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Posted on: October 29th, 2012 by Romana Turina No Comments

Blow to judicial independence in Tunisia

Moncef Marzouki, President of the Republic of Tunisia

photo: UN

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75 judges have been dismissed in Tunisia during the last days. The firings, preceded by several others, determine an increase in the subordination of the judiciary to the executive branch, and hinder its freedom systematically.

On May 28, 2012, Justice Minister Noureddine Bhiri dismissed 82 judges, citing the need to curb pervasive corruption, but he later reinstated nine of them.

The justice minister acted in the absence of the High Judicial Council, which was suspended after elections to the NCA. The delay in setting up a new institution to supervise the judiciary has created an institutional vacuum that invites abuse.

In August 2012, Bhir, decided to revive the High Judicial Council, with the same members appointed under the Ben Ali government, citing a need to proceed with new appointments and to revise judicial assignments.

The assembly began to examine the draft of the Temporary Judicial Council law on July 27, 2012. Discussions stalled after Ennahdha, the dominant party in the assembly, opposed granting the new body financial and administrative independence.

Under article 52 of Law 67-29, the Discipline Committee of the High Judicial Council could discipline judges in any of the following ways: a reprimand recorded in the judge’s file; transfer of office; disbarment; delay in career advancement; suspension from office; and dismissal with or without deprivation of pension rights. Judges could be brought before the Discipline Council for any dereliction of a magistrate of the duties of his office, of honor or of dignity. While Law 67-29 lacked procedural guarantees, it did set minimum requirements for granting judges access to case files and the opportunity to prepare a defense.

In the absence of the High Judicial Council, the justice minister used article 44 of the law, relating to the “termination of service,” which he claims allows him to dismiss judges. A judge may appeal the minister’s decision to the Administrative Tribunal, but that body can take years to issue a decision.

“Judges should face dismissal only for serious misconduct or incompetence, and following a fair and impartial procedure,” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. “These dismissals set a worrying and intimidating precedent for Tunisia’s justice system.”

Of the 10 dismissed judges on May 28 2012, who were interviewed by Human Rights Watch, all stated that their superiors telephoned to inform them about their names being on a list of dismissed judges. They had not previously been contacted by the justice ministry, and did not know the grounds for their dismissal.

Following a general strike of judges on May 29, Justice Minister Noureddine Bhiri announced that he would create an independent commission to review his decisions, and hear complaints from the dismissed judges. All the judges interviewed by Human Rights Watch said that the commission consisted of five ministry inspectors, and characterized the review process as summary. They said they had no access to their files, nor were they given an adequate hearing.

Some examples clarify the atmosphere that reigns in the country.

Khalfallah Al-Riahi, who had been deputy president in the first instance court of Zaghouane, told Human Rights Watch that the inspectors based his dismissal on an incident occured in 1999, when he was a judge in Ain Drahem. A colleague who took Al-Riahi’s place in a 1999 trial when he went on vacation was negligent with some files, he said.

Nizar Ghozlani, who served as a district judge in Jendouba, told Human Rights Watch that the review commission told him he was being dismissed because of his debts. On April 26, 2012, the justice ministry sent him a warning, saying he should pay the debts. “I collected the money from my parents, neighbors and friends and paid all my debts, and the company dropped the complaints,” he said. “This is the only reason they gave me for my dismissal.”

According to the Principles and Guidelines on the Right to a Fair trial and Legal Assistance in Africa, adopted by The African Commission on Human and Peoples’ Rights in 2005, “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.”

The UN Basic Principles on the Independence of the Judiciary adopted by General Assembly resolutions 40/32 of November 29, 1985, also states: “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.”

 

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