Legal Opinions and Comments

The Draft Constitution contains a number of positive features, notably some new provisions pertaining to fair trial guarantees, the practical implementation of all provisions will greatly depend upon the adoption of implementing legislation and the existence of proper enforcement mechanisms, including judicial review and access to independent and impartial courts. The OSCE/ODIHR hopes that these Comments will provide useful insights, which may eventually lead to more comprehensive and fundamental changes, involving a clearer division of competencies, more efficient state institutions and a system of effective checks and balances.

The Draft Amendments propose changes to constitutional provisions on the status of international human rights treaties and their position in the hierarchy of norms, the separation of powers, the dismissal of members of Cabinet, the manner of appointing/dismissing heads of local state administration, the independence of the judiciary and of judges as well as the roles of the Supreme Court, and of the Constitutional Chamber, among others. The OSCE/ODIHR and the Venice Commission note that the proposed amendments to the Constitution may negatively impact the balance of powers by strengthening the powers of the executive, while weakening both the parliament and, to a greater extent, the judiciary. In particular, although the Constitutional Chamber is retained as such, the Draft Amendments would seriously affect its institutional status and role as an effective organ of judicial constitutional review. Moreover, some of the proposed amendments raise concerns with regard to key democratic principles, in particular the rule of law, the separation of powers and the independence of the judiciary, and have the potential to encroach on certain human rights and fundamental freedoms.

The OSCE/ODIHR notes numerous positive features, which are overall in line with the provisions of the International Convention for the Protection of All Persons from Enforced Disappearance. At the same time, the Opinion provides a number of recommendations to fully implement Tunisia’s obligations under the Convention, in particular on necessary amendments to criminalize additional conducts and to ensure that general procedural rules do not exempt or unduly limit the extent of criminal responsibility or sanctions for the crime of enforced disappearance. The Tunisian drafters were also urged to exclude the possibility to impose death penalty for the crime of enforced disappearance and other crimes in general.