In Tunisia, the June 2013 draft Constitution provides (Arts. 100, 101 and 106): The judiciary is an independent authority that ensures the prevalence of justice, the supremacy of the Constitution, the sovereignty of law, and the protection of rights and freedoms. Judges are independent. No power shall be exercised over their rulings other than the power of the Constitution and law. A judge must be competent. He must commit to impartiality and integrity. He shall be held accountable for any shortcomings in the performance of his duties. Any interference in the judiciary is prohibited. The principles of judicial independence in Tunisia’s June 2013 draft Constitution recognize an important distinction between judges’ personal independence and the institutional independence of the judiciary. Alongside this distinction, this Briefing Paper recognizes two more: the distinction between the judiciary itself and the institutions that support the work of the judiciary, and the distinction between judicial independence in common law countries and civil law countries. 1.2. THE DISTINCTION BETWEEN JUDGES’ PERSONAL INDEPENDENCE AND THE INSTITUTIONAL INDEPENDENCE OF THE JUDICIARY Ensuring that judges decide cases fairly and independently is only one element of judicial independence. Just as individual judges themselves must be independent, the judiciary as an institution must remain impervious to manipulation and outside influence. Judicial independence implies both that judges must be individuals of integrity and must decide cases before them in accordance with the principles of judicial independence and be free from outside interference, and also that the judiciary as an institution functions autonomously, without interference from the other branches of government, in regulating its own administrative and internal arrangements. The distinction between judges’ personal independence and the institutional independence of the judiciary is reflected in section 3.1 and section 3.2 below, which deal respectively with constituting the judiciary and the functioning of the judiciary. court, as well as institutions and individuals responsible for prosecutions, investigations and the collection of evidence, must act impartially if judicial decisions are to uphold the rule of law and respect and protect human rights.10 In section 3.3 below, the Briefing Paper deals with the international law on how the institutions that support the judiciary affect judicial independence. International law reflects the distinction between the independence of courts themselves and the independence of the institutions that support the work of the courts. 1.4. THE DISTINCTION IN THE JUDICIAL SYSTEMS OF COMMON LAW AND CIVIL LAW COUNTRIES11 Differences between the common law and civil law traditions affect the role of the courts and influence how judicial independence should be understood in each context. First, judges in common law countries are usually appointed on the basis of their achievements during a long career as a legal professional (the recognition model), while judges in civil law countries are appointed as civil servants soon after a basic legal qualification (the career model). Although politicians may play a more important role in the appointment of judges in the recognition model, and judges themselves play a more important role in appointments in the career model, opportunities for improper interference in the appointments process exist under both models. Careful attention to the rules for appointment in both civil law and common law countries must ensure the independence of judges. Tunisia follows the civil law tradition, as set out in the June 2013 draft Constitution: the judiciary, the administrative courts and the financial courts are structured on the career model, with judges appointed as civil servants (Arts. 112-114). However, the Constitutional Court is an exception, and is structured on the common law, recognition model: judges are to be appointed to the Constitutional Court after at least 15 years of “high expertise” (Art. 115). Second, judges in civil law systems generally play a more active role in criminal prosecutions (the inquisitorial system), as opposed to judges in the common law system who act as passive adjudicators of opposing legal teams (the adversarial system). While the distinction is not absolute (common law judges play a role in pre-trial proceedings in identifying relevant evidence, and trial lawyers in civil law countries are active in suggesting evidence to inquisitorial judges), the distinction emphasizes that the personal independence of judges in civil law systems must receive special attention, 1.3. THE DISTINCTION BETWEEN THE COURTS AND THE INSTITUTIONS THAT SUPPORT THE WORK OF THE JUDICIARY 10 Judges do not operate the judicial system by themselves; they are supported by other institutions. Judges must make decisions on the basis of information and facts that are presented to them by lawyers (on the distinction between common law and civil law judicial systems in this respect, see section 1.4 below). The legal representatives who appear in 3 UN Guidelines on the Role of Prosecutors, adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. 11 In countries with a common law tradition, the courts play a central role in the development of the law. Judicial decisions create binding legal ‘precedent’, which guides other courts in subsequent cases dealing with similar matters. The ‘common law’ is the law that develops in this way through the decisions of the courts. In countries with a civil law tradition, comprehensive legal ‘codes’ purport to set out the law in its entirety. Judges apply the law as it is stated in these codes, but their decisions do not create precedent that other courts are bound to follow. In contrast to common law countries, in civil law countries the law does not develop through the decisions of the courts.

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