Algerian Law Guide

By Dahmène Touchent

Published January 2006

Dahmène Touchent is “Chargé d’enseignement” for Economics and Law at the European Institute of Corporatism (INEE, Paris, 1999-2005); since 2002 he has also been “Chargé d’enseignement” for Labour Law and commercial Law at the University of Paris XIII, France. He is the Manager of the Algerian legal website, Lexalgeria. Dahmène has written articles and studies about French labour and consumer law.

READ THE NEW ARTICLE ON ALGERIA!

Update to an article previously published on LLRX.com on October 15, 2001

http://www.llrx.com/features/algerian.htm

Table of Contents

Introduction

The Algerian Legal System

The Legislative Power: Parliament

The National Assembly (House of Commons)

The Council of the Nation “majliss el ouma” (Senate)

The Judicial Power

Jurisdictions of the 1st Degree: the Courts

The Jurisdictions of the 2nd Degree: the Courts of Appeals

Supreme Court

The Administrative Jurisdictions

The State Council

Court of Auditors

Other Authorities

The Constitutional Council

Advisory Authorities

Legislation (Codes, Cases, Treaties)

Case Law

Treaties

Local Communities

Other (Semi) Governmental Institutions

Law Faculties

Official Websites

Law Libraries

Literature (Textbooks on Civil Law, Administrative Constitutional Law, Criminal Law)

Civil Law

Administrative Constitutional Law

Criminal Law

Legal Sites

Introduction

Algeria, whose capital is Algiers, is a democratic and popular republic using a presidential model of government.

Arabic is the official language spoken by more than 75 percent of the population, but the Berber language is also widespread. French, taught for a long time in primary school, is read and spoken by many Algerians. Islam is the religion of state. The large majority of the Algerians are Moslem sunnites.

Algeria is located at the north western portion of the African continent and the center of the Maghreb, open on the Mediterranean (1,200 km of coastline). Algeria has common borders with Tunisia in the east, Morocco in the west, Libya and Niger in the southeast, with Mali in the south, with the Sahara in the west and Mauritania in the southwest.

The origins of the law in Algeria can be traced back to the founding of the French colonies. Statutory law already existed before the French invasion in 1830. Except for Islamic law for personal statutes, French statutory law was applied to Algeria until its independence in 1962.

The various sources of Algerian law are:

the treaties or conventions ratified by the President of the Republic are higher than the law;
the law;
Islamic law;
the habit;
natural right and rules of equity, if necessary.

The Algerian Legal System

The separation of powers leads to a distribution of activities among the three branches of government:

The president and his administration see to the implementation of the law;
Parliament is responsible for civil and criminal legislation;
Courts make decisions on civil and criminal cases;

The Executive Power

The President

The president is the Head of the State. He is the guarantor of national independence, of the integrity of the territory, and of respect for the Constitution and the laws as well as the execution of treaties.

His Designation

He is elected for five years by universal, free, direct, and secret suffrage, within the last thirty days of the term of office.

Candidates for the Presidency must be Algerian and not carry another nationality, of Moslem religion, and whose spouse has Algerian nationality without interruption.

Also, the candidate must, furthermore be at least forty years old and enjoy all his civil and political rights. Candidates can be nominated in one of two ways: either by 600 elected officials (local and national), or by popular petition of at least 75,000 registered voters.

The President is elected by direct and secret vote.

Functions

He watches over the regular functioning of the constitutional public powers and assures the continuity of the State.

He appoints and dismisses the prime minister, who is the head of the Government, after the chancellor has been elected or deposed by parliament. The President promulgates the laws. The president also represents Algeria in international affairs, and he formally appoints and dismisses the civil servants, soldiers, and judges of the federation. The president has the right to pardon criminal offenders in the name of the republic. He names the President of the Council of State, the Governor of the Bank of Algeria, Magistrates, and Walis (Prefets).

Also, the President ratifies the treaties, declares war and concludes peace with the approval of the Parliament, exercises the right of pardon and directs the general policy of the Nation, defines its fundamental options, and informs the National Parliament accordingly.

He communicates with the Parliament either directly or by message.

He promulgates constitutional, organic, or ordinary laws and ensures their publication in the Official Journal of the Algerian Republic within a maximum period of fifteen days counting from the transmission by the President of the National Parliament. During this period, the President of the Republic may return the bill to the National Parliament for a second reading. If the bill is adopted by the National Parliament with a majority of two-thirds of its members, the law is promulgated and published within a second period of fifteen days.

He watches over the execution of the laws. He exercises the general regulatory power and may delegate all or part of it to the Prime Minister.

The President nominates the highest civil and military officers on the recommendation of the Government.

The Term of His Functions

The term of the presidential office is five years. The President of the Republic is eligible for only two terms.

If the President, because of serious and long-lasting illness, happens to be unable to carry out his functions, the Constitutional Council meets de jure, and after having verified the reality of the impediment by the appropriate means, proposes, unanimously, to the Parliament to declare the state of impediment.

The Parliament, sitting in both chambers convened together, declares the state of impediment of the President, with a majority of two-thirds (2/3) of its members and charges the President of the Council of Nation, to stand for the Head of State by interim for a maximum period of forty five (45) days and carry out his prerogatives in accordance with the provisions of Article 90 of the Constitution.

If the impediment continues at the expiry of the forty- five (45) days period, a declaration of vacancy by resignation de jure is made. In case of resignation or death of the President, the Constitutional Council meets de jure and ascertains the permanent vacancy of the Presidency of the Republic. It immediately communicates the permanent vacancy declaration act to the Parliament which the President of the Council of Nation assumes the charge of Head of State for a maximum period of sixty (60) days, during which presidential elections are organized.

The Head of State, thus designated, cannot be a candidate to the Presidency of the Republic.

In case the resignation or the death of the President of the Republic comes in conjunction with the vacancy of the Presidency of the Council of Nation whatever the cause may be, the Constitutional council meets de jure and ascertain, unanimously, the permanent vacancy of the Presidency of the Republic and the impediment of the President of the Council of Nation. In this case, the President of the Constitutional Council assumes the function of the Head. He cannot be candidate for the Presidency of the Republic.

Government

The Government puts into effect the general policy of the nation, in conformity with the orientations and options defined by the President. The Government is responsible to the President of the Republic for its conduct.

The President nominates the Prime Minister, and on his suggestion, the other members of the Government. The President presides over the Council of Ministers.

The President dismisses the Government or one of its members on his own initiative or on the recommendation of the Prime Minister.

The Head of Government distributes the functions among the members of the Government in accordance with the provisions of the Constitution.

He presides over the Council of Government, sees to the execution of laws and rules and signs executive decrees. Also, he sees to the best functioning of the public administration.

The Government presents each year a general policy declaration to the Parliament.

The Head of Government submits his programme for approval to the Parliament. The latter opens for this purpose a general debate.

The Head of Government may adapt his programme in the light of this debate. In case of non approval of his programme by the parliament, the Head of Government presents the resignation of his Government to the President. This latter appoints again a Head of Government in accordance with the same modes.

If the People’s National Assembly’s approval is not obtained, the People’s National Assembly is dissolved de jure.

The Government in office is kept in position in order to manage daily affairs until the election of a new People’s National Assembly within a maximum period of three (3) months.

The Head of Government executes and coordinates the programme adopted by the Parliament.

The general policy declaration is followed by a debate on the action of the Government. This debate may end up with a resolution.

The Head of Government may ask the People’s National Assembly a vote of confidence. If the motion of confidence is not voted, the Head of Government presents the resignation of his Government. In this case, the President may, before accepting the resignation, decide for the dissolution of the People’s National Assembly, or call for the organization of anticipated general elections which are held within a maximum time limit of three (03) months.

The Prime Minister

The Head of the Government introduces the members of the Government which he chooses with the President, who appoints them. The Prime Minister performs the following functions:

He distributes attributions between the members of the Government in the respect of the constitutional provisions;
He chairs the Council of the Government;
He takes care of the execution of the laws and payments;
He signs the executive decrees;
He names the uses of the State;
He takes care of the correct operation of the public administration.

The control of the action of the Government is exerted by the national assembly (House of Commons). The prime minister subjects his program to the approval of the national assembly (House of Commons) and makes a presentation on his program at the Senate. In the event of non-approval of his program by the national assembly (House of Commons), he presents the resignation of his Government to the President. The President then names a new prime minister. If the approval of the national assembly (House of Commons) for the program is not obtained again, the assembly is dissolved.

The Government is maintained to manage the current business until the election of a new national assembly (House of Commons), which must take place within a three month period.

The Prime Minister can present to the President of the Republic the resignation of his Government.

Ministers

The Legislative Power: Parliament

The legislative power is exercised by a parliament, consisting of two chambers, the People’s National Assembly and the Council of Nation. The Parliament is sovereign to elaborate and vote on the law.

The People’s National Assembly is elected for a period of five (5) years. Its members of the People’s National Assembly are elected by means of a universal direct and secret suffrage.

The members of the People’s National Assembly are elected by universal, free, direct, and secret suffrage, according to the modalities and conditions determined by the Electoral Law. Candidates must be at least twenty-eight years old, Algerian by birth or naturalised for at least five years. Independent candidates must have collected at least 400 voter signatures to be eligible. Both men and women are eligible to run.

The President of the People’s Assembly is elected for the term of the legislative body.

Members of the Parliament call upon the Government on a topical issue. Answers to written questions should be in written form within a maximum time limit of thirty (30) days. Answers to oral questions are given in session. If one of the two chambers considers that oral or written answers of a member of the Government justifies a debate, the latter is opened in accordance with the conditions provided for by the rules of procedure of People’s National Assembly and the Council of Nation.

In debating the general policy declaration, the People’s National Assembly may sue the Government’s responsibility through voting a motion of censure.

Such a motion is admissible only if it was signed by, at least, one-seventh (1/7) of the number of deputies. The motion of censure should be approved by the majority of two-thirds (2/3) of the deputies. The vote occurs only three days after the motion of censure is brought in. If the motion of censure is adopted by the People’s National Assembly, the Head of Government submits the resignation of his Government to the President of the Republic.

The Council of Nation is composed of senators whose number shall not exceed the half, to the utmost, of the members of the People’s National Assembly. The mandate of the Council of Nation is limited to six (6) years.

Half the members of the Council of Nation are renewed every three (3) years.

The members of the Council of Nation are designated as follows: two-thirds (2/3) of the members of the Council of Nation are elected by means of indirect and secret suffrage among and by the members of the People’s Communal Assemblies and the People’s Wilaya Assembly; one-third (1/3) of the members of the Council of Nation are designated by the President of the Republic from among the national personalities and qualified persons in the scientific, cultural, professional, economic and social fields.

The President of the Council of Nation is elected after each partial renewal of the members of the Council.

The Parliament meets in two ordinary sessions a year, each lasting a minimum period of four (04) months.

The Parliament may hold a meeting in an extraordinary session on the initiative of the President of the Republic.

Also, the President of the Republic can hold a meeting of the Parliament on a request made by the Head of Government or by the two-thirds (2/3) of the members of the People’s National Assembly.

The closure of the extraordinary session comes after the Parliament has exhausted the agenda for which it was convened.

The term of the legislative body begins de jure on the tenth day following the date of the election of the People’s National Assembly, under the chairmanship of the oldest member assisted by the two youngest deputes.

Parliamentary immunity is recognized to deputies and members of the Council of Nation during the period of their mandate. No member of People’s National Assembly or the Council of Nation can be arrested or prosecuted for the duration of his mandate for a crime or misdemeanor as long as the People’s National Assembly or the Council of Nation which decides by the majority of its members to lift the immunity has not lifted the immunity which covers him. However, in the event of flagrant offence, arrest procedure is permitted, in such a case, the People’s National Assembly or the Council of Nation has to be informed without delay.

The Parliament legislates in the fields which the Constitution allots to them, including:

rights and fundamental duties of the people, in particular the mode of public freedoms and obligations of the citizens;
general rules relating to personal statutes and family law, and in particular to marriage, divorce, capacity and successions;
the basic legislation concerning nationality;
rules relating to the legal organization and the creation of jurisdictions;
general rules of criminal law and the penal procedure; and in particular determination of the crimes and offences, institution of the corresponding sorrows of any nature, amnesty, extradition and the penitentiary mode;
general rules of the civil procedure
the mode of the civil, commercial obligations and of property;
adoption of the national plan;
the vote of the State budget;
creation, the rate and collection of taxes;
the customs system;
the payment of emission of the currency and the mode of the banks, the credit and insurances;
general rules relating to teaching and scientific research;
general rules relating to the public health and the population;
general rules relating to labour law, social security, and the exercise of the commercial law;
general rules relating to the environment, the framework of life and regional planning.

The organic law is adopted by the absolute majority of the deputies and by three-quarters of the members of the Senate (the Council of the Nation). It is subject to the control of conformity by the Constitutional Council before its promulgation.

The mandate of the Parliament can be prolonged in exceptionally serious cases, preventing the normal course of the elections. The Parliament sits in two ordinary sessions per annum, each of one four months minimal duration. The Parliament can be joined together in an extraordinary session on the initiative of the President of the Republic.

The National Assembly (House of Commons)

The members of the House of Commons are elected by direct and secret vote. The initiative of the laws belongs jointly to the prime minister and to the deputies.

The National Assembly is elected for one five year period. The President of the Republic can decide, after consultation with the President of the National Assembly, the President of the Council of the Nation (Senate) and the prime minister, to dissolve the National Assembly or anticipated legislative elections.

The law is promulgated by the President of the Republic within thirty days from the date of its handing-over.

The parliamentary privilege is recognized with the deputies throughout their mandate. They cannot be the subject of continuations, arrest, or in general to any civil proceeding, penal action or pressure because of the opinions that they expressed, the remarks which they made or the votes that have made in the exercise of their mandate.

The Council of the Nation “majliss el ouma” (Senate)

The members of the Senate are elected by a two-thirds majority, in secret, by the municipal elected officials and the departmental assemblies.

One-third of the senators are indicated by the President of the Republic from among the national personalities and competencies in science, cultural, professional, economic and social fields.

The number of the senators is equal to half, at most, of the members of the House of Commons (APN). Their mandate is fixed at six years and half of its members are subject to elections every three years.

The parliamentary privilege is recognized with the senators throughout their mandate. They cannot be the subject of continuations, arrest, or in general to any civil proceeding, penal action or pressure because of the opinions that they expressed, the remarks which they made or the votes that they have made in the exercise of their mandate.

The Judicial Power

The Algerian constitution provides that judicial power is independent. Procedure law organizes the judicial power.

Jurisdictions of the 1st Degree: the Courts

In fact, jurisdictions of common right are qualified for all the litigation relating to civil proceedings, commercial or social. They are the court of first resort in the following matters:

all the movable and real actions whose amount does not exceed 2000DA ($1 = 11 dinar).
all the actions relating to rights whose amount does not exceed 300 DA.
infringements of the transportation system
disputes relating to the rural beams, habitation and of professional use, the commercial beams

The Jurisdictions of the 2nd Degree: the Courts of Appeals

There are 48 courts of appeals in the Algerian territory. They are courts of jurisdiction for all the calls formed against the judgments given in all matters by the courts in the first resort. In the same way, they know, in last spring, of the demands for payment of judges, when the conflict relates to two jurisdictions within the competence of the same court and the requests for challenge directed against the courts of their spring. The courts are qualified, in the first resort, for any litigation relating to the State (or one its districts).

Supreme Court

The Supreme Court has the highest jurisdiction. The appeals in cassation can be introduced to the Supreme Court only for the following:

Incompetence or abuse of power
Basic lack of legal merit
Violation or omission of the substantial forms of the rules of procedure
Defect, insufficiency or contradictions of reasons
Violation or distortions to application of the law interns or foreign law relating to the personal statute
Contradicting decisions of different courts and returned in last spring.

The Administrative Jurisdictions

The Administrative Courts are qualified jurisdictions of common right for administrative disputes.

The State Council

The creation of the State Council is very recent. Organic law of May 30 1998 instituted this jurisdiction. The state Council is regarded as a regulating body of the administrative jurisdiction activity. It concerns the judicial power and ensures unification of administrative jurisprudence through the country and takes care of the respect of the law. It has two kinds of competence of the jurisdictions: The state council is qualified for the recourse in first and the last arises for:

actions in cancellation formed against the lawful or individual decisions returned by the central administrative authorities, of the national public institutions and the national professional organizations;
actions in interpretation and appreciation of the legality of the acts which concern the administrative dispute.

Court of Auditors

The Court of Auditors is in charge of control of the public purses, local authorities and public services. The Court of Auditors draws up an annual report which it addresses to the President of the Republic. The law determines attributions, the organization and the operation of the Court of Auditors and the sanction of its investigations.

Other Authorities

The Constitutional Council

The Constitutional Council is charged to take care of the respect of the Constitution and the regularity of the operations of referendum, the election of the President of the Republic and legislative elections. He proclaims the results of these operations.

The Constitutional Council is composed of nine (9) members:

three (3) indicated by the President of the Republic of which the President,
two (2) elected officials by the National Assembly,
two (2) elected officials by the Council of the Nation,
one (1) elected official by the Supreme Court,
one (1) elected official by the Council of State.

The President of the Republic indicates, for six (6) years a single mandate, the President of the Constitutional Council. The other members of the Constitutional Council fill six (6) years a single mandate and are renewed per half all the three (3) years.

In addition to other attributions which are expressly conferred to him by other provisions of the Constitution, the Constitutional Council comes to a conclusion about the constitutionality of the treaties, laws and payments, is by an opinion if those are not made executory, that is to say by a decision in the contrary case.

Advisory Authorities

The High Islamic Council

The High Islamic Council is composed of fifteen members, from of which a President, indicated by the President of the Republic, among high national competence in various sciences. The High Islamic Council is charged in particular:

to encourage and promote the ijtihad (case-law in Moslem right);
to give its opinion in comparison with the religious regulations on what is subjected to him;
to present a periodic report of activity to the President of the Republic.

The High Security Council

The High Security Council chaired by the President of the Republic; this body is charged with providing opinions on all questions relating to national security.

Legislation (Codes, Cases, Treaties)

The National Assembly of People and the Senate are online sources for laws.

There is no special organization in the official edition of the codes. In fact, private publishers publish these codes in the form of books or CD-ROMs.

LexAlgeria, Algerian legal portal
The portal of Justice department
BERTI codes, Algiers
- Algerian Civil Law Code, book and CD-ROM
- Algerian Civil Procedure, book and CD-ROM
- Algerian Criminal Code, book and CD-ROM
- Algerian Criminal Procedure Code, book and CD-ROM
- Algerian Customs Code, book and CD-ROM
- Algerian Commercial Code, book and CD-ROM
University Publications Office, OPU codes, Algiers
- Algerian Criminal Code
- Algerian Civil Procedure Code
- Code of the Marital Status

Case Law

· Cour Suprême

· Conseil d’Etat

· Constitutional Council, which publishes constitutional jurisprudence.

· Revue de la jurisprudence de la cour suprême, service de la documentation à la cour suprême, éditions la maison de la Casbah, Alger.

· Revue du conseil d’Etat, revue semestrielle publiée parle Conseil d’Etat, Alger.

Treaties

The French and Algerian agreements contain all bilateral treaties, protocols, and other relevant materials.

Local Communities

The Algerian structure is made up of three levels: 48 wilayas (departments), 567 dairates (under-departments) and 1540 Munipalities.

At the central level, there are Ministries, organised into general directorates in accordance with the French administrative model.

The intermediate level includes 48 wilayas (départements) headed by a wali (Préfet) who is appointed by the president.

The wali is the representative of the government, and works with an executive made of representatives of every ministry.

Each of the 48 Wilayas has its own Popular Assembly (APW) made up of 30 representatives elected every 5 years – its deliberative body – and an Executive Council. These administrative districts of the state enjoy financial autonomy, and their responsibilities include the territorial organisation of state services, the regulation of agriculture, tourism, school systems, road networks and medium-size industries, as well as all activities related to private sector development.

At the local level, there are 1540 municipalities .Each municipality is headed by a President elected to a five year term.

The Municipal Popular Assemblies (APC) are the governing bodies for Municipalities. They are made up of 10 to 80 members elected every five years, and are responsible for local administration, economics, finances, social and cultural activities, and planning.

Algeria is then subdivided into 48 departments