1. Legal Action
Before the emergence of the state or the formation of organized communities, conflicts between individuals were resolved through acts of private vengeance.
With the rise of the state, justice became a public service and a function monopolized by the state.
Legal action refers to the right granted to a person to address a judge in order to obtain the enforcement of their rights by presenting claims.
Article 16 of the Civil and Commercial Procedure Code (C.P.C.C.) states: "The exercise of legal action belongs to anyone with the capacity and legal standing to assert their rights in court."
Indeed, while the claimant enjoys the freedom to act, the defendant has the right to challenge or accept the arguments presented by the claimant.
The right to take legal action can be declared admissible. However, the claim may fail on substantive grounds if the right invoked does not allow a favorable ruling by the court.
2. Judicial and Administrative Courts
The principle of the separation of powers implies the independence of the judiciary from the executive branch.
Thus, administrative courts and judicial courts constitute two parallel and independent judicial orders.
The administrative court, organized by the law of 01/06/1972, is responsible for ruling on appeals for annulment due to abuse of power against acts of administrative authorities and on claims seeking to establish the liability of the administration.
Judicial courts, on the other hand, are primarily competent to resolve disputes between individuals.
3. Judicial Courts
3.1 Principles of Judicial Order
3.1.1 Jurisdiction by Subject Matter and Territory
The rules of jurisdiction by subject matter aim to distribute disputes among various courts based on the nature of the issues. These rules determine the category of courts competent based on the nature and value of the case to be judged.
Territorial jurisdiction rules complement jurisdiction by subject matter, designating, within the same category of courts, which court can handle the case. The general rule is that the court of the defendant’s domicile is competent. Exceptions exist, such as in property disputes, where only the court where the property is located has jurisdiction.
3.1.2 Principle of Double Levels of Jurisdiction
To ensure fair justice, the judicial system is organized to allow the losing party to appeal the case before another court.
The decision rendered by the first-level court is referred to as a "first-instance ruling." It is generally subject to appeal. The decision rendered on appeal is known as a "final ruling," meaning no further ordinary appeals are available.
3.2 Functioning of Courts
Globally, two main systems of court organization exist: the single-judge system used in Anglo-Saxon countries and the collegial court system.
The Tunisian legislator has opted for the collegial court system.
Exceptionally, courts may function with a single judge, as in the case of the cantonal court.
It is believed that a panel of three or five judges provides better guarantees than a single judge, both in terms of competence and conscience.
The public prosecutor's office, tasked with ensuring the protection of public interest, is represented in all courts.
Court sessions are always attended by a court clerk, who is responsible for recording proceedings and maintaining archives.
As a rule, court sessions are public. The transparency of debates ensures impartiality of the judge.
3.3 Different Jurisdictions
Some courts are specialized and only handle specific disputes defined by law (e.g., real estate courts, military courts).
Others are not specialized and handle various types of disputes, including cantonal courts, courts of appeal, and the court of cassation.
3.3.1 Cantonal Court
The cantonal court functions with a single judge. The cantonal judge is exclusively competent for possessory actions (Article 39 of the Civil and Commercial Procedure Code) and alimony cases initiated as the principal action.
In alimony cases, appeals do not suspend execution.
The cantonal court has first-instance jurisdiction over civil personal or movable claims and commercial payment claims if the claim amount does not exceed 7,000 dinars.
3.3.2 Court of First Instance
As the primary general jurisdiction, the court of first instance is competent for all disputes not specifically assigned to another court by law.
It consists of several chambers: personal status, commercial, criminal, and one or more civil chambers.
The court of first instance functions in a collegial formation and handles all actions unless otherwise provided by law. It also serves as the appellate jurisdiction for judgments issued in the first instance by the cantonal judge.
When the court acts as an appellate jurisdiction, its decisions are final.
In all other cases, judgments are rendered as first-instance rulings, subject to appeal before the court of appeal.
3.3.3 Court of Appeal
The court of appeal always functions in a collegial formation to hear appeals against first-instance judgments issued by the court of first instance.
Its decisions, called "judgments," are always rendered as final.
Once an appeal is filed, it produces two effects:
- Suspensive effect: The first-instance judgment cannot be executed until the appeal process concludes.
- Devolutive effect: The appellate court has full authority over the entire case.
3.3.4 Court of Cassation
The court of cassation is the highest judicial body in Tunisia. It comprises a President, chamber presidents, and counselors, divided into civil and criminal chambers.
It reviews appeals against final decisions rendered by lower courts.
The court of cassation is not a third level of jurisdiction, as it does not re-examine the facts of the case. Instead, it judges the application of the law.
Its role is to ensure proper interpretation of the law by other courts.
If the court of cassation agrees with the lower court’s legal reasoning, it issues a "rejection ruling," and the case is definitively closed. Generally, lower court decisions are already executed, as appeals to the court of cassation do not suspend execution.
If, on the contrary, the court of cassation prefers the legal reasoning in the appeal, it issues a "cassation ruling."
The court simultaneously annuls the decision and refers the case to another court of the same rank but differently composed.
The referral court may adopt the legal reasoning of the court of cassation and draw the necessary conclusions from the facts. This is the most common outcome, and the case is then definitively closed.
However, referral court judges, acting independently, may reject the court of cassation’s reasoning. A second appeal is then possible, heard by an extended formation of the court of cassation (united chambers).
A solemn ruling is issued. If it is a "rejection ruling," the case is closed. If it is a "cassation ruling," the case is referred again to a different lower court, which must adopt the legal reasoning of the court of cassation, as every case must come to an end.
