the Code of Civil Procedure provides that a claim for damages can be brought against a judge for wilful misconduct, fraud or corruption, or where the law expressly provides for civil liability. Some criminal offences are explicitly applicable to judges, including various degrees of corruption and denial of justice.{{21}}
Late 2012, the Ministry of Justice presented a draft code of judicial ethics to the National Constituent Assembly, which attracted criticism on the basis that judges had not been consulted in the drafting process. Consideration of the draft was dropped.{{22}} As of November 2014, a new draft code had yet to be presented.{{23}}
Until the High Judicial Council is established, the disciplinary procedure is governed by existing law. The disciplinary procedure set out in Law No. 67-29 was amended by Law No. 2013-13, which also provides that those provisions not incompatible with the new law remain in force.{{24}} It is not clear precisely which provisions are affected by this clause.{{25}}
Under this legal framework, the Minister of Justice can initiate disciplinary investigations by the General Inspection Service (GIS), which falls under the Minister’s supervision.{{26}} The jurisdiction of the Instance Provisoire de la Justice Judiciaire (IPJJ) is then engaged once the minister transmits the disciplinary file, based on the GIS report.{{27}} A panel of seven designated members of the IPJJ sits as a disciplinary council to rule on allegations of misconduct.{{28}}
The president of the disciplinary council must convene the council within 15 days from the date of referral by the Minister, and the council must make a decision within one month from referral.{{29}} The Inspector-General at the Ministry of Justice, who is the head of the GIS, functions as rapporteur of the IPJJ (but has no right to vote).{{30}} The rapporteur must notify the judge concerned of the hearing before the council. The judge suspected of misconduct is permitted access to the case file, can present evidence in his or her defence and may be assisted by a lawyer or any other person whom he or she selects.{{31}}
The disciplinary council can dismiss a judge “if the facts so require”,{{32}} providing reasons for doing so. If the alleged misconduct constitutes a crime or intentional misdemeanour likely to harm the honour of an individual, the council may waive immunity and transfer the file to the public prosecutor, in which case the disciplinary proceedings are suspended until a final decision is taken in the criminal case.{{33}}
It is not clear if, in addition to dismissal the other sanctions for judicial misconduct set out in Law No. 67-29 (reprimand, disciplinary transfer, removal from the promotion shortlist, demotion, suspension for a period of maximum 9 months){{34}} can be applied by the new disciplinary council.
Decisions of the disciplinary council can be appealed to the Administrative Tribunal.{{35}} Final decisions by the Council are forwarded to the Minister of Justice for implementation of the sanctions.
It is not clear whether, pending the establishment of the High Judicial Council, the Minister’s disciplinary powers under Law No. 67-29, including the power to issue warnings and to temporarily suspend a judge,{{36}} remain in force.
In light of the above, the legal framework in Tunisia for judicial discipline does not comply with international law and standards in several respects, including:
- There is no comprehensive and consolidated code of judicial ethics;
- Disciplinary infractions are too vaguely and overly broadly defined, entailing a lack of legal certainty;
- Safeguards ensuring fair proceedings are lacking and the disciplinary procedure cannot be considered independent or impartial, given the role of the executive; and
- The law does not explicitly determine that sanctions must be proportionate to the misconduct found, and that judges can only be dismissed on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the Constitution or in the law.{{37}}
[[1]]1. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principles 1-7,”]
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.
[/expand] in particular Principle 2; 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, [expand title=”Article A.5(a);”]
A judicial body shall base its decision only on objective evidence, arguments and facts
presented before it. Judicial officers shall decide matters before them without any
restrictions, improper influence, inducements, pressure, threats or interference, direct or
indirect, from any quarter or for any reason.
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Articles 2-8;”]
2. Judges individually shall be free, and it shall be their duty, to decide matters before them impartially in accordance with their assessment of the facts and their understanding of law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. In the decision-making process, judges shall be independent vis à-vis their judicial colleagues and superiors. Any hierarchical organization of the judiciary and any difference in grade or rank shall, in no way, interfere with the right of the judge to pronounce his judgment freely. Judges, on their part, individually and collectively, shall exercise their functions with full responsibility of the discipline of law in their legal system.
4. The Judiciary shall be independent of the Executive and Legislature.
5. (a) The judiciary shall have jurisdiction, directly or by way of review, over all issues of a judicial nature, including issues of its own jurisdiction and competence.
(b) No ad hoc tribunals shall be established to displace jurisdiction properly vested in the courts.
(c) Everyone shall have the right to be tried with all due expedition and without undue delay by the ordinary courts or judicial tribunals under law subject to review by the courts.
(d) Some derogations may be permitted in times of grave public emergency which threatens the life of the nation but only under conditions prescribed by law, only to the extent strictly consistent with internationally recognized minimum standards and subject to review by the courts.
(e) In such times of emergency, the State shall endeavour to provide that civilians charged with criminal offences of any kind shall be tried by ordinary civilian courts, and, detention of persons administratively without charge shall be subject to review by courts or other independent authority by way of habeas corpus or similar procedures so as to ensure that the detention is lawful and to inquire into any allegations of ill-treatment.
(f) The jurisdiction of military tribunals shall be confined to military offences. There shall always be a right of appeal from such tribunals to a legally qualified appellate court or tribunal or a remedy by way of an application for annulment.
(g) No power shall be so exercised as to interfere with the judicial process.
(h) The Executive shall not have control over the judicial functions of the courts in the administration of justice.
(i) The Executive shall not have the power to close down or suspend the operation of the courts.
(j) The Executive shall refrain from any act or omission which preempts the judicial resolution of a dispute or frustrates the proper execution of a court decision.
6. No legislation or executive decree shall attempt retroactively to reverse specific court decisions or to change the composition of the court to affect its decisionmaking.
7. Judges shall be entitled to take collective action to protect their judicial independence.
8. Judges shall always conduct themselves in such a manner as to preserve the dignity and responsibilities of their office and the impartiality and independence of the judiciary. Subject to this principle, judges shall be entitled to freedom of thought, belief, speech, expression, professional association, assembly and movement.
[/expand] Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002, [expand title=”Value 1;”]Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.
[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 1-4.”]
Art.1
Independence
Judges shall in all their work ensure the rights of everyone to a fair trial. They shall promote the right of individuals to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, in the determination of their civil rights and obligations or of any criminal charge against them.
The independence of the judge is indispensable to impartial justice under the law. It is indivisible. All institutions and authorities, whether national or international, must respect, protect and defend that independence.
Art.2
Status
Judicial independence must be ensured by law creating and protecting judicial office that is genuinely and effectively independent from other state powers. The judge, as holder of judicial office, must be able to exercise judicial powers free from social, economic and political pressure, and independently from other judges and the administration of the judiciary.
Art.3
Submission to the law
In the performance of the judicial duties the judge is subject only to the law and must consider only the law.
Art.4
Personal autonomy
No one must give or attempt to give the judge orders or instructions of any kind, that may influence the judicial decisions of the judge, except, where applicable, the opinion in a particular case given on appeal by the higher courts.
[/expand][[1]]
[[2]]2. Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 4;”]
No one must give or attempt to give the judge orders or instructions of any kind, that may influence the judicial decisions of the judge, except, where applicable, the opinion in a particular case given on appeal by the higher courts.
[/expand] 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, [expand title=”Article A.4(f),”]
There shall not be any inappropriate or unwarranted interference with the judicial process nor shall decisions by judicial bodies be subject to revision except through judicial review, or the mitigation or commutation of sentence by competent authorities, in accordance with the law;
[/expand] which provides in part “… nor shall decisions by judicial bodies be subject to revision except through judicial review, or the mitigation or commutation of sentences by competent authorities, in accordance with the law”; [expand title=”Article A.5(e)”]
A judicial official may not consult a higher official authority before rendering a decision in order to ensure that his or her decision will be upheld.
[/expand] states that “A judicial officer may not consult a higher judicial authority before rendering a decision in order to ensure that his or her decision will be upheld”.[[2]]
[[3]]3. 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), [expand title=”para. 21;”]
The requirement of impartiality has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial.
[/expand] UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 2;”]The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 25;”]
A judge shall not sit in a case where a reasonable apprehension of bias on his part or conflict of interest of incompatibility of functions may arise.
[/expand] Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002, [expand title=”Value 2-4;”]
2. Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
3. Integrity is essential to the proper discharge of the judicial office.
4. Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.
[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 5-7.”]
Art.5. Impartiality and restraint.
In the performance of the judicial duties the judge must be impartial and must so be seen. The judge must perform his or her duties with restraint and attention to the dignity of the court and of all persons involved.
Art.6. Efficiency.
The judge must diligently and efficiently perform his or her duties without any undue delays.
Art.7 Outside activity.
The judge must not carry out any other function, whether public or private, paid or unpaid, that is not fully compatible with the duties and status of a judge. The judge must not be subject to outside appointments without his or her consent.
[/expand] The 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, [expand title=”Article A.5(d)”]
The impartiality of a judicial body would be undermined when:
1. a former public prosecutor or legal representative sits as a judicial officer in a case in which he or she prosecuted or represented a party;
2. a judicial official secretly participated in the investigation of a case;
3. a judicial official has some connection with the case or a party to the case;
4. a judicial official sits as member of an appeal tribunal in a case which he or she decided or participated in a lower judicial body.
In any of these circumstances, a judicial official would be under an obligation to step
down.
[/expand] presents four concrete situations in which the impartiality of a judicial body would be undermined. The “seen to be impartial” standard means for instance that, even if an individual judge might in fact be able to ignore a personal relationship to one of the parties to a case, he or she should step aside from the case to protect against a reasonable apprehension of bias.[[3]]
[[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), [expand title=”para. 21;”]
The requirement of impartiality has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial.
[/expand][[4]]
[[5]]5. See Bangalore Principles of Judicial Conduct; International Bar Association, Minimum Standards of Judicial Independence, para. 35-42.[[5]]
[[6]]6. See Bangalore Principles of Judicial Conduct, Preamble and ‘Implementation’.[[6]]
[[7]]7. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 19.”]
All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
[/expand][[7]]
[[8]]8. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 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.
[/expand] and [expand title=”Principle 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.
[/expand] 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, [expand title=”Article A.4(r);”]
The procedures for complaints against and discipline of judicial officials shall be prescribed by law. Complaints against judicial officers shall be processed promptly, expeditiously and fairly.
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 28.”]
The proceedings for discipline of judges shall ensure fairness to the judge and the opportunity of a full hearing.
[/expand][[8]]
[[9]]9. 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, [expand title=”Article A.4(r).”]
The procedures for complaints against and discipline of judicial officials shall be prescribed by law. Complaints against judicial officers shall be processed promptly, expeditiously and fairly.
[/expand][[9]]
[[10]]10. Human Rights Committee, Concluding Observations on Azerbaijan, UN Doc. CCPR/C/AZE/CO/3 (2009), [expand title=”para. 12;”]
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.
[/expand] Human Rights Committee, Concluding Observations on Honduras, UN Doc. CCPR/C/HND/CO/1 (2006), [expand title=”para. 16;”]
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.
[/expand] Human Rights Committee, Concluding Observations on Kosovo (Serbia), UN Doc. CCPR/C/UNK/CO/1 (2006), [expand title=”para. 20.”]
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.
[/expand][[10]]
[[11]]11. UN Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), [expand title=”para. 28-29.”]
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.
[/expand][[11]]
[[12]]12. 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, [expand title=”Article A.4(q).”]
Judicial officials facing disciplinary, suspension or removal proceedings shall be entitled to guarantees of a fair hearing including the right to be represented by a legal representative of their choice and to an independent review of decisions of disciplinary, suspension or removal proceedings.
[/expand][[12]]
[[13]]13. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 18;”]
18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 20;”]
Judges shall be protected from the harassment of personal litigation against them in respect of their judicial functions and shall not be sued or prosecuted except under an authorization of an appropriate judicial authority
[/expand] Universal Charter of the Judge Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 10.”]
Civil and penal responsibility.
Civil action, in countries where this is permissible, and criminal action, including arrest, against a judge must only be allowed under circumstances ensuring that his or her independence cannot be influenced.
[/expand][[13]]
[[14]]14. Inter-American Commission on Human Rights, Guarantees for the Independence of Justice Operators, paras 216 and 249 (recommendation 22). See also Inter-American Court of Human Rights, Apitz Barbera et al. v. Venezuela, Series C no 182 (5 August 2008), para. 86, emphasising the strict distinction under international law between, on the one hand, procedures (such as appeal) for challenging the correctness of a substantive legal decision taken by a judge acting within the competence given to them by domestic law, and on the other hand, “disciplinary oversight, which is intended to assess the conduct, suitability and performance of the judge as a public official”. The Court concluded that it was not enough, then, simply to believe that the judge was wrong about the law, there must be “an autonomous reason warranting a finding that a disciplinary offense has been committed.”[[14]]
[[15]]15. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 20;”]
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.
[/expand] 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, [expand title=”Article A.4(p)-(q);”]
(p) Judicial officials may only be removed or suspended from office for gross misconduct
incompatible with judicial office, or for physical or mental incapacity that prevents them from undertaking their judicial duties.
(q) Judicial officials facing disciplinary, suspension or removal proceedings shall be entitled to guarantees of a fair hearing including the right to be represented by a legal representative of their choice and to an independent review of decisions of disciplinary, suspension or removal proceedings.
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 26-31; Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 8″]
Security of office.
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.
[/expand] and [expand title=”Article 11.”]
Administration and disciplinary action.
The administration of the judiciary and disciplinary action towards judges must be organized in such a way, that it does not compromise the judges genuine independence, and that attention is only paid to considerations both objective and relevant. Where this is not ensured in other ways that are rooted in established and proven tradition, judicial administration and disciplinary action should be carried out by independent bodies, that include substantial judicial representation. Disciplinary action against a judge can only be taken when provided for by pre-existing law and in compliance with predetermined rules of procedure.
[/expand] The UN Basic Principles suggest that the principle of independent review “may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.”[[15]]
[[16]]16. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 16;”]
Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions
[/expand] 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, [expand title=”Article A.4(n)(1);”]
Judicial officers shall not be:
1. liable in civil or criminal proceedings for improper acts or omissions in the exercise of
their judicial functions;
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 20;”]
Judges shall be protected from the harassment of personal litigation against them in respect of their judicial functions and shall not be sued or prosecuted except under an authorization of an appropriate judicial authority
[/expand] Universal Charter of the Judge Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 10.”]
Civil and penal responsibility.
Civil action, in countries where this is permissible, and criminal action, including arrest, against a judge must only be allowed under circumstances ensuring that his or her independence cannot be influenced.
[/expand]][[16]]
[[17]]17. Law No. 67-29, Articles 23-24.[[17]]
[[18]]18. 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. 37.[[18]]
[[19]]19. 2014 Constitution, [expand title=”Articles 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.
[/expand] and [expand title=”107.”]
Judges may not be transferred without their consent. They cannot be dismissed or suspended from their functions, nor be subject to disciplinary sanction, except in the cases and the guarantees regulated by the law and in accordance with a reasoned decision by the High Judicial Council.
[/expand][[19]]
[[20]] Law No. 67-29, Article 50.[[20]]
[[21]] Criminal Code, Articles 88-90 and 108.[[21]]
[[22]]22. 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. 38.[[22]]
[[23]]23. See e.g. La Presse de Tunisie, ‘Bientôt un code de déontologie’, 25 April 2014, (last accessed 9 September 2014).[[23]]
[[24]]24. Law No. 2013-13, Article 20.[[24]]
[[25]]25. 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. 39.[[25]]
[[26]]26. Decree No. 2010-3152, Article 26.[[26]]
[[27]]27. Law No. 2013-13, Article 16.[[27]]
[[28]]28. Law No. 2013-13, Article 16.[[28]]
[[29]]29.Law No. 2013-13, Article 16.[[29]]
[[30]]30. Law No. 2013-13, Article 16. The head of the GIS is appointed by presidential decree from among judges of the third grade, Law No. 67-29, Article 7bis.[[30]]
[[31]]31. Law No. 2013-13, Article 17.[[31]]
[[32]]32. Law No. 2013-13, Article 18: “Si les faits attribués au juge requièrent sa révocation, …”.[[32]]
[[33]]33. Law No. 2013-13, Article 18.[[33]]
[[34]]34. Law No. 67-29, Article 52.[[34]]
[[35]]35. Law No. 2013-13, Article 16 and 3.[[35]]
[[36]]36. Law No. 67-29, Article 51 and 54.[[36]]
[[37]]37. 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. 46-49.[[37]]
