Since July 25, 2021, the President has taken a series of measures against the judiciary. Following the decision to dissolve the Supreme Judicial Council (CSM), he went on to dismiss 57 judges last June based on a range of charges, varying from corruption to obstruction of justice and even adultery. These measures were perceived, by a number of judges and members of civil society, as a threat to the independence of the judiciary.
"President Saied's decree has stripped away any remnants of autonomy from the judicial system in Tunisia. Judges should be governed by fair, impartial disciplinary rules that are open to appeal, not by the whims of the executive power," declared Salsabil Chellali, director of Human Rights Watch (HRW) in Tunisia.
" He [the President] wants to mobilize public opinion against judges," said Anas Hmeidi, President of the Association of Tunisian Judges (AMT), in the first episode of "On the brink of Justice", inkyfada's new podcast series.
How is the Tunisian judiciary's independence threatened? And how does it compromise access to a fair trial for litigants?
Police unions' harassment and intimidation practices
In October 2020, Myriam Bribri posted a Facebook status with anti-police hashtags and a video showing a police officer manhandling a citizen. Intimidations followed, the very next day. Police officers called, insulted and threatened to assault her. Others were stationed and waiting for her in the street outside her store. Frightened, she decided to stay with her family in their home.
She was then urgently summoned to appear in court. After waiting for several hours, she was told that another police officer from another city had accused her of defamation. " I was quite shocked when I read the police statement. A different police officer, a general secretary of some syndicate, is accusing me of having hurt his dignity and even his children with this post, which had nothing to do with him," she recounted.
Forged documents, disregard for procedures... There were plenty of breaches throughout the trial, according to her. " The case file was empty, not a single procedure was documented," revealed the activist.
Threats and intimidations persisted right up to the trial at first instance. " As soon as I was released, a four-day general strike was announced. My name and my photos were posted everywhere," she said. During the appeal, Myriam, for her part, has also tried to put pressure, drawing on the support of civil society.
"It was a purely political trial [...] The judge felt like he was caught between a rock and a hard place," she recalled.
Judges, much like Bribri, have also been facing repeated threats and pressure from law enforcement syndicates in several cases involving the forces of law and order. For example, in 2018, the Court of First Instance of Ben Arous was under siege by police syndicates protesting for the release of their colleagues, who had been accused of torture. These police officers then protested outside the courthouse while carrying their service weapons. The SFDGUI, the union that called for this demonstration, considered these events as a " ploy aimed at souring relations between the judiciary and the security forces".
" This event is evidence that the unions and some police officers are unwilling to collaborate with the judiciary and believe themselves to be above the law," declared Bassem Trifi, current president of the Tunisian League of Human Rights (LTDH), back in 2018.
"There are people who don't understand that we need to transition from a fascist police state to building democratic institutions. There are those who wish to revert back to the old system," confirmed his colleague Béchir Laabidi, Secretary General of the LTDH, in 2020 to inkyfada.
The establishment of police unions would enable " some police officers to go back to their old practices," according to lawyer Anouar Kousri. He explained that some unions were even created with the ulterior motive of allowing the police to preserve their power.
Bassem Trifi believes that judges tend to bury cases of public opinion, especially those involving law enforcement, out of fear. So, judges wouldn't dare hand down judgments or even issue arrest warrants against these police officers, for fear of retaliation.
Among the 57 judges, some were even dismissed by Kais Saied following reports from the security services. " Many judges were dismissed because they wouldn't allow the police to conduct searches in the absence of hard evidence," explained lawyer Faouzi Maalaoui in the podcast " On the brink of Justice". " These dismissals will possibly make some judges think twice before denying such requests. It will leave judges feeling scared and threatened," he said.
This fear could ultimately lead to a denial of justice and to a lack of trust on the part of litigants, according to lawyer Hayet Jazzar. In fact, out of the 28 cases of Tunisians killed by the police documented by inkyfada in the webdoc " Number of deaths caused by police violence since 2011 ", almost none have obtained justice. Nearly all of these cases are still pending trial or have been closed. An example would be the case of Ons and Ahlem Dalhoumi, who were killed in 2014, where the verdict was delivered but not enforced. The culprits have even kept their jobs.
Collusion and protection
Aside from the threats, however, some lawyers also denounced the judges' collusion with the security forces. The case of Hayet Jazzar and Ayoub Ghedamsi provides a good example of how some judges protect the police.
In April 2020, these two lawyers, members of the LTDH, were asked to defend Amir*, a young man who had been tortured and abused by the police. One day, while he and his lawyers were on their way to his father's hearing, who had also been assaulted by law enforcement officers, Amir* was abducted by the judicial police right outside the courthouse, even though there was no evidence against him. This happened despite the fact that the police can only arrest a suspect if they have a legal order or in cases of flagrante delicto. The Criminal Code provides that arrest without a legal order is a crime.
Amir* was detained for several days. When the judge assigned to his case decided to hear him, his lawyers were not present. According to Amir*, the judge threatened to prolong his detention if he testified that the police had abducted or abused him.
The lawyers responded by requesting a change of court during the hearing, denouncing the judge's " lack of impartiality". The Judge then retaliated by filing a complaint against the two lawyers for contempt of court, on account of their pleas.
The lawyers also filed a complaint against the judge with the CSM and the General Inspectorate of judicial affairs. So far, however, these complaints have led nowhere, and in October 2022, Hayet Jazzar and Ayoub Ghedamsi were summoned to appear before the investigating judge.
"I don't understand why all the complaints are ignored, except this one: a complaint against lawyers who denounced the torture inflicted on citizens", criticized Hayet Jazzar.
" In my 28 years of working as a lawyer, every complaint I have filed against police officers for torture has been dismissed or overlooked. The police's statements are sacred and the judges protect them," denounces Jazzar.
According to the lawyers interviewed, police reports are seen as absolute truths and are never challenged, yet many citizens sign these statements under duress, as noted by Human Rights Watch.
"The investigating judges often say that 'it's in the police report', without even bothering to look any further. Some judges even turn a blind eye to signs of torture when citizens show up with bruises all over their bodies," added Amel Chahed, a lawyer who quit the profession a few years back. Such intimidation during interrogation is still quite prevalent. Most detainees are physically or verbally abused during interrogation, according to a 2013 HRW report.
Nearly half of the detainees interviewed by Human Rights Watch signed confessions without reading them because they were afraid to ask or were threatened by police officers.
Several lawyers believe that judges need better training in human rights. " Judges overstep their bounds because they’re not trained to understand the power they have. They’re not trained to be a power. They have the mentality of an employee who's seeking benefits," criticized Hayet Jazzar.
Many of the judges interviewed somewhat supported Hayet Jazzar's analysis. In other words, the judiciary hasn't established itself as a real power and judges are acting as mere employees, following hierarchical orders.
When asked about the relations between judges and police officers, Ahmed Souab, guest on the podcast " On the brink of Justice" argued that judges are like any other Tunisian employee. " Some judges are corrupt, some follow orders, others are technocrats and a tiny fraction is truly fair. The more oppressed they are, the less courage they will have to oppose", concluded the retired judge.
When the judicial police impede justice
" The judicial police give more importance to the Ministry of the Interior's orders than to those issued by the judiciary", commented the retired judge Ahmed Souab.
For years, judges have been calling for the establishment of a judicial police force that reports to court presidents and prosecutors, rather than to the Ministry of the Interior. This demand came in the wake of threats and obstructions on the part of the judicial police, who are partly to blame for the failure of transitional justice trials. During these trials, the accused police officers were almost never in attendance, according to the IVD.
Out of 237 arrest warrants, none have been executed by the judicial police, who used the excuse of not knowing the suspects' addresses, according to a report by the IVD.
" A lot of them, however, are former executives of the security forces and are easily traceable. Some of them have even been spotted several times by the victims," stated the report " Assessment of the Prospects of the Specialized Criminal Chambers in Tunisia", drawn up by several civil society associations. "The relationship between judicial police officers and the suspects seems to be shaped by a deep corporatism and a certain sense of loyalty," concluded the report, which calls for disciplinary proceedings against judicial police officers who refuse to execute these warrants. Some police unions even accused the IVD of being a " justice of retaliation", and advised their officers not to respond to the arrest warrants.
These roadblocks aren't limited to transitional justice. Many professionals interviewed also denounced procedural errors during searches and arrests, like those in Amir's case.
This complicity between judges and the police is just one indication of the lack of independence of the judiciary, which is controlled by the executive, according to researcher Malik Boumediene.
"As a matter of fact, the judiciary serves the executive power and is therefore directly influenced by the Head of State. The judiciary's dependence will foster leniency, and even protection for law enforcement officers who engage in acts of torture and abuse in general," he said about the situation of the judiciary before 2011.
The executive's stranglehold over the judiciary did not completely change after the revolution, though. Arbitrary dismissals, transfers, threats, and a host of other measures have made it impossible for judges to be an independent power and to exercise their profession impartially.
" The President wants to keep the judiciary under his thumb"
In the new Constitution of July 25, the first article on the judicial function refers to the independence of the judiciary and the judges, who are governed solely by law. In reality, however, judges are appointed by the President, who selects them from the CSM's nominations.
Yet, last February, Kais Saied dissolved the former CSM, which was made up of a large majority of elected members. He replaced it with a provisional council, where nearly half of the members are directly appointed by the President. The latter also has discretionary power over all members of the council.
"The President wants to keep the judiciary under his thumb [...] Since the revolution, some people have been talking about a purge, especially Kais Saied. But this is a dangerous approach, because justice needs reforms in order to become more efficient and modern, not a purge", argues Wassila Kaabi, a retired judge.
Kaïs Saied has also issued a decree allowing him to dismiss judges at any time, " in case of emergency, or in the event of a threat to public safety or to the higher interest of the State, and on the basis of a reasoned report from the competent authorities". These reports would come in part from law enforcement authorities, according to the judges interviewed. These new measures also automatically lead to criminal proceedings against the dismissed judges, and the appeal can only be filed once these proceedings have been completed.
" Through the new decree-Law, Kais Saied wipes out the last traces of the judiciary's independence and fortifies his authoritarian grip on the country," says EuroMed Rights Director, Ramy Salhi.
This decree led to the dismissal of the 57 judges last June. Most of them have yet to resume their duties, but the criminal proceedings against them won't be dropped, according to the Ministry of Justice's statements.
These methods have been around for a long time. In May 2012, the then Minister of Justice, Noureddine Bhiri, had already arbitrarily dismissed 75 judges. A decision that " sets a worrisome precedent and deepens the judiciary's subordination to the executive branch ," reported HRW at the time. The Administrative Court ordered the reinstatement of nearly half of these judges in 2014, following an examination of the corruption charges brought against them.
This goes to show that this lack of judiciary independence is hardly a new phenomenon. Prior to the revolution, the judiciary was already considered " the arm of the coercive justice of Bourguiba and Ben Ali's authoritarian regimes", according to Eric Gobe, Research Director at the French National Centre for Scientific Research, CNRS.
" Before the revolution, the judge used to dread being transferred, dismissed, or sanctioned for no apparent reason, so any decision made by the police was enforced. For instance, if someone was arrested, the Public Prosecutor's Office would automatically sign an arrest warrant against them", revealed lawyer Anouar Kousri in the podcast " On the brink of Justice".
Judges' attempts to protest were met with repression, notably in the form of transfers and dismissals. In 1985 and 2005, judges organized two protest movements, denouncing the lack of judiciary independence and the violation of human rights. Both movements were repressed by politicians. Several judges were suspended, and some were definitively dismissed. In 2005, most of the protesting judges were transferred to various interior regions, making it impossible for them to meet.
"Only a fraction of the judges participated in these protests, out of fear and due to the lack of guarantees of judicial independence," admitted Wassila Kaabi, a retired judge who participated in the protests.
Two months after Kaïs Saied dismissed 57 judges, the Administrative Court ordered a stay of execution on 47 of those dismissals, after examining complaints filed by the judges in question. This decision, however, is still awaiting implementation, which is in itself a form of corruption at the State level, according to Wassila Kaabi and the judges interviewed by inkyfada. " The State and its institutions are supposed to set an example. Failure to execute judgments is a form of corruption under the law," confirmed Judge Anas Hmeidi, in Episode 5 on dismissals, released Monday, November 28 on inkyfada podcast.
This is not a new phenomenon, though. Administrative judgments are rarely implemented when it comes to State litigation, according to Sarah*, a young judge at the Administrative Court. A draft Code providing for sanctions and fines in cases of failure to implement these decisions has been brought forward. Last March, this project was being finalized, according to the Head of Communication at the Administrative Court.
On the one hand, not all dismissed judges appear to be guilty. On the other hand, there is currently no independent body to supervise and discipline the actual corrupt judges.
The absence of a supervisory body
Kaïs Saied claimed in one of his speeches to have repeatedly warned the judiciary to " purge itself".
What happens when a judge makes mistakes? How can we ensure that judgments are handed down impartially? Theoretically, supervisory bodies do exist.
When a complaint is filed against a judge, it is directly referred to the General Inspectorate of Judicial Affairs, which conducts an investigation into the matter. It then decides whether to dismiss the case or to refer it to the CSM, which will then determine the disciplinary measures to be taken, according to an ICJ report.
Yet, in reality, both the Inspectorate and the CSM are controlled by the Ministry of Justice or the President, and therefore by the executive, which adds to the threat of arbitrary dismissals.
But many of the professionals interviewed for this article acknowledged that a body like the CSM, prior to its dissolution, was plagued by internal conflicts among its members.
"The CSM should have been stricter, it should have eliminated suspicions, instead of having judges cover up for each other", denounced Hayet Jazzar.
"The first ones who didn't reform justice, before the CSM, were the judges themselves [...] The CSM failed in the reform, but also in the organization of the judiciary", said Ahmed Souab, retired judge. This failure has cleared the way for the intervention of the executive, the political parties, and then Kais Saied today.
Other judges, however, denounced the lack of regulations governing the General Inspectorate of Judicial Affairs, which is supposed to play a crucial role. In fact, a law was supposed to determine the functioning of this inspectorate to make it a body independent of the executive. But this law was never passed, and the inspectorate remained under the control of the Ministry of Justice, even though any of the cases could incriminate the Minister. Many complaints against judges would therefore end up buried in the inspectorate's archives.
"The judiciary's subordination to the executive power is all the more reflected in the Ministry of Justice's oversight over all institutions, such as the General Inspectorate. The Ministry wants to control everything", decried Kaabi.
All of these failures in the judicial system are ultimately borne by the taxpayer. Whether due to threats, collusion, or executive control, the justice system lacks a high degree of independence. This deficiency could lead to a denial of justice and to citizens losing trust in the entire judicial system. " The judiciary has never been independent", confirmed Hayet Jazzar, " There has always been a two-tier justice system: one for the marginalized and the other for the powerful".
"Many people have no idea of their rights or the procedures to follow [...] If I hadn't had [media] privilege, if it had been someone else, they would have been crushed," concluded Myriam Bribri.