Evolution of the Civil Procedure System
The Tunisian legal system underwent a fundamental shift with the transition from the 1910 Code of Civil Procedure to the 1959 Code of Civil and Commercial Procedure. The former was rooted in the inquisitorial system, where the judge played an active role in investigating facts, similar to an examining magistrate in criminal law. However, the 1959 Code adopted the adversarial system, placing the primary responsibility for building a case and presenting evidence on the litigants themselves.
Interpretation of Article 12
Article 12 of the Code, as amended in 1980, explicitly states: "The court is not responsible for creating, completing, or bringing the evidence of the litigants." This provision solidifies the principle of party autonomy in civil litigation. It defines the boundaries of the court's intervention, emphasizing that the judiciary acts as an impartial arbiter of the evidence presented rather than an active participant in the evidentiary search.
The Concept of 'Litigants' Evidence'
To fully understand the impact of Article 12, one must define the scope of 'litigants' evidence.' This includes all documents, witness testimonies, and expert reports that parties rely upon to prove their claims. While the court maintains the power to order certain investigative measures (such as appointing an expert), it cannot compensate for a party's failure to provide the foundational evidence required to sustain their legal position. This distinction is crucial for legal practitioners when preparing for trial.