Features - Algerian Law Guide

Dahmène Touchent is responsible for the Algerian legal database, Lexalgeria. He received his Diplôme d’études supérieures from the Financial National Institute, Algiers; his Master of Law from The Paris XIII University; and higher legal studies in export law from Paris V University. He teaches law and economics courses to first-years and upper-class students at Claude Bernard Institute and the OCFI Center in Paris. He is also a journalist whose work appears in the Journal of Internet Ethics, and he has also written articles and studies about French labour law.


Table of Contents

Introduction
A. The Executive Power
1. The President of the Republic
2. Government
a. The Prime Minister
b. Ministers
B. The Legislative Power: Parliament
1. The National Assembly (House of Commons)
2. The Council of the Nation "majliss el ouma" (Senate)
C. The Judicial Power
1. Jurisdictions of the 1st Degree: the Courts
2. The Jurisdictions of the 2nd Degree: the Courts of Appeals
3. Supreme Court
4. The Administrative Courts
5. The State Council
6. Court of Auditors
D. Other Authorities
1. The Constitutional Council
2. Advisory Authorities
a. The High Islamic Council
b. The High Security Council
E. Legislation (Laws, Jurisprudence and Treaties)
F. Local Communities
G. Other (Semi) Government Institutions
H. Law Faculties
I. Official Websites
J. Law Libraries
K. Literature (Textbooks on Civil Law, Administrative Constitutional Law, Criminal Law)
L. Legal Sites

Introduction

Algeria, capital Algiers, is a democratic and popular republic, which uses a presidential model.

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 the 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.

A. The Executive Power

1. The President of the Republic

The President of the Republic guarantees the constitution and the unity of the Algerian nation.

His Designation

The President is elected by direct and secret vote. This election of the candidate requires a majority of the votes cast.

To be eligible for the Presidency of the Republic, the candidate must:

  • be of Algerian nationality
  • be Moslem
  • be forty years old by the day of the election;
  • have all civil and political rights
  • attest to the Algerian nationality of his spouse

Functions

The President of the Republic has the following capacities and prerogatives:

  • He is the supreme head of all the armed forces;
  • He is responsible for national defense;
  • He directs and leads the foreign policy of the nation;
  • He chairs the Council of Ministers;
  • He names the prime minister and puts an end to his functions;
  • He has the right of reprieve or commutation of sorrow;
  • He can seize the people by way of referendum;
  • He concludes and ratifies the international treaties;
  • He names:
    • the President of the Council of State;
    • the Secretary of the Government;
    • the Governor of the Bank of Algeria;
    • Magistrates;
    • Walis (Prefects).

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.

When the President of the Republic, due to serious illness, is unable to fulfill his responsibilities, the Constitutional Council automatically meets, and after having checked the validity of his status via all available means, proposes unanimously to the Parliament to declare a state of prevention. The Parliament sitting in joint session, together declares the state of prevention of the President, with a two thirds majority of its members. It appoints an interim as Head of the State, for one period, with a maximum of forty five days, the President of the Council of the Nation (Senate).

In the event of the resignation or death of the President of the Republic, the Constitutional Council automatically meets and notes the final vacancy of the Presidency of the Republic. It immediately communicates the act of declaration of final vacancy to the Parliament, which then automatically meets.

The President of the Council of the Nation (Senate) assumes the responsibility of Head of State for one period with a maximum duration of sixty days.

2. Government

a. 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 must take place within a three month period.

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

b. Ministers

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B. The Legislative Power: Parliament

The legislative power in Algeria is exerted by the Parliament, composed of two houses, the National Popular assembly (House of Commons) and the Council of the Nation (Senate), which together work out and vote on the law supremely.

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.

1. 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.

2. 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.

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C. The Judicial Power

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

1. 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. The 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

2. 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).

3. 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.

4. The Administrative Jurisdictions

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

5. 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.

6. 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.

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D. Other Authorities

1. 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 new (09) 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 (06) years a single mandate, the President of the Constitutional Council. The other members of the Constitutional Council fill six (06) years a single mandate and are renewed per half all the three (03) 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.

2. Advisory Authorities

a. 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.

b. The High Security Council

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

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E. 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.

  • 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

The jurisprudence is not a direct source in Algerian law. Until 1975, the courts and the lawyers used French jurisprudence. There are no publications where cases are published. Until now, no jurisdiction had an Internet website.

The Constitutional Council has a web site that publishes constitutional jurisprudence.

Treaties

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

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F. Local Communities

Algeria is divided into several administrative levels, the most important are: Département (96), subdepartement (daira), and Commune.

Algeria is then subdivided into 48 departments

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G. Other (Semi) Government Institutions

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H. Law Faculties

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I. Official Websites

Government: "The Essentials of the Law" contains the official gazette from 1962; statutes and decrees from 1962.

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J. Law Libraries

The most important law library in Algeria is "La Bibilothèque Nationale". This library has no electronic access.

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

Most of Algerian law books are published in French.

Civil Law

  • Compilation of Civil and Public Law, Algerian Juris-Classeur Paris, Editions techniques.
  • Algerian Civil law, Lourdjane, Ahmed Harmattan, 1985.
  • Algerian Civil Law, Vialard, Antoine, University Publications Office, Algiers, 1980.

Administrative Constitutional Law

  • Studies of Algerian Public Law, Ahmed Mahiou, University Publications Office, Algiers, 1984.

Criminal Law

  • "The Control's Execution of the Algerian Criminal Law Sanctions": Nasroune-Nouar, Ourdia Paris, 1991, LGDJ.

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L. Legal Sites

Here are French "portals" on Algerian law:

  • Lex Algeria: the first portal of Algerian law.
  • Legisnet: it contains all Algerian constitutions.

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