A campaign promise from the president, this system which aims to recover property acquired illegally to the detriment of the country is slow to bear fruit. New amendments to the text which organizes it are therefore planned. Analysis by lawyer and former magistrate Ahmed Souab.
Moralizing public life, recovering unduly acquired wealth, and reinjecting it into the life of the country – and incidentally into the state coffers – is the whole purpose of the “criminal conciliation” system that President Kaïs Saïed evokes. since 2012 and which he had made, social justice, a major element of the 2019 electoral campaign.
But in recent months, the system is slipping and the president hides neither his disappointment nor his annoyance at the failure of the commission responsible for implementing it. Since September 2023, it seemed clear that he was going to take things in hand. At the time, he warned offenders reluctant to submit to the system that they would be “liable to legal action.” The deadlines for appeals have all been exhausted. We no longer need reports and expert opinions, we have all the evidence we need.” And said: “Let them return the money, plus the 10%, otherwise there will be no conciliation.”
For many, the mechanism also fuels a climate of suspicion and contributes to demonizing the “rich”. “Before we can redistribute anything, we would have to create wealth, provide the tools for the ecosystem that goes with it, and make equality of opportunity real,” says a business leader who is annoyed. is immediately considering slowing down its activity and says it is considering leaving the country.
It is in this tense context that amendments were made to Decree-Law No. 13 which organizes the criminal conciliation system. The text was transmitted by the presidency to the Assembly which will examine it and present it for adoption in plenary. Lawyer and former administrative judge Ahmed Souab deciphers the modifications made, the overhauls, and the restructuring of a project followed very closely by the President of the Republic.
Jeune Afrique: What is currently happening around penal conciliation?
Ahmed Souab: For the moment, the commission can be considered frozen. Since November 2022, it has shown predictable failures which made it an aborted project. The amendments introduced to stem the dysfunctions concern fifteen articles, thirteen of which have been completely revised, out of the fifty contained in the old text. To comply with the constitution, a decree-law can only be replaced by a law whose text must be submitted to parliament for examination by the legislation committee, and then adopted in plenary. Even if elected officials make changes to the proposal submitted by the president, it will only be a slight tweak without consequences. The essentials will be preserved. It should be noted that contrary to what is said, the National Conciliation Commission has always been attached to the presidency. The use of data provided by the Tunisian Financial Analysis Commission [CTAF] is not new: it was already implicitly provided for in Article 23 which mentions financial institutions as sources of information.
What are the substantial changes?
The duration of the mission of the members and the work of the commission will no longer be determined by law and will be solely the responsibility of the President of the Republic. The National Commission loses its prerogatives, it has been stripped of all decision-making power. Its mission is to document, process, prepare the files, conduct negotiations with the people concerned, and transmit the file to the National Security Council [CNS] with financial proposals. The commission no longer has the power to sign and monitor criminal conciliation agreements; this will be ensured by state litigation. The commission acts like an investigating judge or a disciplinary council in the public service.
What then is the role of the National Security Council?
The National Security Council – composed of the president of parliament, the head of government, the ministers of the Interior, Finance, Justice, Foreign Affairs, and Defense, and the head of the National Intelligence Center – now has the decision-making power. The Council can refuse the financial proposals submitted by the commission, accept them, or revise them, but only upwards. In the first decree law, 20% of the funds went to community enterprises, and the remaining 80% was intended for local projects in deprived areas. From now on they can be used, totally or partially, to finance national projects identified by the CNS.
What impact on the people concerned?
Those concerned will only have the choice between prison and payment of a ransom. An applicant who evades execution of the agreement and who flees abroad is exposed to confiscation of his property, that of his wife, and that of his ascendants and descendants. A collective punishment, socially and legally unjustified, which will create family tragedies. Take a civil servant who leads an orderly life and owns his home. His brother, with whom he broke up years ago, has enriched himself illicitly and is being prosecuted within the framework of criminal conciliation; he fled abroad. And our civil servant will be deprived of the apartment for which he is still paying off the loan. This injustice will have a profound impact on society. However, a Koranic principle that sets jurisprudence ensures that “no one can be prosecuted for what he has not committed”.
How is the Commission itself organized?
We see a centralization of all the institutions concerned with penal conciliation. Judicial power is reduced with the exclusion of the legal and financial control of the Court of Auditors. The Commission has three magistrates: administrative, financial, and judicial. The weakening of the Commission leads to that of the magistrates in this instance, as proof the signing of the agreement which was the responsibility of a magistrate now falls to the State litigation manager. Another element that marks this decline: the Minister of Justice can replace all the judges cited in the text, in particular the advocate general, in the courts of appeal and of the Court of Cassation. The politician thus replaces the magistrates. Furthermore, the judges of the Commission are appointed for an indefinite period, without the Superior Council of the Judiciary being informed, although its opinion is obligatory for any movement in the career of a magistrate. Justice does not react and still lives in the time of silent films.
Doesn’t this bill go too far?
This text allows for extensions and may concern, under criminal conciliation, people who participated in the privatization, transfer, or acquisition of public companies. This goes further than the initial objectives of recovery of stolen property or compensation following embezzlement or in cases of corruption. In addition, the major obstacles have not been eliminated, in particular the impossible deadlines: seven days for the administrations to send the requested documents, twenty days for the expert’s report, and four months to deliberate on the file. The system gets carried away and becomes unreasonable and absurd when it adds, to the restitution of the principal due, annual inflation, and a penalty of 10% per year. It’s becoming unreal.
What will be the impact of this new maneuver?
It will lead to an increase in arrests to guarantee the execution of the text. This recalls the method of Mohamed Ben Salman, crown prince of Saudi Arabia, who to put pressure on businessmen locked them up at the Ritz. In Tunisia, they are taken to Mornaguia prison. The feeling of injustice will prevail. Tunisians often quote the sociologist Ibn Khaldoun who spoke of “injustice as a hand extended without limits and which meets no counter-powers”. The chances of failure are serious, but above all, it is to be feared that Tunisia will burst into flames, like a leaf stained with oil.
