Following the incident, Ghassen was issued a 21-day medical certificate. He could not afford a lawyer and had to pursue his complaint alone. Fast forward several years later and he is still waiting for any developments in his case. "At the police station, I'm always told that the judge still hasn't looked at the file. They should normally at least hear both sides of the story. Nothing has happened since then. My aggressors are still roaming free". In the meantime, one of them has gradually moved up through the ranks and joined the Municipal Council.
"It was a violent assault. I was really scared that I might sustain some permanent damage. There are thousands, if not millions, of people like me. I am still waiting for justice to be served," he says.
How is it that Ghassen's complaint for the aggression is still pending, more than four years after the facts? For the young man, this delay is due to the lack of judges: he believes that their number needs to be increased. Like Ghassen, most of the professionals interviewed associated this slowness with inadequate human resources. But what is the real reason? What could explain this lack of efficiency?
A surge in complaints?
After an offense, a complaint is usually filed with a police station. The police will then inform the Prosecutor and conduct a preliminary investigation, which will be reported to the Prosecutor. It is then up to the judge to decide whether or not to proceed with the case. "Today, the procedures take much longer. In the past, the Public Prosecutor's Office used to process the case in one day. Now it often takes a week," explained Hayet Jazzar, a lawyer for almost 28 years.
Roughly half (40%) of Tunisians have had one or more legal problems in the past four years. Most of these are related to the litigants' livelihood and daily life, according to a study conducted by the Hague Institute for Legal Innovation (HIIL). Nearly one in five complainants have had problems related to their jobs. The second most frequent type of complaint, which is three times more prevalent among the wealthy, is related to public services. Land-related problems are the third most common complaints.
More complaints, more dysfunctions... In its new podcast series, " On the brink of Justice", which will be released on 31 October, inkyfada has gathered many testimonies from judges who decried an increasingly challenging situation.
Several explained that the number of remaining cases - that is, the number of unprocessed cases at the end of the judicial year - is only growing each year. According to the figures issued by the National Institute of Statistics (INS), an increasing number of complaints remain unresolved. The remaining cases have doubled in 7 years: from approximately 700.000 in 2011 to 1.5 million in 2018.
A shortage of judges?
"Some judges have to handle hundreds of cases a week. When I walk into the courtroom, I can often see endless piles of case files, many of them for just one day," revealed Oumaima*, a young lawyer who has been practicing since 2017.
The figures collected indicate that judges have an average of over 1000 cases per year, which amounts to almost 5 cases per judge per working day.
This average does not, however, reflect the diversity of the case files. The cases received are not all equally complex. For instance, some expert reports can take months, "even two or three years", according to Oumaima.
"In an attempt to maintain balance, we were required to handle a minimum of six to eight cases per month," said Sarah*, an administrative court judge. However, it should be noted that the above-mentioned average relates to all orders of the judiciary: judicial, administrative and financial.
But in the judicial order, these discrepancies are even more accentuated according to the court's level and jurisdiction. For instance, the Cantonal Courts, which are located in most Tunisian cities, handle everyday cases and have limited jurisdiction. As such, still according to the INS figures, the Courts of First Instance account for the overwhelming majority of complaints. Nearly 9 out of 10 cases are still pending before them.
A challenging decentralization
The Court of First Instance of Tunis, located in Bab Bnet, is especially affected by this overload of complaints. "The Court of First Instance of Tunis should be divided into at least three other courts," argued Lawyer Hayet Jazzar.
The latter accounts for half of all complaints in Tunisia, according to a source within the court. A renovation project had been set up, but the work is yet to begin, according to Ahmed Soueb, a retired judge.
As part of a decentralization strategy, several Administrative Tribunals and Courts of Appeal have been established throughout the country's southern and interior regions. This necessity to send judges to marginalized regions is compounded by the lack of human resources in the major cities. For example, the Tunis Court has more judges, but it is still understaffed, according to the professionals interviewed.
This effort is also hampered by the overload of complaints in the courts of major cities. Decentralizing the Administrative Courts would have also made their situation even worse, according to Sarah*. "Bringing justice closer to the inhabitants, which is known as local justice, has resulted in an upsurge in the number of complaints," she explained. After 2011, many new disputes have also surfaced, such as electoral disputes, which, until now, could only be handled by the Administrative Court of Tunis. This situation may change with the new electoral law.
Judicial procedures and an antiquated bureaucracy would be partly to blame for this slowness, including the total absence of digitization. For instance, after a judgment has been rendered, it must be summarized by the judge into an abstract and then typed onto a computer by secretaries. "There is a room where you can see piles of judgments waiting to be transcribed. And so, months after a judgment has been handed down, people still wait to be able to notarize and apply it," testified Amel Chahed, a former lawyer.
"Many procedures could be digitized. [Lawyers] often spend a whole day in court just to utter one sentence or to look for one document," criticized Oumaima*.
Creating an online platform to access files and request extensions, for example, would drastically alleviate the workload for all professionals involved, she said.
"Judges often have to print their judgments at their own expense, for example. (...) This has a significant impact on the duration of trials. With primitive means, a trial that could last 3 months takes 3 years", said Anas Hmeidi, President of the Association of Tunisian Judges (AMT). He thus suggested an increase in the number of judges and clerks, as well as an infrastructure upgrade.
80% of cases go to appeal
The importance of appeals has also been pointed out to explain the congestion in the Courts of Appeal and the Court of Cassation, according to a 2014 report by Lawyers Without Borders (ASF). "No filter would allow the Courts of Appeal and the Court of Cassation to reject case files." According to ASF's figures, about 80% of cases go to appeal.
"When I worked in cassation, we would sometimes receive ridiculous cases, that we would reject before even examining the merits," said Wassila Kaabi, a retired judge and member of the Tunisia Observatory for the Independence of the Judiciary (OTIM). She was referring to procedural flaws that meant that a case should never even have gone to appeal.
However, Hayet Jazzar stated that judges' practices are largely responsible for the backlog in appeals. Judges tend to impose excessively long prison sentences for the offense committed, while pushing the lawyer to appeal. "Judges seem to have this mindset of just stopping everything and handing down prison sentences for any reason. You can appeal if you don't like the judgment! That's what I keep hearing from them," she denounced.
Changing Judges' Practices
Besides the financial means, lawyers are also calling for a change in the practices of judges. "The lack of resources is a relatively valid pretext (...) I feel for the judges, but why are some of them able to make things happen?", Amel wondered.
At the Administrative Court, Sarah* and her team have just a few older cases remaining from previous years. For the young judge, this achievement was in part due to the important role of the Presidents of Chambers, who manage the case assignments and set the work pace, which is "hellish," Wassila testified. "I would spend most of my evenings reading the next day's cases."
The judges' personalities and consciences are also an important factor to bear in mind for Amel. "These case files involve the fate and future of entire families. So how can a judge allow themselves to commence the hearing without having read any of the documents in the file?" she denounced. She also explained that this is a quite frequent situation that leads to serious errors of judgment.
"Cases are being sloppily processed, mishandled, and lives are being ruined. Some judges are trying to be fair, but they seem to be a minority. Poor conditions can't be used as an excuse to completely get off the hook," she asserted.
In fact, she revealed that she quit practicing as a lawyer after having dealt with a case where the judges seemed to have barely looked at the file. A few years ago, she met with a modest family in her office, whose 21-year-old son had been accused of helping his uncle steal livestock. When she met with her client, the lawyer came to understand that he had been coerced into signing the police statement, admitting his guilt. "The police pressured him to confess. The file they put together was completely empty: no fingerprints, no eyewitnesses, nothing," she explained.
The young man was sentenced at first instance to ten months in prison. The only arguments made were the uncle's accusation and the police statement signed under duress. Amel appealed twice. The appeal kept going back and forth between the The Court of First Instance and the Court of Appeal, only to be transferred from Chamber to Chamber. Both ruling Chambers copied the initial judgment word for word. "I had spent hours writing appeals, checking Tunisian and international case law... The judges did not even bother to read the file! There is no control whatsoever. In the meantime, my client has spent well over ten months in prison," deplored Amel.
An absence of control
This is despite the fact that judges are supposed to review cases collegially. Any negligence or malpractice should therefore be immediately noticed by the rest of the team. In practice, however, real control is not easily achieved. "There is a widespread problem of control and accountability. Whether it's the judges or the clerks. They all cover for each other", testified Samar*, a young lawyer.
Additionally, the bodies that are meant to discipline judges, namely the High Judicial Council (CSM) and the General Inspectorate, seem to be rather ineffective. Hayet Jazzar filed a complaint against a judge with the General Inspectorate. Months later, her complaint had still not been processed and she was even prevented from following up on its progress.
"Morbid corporatism has driven the judges into chaos (...) We were extremely disappointed by the former CSM, which was not vigilant or stringent enough. We weren't upset by its dissolution. We need a CSM that is capable of eliminating suspicions and removing corruption from within", said the lawyer.
Wassila Kaabi believes that political powers are responsible for this lack of institutions capable of disciplining judges.
"After the revolution, a whole set of reforms could have been carried out. In reality, however, the will to reform the justice system and establish the institutions provided for in the Constitution has never existed," she said.
For instance, she mentioned that a law had to be passed to organize the operation of the Inspectorate, which plays a crucial role in this supervision, as it examines any complaint made against a judge.
"Justice is clearly the least of the politicians' concerns"
Only 1% of the State budget is allocated to the judiciary, most of which is used to pay salaries. A very small portion is dedicated to the Tribunals' development and renovation. "Each Court must become a legal entity, with its own administration and its own budget", stated one of the judges interviewed by inkyfada, who also called for the appointment of assistants so that judges can focus solely on reading the files.
According to Mohammed Nachi, lawyer and anthropologist, "the State has disengaged from several areas since the 1990s ... [...] So, we have to deal with as many cases as possible with fewer resources."
Furthermore, the training of judges must be rethought. "Some judges dabble in everything, they replace their colleagues and work in several different areas. This is not normal: we must address the specialization of judges", confirmed Wassila. The lawyers interviewed called for the inclusion of a more comprehensive human rights curriculum in the training.
Besides, the judges' representatives are also partly responsible, according to Hayet Jazzar. She believes that it is the duty of the Association of Tunisian Judges (AMT) and the Syndicate (SMT) to mobilize against this congestion and these working conditions.
In their strike in the middle of Covid-19, the AMT referred to the judiciary as an arduous profession, demanding better health and material conditions for judges, as well as better infrastructure in the Courts and structural reforms in the Judicial Code. "Justice is clearly the least of the politicians' concerns," said Aicha Ben Belhassen, Vice President of the AMT.
"I do feel for the judges, but I don't forgive them for going on strike, which has severely affected us lawyers and the people we serve," said Oumaima. She notably mentioned the people in pre-trial detention who were arrested one day before the strike and who consequently had to stay in jail for several weeks.
"Just think about the time people spend in prison when they may be innocent and have done nothing," said Amel. Most complaints take several years when they should only take two years at best, she added. "One of the components of justice is to deliver it in a reasonable time. What's the point of rendering justice to someone after five or 10 years, after they've lost everything? Some damage is irreversible."