Legal basis of the Supreme Council of Magistracy of the Tunisian Republic and its evolution

Solovyev Andrey Aleksandrovich ORCID: 0000-0002-4305-9286 Doctor of Law Deputy President of the Commercial Court of Moscow region; Professor at Kutafin Moscow State Law University; Professor at Moscow State Pedagogical University  107053, Russia, Moscow, Akademika Sakharova Avenue, 18 sportlaw2014@rambler.ru Other publications by this author

In the context of discussing various approaches to the reform of the judicial community of the Russian Federation, it seems interesting to consider relevant foreign experience. In this article we will turn to the Supreme Council of Magistracy of the Tunisian Republic.

The Tunisian Republic is located in North Africa, it is part of the Maghreb, which together with Tunisia includes Algeria and Morocco, whose experience is reflected in the author's publications ^[1,2]. Tunisia borders Algeria to the west and south, Libya to the southeast, and the Mediterranean Sea to the north and east.

According to the form of government, Tunisia is a presidential-parliamentary republic (thus, the powers of the unicameral Parliament and the President are distributed), according to the form of the state-territorial structure, it is a unitary state without any territorial autonomous entities. After the events of 2011, also called the "jasmine" or "date" revolution, a semi-democratic regime was established in Tunisia, but it is necessary to take into account the peculiarities of the eastern, primarily Muslim, mentality with its idea of absolute subordination ^[3].

The Supreme Council of Magistracy in Tunisia is the highest body of the judicial community. He is a member of the Francophone Network of judicial Councils^[4].

The foundations of the legal status of the Tunisian Supreme Council of Magistracy are regulated by the following normative legal acts:- The Constitution of the Tunisian Republic of January 27, 2014^[5];

- The Organic Law of the Tunisian Republic No. 28-34 of April 28, 2016 (as amended on April 18, 2017) "On the Supreme Council of Magistracy"^[6].

In addition, relevant norms are contained in a number of other laws and regulations.

The Supreme Council of Magistracy is a constitutional body that guarantees, within its powers, the proper functioning of justice and the independence of the judiciary in accordance with the provisions of the Constitution and ratified international treaties.

The location of the Supreme Council of Magistracy is determined in the capital of Tunisia (the city of Tunis). At the same time, the Council may hold its meetings in any region of the Republic.

The status of the Supreme Council of Magistracy is devoted to subsection 1 "On the Supreme Council of Magistracy" of section 1 "On judicial, administrative and financial justice" of Chapter V "Judicial power" of the Tunisian Constitution.

Article 112 of the Tunisian Constitution stipulates that the Supreme Council of Magistracy consists of four bodies, namely: the Council of Judicial Magistracy, the Council of Administrative Magistracy, the Council of Financial Magistracy and the Plenum (plenary session) of the three Councils of Magistracy.

This structure is related to the peculiarities of the judicial system of the country, which includes judicial bodies of general (Court of Cassation, courts of second instance (courts of appeal), courts of first instance, specialized courts), administrative (Supreme Administrative Court, Administrative Courts of Appeal and administrative courts) and financial (Accounting Chamber and its various bodies) jurisdiction.

Two thirds of each of these bodies consists of magistrates, most of whom are elected, in addition to magistrates appointed by office, and the remaining third consists of non-magistrate members selected from among independent professionals. However, the majority of the members of these bodies should consist of elected officials. The elected members serve for one six-year term.

It should also be noted that the corps of magistrates in Tunisia, as in a number of other States whose judicial system is built on the French model, includes not only judges, but also prosecutors.

The Supreme Council of Magistracy elects its Chairman from among the magistrates of the highest rank.

The law defines the competence of each of these four bodies, as well as their composition, organization and procedures that they are required to follow.According to articles 113 and 114 of the Tunisian Constitution, the Supreme Council of Magistracy has administrative and financial autonomy and exercises independent management of its activities.

The Supreme Council of Magistracy drafts its budget and discusses it in the competent committee of the Assembly of People's Representatives (the unicameral supreme legislative and representative body of State power of the Republic, which began work after the 2014 elections).

The Supreme Council of the Magistracy guarantees the proper functioning of the judiciary and respect for its independence. The plenary session of the three Councils of the Magistracy proposes reforms and gives its opinion on proposals and bills related to justice issues, which are necessarily submitted to it. Each of the three Councils decides on issues related to the career and discipline of magistrates.

The Supreme Council of Magistracy prepares an annual report on its activities and submits it to the President of the Republic, the Chairman of the People's Congress and the Head of Government no later than the end of July each year. This report is being published.

The annual report is discussed by the Assembly of People's Representatives at the beginning of each judicial year (which lasts from the beginning of August to the end of July) at a general plenary session with the Supreme Council of Magistracy.

It is also important to note that in accordance with paragraph 3 of article 115, paragraph 3 of article 116, paragraph 3 of article 117 of the Tunisian Constitution, the highest judicial bodies of the country (the Court of Cassation, the Supreme Administrative Court and the Court of Accounts) prepare annual reports, which, among other addressees, are submitted to the Chairman of the Supreme Council of Magistracy.

In addition, according to paragraph 2 of article 118 of the Tunisian Constitution, the Supreme Council of the Magistracy takes a direct and direct part in the appointment of members of the Constitutional Court of the Republic of Tunisia, appointing four of the twelve members of this instance.

In order to better understand the basics of the legal status of the Supreme Council of Magistracy of the Tunisian Republic, as well as before the adoption of the Organic Law of the Tunisian Republic No. 28-34 of April 28, 2016 (as amended on April 18, 2017) "On the Supreme Council of Magistracy", Law No. 67-29 of July 14, 1967 "On the organization of the judicial system" was in force in Tunisia, on the Supreme Council of Magistracy and the status of the Magistracy" (expired, although the conflict of 2019 showed that some of its provisions actually continue to operate)^[7].

According to article 1 of Tunisian Law No. 67-29 of July 14, 1967, the judicial authorities included: the Court of Cassation, sitting in the city of Tunis; the Courts of Appeal; the Court of Cases related to Real Estate; courts of first instance; cantonal courts (analogous to the Justice of the Peace).

The Head of State headed the Supreme Council of Magistracy, which was convened by the decision of its Chairman or, with his permission, by the decision of the Deputy Chairman. The powers of the Supreme Council of Magistracy under the old law were significantly less, as well as the independence of this body from the executive was purely nominal (which caused criticism from its critics both earlier and during the turmoil of 2013-2014).

After the fall of the regime of President Ben Ali, fundamental changes in Tunisian legislation could not fail to occur.

According to Eric Gobe, three years after the fall of the authoritarian regime, on January 26, 2014, the deputies of the National Constituent Assembly overwhelmingly adopted the new Constitution of Tunisia, which enshrined the constitutional imperatives of the rule of law and the independence of the judiciary. This system, as intended, is guaranteed by the institution (in a reformatted form) The Supreme Council of Magistracy.

However, the Venice Commission (European Commission for Democracy through Law) then, generally assessing this process positively, expressed significant reservations about the excessive complexity of the institutional architecture of the Supreme Council of Magistracy and expressed regret that its powers concerning the relationship between the various Councils, as well as the career and discipline of judges, were formulated in a very in general terms, referring to the adoption of an organic law. Thus, the Constitution left an important "gray zone" regarding the place of the Council in the judicial system as a whole^[8].

The development of the Organic Law on the Supreme Council of Magistracy is precisely the result of political and professional processes in which "numerous subjects pursuing a heterogeneous logic of actions" were involved. At the time of the construction of the institutional architecture of the new legal regime in the field under study, this process crystallized professional and political conflicts inherited from Ben Ali's authoritarian power and the "current political conjuncture" peculiar to Tunisia. In addition, elements of the "old regime", including their organizational forms and resources, the ties of solidarity and social capital, the habit or routine of the actors, are present in the institutional gap of Tunisia. Certain cognitive and normative frameworks built under Ben Ali's chairmanship are still significant^[9].

On January 31, 2015, Hafed Ben Salah, Minister of Justice of the Government, holds an information day at the end of his term of office, to which three professional organizations of magistrates and the Tunisian National Bar Association are invited to present and discuss the contents of the preliminary draft organic law concerning the establishment of the Supreme Council of Magistracy. The preliminary draft of the law in the government version is presented by the Minister of Justice in the form of a text compiled by "representatives of judicial authorities away from political tension and trade union bargaining." Nevertheless, during the discussion there were such significant contradictions in the views of the representatives, problems with the Tunisian National Bar Association, the Tunisian Magistrates Association, the Tunisian Magistrates Syndicate and the Union of Administrative Magistracy that even the Minister ended his speech by stressing that the proposals put forward by professional organizations will be taken into account by the commission on the development of the bill. The idea of the bill was as follows: to unite professional organizations of magistrates around a common system of views. The Supreme Council of Magistracy should, according to the idea, guarantee the independence of the judiciary, having powers related to the appointment, career and discipline of magistrates^[9].

As Eric Gobe points out, the Organic Law of the Tunisian Republic No. 28-34 of April 28, 2016 "On the Supreme Council of Magistracy" had a difficult fate and "was adopted as a result of the conflict that occurred between 2015 and 2016. The final text of this Organic Law reflects the most complex compromises and other forms of interaction between political elites who survived the fall of the regime of former Tunisian President Ben Ali, and others (often victims of repression), but also judges, some of whom served the authoritarian state as instruments of justice, and lawyers (a discredited profession under Ben Ali), many of whom benefited from the support of the 2010-2011 uprising, thereby gaining professional status^[9].

A special chapter containing transitional provisions was included in the Organic Law of the Republic of Tunisia No. 28-34 of April 28, 2016.

Thus, it is stipulated that after the final formation of the Council, the State provides it with the necessary human resources and funding until a special budget is allocated and the special status of its employees is determined.

The independent supreme authority for the conduct of elections shall transmit the final list of candidates, as well as the members elected to each Council of the Magistracy to the Chairman of the provisional body for the supervision of the judicial system within forty-eight hours after the expiration of the appeal period or after the final decision on the results of the consideration of the appeal.

The Chairman, whose term of office is coming to an end, convenes the first meeting of the Council.

The first meeting of the Council is convened by the Chairman of the provisional body for supervision of the judicial system no later than within one month from the date of receipt of the final election results.

The Provisional Body for Supervision of the Judicial System, the Supreme Council of the Administrative Court and the Supreme Council of the Accounts Chamber continue to perform their duties until the final formation of the Supreme Council of Magistracy as part of its four bodies and the beginning of its functioning.

Until the administrative courts of first instance, the administrative courts of Appeal and the Supreme Administrative Court are established, the composition of the Council of Administrative Magistracy will include magistrates appointed by office:

- The First Chairman of the Administrative Court;

- The Chairman of the Cassation Chamber or the Advisory Chamber with the longest experience in this position;

- The Chairman of the Appeals Chamber with the longest experience in this position;

- The Chairman of the Chamber of First Instance with the longest experience in this position.

Prior to the establishment of the Accounting Chamber, the Council of the Financial Magistracy will include magistrates appointed by position:

- The First Chairman of the Accounting Chamber;

- Commissioner General of the Government;

- Deputy Chairman of the Accounting Chamber;

- The chairman of the Chamber with the longest experience in the rank of adviser.

Prior to the establishment of the administrative justice system in accordance with the provisions of article 116 of the Tunisian Constitution, the existing chambers of the first instance of the Administrative Court consider appeals that are submitted to the Administrative Court of First Instance of Tunisia. The existing Appeal Chambers of the Administrative Court consider the appeals referred to in this Law, which are submitted to the Administrative Court of Appeal of Tunisia. At the same time, the current plenary session of the Administrative Court considers appeals that are filed with the Supreme Administrative Court in accordance with this Law. The First Chairman of the Administrative Court exercises the powers of the Chairman of the Supreme Administrative Court provided for by this Law.

Such appeals are considered in accordance with the provisions, procedures and deadlines established in this Law.

The current composition of the Accounts Chamber performs the powers defined by this Law, which are transferred to the Accounts Chamber provided for by the Constitution of January 27, 2014, until the reorganization of the Financial Magistracy and the revision of the status of its magistrates in accordance with the provisions of article 117 of the Constitution.

It is specifically regulated that, unless otherwise provided by this Law, the provisions of a number of regulatory legal acts that have become invalid continue to apply: Law of the Republic of Tunisia No. 67-29 of July 14, 1967 "On the organization of the judicial system, on the Supreme Council of Magistracy and the Status of Magistracy", Decree-Law of the Republic of Tunisia No. 70-6 of September 26, 1970 "On the status of the members of the Accounting Chamber"^[10], as well as the Organic Law of the Tunisian Republic No. 72-67 of 01.08.1972 "On the functioning of the Administrative Court and on the status of its members"^[11].

All cases of magistrates referred to the provisional Body for the Supervision of Justice, the Supreme Council of the Administrative Court and the Supreme Council of the Accounting Chamber are forwarded to the Supreme Council of the Magistracy.

Some features of temporary replacement of vacancies of the Chairman and Deputy Chairman in the Supreme Council of Magistracy or in one of the Councils of Magistracy were also identified.

The Supreme Council of the Magistracy of Tunisia has reached its estimated "capacity", stable work has been established. But the next crisis did not take long to wait. It was caused by a dispute over competence between the President of the Republic of Tunisia and the Supreme Council of Magistracy.

Changes (relocations) in the magistrates' corps were carried out in 2019 on the basis of the regulatory decision of the plenary session of the Supreme Council of Magistracy of January 15, 2019 No. 1. This decision concerned the imposition of judicial functions, the conditions for granting access to them and the corresponding allowances and benefits.

The President of the Republic, who, in accordance with the Tunisian Constitution (article 106), has the authority to appoint magistrates with the consent or on the exclusive recommendation of the Supreme Council of Magistracy, refused to sign the document adopted by the plenary session of the Supreme Council of Magistracy, considering that it went beyond the competence in a number of positions.

The Supreme Council of Magistracy opposed this, stating the following: "We refuse to refer to the decrees of the old regime of September 21, 1973. In addition, the independence of the judiciary gives us the right to increase our remuneration in order to protect us from corruption. We are autonomous, we have common regulatory powers." As a result, changes (movements) in the magistrates' corps are blocked by the Head of State.

On December 27, 2019, the Tunisian Supreme Council of Magistracy publicly condemned the signing by the Tunisian President of a decree on the annual relocation of magistrates on the basis of a Government decree, and not a regulatory decision of the Tunisian Supreme Council of Magistracy of January 15, 2019. "The executive power violated the prerogatives of the Supreme Council of Magistracy," was, among other things, said in a statement of the Supreme Council of Magistracy^[12].

Currently, the crisis has subsided somewhat due to the COVID-19 pandemic.

Thus, it can be concluded that the evolution of the legal status of the judicial community of Tunisia is directly related to changes in the political system of this country, is very difficult and is currently far from complete.