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ACCESS TO JUSTICE Tunisia

Summary

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.

Roundtable:

Questionnaire interviews:

Case studies:

DAAM’s introduction

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.

Mohamed Omran
President of the
Democratic Transition
and human rights Support Center (DAAM)

introduction

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.

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