On 18 June 2015, Gabriela Knaul, the United Nations Special Rapporteur on the Independence of Judges and Lawyers (SRIJL), presented the main findings of her Tunisia visit report. The report aims to assess the Tunisian judicial systems and changes since the 2011 revolution. While the judicial system has made significant progress with regards to the independence of the judiciary and the establishment of an interim body that now replaces the Supreme Judicial Council, there are still significant challenges ahead. Gabriela Knaul visited Tunisia from November 27 to December 5 2014.
[Pour lire cet article en français, veuillez cliquer sur le lien suivant : Still Many Challenges for the Country]
Efforts have been made to strengthen the independence of the judiciary, but...
Special Rapporteur Knaul first recalled the political context of the past few years, recognising the efforts made during the transition to reform and strengthen the independence of the justice system, to bring it into line with international standards, including the creation of a temporary judicial commission to replace the old Supreme Judicial Council that was previously chaired by the President of the Republic and the Minister of Justice (the Vice-President). Composed of a majority of elected members, this Commission represents "a step in the right direction towards strengthening the independence of judges."
The UN expert also noted the numerous safeguards introduced in the 2014 Constitution, particularly those guaranteeing the separation of powers and the independence of the judiciary, but stressed the absolute necessity of implementing these provisions, a task which will fall to the Constitutional Court, an independent body which is due to become operational by late October 2015, and has been established in order to strengthen the rule of law in Tunisia.
... The need to continue the fight against corruption in the judiciary
The Special Rapporteur however stressed that, despite these new laws and provisional bodies, many challenges remained in the country. Knaul notably voiced the many complaints she had received from judges and lawyers, who reported a serious lack of independence, and underlined that their priority is to combat judicial corruption.
The UN expert welcomed the establishment of the 'Constitution of the Good Governance and Anti-Corruption Commission' as a positive step, before reiterating the importance for Tunisia to ensure that the necessary safeguards are in place to effectively guarantee the independence of judges. It was suggested that judges have recourse to an independent authority (such as the Supreme Judicial Council) when their independence is threatened, and that specific sanctions are set against those who seek to unduly influence them.
... Many obstacles still hinder the establishment of the rule of law
In the chapter on the respect of individual freedoms, the Special Rapporteur emphasized that "the excessive length of police custody combined with the fact that a suspect does not have access to a lawyer may create the circumstances for ill-treatment", a persistent problem in Tunisia, in particular when the custody period takes place in secret, as documented by Alkarama in many cases. Such is the case of Hanene Chaouch, a young volunteer activist for orphans, who was tortured during all three days of her incommunicado custody in the security centre in Monastir, for "failing to disclose information about acts of terrorism". In particular, she was deprived of sleep for 72 hours, violently beaten with fists and feet, electrocuted and threatened with rape.
Knaul also reported allegations that lawyers who defend human rights cases, especially those who defend terrorism suspects, are often subjected to threats. She also reminded the State of its "positive obligation to take effective measures to ensure the personal safety of judges, lawyers, prosecutors and their families."
Finally, concerned about the dependence of military judges on their superiors, the UN expert wished to recall that in the performance of their duties, military judges "are subject to the supremacy of the law, and are protected against threats or attack."
Recommendations of the UN expert
Knaul called on the Tunisian State to carefully examine the recommendations made in her report, including the following:
- The emergency adoption, of the necessary legislation to make the Supreme Judicial Council and the Constitutional Court operational, by the Parliament. This would be on the basis of broad inclusive consultations that include civil society organisations.
- The removal of close links between the judiciary and the executive, so that the judiciary is independent in practice;
- The urgent need for investigations into any harassment, threats, physical attacks or acts of aggression against judges, prosecutors and lawyers and for providing sanctions for perpetrators, as well as appropriate safeguards for members of the legal profession and their families;
- The need to ensure the independence of the Minister of Justice from the office of the Public Prosecutor, and that the former responds directly to the Prosecutor General of the Republic, whose independence from the Minister of Justice shall also be guaranteed;
- Reform the Code of Criminal Procedure to reduce the legal duration of police custody to a maximum of 48 hours, make access to a lawyer automatic within the first hours of custody, and make all arrest records and relevant legal information accessible to families and defence lawyers;
At the end of the presentation of the report by the UN expert, the representative of Tunisia merely listed the legal provisions related to the independence of the judiciary before assuring that "the UN report will be a road map to follow throughout the judicial reform".
Alkarama supports the recommendations of the Special Rapporteur, in particular those concerning the fight against corruption within the judiciary and continues to be concerned about the suppression of corruption in the judicial system and the establishment of reforms that fight the obstacles to the creation of a country with a strong rule of law.
Alkarama will continue to monitor the developments, particularly of the Constitutional Court, which should be fully operational by October 2015, and of the 'Constitution of Good Governance and Anti-Corruption Commission', which will play a strong role in the investigation of the threats and attempts to influence judges. It is essential that Tunisia ensures full security of professionals working in the justice system and of their families.
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