Thanks and appreciation
DAAM Center extends its thanks and appreciation to everyone who contributed to the making of this study in its current form, and we especially thank everyone for their efforts and support for this study, especially to Dr Naela chaaben, dean of the the Faculty of Legal, Political and Social Sciences in Tunis (University of Carthage) and Dr. Asma Ghachem, Vice Dean
We are also bound to thank Mr. Walid Mejri, the investigative journalist, founder and director of Al-Katiba platform, for his outstanding participation and contribution during the interviews phase relative to the case studies as well as to the questionnaire.
Additionally, all activists, legal experts, journalists, media professionals, and owners of initiatives and economic and social problems who provided us with the time to conduct a series of interviews or whi have participate in the roundtable to discuss the final draft of the study. It had a profound impact on the current form of the study. . We would like to say to all of them, with pride, affection and respect, thank you all.
The Democratic Transition and Human Rights Support Center (Daam) seeks to contribute to the promotion of justice for the implementation of human rights principles, by formulating a systematic vision of the state of justice and its accessibility in Tunisia. As well as developing practical visions that fit the needs of the judicial and justice facility based on the principles of human rights in their universality and comprehensiveness, and far from political and ideological trends, specifically with regard to emerging economic institutions, minorities and marginalized groups. In this context, the Center sought to develop and produce this study, which came at the time of its implementation during the Corona pandemic and the ensuing effects, difficulties and obstacles, and in particular in all that required field work, necessary for the elaboration of the study.
Because of DAAM team’s inherent and profound belief of the importance of persisting to complete this study, it overcame all these obstacles and coordinated with all the diverse participants in it during that difficult period and under the conditions of the health pandemic. The objective was for the study to come out in the best possible way and form, in order to contribute to the Arab human rights library as a study of relevance to the state of access to justice in Tunisia. As well, the study was catered with passion to achieve and thrive for success so it fuels studying the process of access to justice in Egypt and Libya during the coming years.
As usual, DAAM center relies on a participatory methodology in completing its human rights literature, and this modus operandi has been the backbnone of our work throughout all the stages of the study. In this sense, it is of prominent importance to mention the important roles of both Dr Naela chaaben, dean of the the Faculty of Legal, Political and Social Sciences in Tunis (University of Carthage) and Dr. Asma Ghachem, Vice Dean, who were both very cooperative and understanding. Their contribution added a great impact on the completion of the study.
By relying on the participatory methodology, a questionnaire was prepared with the knowledge of experts and passed electronically to a large number of parties related to civil society, legal experts, academics and media professionals, in addition to recording a series of interviews with Tunisian experts on the questions of the questionnaire.
DAAM team, with the assistance of experts also, identified case studies after a hard effort due to the health pandemic. The latter led to a high number of cancellations and drained a lot of time and energy with regards to redefining another set of case studies and working to coordinate with them during all the stages; for interviews, the study and the photography.
Dr. Nayla Chaaban, Dean of the Faculty of Legal, Political and Social Sciences in Tunis (University of Carthage), and her deputy, Dr. Asma Ghachem, provided all the support to contribute to the academic dimension of this study through providing of legal and academic experts, and discussing ways to develop the framework of the study. The three experts and the Research and Studies Unit at DAAM assisted in completing the initial draft of the study.
Afterwards, a roundtable was held to discuss this it in cooperation with the Faculty of Legal, Political and Social Sciences in Tunis (University of Carthage), the GIZ, and in the presence of a distinguished and selected group of researchers, journalists, media professionals, academics, Tunisian legal experts, as well as international experts. This discussion had a great effect on the organization and the development of the content of the study, and helped experts complete its final version.
We hope it would constitute a significant contribution from DAAM center to enrich the Arab human rights library with regard to human rights and democratic transition in general and access to justice in particular. In publishing this study, the Center is taking its first steps in the direction of the Access to Justice Observatory, and this step will be followed shortly by a set of other steps to complete the work on the Access to Justice Observatory in Tunisia while aspiring to extend the work of the Observatory in Egypt and Libya in the coming months.
President of the
and human rights Support Center (DAAM)
General frame of the report
The demand for justice has been at the center of the shouts of the rebellious people since 2011. The feeling of the absence of freedom, justice and human dignity generated a sense of injustice, resentment and indignation, which was the motive behind the masses’ resorting to the streets. In the period prior to 2011, the institutional and legal system failed to provide the minimum guarantees related to the idea of justice, despite the enshrinement of the latter in the constitutional text and legislative texts and its announcement in the programs and development plans and the goals that the public authorities aspire to achieve, but de facto, consecration remained limited. This justifies this study’s handling of the issue of access to justice, considering its extreme importance in achieving economic well-being and social security.
Referring to the legal system as a whole, we find that the lights when studying the issue of access to justice are usually shed on access to the judiciary as a constitutional authority guarantor of rights and freedoms and the application of the law in view of the important development that the Tunisian legal system has known in recent years, especially posterior to the promulgation of the Constitution of January 27, 2014.
The approach to justice from the point of view of access to the judiciary and obtaining a judicial ruling on the occasion of the emergence of a particular dispute is considered necessary as the basic legal mechanism for litigants to obtain their rights within the framework of respect for legal guarantees, but this approach remains limited, given that access to justice is a terminology that is broader in scope, as justice is not necessarily restricted to the judiciary, but includes other aspects, it is a humanistic conception based on achieving a balance between members of society at the level of rights enshrined within the legal system. This, would generate in the members of society a sense of justice, equality and non-discrimination. In this context, justice is not singular but rather multiple. It is permissible to talk about economic, social and cultural justice and justice before the judiciary as an aspect of justice. On this basis, recourse to justice is broader than the right to litigation, its conditions and procedures.
Expanding the concept of access to justice in this study will allow focusing not only on the right to access to the judiciary, but also on access to economic and fiscal justice as an aspect of justice from the point of view of the most vulnerable or precarious groups and the category of young people who have economic initiatives, through mentioning solely a few examples because economic and social rights are diverse such as the right to education, the right to work, the right to health, the right to an adequate standard of living, the rights of the child, combatting violence against women, the rights of minorities…
It will also address the problems posed by access to justice, whether in its narrow or broad sense. The recent national consultations conducted by the Ministry of Justice highlighted that justice does not respond to all citizens’ aspirations. Therefore, creating a justice that is really close to citizens is one of the means to lessen the gap between the citizen and the justice system. Achieving this goal requires reducing several distances between citizens and the justice system, which are geographic distances and time distances linked to long delays of adjudication and social distances resulting from economic pressures or cultural obstacles.
The Ministry of Justice also indicated that overcoming the aforementioned problems requires the development of various mechanisms to ensure real access to justice for all citizens. Among these mechanisms is the review of the judicial map that will enable the service of citizens through the establishment of district courts in rural geographical areas that witness population dispersion. Likewise, updating the procedures towards more flexibility and speed will enable the largest possible number of vulnerable people (Les plus démunis) to benefit from legal aid, which is one of the strengths of the justice system in Tunisia.
These mechanisms also include assistance in gaining access and knowledge of the law by encouraging state structures, legal professions and representatives of civil society to establish mechanisms for legal advice and assistance in order to guide litigants and users of the justice facilities and improve their knowledge of legal material and sensitize them of their economic rights.
Objectives of the study
The report mainly aims to explore:
The methodology of the report
From a methodological perspective, in order to verify the reports’ aims, it was resorted to a set of meetings with interested people in activism, media and tax-related issues. Specific cases had to be kept track of, this shall be demonstrated through the annexed videos.
Meetings confirmed the reports’ hypothesis which are linked to the access to justice approach which is limited to the right to litigation without its context. Confusion exists even among specialists. The aim was to clarify the need to renew this approach and open it to economic, social and cultural rights, the rights of minorities and vulnerable groups, as delicate cases that present important practical challenges that improve the system of access to justice in general.
As a first introduction, we could simplify views, situations and analysis mentioned in the questionnaire. The questionnaire of the Democratic Transition and Human Rights Support Center (DAAM), consists of 22 questions and the competencies of the interlocutors were divided between the press, law and civil society sectors. Therefore, the answers were distributed among several axes which we will try to summarize in the following points:
The first question focused on the access to justice approach and we noticed that there is a misunderstanding between “the access to justice” and “the right to litigation” approaches. Thus answers were partial and focused on one aspect of the right to litigation. This is what made the concept of access to justice focus on the facility of the judiciary and court although the concept is broader than the right to litigation itself.
The attempt to simplify the current understanding of access to justice among the various questionnaires is linked to the problem that the right to access to justice is less important for the society. The problem was summarized in the slow administrative procedures from one side and the saturation of the Tunisian society with dictatorship that always presents in its vision, especially that the concept of justice has always been linked to the vision of the state’s bodies which caused the citizen’s lack of confidence towards the Judiciary as judicial rulings aren’t implemented even if it brings justice to the victim. In addition, lacking legal and rightful awareness, the absence of political will and the citizen’s ignorance of how rights are obtained greatly contributed to not recognizing the importance of the right to access to justice and understanding its depth. Despite the above, part of the questioners contradicted the aforementioned approach, as they considered that the right to access justice is not behind the scale of social importance. Their view is based on the developments that occurred after revolution and the demands for justice in all levels, although the reasons for inequality exist and the reasons for lacking respect and use of the law are frequent. This has led some persons to say, from a mere historical and sociological point of view, that Tunisian society does not know justice, ignores the law and is far from the rule of law.
Based on the desire to scrutinize the concept of access to justice, the third question tended to link this right to the economic aspect regarding the establishment of economic institutions. Therefore, the answers took two approaches: An approach that relied on the effect of the right to access to justice, if it is available, on the society and another approach that presented the impact or importance of this right in the revival of economic institutions. In both approaches, the most important problems raised by our interlocutors were: The lack of trust, bureaucracy, delayed administrative procedures, the young researcher’s failure to consult a lawyer while sending the project, and the many costs that the young researcher bears. This has expanded by dealing with access to justice, which is not just limited to the right to litigation, down to the opportunities for access to justice according to social class, age group and regional loyalty…
In our question concerning the most important problems that impede the young researcher in evaluating the performance of the public institutions in establishing economic projects in Tunisia, we discovered that almost all evaluations are negative, as they unanimously agreed on the institutions’ bureaucracy and the multiplicity of the required administrative documents and the administrative bodies. In addition, it was questioned about the Single-window system which failed to present an alternative and facilities as it was founded inaccurately and was obstructed by the institutions itself in order to preserve the privileges which violate the legal texts. Thus, the duration of the project’s establishment takes months in order to settle.
In addition, there is another problem which is the failure to include these means or stages of the project’s formation in digitization that could facilitate all procedures. Moreover, the outdated laws that link the young researcher to the formation of the project which creates a crisis for us through the repetition and imitation of projects, besides lacking innovation.
The role of syndicates and civil society was the core of the fifth question which tackles the relation of the right to access to justice with syndicates and civil society, and their task to establish this right. The interactions of our interlocutors were between defenders and deniers as there are those persons who criticized their bad role and the absence of this right in their priorities. In addition, there are those persons who emphasized that syndicates are the defender of workers and not the creator of projects. Therefore, they have no role at all in establishing this right, which must be reviewed according to some of the interveners because their intervention in an advanced stage of project’s research and their communication with the youth group of project researchers could contribute to changing matters, unlike its weak role.
In addition, some interlocutors argued that there is a failure of civil society in raising the awareness of this right and that is due to the directions and specializations of the organizations. Moreover, the ideological effect on syndicates and organizations has an important role in dealing with that right.
The sixth question focused on the right to access to justice, reaching to its legislative framework and the extent of guaranteeing the opportunities for equality within it. Here, we return to posing the problem of implementation, as laws or the legislative framework in general guarantee the opportunities of equality, however it remains a mere dead letter for non-implementation. In addition, the problem is that laws have become incompatible with citizens and don’t bring justice to them, and due to its complexity, the gap grows and becomes selective.
Some persons have pointed to the need to create a specialized judiciary and bar in this aspect, because the matter is not related to the principle of equality and its dedication, as it is related to creating exceptional solutions to the exceptional circumstance to ensure achieving equality in reality.
The seventh question dealt with the duality of position, margin, and affiliation in relation to access to justice. Everyone acknowledged the existence of a disparity between the interior and the major regions in which all institutions are located, as there is, for example, only one commentary court in Tunisia and located in the capital Tunis, even if Some areas have urbanized and increased in population. The infrastructure remains dilapidated and does not develop through institutions. There is someone who posed an alternative by invoking Germany such as the distribution of projects on the basis of the region’s wealth and the vital sector therein (agricultural, industrial…) Thus, the projects are available to young researchers, each according to their destination and location. This is what linked the majority of the interveners between providing the infrastructure for justice and the opportunities for developing the economy, society and culture. This created a similar ground between the various responses to justice institutions of all kinds and their economic, social and cultural context.
The eighth question poses the relationship of the principles of equality in spite of the sexual, religious and gender differences in order to gain access to justice. In addition, there are those persons who turn towards discrimination against women, especially in issues of inheritance and honor, and there are those who have proposed the possibility of discrimination between Muslims and other religious groups especially that the majority of judges have a conservative background who take the platform against religious and sexual minorities. The most prominent example of this is the famous case of homosexuals in Kairouan city, which reached the point of preventing them from re-entering the governorate of Kairouan.
The participants pose the absence of the principles of democracy in society, in addition to the administrative work and judicial performance. This confirmed that the access to justice is affected by the various factors inside the state and society.
The questions were not direct, however they provided a broad scope in order to analyze the reasons for not allowing equal opportunities to access justice. That was posed by the ninth question. The participants expanded their analysis for the reality of the access to justice. Some of them stated that the reasons are due to the reality of despotism, dictatorship and its economic, cultural and social origins, in addition to its historical origin which is linked to colonialism and the establishment of nation’s independence. Other participants moved to the direct reasons which are in relation with the state and its institutions, especially the judiciary which lives in a crisis in terms of structure and logistics that is inseparable from the absence of its development with modern digital tools. In addition to the absence of a political will.
The tenth question concentrates on the level that isn’t different from the last question, however it defines a question about the Tunisian cultural and collective vision, as the question tried to understand the civilizational, political and cultural interrelationship of the right to access justice, and was our collective vision a reason for obstructing the path of achieving the right to access to justice and its social establishment?
We noticed that almost all of the interlocutors interacted with the cultural side without paying attention to civilization and politics, as they unanimously agreed that the lack of education and the pervasive tyranny of social memory and the religious background of a conservative and concealed character have greatly contributed to the failure to achieve a rightful justice for all. In addition, after ten years of the revolution, a new democracy hasn’t been formed yet which is capable of ensuring justice for all and equality among them.
In the eleventh question, the questioners unanimously agree on lacking partisan programs which are capable of adding to the system of access to justice. according to them, the parties’ attempts are to control the system. Therefore, situations vary according to their decisions and their directions if they are in favor of one party or the other.
As for the twelfth question, everyone said that the legal procedures for forming companies are the same from the legal point of view, however inequality appears in the implementation. Most of the questioners directed us to the problem of regional inequality especially in gender, while bureaucracy is considered a necessary evil. Although the demand for reform exists, its negative characterization dominates. Bureaucracy is considered an opportunity for corruption in the absence of guarantees of accountability and responsibility. This urged some persons to demand registration of the name of the agent who worked on the file of forming a company for the sake of responsibility and accountability. This matter confirmed the demands for reform in order to facilitate procedures to push the economic movement. Another aspect confirms that the procedures for forming companies are based on the size of the company’s capital which is under establishment in order to know the expected taxes, which means that the procedures should be changed in order to achieve justice instead of focusing on tax and money.
We conclude from the thirteenth question that excessive taxes kill the tax according to one of the participants, as the tax system suffers from dispersion and frequent change in addition to being difficult according to specialists. In addition, that is considered unfair as the Journal of Estimated Tax Systems cannot be fair, as employees pay 10 times more taxes compared to private-sector owners.
The current tax system does not provide tax scrutiny. Some of the questioners also linked it to its goals, the extent of its realization and the groups which benefit from it.
Some questioners considered in the fourteenth question that taxes put pressure on the youth, while others believe that taxes put more pressure on medium and large-sized foundations. It is generally a pressure that increases annually with every financial law. While those persons with influence find themselves in advanced positions that are capable of resistance and maneuver within the logic of lobbies.
On the other hand, the problems of the judicial system are due to the disputes which are related to investments, according to the fifteenth question. Deficiencies in the judiciary disrupt these disputes. This prompted some persons to suggest removing the Contracting Department from the Commercial Department to avoid litigation cases that last for many years, especially before the administrative judge. This is part of a comprehensive reform that requires a political will that is now absent.
Regarding the structures which are capable of guiding young investors in litigation, the majority stresses in the sixteenth question that there are no specialized structures, while some have indicated the limited role of the judicial counseling institution. It is a limited institution and public structures to support young people are absent. Thus, the question is posed concerning the feasibility of some of them. Some persons considered that such a structure remains elusive, as a difficult dream.
Regarding the role of the citizen under a similar situation, the citizen is considered in the seventeenth question a victim according to the prevailing opinion, but he is responsible at some level to the extent of the negative behavior that he exhibits.
However, the responsibility belongs mainly to the state institutions through its policies and the public education facility, especially in establishing this societal awareness that is enshrined through citizenship, given that the citizen does not have sufficient power.
The bet in the eighteenth question on the judicial aid institution does not represent an eternally meaningful bet for some. Whereas legal professionals see the necessity of keeping the same institution, but with the creation of other institutions. Within the existing network of institutions and bureaucracy, the field is opened for a great effort to redress the weakest, despite the presence of some positive signs.
With regard to the authority of the media and its role in the nineteenth question, legal information is absent. It is one of the few areas that have been invested in, despite its importance after the revolution. Despite the presence of some initiatives from here and there, they are mostly unbalanced, while the majority of the questioners tend to focus on the judicial facility as a major problem and bet on an investigative media that plays a meaningful monitoring role at this level.
According to both the twentieth and the twenty-first questions, the media plays a major role in providing legal information which is one of the most basic solutions to raise legal awareness regarding access to justice as a comprehensive system. The sensitization is a role that is considered a focal point for the participants yet it is a role that has to go hand in hand with the needed media coverage that would eventually provide the appropriate discussions about the cases it poses.
Under a difficult situation described by many in the previous questions, most of them do not see in the last question a great hope in betting on a change imposed by the Corona crisis. Even digital justice and the digitization of the judicial facility during the health epidemic aren’t expected to continue, especially given the infrastructure available today, which in turn suffers from severe problems.
The results of the questionnaire
The questioners linked the vision on which the report was based, to the concept of access to justice, the legislative framework and the following elements related to information, fiscal and economic matters. Based on the existing intersections, it has become clear that the system of access to justice exceeds the right to litigation and to appear before the court to
In this regard, the section on media and its role in dealing with the system of access to justice reviewed an extensive historical reading in the aspect of an authoritarian system that excludes many groups. The law played a role in structuring tyranny itself. This is mentioned, for example, regarding agricultural lands after colonization and after the experience of mutual aid. The state’s programs regarding development, its construction or the removal of their effects were not fair at all, and these effects continued for a long time. This section indicated that addressing justice together with thinking on it have roots in the Tunisian history. The media has contributed to developing and demanding it as an observer and escort.
At the fiscal level, its section provided possible research paths on points that represent real obstacles to achieving fiscal justice and the equitable distribution of fiscal pressure. The tax represents a citizen’s duty towards the national group, however many taxes kill the tax. It affects the healthy relationship between the citizen, the state and society, so instead of being a balanced relationship based on right and duty, the private goals of the private interest dominate which will search for a reason to bypass collection and taxes if they are not directed and fair. At this level, the relationship between citizenship, taxation, economics and justice is clearly evident, in terms of the latter, an integrated path and a required goal at the same time.
The notion of the right of access to justice as it is defined now only appeared posterior to independence i.e., posterior to 1956 and the announcement of the republic and the ratification of the 1959 constitution. In order to entrench the notion of justice in an independent Tunisia, Mohamed Amine Bey (the Bey of Tunisia) announced on the 21st of June 1956 that the state’s emblem and its foundations will be order, freedom and justice.
Linking the three values was applauded by politicians, syndicalists and journalists. For instance, the “ al aamal journal” which was the 1st journal of the novel free constitutional party and the “l’action journal” addressed the 3 notions. Even the “Tunisian telegram” journal that is the French written journal under the control of the protectorate did address the 3 notions while comparing it to the French emblem: freedom, equality, fraternity.
However, the notion of justice in Tunisia was long consecrated before that. In fact, courts were established in the country since the 18th century when it was incorporated in the 1st constitution in the country on the 10th of September 1857 that is the fundamental pact ( le pacte fundamental). The latter stressed in its 1st article on ensuring safety for all residents as far as their bodies, patrimony and their honor except for cases where the judiciary interferes.
Based on that, rules of law were drafted, courts stood and functioned until the abrogation of these laws in 1864. In 1870, judicial affairs became a part of the prerogatives of the 1st ministry and civil and penal courts were established for the Bey to sign it acting under his own volition and moods.
Pursuant to the study entitled “the history of Tunisian judiciary” , aside from the two aforementioned courts, in Tunis the capital, another court existed. It is a another court existed court where a judge called “Al fariq” sits independently from the Bey. The most well-known judge is Salah Abbas. In January 13th 1896, judicial affairs administration was established and presided by a French governor and then judicial courts were established bit by bit. Regional courts were built by March 18th 1896 in Sfax, Gabes and Gafsa. And on the 25th of February 1897, a beylical decree was issued that founded the court of Sousse and Kairouan. The following year another founded the court of el Kef. As far as the court of the capital, it was founded by the beylical decree of May 1900. Yet the court in Beja took until 1930 to be established. In order to organize the work of courts, their composition, the election of judges, investigations, the appointment of lawyers and determine competence and procedure, the beylical decree of March 18 1896 was published.
After the independence, the judiciary became unified and national in Tunisia, and the Tunisian courts became courts of jurisdiction in all cases, regardless of the type of litigants.
The fundamental pact protected the minorities in Tunisia through its 4th article that stipulated that “the non-Muslim Tunisian must not be compelled to alter his religion nor must he be prohibited from practicing his religion. Non-Muslim temples must not be insulted. Non-muslims has all the rights and is subjected to the same obligations that the Muslim is obligated by. Moreover, the 8th article stipulates that all citizens are equal in customs and rules of law without preference.”
The 10th article of the fundamental pact insists that “immigrants in Tunisia may perform whatever profession or act they wish under respect of the law of the country”. The next article point out to the freedom of property. The fundamental pact contains 11 articles, 6 among which came for the sole purpose of protecting and nurturing minorities’ rights in order to ensure safety, freedom of religion, equality in treatment, freedom of work and property. In application of its 1st article, Jews have their own judicial courts.
After the start of the protectorate, the French law dated on the 27th of march 1883 established French courts in Tunisia in different cities including Tunis, Bizerte, Sousse, Sfax and El Kef to be competent in litigation in which French citizens or persons under the protection of the French protectorate are involved. On the 4th of April 1883, the Bey promulgated a decree to make the aforementioned French law applicable in the country.
After founding the free constitutional party in 1920, it claimed piecing together courts, reforming it, reforming the agents’ system and supporting the principle of separating administration from the judiciary which led to constituting the ministry of justice on the 26th of April 1921.
After the independence in 1956, the judiciary became united and national and Tunisian courts became competent regardless of the category of litigants. Making the courts 100% Tunisian and generalizing them in regions enhanced the principle of access to justice, removed religious, racial, and regional barriers that hinder the consecration equality before the law and the unity of accessing justice.
1. the state of independence: “the constitutionalization” of the judiciary and the legitimization of the state’s economic violence.
A. The beginning of founding a national judicial system, restitution of lands and properties from French centenarians and confiscation of the Beys’ properties.
the independence on the 20th of march 1956 represented an inflection point in the path of access to justice in Tunisia. Indeed, after 100 years, the functioning of the religious court (known as the “diwen”) was finally terminated. In addition, the independence marked the cessation of work of the French Courts and Jewish courts by virtue of the Act dated on the 9th of September 1957 that abrogated the sitting of the Jewish council starting October 1st 1957 and transferring all cases to be heard by the court of first degree. Based on that, an administration for managing and administering the Jewish religious rituals was also created. Another inflection point was that of including Jewish personal status cases within the scope of the code of personal status as promulgated in the 13th of August 1956.
These radical changes did not only unify the judicial branch but it made it hugely concentrated (directly or indirectly) and under the power of the executive branch that is a mixture of the party’s power and the young state. The latter is the fruit of years of Beylical ruling and a Bey that was overthrown by virtue of a constitution ( in 1959) that announced the start of a new era for Tunisia, the era of the republic.
The collapse of the Beys system labeled a dawn of new measures and procedures that were described by l’action journal, the party’s journal, as revolutionary especially so far as the confiscation of the Beys’ properties pursuant to the Act n°34-1969 relative to confiscating all properties of the late Hassine ben Mohamed Ben Nacer Bey. The Tunisian radio, the 1st public radio back then, addressed the confiscation matter redundantly mirroring president Bourguiba’s view (the regime’s view) without a shred of criticism.
The aforementioned act legitimized the confiscation the Beys’ property without regard to a possibility of “violation of property” especially with the transfer of ownership to the state. Yet, posterior to the 2011 revolution, more than 40 years later, this act will come to the surface especially with the existence of the authority for truth and dignity.
B. the cooperatives experience
Between 1962 and 1969 ex-minister and president Bourguiba’s right arm Ahmed Ben Salah imposed a novel economic system of communist origins based on gathering together ownership and production tools in the hands of the state after confiscating it from its private owners . This experience was named the cooperatives experience and failed shortly causing its founder to be prosecuted in 1970 for grand treason and sentenced for 10 years of jail from which he spent 3 years incarcerated before he managed to escape from prison to Algeria. Ahmed Ben Salah ended up taking alone full political and legal responsibility for the failing experience.
The cooperatives experience i.e., confiscating private property and making it collective under the care of the state, faced immense popular rejection notably from agricultures and land-owners that found themselves before the state’s overly broad cudgel that lacked the basics of access to justice.
Meanwhile, Ahmed Ben Salah was the powerful and dominating minister who controlled economy and had the support of the syndicate along with the media. In fact, the media back then addressed the cooperative experience with applauding as it highlighted its positives side and completely disregarded its negative outcomes. For instance, “al aamal” journal, that of the ruling party, thoroughly explained its details and belittled its disadvantages.
Private property owners lost their properties due to the cooperatives’ experience and found no resort to take back their rights during the years of the experience. That is due to the fact that the judiciary was servicing the state interest solely and not that of the litigants and the media was biased to the regime and insouciant of the people’s maydays.
Not only did the government confiscate private property but it also raised taxes by 22.5 % between 1962 and 1970 to provide liquidity for implementing the new economic policy (the cooperatives policy). The most impacted layers were the poor and the middle class by 72.2%. Moreover, exterior debts, especially those granted by the USA and the world bank, were majorly relied upon as they represented 40% of the total investments in the 60’s.
During the brief years of the cooperative, the state nationalized nearly all agricultural lands to the extent that by 1969, 1762 agricultural cooperatives measuring almost 4110000 hectares were created. As such, cooperatives were controlled by the state through its public employees in the regions. This control was deemed to be superficial at many times.
As for the published journals back then, whether they were party-biased or independent, switching positions was not too complicated. In fact, as soon as late president Bourguiba suspended the cooperatives experience, Ahmed ben salah was prosecuted and held liable fully as a scapegoat for the regime, the journal quickly publicly joined the prosecution of the overthrown minister before it even judicially began.
“al aamal” and “l’action” journals were respectively the Arabic and French mouthpieces of the ruling party. These journals easily switched positions from defending Bourguiba’s choice and analyzing his February 1965 speech during which he said that “we saw that the most efficient way is for the state to take over the biggest economic roles and to guide through planning all that is undertaken in the country… As a result, the era of absolute economic freedom is over”. , to blindly conduct public prosecutions for Ahmed Ben Salah and to his “hybrid” and “failing” experience as described by “al aamal” journal. The quick switch of position occurred right after Bourguiba terminated the experience. The latter journals did not present any objective analysis of the situation and did certainly not provide any alternative opinions to those of the regime.
C. A Tunisian media conscripted to apply “the directives of the president”
While building an independent Tunisia, Bourguiba found himself playing two major roles and possessing two cumulative powers. First, the national leader, holder of quasi-absolute political power. Second, the godfather, holder of a moral authority applicable upon his people through guidance, advice and instruction.
Bourguiba made for himself a divine oracle of sacred origins. He is “the sole leader”, “the grand moujahed”, “the independence-binger”, “the builder of the independent state” etc. all these descriptions were used by the media to legitimize and create his moral authority over Tunisians whom he addressed daily through radio and TV in a show called “the directives of the president”.
This daily routine was the president’s way to teach his “children” (his manner to address Tunisians) the foundations of patriotism, civility, clothing, cuisine, dedication in work, up to body and clothes’ hygiene . The publicity wrapped up in a fine layer of guidance and instruction contributed in making the media a mere megaphone for the regime and the president. This mortified any chance of providing criticism or evaluation.
Bourguiba used all powers he has overtaken and directed “the state’s legitimate violence” towards terminating his opponents and political rivals and made no exceptions for his struggle of independence companions like “Al Yousfiyin” to refer to the followers of Salah Ben Youssef that was assassinated in Germany on August 1961.
Bourguiba fought left and right. He fought the communist party which he later froze its activity in 1962. He also fought the islamists (the Islamic movement party that later on became al Nahdha movement). Not only did he fight, he also mutilated them right after a truce he invested in his war against the opposing leftist opponents which he rendered inefficient. Moreover, he abolished fundamental liberties and imposed control over the media.
On the 27th of December 1974, Bourguiba made himself president for life after amending the constitution.
2-The change of November 7th 1987: “the new era” and new promises.
The rise of ex-president Zine El Abidine Ben Ali on November 7th 1987 after removing Bourguiba caused a radical change in the governing system that had been weakened and became a burden to the continuity of the state’s institutions.
“The 7th of November shift”, as baptized by Ben Ali, represented a lifeline for political entities, organizations and syndicates that suffocated during Bourguiba’s ruling that made their activity nearly impossible in Tunisia by increasing political trials before the state security court.
A. An explosion of the freedom of the press and a free dealing in litigation and ongoing cases.
During the first 3 years of Ben Ali’s ruling, the press got emancipated and expression liberated. Oppression manifestations disappeared and were replaced by open criticism and pertinent analysis to the Ben Ali regime decisions and measures. Moreover, journals allowed multi-ideological opponents to publish their opinions and perceptions of the new Tunisia post Bourguiba.
At that time, Bourguiba’s era was stamped as the “previous regime” in a pejorative sense and cases of the past floated to the surface to be criticized. These cases were a violation of rights such as the right to litigate and the right to compensation for the harm incurred by Bourguiba’s regime. The latter was, indeed, characterized by dictatorship and abusing the state’s authority to control governance and silence opponents.
The Media was quick to make itself both accessible and open to provide a safe space for opponents in a movement that was described by historians as one close to “a purging” from the previous state of submission and compulsory recruitment lived during the 30 years of Bourguiba’s governance.
Yet, unfortunately, this emancipation did not exceed 3 years and the press quickly fell in traps of the Ben Ali regime that took it back to dictatorship and exploited it, again, to be its loyal megaphone.
B. A strong recurrence in compulsory recruitment of the Media and press by Ben Ali’s regime.
Radical opposing parties’ activities were frozen after 3 years of prosperous ideological freedom and Press(public and private) oppressed again to smoothly re-enter an era of biased “drumming” for the regime and its achievements. The successes of the system that were Longley applauded by the media was limited to fictitious facts and was a mere political publicity to collect enough legitimacy and for the regime from internal and external parties.
The media returned to its old habits of being obedient to the system that used this opportunity to codify its control over the press through establishing the ministry of communication, and the technical agency of foreign communication. This agency, which was terminated after 2011, bought the voice of so many journalists and aligned the media through dual-track and carrot-and-stick policies. These policies consisted of gifting the most loyal and implicitly punishing the opponents by drowning them in harassment and cases and prohibiting them from receiving help subsidy. Punishments for adverse parties could even reach jail-time and trials.
Suffocating the press led to a consistent and recurrent impunity, spread of corruption, repetition of unjust enrichment cases and complaints against Ben Ali and Trabelsi family close friends and relatives.
In contrast, a huge number of private journals as an illustration “ Al chourouq”, “Al Hadath”, “Al eelen”, “ al moulahedh”, etc led campaigns against opposing persons whenever the regime demanded that they do so. These journals attacked, publicly prosecuted, accused of treason, alliance with external powers through embassies and accusations of attempts against the sovereignty of the state all persons that bothered the regime at that time. These journals benefited from a de facto immunity accorded by the regime.
Meanwhile, the notion of justice, independence of the judiciary, equality and equity before the rule of law, and restitution of rights were dwarfed and emptied of meaning as they continued to be present daily in newspapers to provide publicity for the regime. The emblem of the Ben Alin system was “ a state of law and institutions.”
During these evidently dark times for liberties, rights, state of law and institutions, a few Party-opposing journals and progressive opposition such as “Al mawqef” mouthpiece of the progressive democratic party and “Al tariq Al jaded” published by Al tajdid party (now active under the name “al masar”, and “Mouwatinoun” published by the democratic bloc for work and liberties and “the people” journal mouthpiece of the syndicate in addition to some independent newspapers that were published outside the country ( Al joraa, nawat website, Tunisianews etc) represented an alternative to obedient media. In fact, these alternatives uncovered the corruption of system, defended the freedom of press, expression, independence of the judiciary and supported justice to be founded as a pioneer for democracy.
C. Opening freedom of expression windows under the care of the system
Ben Ali regime got increasingly pressured by civil society Organizations and syndicates on the internal level and by external partners such as The EU and IMF starting the early years of the 2nd millennium. The regime was pushed around to commence radical reforms as far as supporting freedom of expression, independence of the judiciary and enhancing partisan multitude. These pressures drove Ben Ali who needed a renewal of term for presidency to loosen the rope around the press’s neck. In this sense, Tunisia hosted in 2005 the 2nd edition of The World Summit of Information Society (WSIS).
According to the decision n° 183/56 of the general assembly of the United Nations, the world summit was organized on a two-stage basis. The 1st stage was in Geneva and took place between the 10th and the 12th of December 2003. The 2nd stage was in Tunisia and occurred from the 16th to 18th of November 2005. The international telecommunications union (ITU) was charged of the preliminary stages in cooperating with the interested parties among which we can find organizations and partners. Based on that, the Tunisian system had to compromise and settle with a few additional doses of freedom of expression and political activism. This situation lasted 3years during which bold programs emerged and addressed the issue of access to justice with the public who are struggling with it. “al Haq maak” that was initially broadcasted on the 1st national TV channel “7th Tunisia” before it was prohibited was among the 1st to emerge. Another illustration of a little emancipation of media during the aforementioned 3 years occurred with “al haqiqa – the truth” program broadcasted on Hannibal TV a private channel along with “BELMAKCHOUF- in the open” a show that unveiled corruption in the sports field additionally to other radio programs of social and economic interest.
After the “mine basin/reservoir” events in 2008, the regime stiffened the rope around liberties and promptly dominated the media again.
3-The revolution of December 17th- January 14th: transitional justice between the authority of Ben Sedrine and the law of the president.
By the end of 2010 and the beginning of 2011, ex-president Ben Ali was chased off by protestors and left Tunisia to Saudi Arabia where he stayed until his death in 2019.
The protests shifted from claiming merely social demands requesting for dignity and the right to employment to raising political emblems calling for reckoning Ben Ali’s legacy and liquidating his regime which led to the prohibition of the ruling party, the dissolution of the parliament and the dismantling of the governing system including the ministry of communications and the technical agency for foreign communication .
A.A glut in covering the news about cases involving the old regime’s cadres.
Posterior to the collapse of the Ben Ali regime, the Tunisian media was freed from decades of control and possession. Based on that, Tunisians lived in an era involving a media supporting the revolution either until the features of the new system gain visibility or in an attempt to purge years of sins by adding a revolutionary spirit and benefiting from the space of liberty before novel updates take them back to compulsory recruitment and silencing again.
The early years of the revolution were characterized by the media focus on the violations committed in the past years of dictatorship through opening up forbidden and long-forgotten dossiers. For instance, what was referred to as “the military group of Baraket Al Sahel” and “political trials” and “security pursuits of students” and “Soliman’s jihadi group” along with a number of buried cases whose “heroes” were the Ben ali and Trabelsi family and their close privileged entourage who violated people’s rights and properties.
The media coverage focused on the victims and concentrated on advocates’, judges’ presences in TV programs (cases of ben ali, imed trabelsi, slim chiboub etc). During the last years, the media became a safe sanctuary for all victims of the old regime. Additionally, the media was used to pressure the judiciary in dealing with specific cases and bring justice and equity to the victims.
The early years of the revolution were characterized by the focus of the Tunisian media, with all its different affiliations, on past violations, by digging into files of the past and returning to the most important major issues that occupied public opinion and could not be addressed previously due to censorship.
B.Transitional justice… material for the media that is not immune to ideological and political usage.
in early 2014, the authority for truth & dignity saw the light. This authority is competent as to the supervision of the transitional justice process during all of its stages. It is indeed an independent authority that enjoys legal personhood and administrative and financial independence .
The authority uncovers the truth surrounding violations, holds the responsible persons accountable and decides on liability and compensation for the genuine victims. The point behind it is to achieve national conciliation. The authority’s workload starts, in principle, to treat cases who occurred between July 1955 until the promulgation of the law organizing it.
By virtue of the organic Act n°53-2013 dated on the 24th of December 2013 relative to establishing transitional justice and organizing it and to the organic Act n°17-2017 dated on the 12th of June 2014 relative to rules related to transitional justices and covering cases that occurred between December 17, 2010 and February 28th 2011 and in application of its bylaws and its specific procedures handbooks.
In November 2016, the authority organized the first public hearing/audition for the victims of the tyrannic system . The audition was broadcasted on the 1st national TVand fully or partially broadcasted by a number of other public and private channels and online platforms. The number of Tunisian auditors was enormous, many confessions and testimonies about previous violations were given.
The auditions represented a golden space to uphold the notion of justice and bring it closer to the people and dismantle the violations systems in a simplified manner with concentration on the human aspect through the testimonials of the victims and the confessions of the violators instead of the usual focus on laws and procedures. The hearings were an opportunity for rehabilitation and an authentication of justice for a number of victims who willingly dropped their right to pursue their offenders and considered that informing other people about their painful experience was already enough justice for them.
Ad interim, transitional justice was not immune to political and ideological use which reflected badly on a big number of media institutions that kept being biased to the defenders of the transitional justice process or its opponents without providing an objective view unveiling the path and its shortcomings.
C.The administrative and economic conciliation Act… a powerful presence accompanied with conflicting legal and political readings.
With the rise of late ex-president Beji Caid al-Sebsi and its elections in 2014, the latter rapidly appointed experts to draft the Act of administrative and economic conciliation” known under the name of “the Act of conciliation”, that is a bill consecrating -as per its opponents- a policy for impunity and obstacles the process for transitional justice under the guidance of the president of the authority for truth and dignity Sihem Ben Sedrine that shortly became President al Sebsi’s biggest rival.
The conciliation act caused an explosion between the presidency of the republic and the supporters of the act on one hand and the authority for truth and dignity and the supporters of the transitional justice process on the other hand.
Soon enough, the media covered this explosion and turned it into work material for talk shows and news reports. Despite the political and ideological use of the conflict between the two institutions, the media interference and coverage simplified it to be a popular matter and not an elitist one reserved to jurists and activists.
This popular interest reflected in reality in protests that supported the transitional justice process and acute resistance of the Act and its policy that consecrated impunity.
Among the most prevalent movements was the “manich msemah-I am not willing to forgive/conciliate” movement that boiled down and simplified the notion of justice and fought against impunity.
Access to justice is defined as the right to go to courts and practice defending material and moral rights through litigation in all its branches, is considered one of the most important principles of the rule of law and a necessary condition for protecting the rights of individuals, ensuring the social cohesion of society and achieving civil peace.
Perhaps, before expanding the concept of access to justice in addition to addressing it with a lesson in terms of being an important lever for the economy and closely linked to investment engines, achieving equality of opportunities at the economic level, equality before the administration in general, and the administration of collection in particular, it is necessary to first put forward the most important legal sources that regulate the principles that govern Access to justice in its shortened sense of the right to litigation and the guarantees required by it, which we have arranged in a manner that is required by the hierarchy of laws from the highest degree to the lowest.
However, it is worth noting that the texts on access to justice in the sense of litigation are scattered among a large group of legal texts, whether at the international level or at the national level.
For this report to not be limited to a mere listing of legal texts related to access to justice, explaining legal and factual issues emanating from these texts and hurdling that rights either partially or integrally needs to be done.
The Tunisian Constitution which was issued on January 27, 2017, is considered to be important as it consecrates what is theoretically called “principles for the 2nd republic”. Indeed, this article stipulated the following:
Every individual is entitled to a fair trial within a reasonable period. Litigants are equal before the law.
The right to litigation and the right to defense are guaranteed. The law facilitates access to justice and provides legal assistance to those without financial means. The law guarantees the right to a second hearing.
Court sessions shall be public unless the law provides for a closed hearing. Judgment must be pronounced in a public session.
As for Title two “Rights and Freedoms”, Article 27 stipulated that:
“A defendant shall be presumed innocent until proven guilty in a fair trial in which he/she is granted all guarantees necessary for his/her defense throughout all the phases of prosecution and trial”.
Art. 105 :
stresses that the legal profession is free, independent participated in establishing justice defending rights and freedoms. The lawyer enjoys legal guarantees which protect him and enable him to perform his tasks.
It is clear, then, that the Tunisian constitution guarantees the right to a fair trial and provides the basic principles to justice access in accordance with what is recognized within international treaties and the importance of this is extremely important because the constitutional text, which is the highest degree in the ladder of laws and must be followed. In addition, it is inevitable to abide by its provisions when enacting all kinds of laws, so that they cannot deviate from these principles. It is beneficial to stress upon the fact that the 2014 constitution consecrated for the 1st time a set of principles as it considered that litigation should have reasonable delays (this is supposed to be determined by jurisprudence depending on the nature of the litigation, it has not yet been done). The constitution also considered that the legal profession as an aider of the judiciary participates in establishing justice and plays an original constitutional role in defending rights and liberties.
Announcing the aforementioned constitutional principles relies upon prominent constitutional mechanisms relating to the judiciary (judicial, administrative, and financial) and the establishing of the high judicial council ( Art 112 et s of the constitution) which was consecrated by Law N°34-2016 dated on April 28 2016 then through electing the council’s members. It supervises the wellness of the judicial power and guarantees its independence. Also, the constitutional judiciary through Art. 108 of the constitution that consecrates the Constitutional Court which regulating law has been promulgated since December 3rd, 2015 but has not seen the light yet. In addition, the constitution created a novel type of independent public Authorities which is endowed with numerous prerogatives in human rights and freedoms-related fields and as well kept away from the reach of the executive.
On the international level, The International Covenant on Civil and Political Rights 1966 guarantees the right to access justice and the right to a fair trial.
It is the charter that was enacted and adopted by the Council of African Presidents at its regular session No. 18 in Nairobi (Kenya) June 1981 and Tunisia ratified the African Charter on Human and Peoples’ Rights on March 16, 1983. With regards to the issue of access to justice, it was stipulated in Article 7, which deals with the right to litigation and the proof of innocence, the right to defense and the right to a fair trial.
Based upon the aforementioned, during this section, we will research the constitutional and legislative consecration for fundamental and necessary principles guaranteeing the right to access justice especially while other constitutional institutions like the Constitutional Court and independent Constitutional Authorities have not yet been established, this seriously limits the effectiveness of that right and the evaluation procedure.
Looking into the consecration of this right and the problematics hurdling its achieving imposes upon us the need to research the extent to which the Tunisian legal system consecrates the right to access the judiciary then secondly the right to access an effective judiciary.
I -The right to resort to a judge
The Tunisian constitution guaranteed the right to access the judge as well as exercising this right in time until all legal resorts are exhausted.
A. The right to access the judge for the first time:
This supposes that the judge exists, be close to the litigant and or has jurisdiction and that the litigant, at the time of filing the suit, be dealing with simple and uncomplicated procedures.
B. That the judge exists:
At the core of the judicial authority, the Tunisian constitution has consecrated three branches, namely the judicial judiciary, the administrative judiciary, and the financial judiciary, and that is through explicit constitutional provisions notably articles 115, 116 and 117.
We conclude from these chapters that the will of the constituent power tended to preserve the judicial duality in Tunisia through the adoption of a judicial judiciary that includes the civil judiciary with all its specializations and the criminal (penal) judiciary on the one hand, and the administrative judiciary on the other hand, which specializes in administrative disputes. This enables the litigant to resort to the judge according to the nature of the dispute to which he is a party.
The Constitution, in its 117th article, also covered the financial judiciary, but the latter remains restricted to a certain type of litigants, as it is a special judiciary for public accountants and exchange commanders.
If we expand on the concept of justice, we can consider that access to independent public bodies also falls within the framework of the right to access to a specialized judge, according to the areas in which these bodies intervene, whether they exercise an economic adjustment function or are active in the field of human rights and freedoms. For example, the Financial Market Authority, the National Communications Commission, the National Authority for the Protection of Personal Data, the General Insurance Authority, the Information Access Authority…
It should be noted that the Tunisian legislator has created these specialized bodies to exercise, according to their field of intervention, an amending function that allows them to establish themselves as judicial bodies when deciding on disputes that fall within their respective jurisdiction.
2- That this judge be close: the judiciary of proximity
Proximity refers to the geographical distribution of courts in Tunisia, which allows the litigant to go to the court that is closest to his residence. International conventions and national constitutions stress in providing this right to the litigant. In this context, we note the presence of the judicial judiciary over the entire territory of the Republic through district courts, courts of first instance, courts of appeal and a single of court cassation (supreme court).
As for the administrative judiciary, it has witnessed an important development since 2017, at the level of the proximity judge. After being only located at the capital for more than forty years, by virtue of decree N° 620-2017, dated May 25, 2017, primary circuits branching from the administrative court in the regions were created, 12 courts were established. Setting these courts is considered to be a 1st step towards consecrating article 116 of the constitution effectively. The latter approved a new structure for the administrative judiciary, similar to the judicial judiciary. However, the problem today, which has not been surmounted, is that the appeal is only possible before the appellate circuits of the Administrative Court in the capital, which represents an obstacle to the right to resort to the administrative judiciary during the appeal phase.
3.That the judge has jurisdiction:
The actual and real exercise of this right requires that the case’s subject matter be within the judge’s jurisdiction. This is enshrined in the Constitution through Articles 115 and 116.
Pursuant to Article 115, we see that it approved the judicial judiciary as a judicial body specialized in disputes between private persons and referred to the laws to clarify the various competencies.
With reference to the Civil and Commercial Procedures Code, the Code of Criminal Procedures, and other legal texts, the jurisdiction of the Civil Judiciary, Commercial Judiciary, Labor Judiciary, Personal Status Judiciary, Real Estate Judiciary, Social Security Judiciary as well as the Criminal Judiciary.
As for Article 116, it explicitly states that the administrative judiciary is competent to look into the administration’s abuse of its authority, and in administrative disputes. Article 17 (new) of the June 1, 1972 Law, as revised by subsequent legal texts related to the Administrative Court, shows the jurisdiction of the first instance circuits of the Administrative Court in addition to the competencies assigned to the Administrative Court with a special provision.
However, the complications related to judicial duality in Tunisia and the lack of respect for the jurisdiction of the judicial judge and the jurisdiction of the administrative judge makes it sometimes difficult to determine the competent judge in each dispute. For instance, dispossession for the public interest, fiscal disputes, and social security disputes, which represent a limitation of the right to resort to justice.
It is not enough for the judge to have jurisdiction to look into the origin of the case and return the rights of the owners, but the procedures for filing and accepting the case must be easy and uncomplicated.
4. The procedures for filing and admitting the case should be simplified
According to the procedural laws, the lawsuit is conditioned until it is accepted by the judge, which will allow the litigant to access justice. The plaintiff must fulfill conditions that concern capacity, interest, and legal status to acquire standing before the judiciary, otherwise the judge will formally reject his claim. These conditions are presented in Article 19 of the Civil and Commercial Procedures Code when it states: “The exercise of the action belongs to any person having quality and capacity to assert his rights in court. The plaintiff must have an interest in the exercise of the action.
However, in matters of summary proceedings and in the event of peril in default, the action may validly be brought by the minor endowed with the quality.
The court must automatically declare the action inadmissible if it appears from the file that the applicant is incapable or has no standing.
If the incapacity of the party with limited capacity is lifted during the proceedings, the action is considered to have been validly brought.”
The Administrative Court Law dated June 1, 1972, in its sixth chapter, referred to the condition of interest, in which it stated: “A claim of abuse of power is accepted from anyone who proves that he has a material or moral interest in canceling an administrative decision.”
The validity of the procedures also requires that the plaintiff be properly represented.
The claimant must also file his claim within the deadlines stipulated by the laws, depending on the nature of the case (civil, criminal or administrative), as article 402 of the Code of Obligations and Contracts explains that every civil case shall not be heard after the lapse of fifteen years, except for excluded cases after the law decided it in special cases
As for the administrative matters, for example, and specifically in the article about canceling administrative decisions, a lawsuit for abuse of power is filed within the two months following the date of publication or notification of the contested decision, which is what was stipulated in Article 37 of the Administrative Court Law dated June 1, 1972. In case the legal deadline elapses, the right becomes subject to prescription.
The question arises as to whether these conditions established by the legislator for accepting cases represent a barrier to access to the judge.
These procedures are adopted in all legal systems and they do not conflict with the right to access to justice because the requirements of legal security and the proper functioning of the judiciary justify them.
c - the right to appeal ( to recourse) :
The right of access to justice cannot be limited to the right to access justice for the first time, but must be a continuous right, through the right to appeal the primary judgment. In this context, the 2014 constitution guaranteed in its article 108th the right to litigation on two levels, giving it a constitutional value.
In principle, the right to litigation does not pose a problem in the judicial judiciary as it is absolutely enshrined, while the exercise of this right is not possible for some preliminary and final rulings. For example, we find that Article 41 of the Administrative Court Law of 1972, which states that decisions issued in matters of suspending the execution of administrative decisions or postponing their implementation shall not accept any form of recourse, including appeal. We can also refer to Article 85 of the Administrative Court Law, which requires that urgent decisions issued by the heads of the appellate circuits are not subject to appeal. The Administrative Court, in its commentary decision No. 731225 dated May 15, 2017, had previously considered Article 85 of the Administrative Court Law unconstitutional for violating the principle of litigation at two levels as stated in Chapter 108 of the Constitution: The basic principles guaranteed by the constitution to the litigant, as it falls within the framework of international standards for a fair trial, which the judge must strive to achieve, within the limits of the possibilities available to him. However, the legislator overlooks this right surpassing a reasonable delay from the date of entry into force of the constitution.
In contrast to the right to litigation at two levels, they did not consecrate recourse through cassation, as it is not considered an element of access to justice.
With regard to other methods of appeal, the law guarantees the party who did not appear in the case the possibility of discussing the judgment issued against him in absentia, whether before the judicial court or the administrative court. The right to resort to the judge also presupposes that a third party who was not summoned to be a party to the case and was not represented in it, and who suffered damages from it, could object to the judgment issued, which is what was stipulated in Article 79, Paragraph 2 of Law 1 June 1972
II- The right to effective access to justice
The right to access to justice is not limited to guaranteeing the right of every person to file his case before a competent judge and according to simplified procedures, but also assumes that access to justice is effective and not merely a formality. The right to effective access to justice is linked to some elements whose consolidation is necessary for the real exercise of this right.
These elements have been enshrined in the Tunisian constitution dated January 27, 2014 as well as a number of other legal texts. These elements are represented in the right to defense through the appointment of a lawyer, the right to legal or judicial aid in the event that the litigant is without income and requisition, and the right to decide on the case is within a reasonable time and, finally, the right to execute the judicial ruling, as “it is not useful to speak with a ruling that has no enforcement.”
A- Access to an independent judge:
The constitution guarantees the independence of judges through articles 102, 103, 104, 107, and 109, stressing that the judiciary is an independent authority that guarantees the administration of justice, the supremacy of the constitution, the rule of law, and the protection of rights and freedoms, and that the judge is independent and has no authority over him in his judgment except the law. In addition, the Constitution approved a set of guarantees for the benefit of judges, such as criminal immunity, not to transfer a judge without his consent, not to dismiss him, not to suspend him from work, to exempt him, or to impose a disciplinary penalty on him, except in specific cases and applying the guarantees set by the law and in accordance with a reasoned and motivated decision of the Supreme Judicial Council.
The 2014 constitution, through the establishment of the Supreme Judicial Council (Article 112) through a mechanism for electing its members, consecrated the theoretical independence of the judiciary, since the aforementioned council undertakes the professional and disciplinary path of judges. Thus, the legislator has abolished the executive authority’s interference in the course of the judiciary and removed its hand from the possibility of transferring or disciplining judges according to their compatibility with the implementation of governmental or presidential instructions.
Despite establishing this council in practice, it still suffers from many obstacles, perhaps the most important of which is the weak budget assigned to it. But what concerns us at this level is the absence of the legal text regulating the authority of referral to the Council, and thus the continuation of the General Inspection at the Ministry of Justice in the possession of the authority to refer before the Council for judges to whom disciplinary proceedings are attached, and this is a major dilemma that limits the effectiveness of the Council in performing the most important roles entrusted to it, because the complaint is intended to follow a judge for committing a serious professional error or even for a penal error, such as receiving a bribe, or arbitrarily adapting the law to harm the rights of a litigant, or deliberately stretching and not resolving the dispute… It inevitably passes through submitting a complaint to the General Inspection at the Ministry of Justice, which is supervised by the Minister of Justice, which is supposed to undertake a set of research and inductions that end either with the dismissal or with referral to the disciplinary board, and here is the anchor, since the executive authority represented in the Minister of Justice is alone and without oversight over it, who decides if the actions attributed to a judge are sufficient to refer him to the Supreme Judicial Council as a disciplinary council, this approach results in a mechanism that governs the executive authority and its control over the outcome of the disciplinary proceedings against judges. The result is accountability for the non-cooperators protection for cooperators.
Accordingly, the path of the right to access to justice for a litigant who has been subjected to an injustice caused by one of the judges, we find it blocked in one way or another, or rather subject to the will of the Minister of Justice in arranging a referral to the Disciplinary Council (the Supreme Judicial Council). As long as an independent body has not been allocated with the authority and no law has been enacted for this purpose, the role of the Supreme Judicial Council in redressing brings back litigants’ rights from the infractions committed by some judges remains an unresolved issue at all.
B. The right to legal aid (appointment of a lawyer, harness, and judicial aid) :
Article 108, paragraph two of the constitution states the following: “The law facilitates recourse to the judiciary and guarantees judicial aid to those who are financially unable to do so.” This article applies to litigants before the judicial judiciary and before the administrative judiciary, despite the fact that the term used by the founder is “judicial aid,” which means the aid provided by the judiciary, whether it is judicial or administrative.
Based on the foregoing, we show the close relationship between resorting to justice and judicial aid to the financially vulnerable.
The duty imposed on the state to provide legal aid to the financially incapable (vulnerable) is justified by the principle of equality between litigants, which is stipulated in Article 108 of the Constitution, paragraph one, “Litigants are equal before the judiciary.”
Although the principle is that the judiciary is free in Tunisian law, this principle does not apply to lawyers who contribute to providing a good defense for litigants, which serves the quality of the judiciary and its smooth functioning. In this context, we recall a number of basic principles regarding the role of the lawyer in access to justice. These principles are adopted by the Eighth United Nations Conference on the Prevention of Crime and the Treatment of Criminals, held in Havana from August 27 to September 7, 1990, and the conference specifically addressed the right to have a lawyer, by stipulating important principles , the most prominent of which of is that “Every person has the right to seek assistance from a lawyer of his own choice to protect and prove his rights, and to defend him at all stages of the criminal process.”
On the occasion of the holding a conference on legal aid in the criminal system under the title “The role of lawyers, non-lawyers and other actors in legal aid in Africa, Lilongwe, Malawi 22-24 November 2004” The “Lilongwe Declaration” stipulated the essential points to ensure a fair trial and to facilitate recourse to justice Which are:
All governments have the primary responsibility to recognize and support basic human rights, including the provision of and access to legal aid for persons in the criminal justice system. As part of this responsibility, governments are encouraged to adopt measures and allocate funding sufficient to ensure an effective and transparent method of delivering legal aid to the poor and vulnerable, especially women and children, and in so doing empower them to access justice. Legal aid should be defined as broadly as possible to include legal advice, assistance representation, education, and mechanisms for alternative dispute resolution.
It is worth noting at the level of lawyers’ intervention in providing free and effective legal aid and facilitating legal knowledge that the matter poses a real problem at the level of implementation, as the introduction of lawyers through personal initiatives or through associations active in this field is met with great repulsion by the structures supervising the legal profession, which considers like the majority of lawyers, that volunteering of some to provide free legal services represents a flagrant violation of the principle of equality between those affiliated with this sector, and is even considered a justification for referring to the disciplinary board if it is not recommended in advance and within narrow limits (opinion cases exclusively).
Based on this, it can be said that the Tunisian lawyer has not yet internalized its constitutional character as a partner in the administration of justice in the broadest sense, and is concerned with a serious contribution to the consecration of the right to access to justice for all, as well as the development of public knowledge of the basics of the rights granted to it in the criminal dispute so as to enable it to deal well with the proceedings and accusation.
The regional branch of lawyers in Tunisia, for example, had previously issued a notification in which all lawyers were prohibited from attending the audio-visual media without special permission from it, threatening violators to refer them to the disciplinary council. This matter made lawyers avoid media and refrain from providing free legal advice to the public.
This issue also raises another general question, which is how to monitor the implementation of international recommendations and decisions in relation to the right to access to justice and to devote the role of lawyers and their structures in this regard.
It is definitely noteworthy to remind of the United Nations principles and guidelines on access to legal aid in criminal justice systems within the framework of the United Nations General Assembly Resolution of March 28, 2013. In the context of its resolution, the General Assembly defined legal aid as an essential component of any fair, humane, and efficient criminal justice system based on the rule of law. Legal aid constitutes the basis for the enjoyment of other rights, including the right to a fair trial. The General Assembly has approved the following principles:
The Tunisian national legislation incorporates laws that embody this right, which are:
It includes general provisions that frame civil conflict at the level of procedures, as well as being the reference for other types of conflict in the absence of special provisions for them. The most important articles devoted to the right to access to justice are Article 4 that stipulates that each party has the right to be communicated the documents of the procedure and of all the documents produced by his adversary. Also, Article 19 provides that: “The exercise of the action belongs to any person having quality and capacity to assert his rights in court. The plaintiff must have an interest in the exercise of the action.
However, in matters of summary proceedings and in the event of peril in default, the action may validly be brought by the minor endowed with the quality.
The court must automatically declare the action inadmissible if it appears from the file that the applicant is incapable or has no standing.
If the incapacity of the party with limited capacity is lifted during the proceedings, the action is considered to have been validly brought.
The court shall rule in the aforementioned cases in accordance with the provisions of article 16”.
“The hearings are public, unless the court decides the closed session, either at the request of the public prosecutor or one of the parties, to safeguard public order, good morals or the inviolability of secrets of family”. (Article 117)
About Article 131, it obligates that the appellant must submit the appeal petition accompanied by a statement indicating that the information has been saved and that the evidence is included while handling it to the court’s secretary. The secretary must not accept it unless the appellant has given evidence of obtaining legal aid”
In the context of facilitating access to the judiciary, Article 160 exempted the state and the poor who have been granted judicial aid from paying 20 dinars to the tax administration as a fine that pertains to the rejection of the demand. Also, the exemption extends to all fees which the law stipulated their provision. In the same context we can mention articles 170 and 184 of the same code. 
 Any applicant for a civil request must deposit in the registration revenue the sum of twenty dinars for the fine to which he would be condemned if his request were rejected, as well as all rights whose deposit is provided for by law.
 Article 170: “The opposition is formed according to the ordinary rules applicable before the court seizes.
The opposing party must record the amount of the fine to which he would be sentenced if his appeal is rejected.
This amount is 5 dinars, if the contested judgment is rendered by a single judge, 10 dinars if it is rendered by the court of first instance and 20 dinars if it is rendered by the court of appeal. The opposing third party must also record all rights, the recording of which is provided for by law.
Are exempt from this deposit, the State and the indigent beneficiaries of legal aid.”
Article 184: “The court clerk must only accept the request if it is accompanied by the receipt of deposit in the receipt of the registration of the sum of 30 dinars in respect of the fine to which the applicant would be condemned if his request were rejected, thus than any rights the deposit of which is provided for by law. The State and the indigent beneficiaries of legal aid are exempt from this deposit.
If the plaintiff withdraws, the court may not sentence him to the fine recorded and order the restitution of its amount to his benefit”.
C. The right to a fair trial
The 2014 constitution explicitly recognizes the right to a fair trial in Article 108 as enshrined in the 1966 International Covenant on Civil and Political Rights. The covenant has devoted Article 14 to detailing the principles and conditions of access to justice and the obligations of decision-makers at the member state level, including the right to a fair trial.
The General Comment No. 32 detailing the various principles to be activated by member states, and specifically for a number of basic concepts contained in Article 14 of the Covenant, included the following:
-The right to equality before courts and tribunals and to a fair trial, given that the right to equality before courts and tribunals and to a fair trial is one of the basic elements for the protection of human rights and is a procedural means to maintain the rule of law. Article 14 of the Covenant aims to ensure the proper administration of justice and to this end guarantees a set of specific rights.
Article 14 is particularly complex, as it contains various safeguards with different fields of application. which are:
This guarantee also prohibits any discrimination in access to courts and tribunals that is not based on law and cannot be justified on objective and reasonable grounds. This guarantee is breached if certain persons are prohibited from bringing claims against any other persons for reasons such as race, color, gender, language, religion, political or other opinion, national or social origin, property, birth or other status.
The right to equality before courts and tribunals also guarantees equal legal opportunity. This means that all parties have the same procedural rights unless there is a distinction based on the law and has objective and reasonable justifications, and does not involve actual unfairness or unfairness to the defendant
The right to a fair and public trial before a competent, independent and impartial judicial body established by law is a guaranteed right, and the speed of the trial is one of the important aspects that demonstrate its fairness. The lack of resources and chronic poor funding, so as much as possible, additional budgetary resources should be provided for the administration of justice. All trials relating to criminal matters or to a civil action must in principle be conducted orally and publicly. Holding court hearings in public ensures the integrity of the proceedings and thus provides an important guarantee for the benefit of the individual and society in general.
What is striking at the level of this principle is the clear link between the reasonable term of dismissal by the judiciary and the extent to which the resources and capabilities required to activate that principle and the legislative body to provide the human and material resources necessary to facilitate the work of the judicial facility and to put pressure on the deadlines for delivering rights to their owners
The right to a lawyer requires that the accused be given prompt access to a lawyer. Lawyers should be able to meet their clients in private and to contact the accused in conditions that fully respect the confidentiality of such communications.
The issue of the lawyer’s communication with his client in conditions that preserve confidentiality conditions is still a source of many and recurring problems, whether in detention centers or the preliminary investigation headquarters. Clashes often occur between lawyers, judicial police and prison agents who claim weak capabilities, while lawyers adhere to a complete absence of the simplest elements of confidentiality. In some cases, listening machines have even been installed in the offices of visiting prisoners.
D. Adjudicate the case in a reasonable time
Article 108 of the Constitution stipulates in its first paragraph: “Everyone has the right to a fair trial within a reasonable time.” This idea is related to the problem of the length of adjudication of cases in the courts due to their increasing number and the lack of material and human resources granted to the courts, which places obligations upon the state to reduce the time it takes to resolve cases. But estimating the reasonable time is not an absolute principle, considering that this deadline is mainly related to the degree of complexity of the case, the method of investigation, the judge’s conduct of it, and the parties’ handling of the case.
It should be noted that the principle of reasonable time is clearly enshrined in the framework of the emergency judiciary that has been enshrined in the judicial judiciary and the administrative judiciary, which aims in the form of verification to authorize the taking of permissions and urgent measures in a preventive manner and without prejudice to the substantive aspects. But except with the exception of urgent measures, the judicial judiciary, especially the administrative judiciary, remains slow. the rate of issuance of first instance judgments is approximately five years, the same goes for appeals. It is an unreasonably long period.
Despite the relative development witnessed by the structural organization of the Administrative Court, represented in the creation of the Regional First Instance Courts in the direction of reducing the length of adjudication of cases before the Administrative Court pending the creation of the Administrative Courts of First Instance, the application of the principle of reasonable time before the Administrative Court is still limited.
E. The right to execute judicial decisions
If the execution of judgments in civil or criminal disputes does not pose a problem, the issue is characterized by some privacy in matters of administrative disputes. Decisions issued by the Administrative Court against private persons are not subject to the normal enforcement procedures stipulated in the Code of Civil and Commercial Procedures. It is not possible to resort to public force to implement a ruling against the administration. The right for those harmed by the non-execution of an administrative judicial ruling remains to file a claim for compensation to compel the administration to compensate the damage resulting from the administration’s failure to implement the administrative court’s ruling in accordance with the requirements of Article 10 of the June 1, 1972 Law.
The right to access to justice is not limited to resorting to the judiciary to exercise the right to litigation, but may include the right to access economic, social and cultural justice within the framework of an expanded vision of access to justice.
In the context of the focus of this study on the right of young people with economic initiatives and vulnerable groups to access not only the judiciary, but also their right to access to economic and fiscal justice, it will be limited to some examples only because economic and social rights are much broader (the right to education, the right to work, the right to health, the right to an adequate standard of living, the rights of the child, resistance to violence against women, the rights of minorities…)
Emphasis will also be placed on the elements that facilitate access to economic and fiscal justice through exposure to legislation related to investment, taxation and real estate affairs, without overlooking the problems and obstacles that often limit the right to access to economic justice.
1.Access to justice under the current economic legislation.
The legal framework for investment is not considered novel in Tunisia but rather as old as the 1950’s.
Indeed, the successive legal texts incorporated distinct economic perceptions. Despite the consciousness of the necessity of developing a legal framework for investment, a suffocating bureaucracy was created. The latter has been an impediment in the way of economic initiative and has made investing in developing one’s company a risky and not necessarily pleasant adventure jeopardizing investors’ funds and rights. Under the current regime, the investor does not possess enough guarantees which results in questioning access to justice under the Tunisian economic system.
The evolution of the investment legal framework
Anterior to the promulgation of the novel legal framework for investment in 2017 and since independence, legislation investment-wise went through 3 main stages that shaped it.
- from 1959 to 1986. That is the period during which emphasis was put on encouraging investments in the different fields and which the state, back them, counted on to build itself after the independence.
This inflation covered as well privileges and the relative texts. However, it seems noteworthy to highlight the fact that the enormous variety of privileges did not mean eventual success for local development nor did it lead to better employment due to a good functioning of the wanted investment strategy. That results directly from the complications encountered because of the created bureaucracy that made benefiting from the consecrated legal privileges a cumbersome operation. The situation gets more complicated when consideration includes the interfering administrations that supervise the investment operation. These institutions surpass the number of 20. This led to issues as far as the well-functioning of the investment operation and the difficulty of coordinating between the different interfering administrations.
Moreover, the heavy centralization of the relative offices and administrations ensuring the privileges accorded to investors (by virtue of law) became grounds for lack of equality before investment opportunities and access to privileges (also by virtue of the law) and had a particularly negative impact on the ability of investors to keep track of their requests and burdening them additionally by implicitly compelling them to constantly move between cities. This eventually has additional costs that the investor alone will have to pay.
In the context of encouraging investment and access to economic justice, several legal texts supporting investment were issued, which are Law No. 2007-69 dated December 27, 2007 related to stimulating economic initiative, as amended by Law No. 2009-71 dated December 21, 2009, as well as Law No. 20 For the year 2018 dated April 17, 2018 related to startups, which aims to: “Develop a stimulating framework for the creation and development of emerging institutions based in particular on innovation, adoption of modern technologies, and achieving high added value and competitive ability at the national and international levels.” A number of decrees were also issued in support of these laws, including decree n°93-982 dated May 3, 1993, fixing the general framework of the relationship between the administration and its clients, and all texts that revised or supplemented it, notably decree n° 2010-1882 dated July 26, 2010, and government decree No. 2018-1067 dated December 25, 2018, Ordinance No. 93-1880 dated September 13, 1993, relating to the system of communication and administrative guidance, Ordinance No. 94-68 dated September 26, 1994 fixing the list of official documents approved for the identification of signatures, Ordinance No. 2007-1260 dated On May 21, 2007 relating to the control of cases in which the administration’s silence is considered tacit approval, and government decree No. 417 of 2018 dated May 11, 2018 related to the issuance of the exclusive list of economic activities subject to a license and the list of administrative licenses for the implementation of a project and the control and simplification of the relevant provisions, which aims to simplify the procedures Many licenses were deleted to encourage entrepreneurs to invest. However, this has left a long list of licenses that must be obtained to carry out many economic activities, which would discourage young people from initiating economic projects. However, access to economic justice has not developed in view of the dominance of administrative bureaucracy and the weakness of digitization at the level of administrative services, in addition to the extension of the phenomenon of financial and administrative corruption.
Absence of legal guarantees
Even though the legal texts are multiple and even inflated this did not have a positive impact as far as the consecration of additional guarantees for investors in obtaining their rights and needs. For instance, deadlines for deciding on according privileges for the investor were not included in a legal provision.
One of the most prominent repercussions of the absence of guarantees is the lack of funding and burdensome procedures for obtaining privileges. This led to drowning investors in administrative predicaments with major financial issues that eventually discouraged them from proceeding with their investment. This has been detected through statistics made between 2005 and 2015 that demonstrate that 7548 projects were abandoned pursuant to the office of industry promotion.
2- access to justice in the Tunisian fiscal system
The Tunisian constitution approved a set of rules to guarantee fiscal justice, as it was stated in its 10th Article: “Paying the tax and bearing public costs is a duty according to a just and equitable system.
The state puts in place the mechanisms that guarantee the collection of the tax and the resistance to tax evasion and fraud.
The state is keen on the good management of public money and takes the necessary measures to spend it according to the priorities of the national economy and works to prevent corruption and everything that might prejudice national sovereignty”.
In order to protect the taxpayer from the arbitrariness of the executive authority, and specifically the regulatory authority to control the base of payments and contributions, their percentages and the procedures for drawing them out, the constitution assigned this authority exclusively to the legislative authority and made it a legislative article in accordance with Article 65 of the constitution.
Article 66 of the constitution also approved the principle of legality of performance, which is represented in “the law authorizes the state’s resources and costs according to the conditions stipulated in the organic Law of the Budget…”
As for the texts issued in the taxation matters, we mention the code of Income Tax of Natural Persons and Corporate Tax, the code of Local Collection, the code of Registration Fees and Tax Stamp, and the code of Value Added Performance…
However, the tax system in Tunisia was not stable at the level of legislation, but was completed with continuous change and amendment without this having a positive impact on alleviating the fiscal pressure on the demands for performance.
The Tunisian fiscal system is considered to be an accumulation of the years of dictatorship in the country. It is important to note that this system was a tool in the hands of the old regime to punish, terrorize and guarantee alliances with political and economic rivals with close businessmen and in-laws.
The efficiency of such a system relied, on one hand, majorly on the discretionary power and the vast prerogatives that the offices of taxes were endowed with as far as the fiscal monitoring and taxes payments were concerned. On the other hand, it relied on the limited legal and judicial guarantees demanded from investors (physical persons or companies). This abnormality in administrative authority and guarantees led to increased corruption and embezzlement which prospered even more thanks to the lack of accountability and the compromised right of access to justice in the fiscal sector.
The fiscal legislation
one might hope that some changes have been made in taxation in Tunisia posterior to the enormous efforts to alter and reform after 2011. One might also long to find the purposes of the revolution like more fiscal justice and transparency implemented in the novel system as well.
However, reality proves that the finance ministry offices still control legislative initiatives in taxation throughout the annual finance bill that is voted on by the parliament yearly.
This explains the orientation of the expanding of the prerogatives of fiscal control with mobilizing state resources since 2011. Moreover, wage deductions and creating circumstantial taxes became increasingly frequent. In return, fiscal guarantees shrank and were often handed to fiscal control offices which augmented the conflict-of-interest situation that taxation lives in Tunisia.
Under the control of the ministry of finance in finance billing, in a confusingly conflicted attitude, the latter aligns with the administration whenever the matter regards obligating taxpayers and bails on its own offices whenever the matter concerns providing taxpayers with their lawfully consecrated privileges and rights. This biased attitude was supported by the consideration of the administrative court that jus cogens are public policy matters and leads to nullified decisions and procedures whenever they are breached.
Additionally, fiscal statutes have a reputation of being ambiguous and sophisticated which makes it subject to misunderstandings and misinterpretations. This ambiguity contributed in increasing cases of fiscal conflicts and inflated doctrine. Indeed, fiscal doctrine is composed of public notes that are published on the official website of the ministry of finance and of internal notes that are issued by the general administration of fiscal control through which its external offices are informed of specific info. Moreover, fiscal doctrine is also forged from responses and decisions (that resemble no-action letters in their concept) that are issued by the general administration of studies and fiscal legislation in attempts to explain regulation. Nevertheless, one of the shortages of such letters is its non-publication despite its essential nature to persons’ legal stands and financial situations. Access is often denied for such info.
In addition, some legal fiscal texts are dispersed in different codes and others are even incorporated in the finance bill. Obviously, this profound ambiguity and makes it harder to gain enough knowledge about it to protect persons and institutions.
Fiscal management and services
The offices of fiscal control are both service providers and law enforcers. This is ensured through inspections and penal and financial offenses recordings.
These vast prerogatives contributed to several illegal acts such as benefiting from investors to get sensitive services especially with the lack of oversight mechanisms that would ideally surveil its work .
Because of that, a number of organizations and activists called for separation between fiscal control and service providing as a pioneer step to limit corruption in this field and support taxpayers in receiving transparent treatment in accessing their rights.
Creation of projects and permission to exist
The Creation of projects subjects, pursuant to Article 56 of the fiscal code on the income of persons and businesses, subjects the company to possess a “permission to exist”.
Through this “permission” the founder enables the offices of fiscal control to have access to information regarding the founder and the project. In contrast, it enables the founder to obtain a fiscal identity card carrying a fiscal identifying number for the business.
However, fiscal legislation stays silent when it comes to consecrating the necessity of proving the founder with the necessary info as regards the obligations facing him. In this sense, the “permission to exist” condition subjects the young founder to a series of obligations of possibly heavy financial repercussions (tax-paying, percentages, the obligation to declare, the obligation to notify the offices of fiscal control about several info regularly or arbitrarily, holding specific papers, preparing others in respect of procedural and formal specificities etc). the obligations differ from one economic activity to another and from one form of business to the other. Non-respect of formal or procedural or substantive obligations may expose the tax-paying entity/person to sanctions that vary according to the type of activity or the volume of transactions. The breaching party could be exposed to exorbitant penalties that could even go as severe as penalties deriving freedom, monetary penalties or even seizures on production units and bank accounts (of the company and its owner).
This shortage in access to primordial information led to investors making completely avoidable breaches and therefore fined and often prosecuted.
The importance of creating a document dedicated to investors to prevent avoidable repercussions is a part of access to justice as it allows them to defend themselves and affront the authorities that keep altering law application by altering arbitrarily its interpretation. Added to that the non-existence of the authority’s obligation to notify taxpayers of the alteration of the interpretation worsens their situation.
Privileges are one of the most important tools for encouraging investment and attracting novel founders. It takes the form of exonerations or suspensions of payment in addition to the state’s contribution in social security and a part of salaries. Monetary privileges can also take the form of grants of investment through which the state contributes a percentage of investment or grants of exploitation that are basically amounts of cash provided by the state as soon as production kicks in.
Yet, the procedures for obtaining these privileges are complex as a number of committees and offices interfere in granting it separately. The path towards obtaining these (lawfully consecrated rights) is not necessarily the most transparent as the conditions are often ambiguous and the documents necessary for demand treatment lack clarity. Furthermore, the administration tends to exceed legal deadlines for response.
The wide discretionary power for fiscal texts interpretation by the administration caused the need for additional conditions that the investor only becomes aware of posterior to contact with the relative governmental institution. Of course the lack of digitalization in this sense hurdles the investor more in his quest for his rightful privileges. The totality of these reasons pushes more and more investors to give up their privileges or simply their projects as a whole.
fiscal legislation grants fiscal offices the discretionary power to control the good implementation of fiscal legislation through reviewing fiscal status of taxpayers and executing decisions and payments.
The regulatory oversight of fiscal offices was enhanced since 2011 after the banking confidentiality(secrecy) was suspended, restraints on bank accounts access lightened and judicial oversight abrogated. These changes were made progressively in contrast to expanding field prerogatives. For instance, the right to have access on sight and inspecting penalties with the possibility of seizing documents. In fact, hurdling the latter constitutes an infraction.
The aforedescribed evolution caused an imbalance in the relation between taxpayers and the administration since these prerogatives came empty of additional guarantees for justice and transparency in treatment. In fact, resorting to the administration does not find its genesis in objective and formal conditions or promulgating procedures that impede abuse of power.
One of the forms of enhancing administrative power for fiscal office control is expanding the fiscal legislation to englobe presumptions enabling them to rely on it during the primary fiscal revision
The latter used to be resorted to during the in-depth fiscal revision that is concerned safer as it provides for the possibility of subjecting the acts of the administration of fiscal control to the principle of confrontation and enables taxpayers to defend themselves through challenging its outcomes and commenting the decisions of the offices of fiscal control. This made expanding the use of presumptions a biased and unequal method as far as its use in altering the situations of taxpayers by contesting payment, additional costs and penalties. It seems noteworthy in this sense that the presumption is rejected by the administration itself whenever the outcome guarantees benefit for the taxpayer.
The path of fiscal revision was catered by numerous procedures and formalities yet with poor efficiency in guaranteeing just and transparent treatment and limiting abuse of power. In fact, it consecrated absolute power for the administration and joined conflicted roles that led to conflicts of interest cases.
The conflict-of-interest limbo aggravated posterior to the creation of committees for fiscal conciliation and abrogation of judicial conciliation that was supervised by a judge of the court of first instance. Nowadays the offices of fiscal control review the situation of taxpayers and preside over the conciliation committees too.
Access to the right of tax-recovering
After 2011, tax strategy has been characterized by an expansion in deductions to meet the increasing budget needs which deprived institutions from having the necessary liquidity resulting from their activities. As a result, institutions are suffering an inflation in deductions that surpass normal taxes.
Even though the code of fiscal rights and procedures regulated the question of recovering taxes (surpluses), the access to this right is still not sufficiently guaranteed. The difficulty stems from numerous factors including the non-obligatory nature of legal texts regulating this right which led to the eventual non-respect of the rule of law by the offices of fiscal control especially in deadlines to decide in the institutions’ demands of recovering taxes.
Despite the fact that the code of fiscal rights and procedures consecrated persons’ rights (individuals and businesses) to resort to court by filing a claim of tax recovery that is conditioned by the 60 days’ maximum delay from the day of non-response to the request of recovery from the offices of fiscal control. Yet, de facto, taxpayers are reluctant towards benefiting from this right. This reluctance finds its origins in the inefficiency of the procedure vis à vis the plaintiff as the latter will only receive the amount of money he’s proclaiming after a final decision is issued which takes statistically about 4 years in court.
The recovery disputes
The relative legal framework is constituted of the code of public accounting and provisions incorporated in the code of fiscal rights and procedures. The general administration for public accounting and recovery supervises the recovery operation as regards the administrative, judicial and executory aspects. The code endows the recovery offices with vast prerogatives involving the proceeding with the recovery procedures and notifications through its agents without the need to resort to bailiffs.
The recovery field is suffering from a lack of balance between the vast prerogatives of the ministry of finance’s offices from one hand and from the litigants on the other hand which hinders proper access to justice and limits abuse of power by the administration’s prevention.
This is manifested through the limitation of the stay of procedures’ as a legal tool in the context of compulsory state-allocations and warrants issued by the offices of fiscal control as they become executable 60 days after the date of its notification. After that period, the finance cashier initiates the recovery procedures.
The code of fiscal rights and procedures enables taxpayers to request a stay of procedures as far as the compulsory state allocations are concerned by depositing a specific amount of money at a financial institution or by paying a percentage of the interest directly to the finance cashier.
Nevertheless, this guarantee remains limited for a number of reasons including its limited scope as it doesn’t include deductions and their penalties . The latter generally result from conflicts over interpretation of transactions or legal or material mistakes committed by the administration in the reasoning of its decisions which makes taxpayers devoid of legal protection since the law does not provide them with the possibility of issuing a stay of execution. This exception, even though the right to challenge the decision is consecrated, makes regulation incoherent and inconsistent.
Additionally, the procedures of stay of compulsory allocations through delimiting its existence through the court of first instance, makes its efficiency limited. Moreover, the finance cashier has the power to recover the bank guarantee after a year from the date of notification of the decision of compulsory allocations.
Limiting the efficiency of stay of procedures of recovery to recovering the banking guarantee before the courts of first instance issue their decision constitutes a challenge of the decisions of the offices of fiscal control. The difficulty of regaining the amount of guarantee for businesses and individuals (who win the case) is important because it is linked to the issuing of the final judgment that could take years.
Recovery is done through a warrant issued by the finance cashier pursuant to the provisions of the code of public accounting that regulates its issuing, execution and challenge. Despite the constitutional consecration is article 104 of the generalization of the right to appeal to a higher court, warrant challenging is solely done before the court of appeal.
The code of public accounting excepted warrants from stay of execution through the provisions of article 35 that stipulates that “courts cannot stop or extend the deadlines for payment of state debts or those of public institutions or public groups.”
Under this exception, the efficiency and reasons behind resorting to court remain in question especially with regards to the provisions catering warrants.
The fact that the ministry of finance keeps singling out the legislative side of taxation is one of the major obstacles in the way of access to justice in taxation in Tunisia. Moreover, the non-interference of deputies and civil society and their weak involvement in taxation worsens the outcomes.
To treat the aforementioned shortages properly, the diagnosis of the sicknesses that taxation is suffering from must be taken over by a neutral unbiased party that directs a collective dialogue concerning the fiscal system. This may impose a reformulation and re-perceiving of the fiscal pioneers and base them on rightful and legal foundations guaranteeing justice that is coherent with constitutional rules, conventions and international standards that Tunisia is compelled to respect and fit its legislations with.
3. Access to economic justice through the real estate judiciary
Tunisia knew the real estate registration with its new system after the establishment of the French protectorate in it, so the mixed real estate council was created according to the decree dated on 19 Ramadan 1302 corresponding to the first of July 1885, then the real estate court created by the beylical decree dated on February 19, 1957. In addition to the optional real estate registration procedures, the real estate survey procedures, which did not become compulsory until the issuance of Decree No. 3 for the year 1964, dated February 20, 1964, related to the compulsory and revised real estate registration, dated May 28, 1979. The court played a major role in real estate registration, fees and ridding them of stagnation by using the office of the land measurer and mapping, whose role is limited to the completion of works, the preparation of engineering examples, and the Technical Department related to determining the real estate requiring to be registered voluntarily or compulsorily, and the real estate property that is concerned with the establishment and preservation of real estate fees generated by the provisions of the registration and the demarcation of rights subsequent to the registration judgment and other things that are required to deal with registered real estate.
The establishing of the real estate judiciary in the regions
4. Facilities for administrative services
Development of electronic and digital services: Government decree No. 3 of 2021 dated January 6, 2021 related to public data.
Article one – This governmental decree aims to regulate the process of publishing public data in accordance with the principle of conquest, for the purpose of:
Economic justice can only be achieved through enabling person who seeks to obtain information of interest or even just mere knowledge as to access information, especially information related to the economic field, which is what the Tunisian legislative system was keen to achieve after 2011.
5.The right to access information
Economic justice can only be achieved by enabling anyone who wants to obtain information of interest to him or even just for knowledge to access information, especially information related to the economic field. This is what the Tunisian legislative system aimed to achieve after 2011, whether through the issuance of Decree No. 2011-41 dated May 26, 2011 regarding access to administrative documents for public structures. In a subsequent phase, through the promulgation of Organic Law No. 2016-24 dated March 22, 2016 relating to the right to access information, which repealed Decree No. 41 of 2011.
The first chapter of the 2016 law is devoted to the right of access to information by stating the purpose of the law. This law aims to guarantee the right of every natural or legal person to have access to information for the purpose of:
Article 6 states that “the structures subject to the provisions of this law shall publish, update and make available to the public on a regular basis and in a usable form the following information:
On the other hand, in order to clarify the mechanisms of access to information, the legislator clarified in Chapter 9 that:
“Any natural or legal person may submit a written request for access to information according to a pre-prepared written request form that the concerned structure places on the public’s disposal on the website or on plain paper that includes the obligatory stipulations contained in articles 10 and 12 of this law. The enforcement officer shall provide the necessary assistance. For the applicant to have access to information in case of disability or inability to read and write, or also when the access requester has lost the sense of hearing and vision. The request for access is deposited either directly with the concerned structure against a receipt that is obligatory for the purpose or by registered mail or fax. Or e-mail with acknowledgment of receipt.”
In the event that the request for access to information has been rejected, the person concerned can appeal the refusal decision before the Access to Information Authority, according to what was stated in Article 38 of Organic Law No. 22 of 2016 which states: “The authority undertakes in particular:
6. Independent constitutional bodies:
The Constitution of 2014, in its sixth chapter, assigned a number of competencies mainly related to human rights and fundamental freedoms to independent bodies, which the constituent authority included in the constitution, and they are five:
The main purpose of the creation of these bodies is that they represent guarantees of non-transgression by the executive authority on the one hand, as well as monitoring breaches and problems at the level of achieving the system of rights and freedoms and ensuring the right of citizens to community participation. Chapter 125 of the Constitution sums up this role by affirming that the role of the constitutional bodies is to support democracy.
There is no doubt, then, about the role of the constitutional bodies in focusing and strengthening the citizen’s right to access to justice on more than one level that we can discern through the following examples:
– Article 128 of the Constitution considers that the Human Rights authority monitors respect for freedoms and human rights, works to promote them, proposes what it deems to develop the human rights system, and is obligatorily consulted on draft laws related to its field of competence.
The Commission investigates cases of human rights violations to be settled or referred to the concerned authorities.
This body has not yet seen the light of day, and its organic law has not yet been enacted, despite the important role entrusted to it in upholding the right to access to justice. Perhaps one of the most important reasons behind freezing its formation and allowing it to play its role is the fear prevailing among successive governments of the supervisory tasks of this body over prison conditions and detention conditions, as well as its role in enacting laws related to individual and public rights.